8. Antecontractul de vânzare-cumpărare și efectele sale în procedura insolvenței. Dreptul de opțiune al creditorilor între încheierea contractului în formă autentică și înscrierea la masa credală
8. The preliminary sale and purchase agreement and its effects in insolvency proceedings. The creditors' right of option between the conclusion of the contract in authentic form and its entry in the creditor's estate

Summary/Abstract: The pre contract of sale and purchase concluded before the opening of the insolvency procedure gives the creditor the right, in case of culpable non execution until the debtor enters the insolvency procedure, to request in the procedure both the forced execution of it in kind, by perfecting the sale and purchase contract under the conditions of art. 131 of Law 85/2014, and the equivalent execution, by formulating the claim statement under the conditions of art. 102 par. 1 of the Law 85/2014, in the case of the main exercise of the right regarding the conclusion of the legal act in authentic form, the registration of the claim in the credal table being done under the resolutive condition, according to article 1.401 paragraph 1 of the Civil Code, the conclusion of the contract determining the termination of the right of claim. The creditor's right of claim does not arise, in the case of non conclusion of the sale purchase contract, after the moment of ascertaining the impossibility of enforced execution in kind, but it arises at the time when the obligation to execute becomes due, i.e. upon the date of fulfillment of the term set by the parties for the conclusion of the legal act, and will be retroactively abolished in the situation where the obligation is executed in kind, i.e. the sale purchase contract is concluded in authentic form. The formulation by the creditor of the statement of claim and the request to register in the debtor's credit table with the value of the damage suffered as a result of the culpable non execution of the sales obligation by the promising seller is clearly required in the insolvency procedure, even if the creditor does not request as the main option the equivalent execution of the pre contract, since for the formulation of the statement of claim the legislator sets a deadline, namely 45 days from the opening of the procedure, according to Art. 100 par. (1) lit. b) from Law 85/2014, in case of non compliance with the legal deadline, the creditor being deprived of the right to formulate a claim statement, according to art. 114 par. (1) from the same normative act, no longer being able to request its execution in another way. By formulating the debt statement, the creditor thus protects his right based on the concluded pre contract, even if he does not pursue its execution in the main way, making sure that in case of non conclusion of the contract during the procedure, he does not lose a right based on a valid binding legal relationship concluded. The term in which the creditor can demand the enforced execution of the pre contract, in any of its forms, is subject to the extinguishing prescription, but it can be interrupted, under the conditions of art 2.537 point 1 of the Civil Code, by the recognition in any way of the right whose action is prescribed, made by the person for whose benefit the prescription runs. Handing over the good that forms the subject of the pre sale purchase contract for the use of the person who is going to buy it is equivalent to a tacit recognition, which interrupts the statute of limitations. The lack of the handover minute of the asset does not prevent the interruption of the limitation period, being sufficient, under the conditions of art. 2.538 par. 2 of the Civil Code, to be in the presence of a tacit recognition, that the manifestation of will is unquestionable, allowing the use of the asset and its use interrupting the limitation period.

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