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It is the main element of the juridical relation which includes rights of the active party and
obligations of the passive party. Within a civil juridical relationship the rights and obligations are
interdependent. It means that to the right of the active party it corresponds the obligations of the
passive party, and vice versa.
Sometimes only one of the parties has the position of the debtor and only the other one is the
creditor (e.g. borrowing contract one of the parties will be the debtor, the other one being the
creditor).
There are some civil juridical relations in which both parties have at the same time rights and
obligations (e.g. the selling contract both parties have the double quality of active and passive
party). In such a case the rights are interdependent and mutual.
The content of a juridical relation has 2 components:
The active party which includes the rights
The passive party which includes the duties
Civil Rights
The right is the juridical possibility recognized by the law to a natural or legal person to have
within the limits of the law a certain behavior and to pretend to the other persons, as passive
subjects, one of the 3 things: to give, to do, not to do something.
To give to transfer a real right (the right of property)
To do to perform a certain activity, a positive action in favor of the active party (e.g. the
obligation of the employee in the benefit of the employer)
Not to do the obligation of the passive subject to abstain to do something that he is
otherwise entitled to do (the clause of non-competition)
The rights can be classified based on their content in patrimonial and non-patrimonial rights.
The non-patrimonial rights are those with no economic content (e.g. right to life, copyright).
Patrimonial rights have an economic content. They can be evaluated in money.
In case of patrimonial rights we have debt rights and real rights.
1. Debt rights. The active party is the creditor and he can pretend to the other party (debtor) to
give, to do, or not to do something. Both subjects are known from the beginning.
2. Real rights. Are those rights according to which their owners can exercise the attributes to
the goods without the intervention of another person?
In case of a real right only the active subject is determined. We only know the active side. In the
passive side we include the whole society, all members of the society. They will have the general
obligation to do nothing in order to disturb the real right. Real rights are rights connected to goods.
In case of the debt right we know both subjects. We know the active subject (the creditor), and the
passive subject is also determined from the beginning, from the moment when the contract has been
concluded.
There are 3 main elements of distinction:
Only in case of the debt right the passive subject is known from the beginning
Real rights are limited in number. They are expressly provided and regulated by the law. The
debt rights are unlimited. They are at the simple imagination of the parties. They may create
any contract according to their interest.
In case of a debt right the corresponding obligation may be to give, to do or not to do
something. In case of a real right the corresponding obligation is always not to do.
The first kinds of obligations to give, to do are positive obligations, they consist of actions.
The last one, not to do, is a negative obligation. It consists of an abstention, in refraining from
doing something. It may correspond, to a debt right and real right. Its content is different in each
case. The negative obligation which is corresponding to a debt right has a precise content. It belongs
to a certain person. The negative obligation which corresponds to a real right has an undetermined
content and it belongs to an undetermined person. By not to do a person refrains from doing an
action that is not forbidden by the law, but the debtor himself, through his own will has limited his
own right. (E.g. the debtor can sell by concluding the contract though his own will has limited his
right).
The most important distinction between the debt rights and the real rights is that the debt
rights are relative rights, while the real rights and the non-patrimonial rights are absolute rights.
The relative right. According to it the definite active subject (the creditor) has the
possibility to pretend from the definite passive subject a certain behavior, to give, to do or not to do
something for him. Both the active and the passive subjects are determined from the beginning of
the juridical relationship. A relative right is only opposable to a definite person (it is opposable erga
certam personam).
The absolute rights. They are civil rights according to which the established owner has the
possibility to exercise it alone and all the other persons have the general and negative obligation not
to do something that could jeopardize the owners right. The juridical relation that contains an
absolute right is established between the owner, as definite active subject and all the other persons as
passive subjects. We may say that absolute right is opposable to all persons (opposable erga omnes).
It means that everybody has to observe the owners absolute right. The real rights and all the nonpatrimonial rights are very similar
E.g.: Property right and the right to a name. They can be exercised in front of everybody. In both
cases we have an active subject who exercises the right alone. Both are opposable erga omnes.
Real rights may be:
1. Principal real rights. They dont depend on any other rights. They are self sufficient.
E.g.: Property rights. The property rights include 3 prerogatives: the possession, the use, the
disposition. Since the property is a complex right it may be dismembered into components, and
the rights which result are named dismemberments of property (e.g. It is possible to separate
the disposal prerogative from the other two prerogatives. A certain person can possess and use
the good and another person can dispose of it. The dismemberment is called usufruct in this
case). The dismemberments have the same configuration as the property right itself. They are
real, principal, and absolute rights. The owner (active subject) may be a private person (a rule)
or a public person (the exception).
In case of private property the owner can be any person, any individual or legal person, or even
the state.
In case of public property the owner can only be the state or the local authorities.
2. The accessory rights. They depend on a debt right. In this category we may include the
mortgage and the pledge.
The mortgage has 2 meanings:
It is a contract between the parties
It is a right (real, patrimonial, absolute right)
According to our Civil Code the mortgage contract can be concluded between an owner of a real
estate which is in the same time the debtor and his creditor. The mortgage is considered to be in the
same time a real right, on the affected property constituted as a corporal security to the payment of a
an obligation. Upon the Civil Code the mortgage can be constituted not only on the basis of the
contract but also on the basis of the law.
There are 2 kinds of mortgages:
The legal mortgage. E.g.: It can be found in the law regarding the financial administrator.
The employment contract in their case can be concluded only constituting a certain
mortgage.
The conventional mortgage. It is that net imposed by the law but concluded between parties
as an expression of their own interests.
The mortgage contract has the following characteristics:
1. It has an accessory character. Its existence depends on the existence of the principal
contract
2. The mortgage has a formal character. It means that the mortgage contract may be
concluded only in an authentic form required by the law for the validity of the contract.
The mortgage right has the following characteristics:
1. It is a real right. It is a real right because it may be exercised directly on the real estate. If
the debtor doesnt pay his obligation to the creditor, the real estate will be sold in a public
auction and the creditor will see his claim covered from the price obtained through this
auction. Even if the debtor, the owner of the real estate, sells the house, the land to a third
person the creditor has the possibility to ask for this public auction.
2. It is an accessory right. If the debtor fulfills his obligation the mortgage is instantly
extinguished. It cannot survive being an accessory right. In case of a mortgage the principle
of specialization is applicable. If there are more than one claims of the creditor, the
mortgage has to be specialized.
3. It is indivisible. Even if the debt has been partially paid, the mortgage over the whole estate
continues to exist until the final payment of the debt.
4. It has an estate character. Unlike the pledge, the object of a mortgage can only be a real
estate. In case of a pledge the objects may be goods. The debtor has to be the owner of the
real estate in the moment of conclusion of the contract. But the mortgage has not as
consequence the dispossession of the debtor. The debtor will be able to exercise all his
prerogatives resulting from his property rights. He also has the right to alienate the real
estate. As a consequence the auction of the real estate is possible even if it is now under
somebody elses property.
In conclusion:
The active subject has 2 rights:
A debt right - opposable only to the debtor the right to pretend the payment
A real right opposable to any person who would be the owner of the estate at the moment
of the settling day. The real right is accessory; it depends on the debt right. If the debtor will
make the payment, the mortgages will com to an end.