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universul juridic magazin
Revista Română de Drept Privat

Reflections on the transfer of the property right and the obligation to assign in the purchase agreement


Transfer of the property right through the purchase agreement is governed in the Romanian civil law by the principle of unity, the principle of causality and by the principle of mutual consent, principles that arise from the interpretation of art. 971 and of art. 1295 from the current Romanian Civil Code. The principle of mutual consent includes various aspects. It can be considered both as the opposite of formalism and as one of the imaginable systems to regulate transfer of the property right.
From the historical evolution of the solo consensu transfer of the property right it can be deduced that it is both a creation of the French legal practice which, under the pressure of the imperative needs of speed of commerce, has imposed the insertion of the clause „dessaisine-saisine” in the purchase agreements and of the school of natural law whose advocates have substantiated in a doctrinaire manner the theory of transfer of property solo consensu. The French and Romanian system of transfer of the property right can be The French and Romanian system of transfer of the property right can be characterized by: simplicity, celerity and clandestinity.
The exceptions from the rule of transfer of the property right solo consensu are multiple. They can be divided in: doctrinaire exceptions from the rule of transfer of the property right solo consensu, exceptions that consider the parties’ will, exceptions that consider the nature of the goods to be transferred and exceptions regarding the effect of transfer of the property right on third parties.
The debate regarding the obligation to assign is closely correlated with transfer of the property right. The obligation to assign does not make reference to any performance, but to a right in rem, with the purpose to entitle the creditor owner or holder of another right in rem. The notion of the obligation to assign has met a continuous and parallel evolution with that of notion of property. Initially the obligation to assign was defined as an obligation to hand over, namely that of rendering a real tangible asset. Subsequently, it was characterized as an obligation to hand over that generates a translative effect of property. The modern legal doctrine defines the obligation to assign as the obligation to form or transfer a right in rem.
The modern legal literature is divided between the partisans of the existence of the obligation to assign and those who advocate that the existence of the obligation to assign is incompatible with solo consensu transfer of the property right. In fact, we should understand that the obligation to assign does not represent a real obligation designed for a specific performance, but a category of obligations, namely all obligations to perform which, by means of legal fiction, contribute to the completion of the transfer of the property right or to the formation of another right in rem.
The solutions adopted by the new Romanian Civil Code regarding transfer of the property right can not be considered by any means innovative. Transfer of the property right takes place solo consensu by obtaining the parties’ agreement. The rule, however, applies only to movable property res certa, individually determined. Transfer of the immovable property right under the new Civil Code shall be segregated into a compulsory act that shall lead to the creation of the obligation to transfer or form a right in rem and registration in the land book, designed to attain the acquiring effect of rights in rem. The differentiation of legal regime between the movable and immovable property regarding transfer of the property right established by the new Civil Code is objectionable. Equally objectionable is conservation of the obligation to assign in parallel with establishment of the rule regarding the transfer de jure of the property right in the purchase agreement. Comparative law shows that the majority of the European systems have related transfer of the property right with the moment of handing over the good, a solution that could have been adopted also in the new Romanian Civil Code.