ro fr
universul juridic magazin

The preciput clause within the context of regulation of the new romanian civil code. comparative approach

In view of the regulation of art. 333 of the New Romanian Civil Code, the preciput clause represents the agreement of future spouses or, if appropriate, of spouses enclosed in the matrimonial convention which entitles the surviving spouse to free possession right, prior to the division of the inheritance, of one or several commonly held goods, in joint or co-property. The preciput clause is compatible with either of the two alternative matrimonial regimes provided by the New Romanian Civil Code, namely separation of goods and conventional community of assets. As opposed to the French regulation with regard to this aspect, from where institution has been borrowed, the Romanian legislator does not grant an express competence to the preciput clause. Taking into consideration the purpose of its proclamation, it can be considered that it has the legal nature of a distinct matrimonial advantage. Enforcement of the mechanism of preciput clause is not designed to lead to the injury of the interests of the heirs entitled to a portion of the inheritance, being expressly stipulated that this clause is subject to reduction, under the legal provisions, whenever the disposable portion is exceeded, the reduction being subject, by means of similarity, to the same legal rules that regulate reduction of testamentary disposition. The goods subject to the preciput clause are not inalienable and non seizable, joint creditors preserving their right to pursue the respective goods in order to meet debts.