Transformarea obligațiilor prin novație în reglementarea Codului civil
The transformation of obligations trough novation in the regulation of the Civile Code

Summary/Abstract: The analysis of the regulatory framework of novation provided the opportunity to approach novation in connection to other legal mechanisms for the transmission of obligations that also incorporate a transformative process, as novation, at the subject level, in turn claims the translative process. The analysis of the overlap of novation with other mechanisms aimed at marking the elements of differentiation and particularization of these institutions with predominantly transformative and adjacent translative valences in the case of subjective novation. Novation by changing the object was analyzed in comparison with the institution of giving in payment, emphasizing that giving in payment occurs with payment, while novation by changing the object occurs before payment and is accompanied by the simultaneous birth of a new obligation causally determined by the extinguishing effect of the initial obligation. Novation by changing the cause refers to the source of the obligational relationship as the generating fact, on which the debtor's debt is based, while novation by changing the modality is limited only to the condition because only this is able to affect the essence of the obligational relationship, without distinction of the suspensive or resolutory character of the condition. The extinctive effect of novation refers to all the clauses of the contractual source of the initial obligation, to its exceptions, actions, accessories and guarantees. The analysis of the effects of novation gave rise to the reference to the doctrinal interpretation of art. 1611 of the Civil Code, which concluded that the extinctive effect of novation with regard to the debtor's guarantees occurs only in the case of novation by change of debtor and not in the other types of novation. The extinguishing of the guarantees assumed by the debtor or by third parties, regardless of whether the latter's guarantees are real or personal, occurs only in the absence of their contrary consent. Furthermore, in the effects of novation, the methods of defense in the event of novation by one of the solidary debtors, one of the solidary creditors, as well as in the case of indivisible obligations, with the limits of the releasing effects and of the guarantees constituted by parties or third parties, were analyzed.

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