DELIMITĂRI NECESARE REFERITOARE LA MODURILE DE TRANSMISIUNE ŞI DE TRANSFORMARE A OBLIGAŢIILOR ÎN NOUL COD CIVIL. ÎŞI MAI AU ROSTUL ANUMITE INSTITUŢII JURIDICE ÎN DREPTUL NOSTRU CIVIL?
MODES OF ASSIGNING AND CHANGING OBLIGATIONS IN THE NEW CIVIL CODE. LONGER HAVE A PURPOSE CERTAIN LEGAL INSTITUTIONS IN OUR CIVIL LAW?

Summary/Abstract: According to the new Civil Code and depending on the way they apply, there are significant similarities between debt assignment and subrogation [particularly when the subrogation is assented by the creditor, by virtue of art. 1.594 New Civil Code (NCC)], and, more conspicuously, important similarities between debt assignment and subjective novation by creditor substitution (art. 1.609 par. 3 NCC), which may actually lead to difficulties in discriminating between these concepts (on the other hand, even if in separate chapters, all three ways of assigning a debt are approached as a whole by the new Civil Code under a separate heading called Assigning and changing obligations).However, at the same time, debt assignment as it is regulated by the current Civil Code, may be taken for the broader concept of contract assignment, which is dealt with separately in the Civil Code in art. 1.315-1.320, although the first operation, by its nature, may assign only the debt right arising from an obligation, whereas, the latter assigns both all the rights (including the debt rights) and all the obligations arising from the contract. Finally, debt assignment is obviously different from debt takeover, as it is made clear by the name itself, which represents a novelty in our law system, whereby an assignment of obligation is performed; in the first case, what is assigned is the debt and the debtor’s debt stays the same towards another creditor, while in the second case, a debt is transferred from one debtor to another, and the debt shall be fulfilled towards the same creditor. Nevertheless the taking over of a debt is very similar, even interchangeable, with the subjective novation by debtor substitution! We hereby intend to clarify these legal concepts and will proceed by a brief presentation of the essential elements of each obligation assignment and transformation method, respectively, concept, form and legal effects. In this way, we will fight the overly zealous approach of the lawmakers, who, in our opinion, „overregulated” the matter.

• Details
• Contents