N. 7 – 2008 – Note &
Rassegne
The Roman sources
of obligations in the Romanian
Codes from the 19th century
Institute of Social and Humanistic Investigation
Romanian Academy
Craiova, Romania
During the second half on the 18th century and the first half of
the 19th one, due to the increasing dependence of the Romanian countries upon
the Otoman Empire, they could not maintain direct diplomatic rapports with the
other countries, their interests being included in the bilateral and
multilateral treaties, concluded between Turkey, Russia and Austria[1].
In the 18th and the 19th century, a whole series of treaties will
start giving the Romanian countries more and more independence, starting with
the treaty of Kuciuk – Kainargi, signed between Russia and Turkey on the
10th/ 21st of July 1774, limitating the Turkish interference in the Romanian
Principalities. The additional act of the Convention of Akkerman (7th October
1826) established that, if the throne was to remain vacant, a caimacan will be
named, in order to take care of the country’s administration until the
election of a new prince.
The treaty of Adrianople (14th September 1829) guaranteed the
internal sovereignty of the Romanian countries, as well as their complete
economic freedom.
Due to the Treaty of Paris from the 30th March 1856, the tsarist
protectorate over the Romanian Principalities was replaced with the one of the
seven European powers who concluded the treaty. The Convention from Paris
(7th/9th August 1858) was considered to be the fundamental act, which approved
the organization of the Romanian Countries on modern basis, creating the
perfect juridical picture for the unification of the two principalities.
At the end of the 18th century, the most important juridical codes
started to appear, including some new dispositions: Alexandru Ipsilanti’s
Code (1780), Donici’s Manuel (1814), the Calimach Code (1817) and
Caradgea’s Code (1818). It is extremely easy to observe that the first
important Romanian juridical Code appeared shortly after the treaty of Kuciuk
– Kainargi who had limited, as we have formally affirmed Turky’s
power upon the Principalities. Before 1774, the Romanian countries, although
representing a subject of international law, were not in powered to sign
international contracts.
In the common law, the sources of obligations were the contracts
and the delinquencies, and afterwards, in the statutory law, it appeared the
rule. The ancient Romanian law did not elaborate a general theory of
obligations, being concerned about the particular cases.
The main modality of ceasing the obligation, in the Calimach Code,
was, likewise in the Roma Law, the payment: «The obligation disappears,
first of all, through payment, when someone gives or does something he was
obliged to give or do»[2].
The payment could be made by the debtor or a third person[3]
and was received by the creditor, or his mandatory[4].
The payment could be done on the installment scheme only with the approval of
the creditor[5],
and if the debtor had more than one debt at the same creditor and there were
any doubts regarding the debt he wanted to extinguish, it was admitted that he
had pay «the one that was going to relieve him most»[6].
The compensation extinguished, such as in the Roman law, ipso iure, the mutual obligations[7].
The Calimach Code specified that the obligations could be
extinguished by «forgiveness of the debt»[8].
The obligations could be extinguished no matter the will of the two parts in
case of impossibility of execution («the
casual lost of a decided thing»[9]),
confusion («union» or
«the merger in ownership»)[10],
death[11]
and «by the expiring of the
deadline»[12].
In the ancient Romanian law, the personal guaranty was named
surety. Her legal status was established by using the Romano-Byzantine norms of
law, which entered the common law in such a manner that the codes elaborated in
the 19th century remind us of the classical norms of the Roman law[13]:
the obligation of the guarantor could not be more onerous that the one of the
debtor, but the guarantor that committed himself without specifying the amount
guaranteed was obliged to pay all the accessories of the debt[14];
the benefit of the transfer of actions is recognized to the guarantor, as well
as for the beneficium ordinis seu
excussionis and he is given the possibility of being guaranteed by another
bail.
The real contracts
The proper loan
The proper loan, practiced a lot of time ago by all social
categories, was sporadically regulated until the 18th century. Alexandru
Ipsilanti’s Code[15],
Alexandru Donici’s Juridical Manual[16] and especially The Calimach Code[17]
and Caradgea’s Code[18]
regulated it properly.
The dispositions of Roman law regarding the mutuum were included, almost entirely, by the Calimach Code: the
loan is a real contract[19]
having for object the consumptible things[20]
which become the property of the person who received the loan, the latter being
obliged to return at the accorded moment «the things in the same quantity
and quality and of the same kind»[21].
The loan of money was contracted with an interest, whose guaranty
was established by the two parts, which favorised the possibility of practicing
some enormous interests that could reach 300 per cent a year. Consequently,
this could ruin the debtors. In order to avoid it, Ipsilanti’s Code[22]
established the maximum legal interest of 10% a year, this percentage being
kept by Caradgea’s Code[23]
and the Calimach Code[24].
Likewise in Justinian’s law, the 19th century codes forbid the anatocism[25].
The commodate
The contract of commodate was acquainted by the ancient unwritten
Romanian law, as well as by the statutory one. The regulation of the commodate in the Calimach Code[26]
was entirely Roman: the commodate
is a real contract[27]
with free title, having for object an unconsumptible thing; the borrower in the
commodate should use the thing according to the convention with the lender of
the commodate[28],
to return it “unharmed”[29]
, to sustain the charges of maintenance of the thing[30]
and to answer for the deceit and the culpa
levis in abstracto[31];
the lender was obliged to allow the borrower to use the thing during the
accorded period, without being able to pretend the return of the thing before
the accorded date from the contract[32].
The bailment
The contract of bailment is an old institution, attested in a
Moldavian document, emitted on the 5th of June 1449, but the technical name of
“bailment” first appeared in Donici’s Juridical Manuel (16th century). It was fully regulated in the
spirit of Roman norms, both in the Calimach Code (art. 1291-1309) and
Caradgea’s Law (III, 22, 1-21 and III, 23, 1-5): the bail is a real
contract[33];
the precarious possession of a thing the depositary was obliged to keep the
thing he had been entrusted with as his own[34],
he could not make use of the thing[35]
and to return it when the date appointed in the contract expires or if the
deponent wants it back[36].
The deponent had to indemnify the depositary if the deposited
thing had caused him damages[37]
and when the depositary had to make expenses to preserve the thing[38].
Both codes also regulated the special forms of bailment: the necessary bailment[39],
the irregular bailment[40]
and the execution bailment[41]
.
The consensual contracts
The contract of location was sporadically regulated until the beginning of the 19th
century. The Calimach Code stipulated 100 articles for this contract, a special
attention being showed by Caradgea’s Code, whose chapter regarding the
rent or lease suffered important modifications in 1852. the main effects of
this contract coincided with the Roman norms in this matter.
The contract of society was acquainted by the Ancient Romanian Law, in the Middle Ages,
and received a modern adjustment at the beginning of the 19th century, his
evolution being closely related to the increasing of the production of goods
and to the commercial activities.
The classical Roman norms were included by the Calimach Code[42]
and in the articles 1-22 from the third part of Caradgea’s Code. The
society could include some things of the partners or «their whole fortune»[43];
the partners were obliged to bring in the association the promised part[44]
and to take part in the win, or to endure the loss, proportional to each
one’s contribution.
The Romanian Civil Code –
main fountain of Civil law
The main fountain of the Romanian Civil Law in force is the civil
Code. Edited by a commission of specialists, leaded by the Dean of the Law
Faculty, Constantin Bosianu, the manuscript of the Code was handed over to the
Council of Ministers in four blocks, in the period 12th – 25th November
1864, for discussion and decision. The Code was approved on the 26th November
1864 by prince Al. I. Cuza and promulgated on the 4th of December 1864. The
Romanian Civil Code, without being a copy of the French, owns it a lot, almost
two thirds of the 1914 articles were entirely or partially reproduced from
Napoleon’s code. On the other side, our code also includes other norms of
Roman Law, either indirectly, using as fountains some dispositions taken from
the Calimach Code or Caradgea’s Law, representing the Roman –
Byzantine tradition of the ancient Romanian Law, either directly, using
solution proposed by the Romanian jurist consults if they did not share the
same opinion with French authors.
In the matter of obligations regarding the notion of administration
of negotions, the Romanian code (art. 987), alike the Roman conception[45]
included the condition for the owner to ignorate the fact that another person
was administrating his negotions; also regarding the administration of
negotions, the Romanian Code contains a disposition (art. 990), which does not
have an equivalent in the French
Code and is inspired in a text were Labeo is quoted by Ulpianus[46],
according to whom the responsability of the endorser is attracted only in the
case of committing a deceit, if without his intervention, the negotion could
have been compromised. The legal
mortgage of the married woman over her husband’s goods as a guarantee for
getting her dowry back, a privilege introduced buy emperor Justinianus[47]
constitutes the object of art. 1281 from the Romanian Civil Code.
The disposition from the Romanian Civil Code Law (art. 1298)
regarding the selling with earnest money
which establishes that, in the case of not executing the contract, the guilty part
looses the earnest money , or
if it comes to it she will return the double of the earnest money, this
disposition not being mentioned in the French code, is taken from
Justinian’s Digest and Institutions (3, 23, pr. in fine).
Unlike the French (art. 1985), the Romanian code stipulated in
art. 1533, under the influence of Marcadé’s doctrine, who was an
upholder of the Roman system, that the mandate could not only be express, but,
also tacit[48].
The contract of long lease, a creation of the Postclassical Roman
law, is stipulated in the Romanian Code, taking the form of some transitory
dispositions (art. 1414 and 1415). Inexistent in Napoleon’s Code, this
contract was included in the French Law much later, through the law of the 29th
June 1929.
The obligations in the Romanian
Civil Code in force
Of all the institutions of Roman law, the one of obligations has
left the most important trace over the Modern legislations, such as professor
George Danielopol shows in
Moreover, the influence of Roman law is almost complete. The main
elements and concepts of Roman obligational law, included by the Civil Code are
the following: the sources of obligation, the civil and natural obligations,
joint and solidary, divisible and indivisible, causes that eliminate the
debtor’s responsability (the fortuit case, the major force, the
culpability, the extinguish of obligations through payment, the novation, the
compensation, the impossibility of execution, the confusion, the death of the
creditor or of the debtor etc.), the transfer of obligations through the
assignment of the claim, the surety, the security and the mortgage, then the
real contracts (the mutuum, the
commodate) and the consensual contracts.
The only important difference regarding the Roman Law are the
dispositions from articles 971 and 1295 from the Civil Code, which establish
the principle of agreement in case of transalative acts of property:
«In the contracts which have as an object the translation of property, or of
another real right, the property or the right is translated through the
agreement between the two parts, and the thing remains in the situation
that the founder supports the risk
of perish of the thing, even if the tradition of the thing has not been
don» (art. 971).
«The selling is perfect among the parts and the property is
passed to the buyer, immediately after the parts had come to an agreement on
the thing and price, even if the thing had not been delivered yet, nor the
money has been counted» (art. 1295).
The principle of agreement in the matter of transmission of the
property right and of other real rights is a creation of the French Law which,
through Napoleon’s Code, was transmitted to the modern legislations. The
Roman Law never admitted the possibility of transmitting the property as the
effect of a convention: Traditionibus et
usucapionibus dominia rerum non nudis pactis transferentur («The
property of things is transmitted through the handling over and the usucapio, not through simple conventions»).
The Romanian Civil Code, as well as the first codes of law of the
19th century has inherited, as shown, many Roman elements and the part
regarding the obligations has been extremely well developed, following the
steps of the ancient Roman jurists.