Efectele partajului în noul Cod civil român: o (r)evoluție?
Authors:   Facultatea de Drept, Universitatea Babeș-Bolyai, Isache Dragoș 
Published: April 2021

Joint possession and settlement needed revival in 2011, yet the Legislator did not do much about it. It took from jurisprudence the regulations regarding joint possession (in the broad sense) and simply built a legal regime that in no way can satisfy the economic and social needs of joint holders. And the possibility to enter a management agreement remains in a very theoretical level that is far from practical reality, where such an agreement between joint owners does not exist. Settlement – the place where joint owners end their joint possession – was the second item that required modifications. In 1864, the Legislator took the declarative effect of settlement from French law without an analysis of its consequences on the economic level. Families were protected, but third parties, holders of real rights on the joint goods were sacrificed. This made settlement unattractive and unwanted. In 2011 the Legislator correctly identified the problem and offered the solution – that had been adopted by the French legislator since 2006, even under the rule of the declarative effect – a real subrogation with a particular title: resettlement of the guarantee on the assigned goods. This is sufficient for the rights of guaranteed creditors to be maintained in all cases. With this, the right of each joint owner to fully and efficiently use his joint ownership right was insured. Was another change in this area needed? Apparently not. Nevertheless the Legislator unexpectedly decided in 2011 to renounce the fiction of the declarative effect. What did it replace it with? The translative effect of Roman law? No! It imagined a new effect of settlement: the constitutive effect. The shock of the change was mainly felt psychologically. At that time, the fiction of the declarative effect corresponded to a psychological perception according to which the heir held the goods directly from the decreased, perception that was well grounded after more than 140 years of existence. Just as the fiction of the declarative effect – in fact a rule born out of conjunction –generated numerous debates over centuries, the new constitutive effect of settlement was had to accept in notary practice. The cause? The fear that the new consequences of the constitutive effect will conflict with the imperative rules of the community of goods in the case of settlement parties who were married on the settlement date. Indeed, any community matrimony regime is able to absorb in the settlement estate any goods purchased or obtained with onerous title by any of the spouses. But, the joint ownership right of settlement was that of an own goods. Moreover, the whole settlement was disputing own rights of the married settlement party. The doctrine limited itself to announcing the introduction of the constitutive effect without building a detailed analysis of its effects on the matrimony regimens. On our part, we suggested, at first an exhaustive analysis of the consequences of the translative and declarative effect of settlement. The purpose was to identify a ‛natural’ legal side of settlement that is its constants. Then we proved that the constitutive effect should be unitarily interpreted and applied. First of all, settlement produces a replacing effect. The share is replaced with an exclusive ownership right. It is natural that the exclusive ownership right obtained by each settlement party has the legal nature of the share it replaces. In the marital community field, this is an own goods of the married settlement party. Then, in case of settlement with allowance – that is expected to generate even more controversies – we have shown that is division does not degenerate settlement in two legal acts: settlement and sale. The settlement party who paid the allowance does not purchase anything; the settlement party receiving the allowance does not sell anything. The Legislators does not authorize such an idea, especially now that we are on the realm of the constitutive effect, where the idea of an exchange between settlement parties is excluded. The constitutive effect of settlement with allowance should be unitarily applied. For the married settlement party, the payment of the allowance represents an obligation to give that has the legal nature of an own obligation. Only its execution is carried out by using common funds of the spouses. And the increase acquiring of the goods is not a purchase in itself as it is made in the same spirit of the replacement effect of the share.