ro fr
universul juridic magazin

Waiver of claim – a comparative view

The profound amendments carried out in the Romanian civil law at the same time as the effective date of the new Civil Code were intended, inter alia, to link the legislation to the new social context, characterized by the rapidity of the trade exchanges and the development of a new economic model. In this respect, we note, as an example, the regulation of the assignment of contract and of the debt assumption, which are mechanisms providing increased flexibility in the economic relationships, such as the substantive changes in the matter of the performance of obligations, meeting the same utilitarian considerations. This study is aimed at examining the manner in which the new vision of the lawmaker was reflected in the matter of settlement of the obligations, in the specific case of waiver of the claim. Such a measure is justified, in this context, by the practical usefulness of this mechanism, for instance, in case of bank contracts (especially in case of claims portfolios) or of the utilities contracts, in which it is often called into question the need for such an operation, under the circumstances of granting certain concessions. At the same time, from the theoretical point of view, a study intended for the effects produced as a result of waiver of the claim enables us to deeply examine the legal nature of the waiver, in the context in which a part of the respective doctrine identifies the debt repayment with the waiver, as well as the detailed examination of the existing relationship between this legal act and the civil obligation. The first part of the article is intended to the study of the comparative law, since it represents an extremely useful methodological instrument, under the circumstances in which, at the national level, the approached topic was not subject to a broad debate in academic environment. Considering that the main role of the comparative law consists in the creation of an examination background enabling “the critical reflection on our legal culture”, therefore such a study is imperative. The second part of the article is intended to the examination of the waiver of the claim in the Romanian law, both in the light of the old regulation, and in the light of the new regulations introduced by the new Civil Code, and the respective examination shall take into account the distinctions and arguments resulting from the comparative law. Thus, following an overview of the stage of the respective issue in the old Civil Code, we shall try to provide an answer in relation to the effects of this mechanism in the new Code, by examining certain distinct assumptions from which, by way of interpretation, the Romanian lawmaker could reason the regulation of e new method of settlement of the obligations, namely the waiver of the claim. Finally, we herein state that this article does not contain any claims of comprehensiveness, but it is rather aimed to be a beginning of a more detailed debate in relation to this mechanism, considering that this topic was seldom approached in Romania.