14. Asocierea în participaţiune. Reguli cu relevanţă procedurală cuprinse în Codul civil. Impactul dispoziţiilor art. 1.951 şi art. 1.953 alin. (1) şi (3) C. civ. asupra condiţiei capacităţii procesuale de folosinţă a asocierii
14. Joint venture. Rules of procedural relevance contained in the Civil Code. Theimpact of the provisions of Articles 1.951 and 1.953 (1) and (3) of the Civil Code on the requirement of the joint venture’s capacity to have procedural rights and obli

Summary/Abstract: By decision analyzed, the court ruled that the joint venture regulated by the provisions of the Civil Code has procedural capacity for use, retaining the incidence of the provisions of art. 56 paragraph (2) of the Civil Procedure Code, according to which associations without legal personality can also be sued if they are established according to the law. In our opinion, contrary to those ruled by the High Court of Cassation and Justice, the provisions of the Civil Code that regulate the joint venture from a substantive point of view do not allow the applicability in this case of the procedural norm provided for in art. 56 paragraph (2) of the Civil Procedure Code, in the sense that the joint venture does not have procedural capacity of use, being unable to sue in its own name, since it does not constitute a distinct and autonomous entity in relation to the persons who concluded the joint venture contract. A joint venture is a contract by which a person grants one or more persons a participation in the benefits and losses of several operations that it undertakes. According to the provisions of art. 1.951 C. civ., a joint venture cannot acquire legal personality and does not constitute a person distinct from the person of the associates towards third parties. The third party has no rights towards the association and is only obligated towards the associate with whom it contracted. According to the provisions of art. 1.953 para. (1) C. civ., the associates, even if they act on behalf of the association, are committed in their own name towards third parties, and according to para. (3) of the same article, the partners exercise all rights arising from the contracts concluded by any of them, but the third party is held exclusively against the partner with whom he contracted, except in the case when the latter declared his capacity at the time of concluding the act. In conclusion, the joint venture does not become an autonomous entity, distinct from the persons who conclude the partnership agreement, so it does not acquire civil capacity and cannot participate in the legal circuit. Consequently, it does not have any procedural capacity of use.

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