MINISTRY OF EDUCATION, RESEARCH AND YOUTH

UNIVERSITY "LUCIAN BLAGA" IN SIBIU

FACULTY OF LAW "SIMION BĂRNUŢIU"

DOCTORAT

SUMMARY

THESIS OF DOCTORATE

" THEORETICAL AND PRACTICE ANALYSIS AND CONTRACT

MANDATE"

SCIENTIFIC GUIDE

Prof.. Dr. ALEXANDRU BACACI

DOCTORAND

Adrian Banu­Silviu

SIBIU

2008

List of abbreviation page 7­10

Alin.

Article

C.civ. Aliniat

Article

Civil code

C.civ.fr. French civil code

C.com. Commercial Code

C.D.

ECHR Case Decisions by the Supreme Court

European Court of Human Rights

C.fam.

C.m.

C.P.C. Family Code

Labor Code

The Commission for Child Protection

C.pen. Penal Code

C.pr.civ. Code of Civil Procedure

C.pr.pen.

C.silv. Criminal Procedure Code

Code forest

C.S.J.

C.vam. Supreme Court

Customs Code

Right D Magazine

Dec. Civil decision civ.

Dec. pen. Decision criminal

Dec. by

îndr.

Direction

DUDO

Etc.. Decision guidelines of the Supreme Court Plenului

Directorate of Social Welfare and Protection

Child

Universal Declaration of Human Rights

etcaetera (and other)

Jud.

Ibid

Idem High Court

in the same place

the same author

I.C.C.J.R. High Court of Cassation and Justice of Romania

H.G. Government Decision

J.N.

P.

Paragr.

The Justice Nine Points

page

paragraph

Item

Draft Project New Civil Code

N.C.P.

Lit. The new Penal Code

Letter

L.P. The People's Legality

R.R.D. The Romanian Law

O.G. Government Ordinance

O.U.G. Ordinance Emergency Government

S. civ.

S.com.

S.con.adv. Civil Section

Commercial Section

Section contentious administrative

S. pen. Criminal Section

S.C.J. The Legal Studies and Research

S. con.

adm. Section contentious administrative

S.D.R. The Romanian Education Law

Sent. civ. civil Sentinţă

Sent. pen.

S.n. Sentence criminal

Our underlin

Tribal. County Court jud

Tribal. Supr. Supreme Court

DOCTORAL THESIS PLAN

THE FIRST CHAPTER : THEORETICAL AND PRACTICAL ANALYSIS OF THE

CONDITIONS OF VALIDITY IN CIVIL MANDAT AGREEMENT

1.1.1. REGULATION OF LEGAL CONTRACT

MANDATE.

1.1.2. THE DEFINITION OF THE CIVIL MANDATE AGREEMENT

1.1.3 JURIDICAL CHARACTERS OF CIVIL MANDAT AGREEMENT

1.1.2.1.PREVIOUS PRECONDICIONS

1.1.2.2.THE NAMED ( SPECIFIED) CHARACTER

1.1.2.3.MAINLY, THE CHARACTER IS UNILATERAL

1.1.2.4.PRINCIPALLY, THE CHARACTER IS GRATUITOUS

1.1.2.5.PRINCIPALLY, THE CHARACTER IS CONSENSUAL

1.1.2.6.PRINCIPALLY, THE CHARACTER IS UNO ICTU

1.1.2.7. THE INTUITU PERSONAE CHARACTER

THEORETICAL AND PRACTICAL ASPECTS REFFERING ON THE CONDITIONS IN

FORM AND FOR PROOF OF CIVIL MANDATE AGREEMENT

1.2.1. THE FORM OF CIVIL CONTRACT MANDATE

1.2.1.1. GENERAL POINTS

1.2.1.2. . REQUIREMENTS FORM FOR THE CIVIL CONTRACT TERM.

A. GENERAL RULE

B. EXCEPTIONS TO THE GENERAL RULE

C. EXPRESS MANDATE AND MUTUAL MANDATE.

D. MANDATE APPARENTLY

2.1.2. THE AGENT PROOF.

2.1.2.1. GENERAL POINTS

2.1.2.2. SPECIAL RULES APPLY IN RESPECT OF

MANDATE LIKELIHOOD

1.3. THEORETICAL AND PRACTICAL QUESTIONS ABOUT

FORM AND CONDITIONS FOR PROOF OF CIVIL MANDATE AGREEMENT

1.3.1. PREVIOUS PRECISIONS

1.3.2. PARTY ‘ CAPACITY

1.3.2.1. CAPACITY OF MANDANTE(OFFICER)

1.3.2.2. CAPACITY OF THE REPRESENTATIVE

1.3.3. THE CONSENT

1.3.3.1. GENERAL POINTS

1.3.3.2. CHALLENGES MANDATE OF THE OFFER AND ACCEPTANCE OF THE

MANDATE

1.3.3.31.3.3.3. ACT ITSELF WITH HIMSELF AND DUAL REPRESENTATION OR SELF­

CONTROL

1.3.3.4. MANDATE IN COMMON INTEREST

1.3.4. SUBJECT AND CIVIL MANDATE

1.3.4.1. GENERAL POINTS

1.3.4.2. THE OBJECT OF THE OFFICE

1.3.4.3. EXTENT OF OFFICE

A. GENERAL ASPECTS

B. PRIVATE MANDATE

C. GENERAL MANDATE

1.3.5. DUE TO CONTRACT OF CIVIL MANDATE

CHAPTER II. THEORETICAL ANALYSIS ON PRACTICE

LEGAL EFFECTS OF CIVIL MANDATE CONTRACT

2.1. MANDATE OF CONTRACT BETWEEN CIVIL PARTIES.

2.1.1. REPRESENTATIVE’S OBLIGATIONS

2.1.1.1. GENERAL POINTS

2.1.1.2. FULFILLING THE MANDATE

2.1.1.3. THE OBLIGATION TO GIVE RATIO

2.1.1.4. THE OBLIGATION TO RESPOND REPRESENTATIVE OF THE FACTS AND THE

PERSON WHO WAS A SUBSTITUTE­IN FULFILLING THE MANDATE

2.1.1.5. THE PLURALITY OF AGENTS

2.1.2. OFFICER’S (MANDANTE’S) OBLIGATIONS

2.1.2.1. GENERAL ASPECTS

2.1.2.2. DUTY TO MEET CONTRACTED OBLIGATIONS

NAME AND CONSIDERATION TO

2.1.2.3. THE OBLIGATION OF UNDETRIMENT FOR THE REPRESENTATIVE

2.1.2.4. THE OBLIGATION FOR PAYMENT OF REMUNERATION

2.1.2.5. THE SOLIDARITY OF OFFICERS

2.1.2.6. RIGHT RETENTION OF RETENTION REPRESENTATIVE

2.2.THE EFFECTS FOR MANDATE OF CONTRACT TO CIVIL

NON­MEMBERS.

2.2.1. THE REPORTS BETWEEN OFFICER (MANDANTE) AND THIRD PARTIES

2.2.2. THE REPORTS BETWEEN REPRESETATIVE AND THIRD PARTIES

2.3. CESSATION OF CICIL CONTRACT MANDATE’S EFFECTS

2.3.1. CASESE IN CONTRACT TERMINATION OF CIVIL MANDATE

2.3.1.1. GENERAL ASPECTS 2.3.1.2. REVOCATION OF OFFICE(MANDATE)

2.3.1.3. WAIVING THE MANDATE

2.3.1.4. DEATH OF A PARTY

2.3.1.5. OTHER CASES OF TERMINATION OF THE MANDATE

2.3.2. THE EFFECTS IN TERMINATION OF CIVIL CONTRACT MANDATE

CHAPTER III. LEGAL ASPECTS OF PARTICLULARLY JURIDICAL ASPECTS OF THE

CIVIL MANDATE WITHOUT REPRESENTATION

1.3. INTRODUCTORY NOTIONS RELATING TO CIVIL MANDATE

WITHOUT REPRESENTATION.

3.1.1. THE NOTION OF CILVIL MANDATE WITHOUT REPRESENTATION

3.1.2. SPECIES OF CONTRACT OF CIVIL MANDATE WITHOUT

REPRESENTATION

3.1.2.1. THE COMMISSION CONTRACT

A. GENERAL ASPECTS

B. THE COMMISSION ENVISAGED IN THE DRAFT REGULATION

CIVIL CODE

3.1.2.2. THE CONSIGNMENT CONTRACT

A. GENERA ASPECTS

B. THE CONSIGNMENT ENVISAGED IN THE DRAFT REGULATION

CIVIL CODE

3.1.2.3. THE DISPATCH CONTRACT A. GENERAL ASPECTS

B. THE PLANNED DISPATCH OF REGULATING THE PROJECT

CIVIL CODE

.1.2.4. THE HUMAN BEEING INTERPOSES CONTRACT

3.2. THE LAW OF THE CIVIL MANDATE WITHOUT

REPRESENTATION

3.2.1.THE INTERSECTS CONVENTION

3.2.2. THE REPORTS BETWEEN OFFICE AND REPRESENTATIVE

IN THE CIVIL MANDATE CASE WITHOUT REPRESENTATION

3.2.3. THE REPORTS BETWEEN THE PARTIES FROM MANDATE

REPRESENTATION AND THIRD PARTIES

3.3. CASES OF INAPPLICATION IN A CIVIL MANDATE

WITHOUT REPRESENTATION

CHAPTER IV. PARTICULARLY ASPECTS OF THE MANDATE IN SOME CIVIL LEGAL

MATTERS

4.1. GENERAL ASPECTS ON JURIDICAL AND CONVENTIONAL REPRESENTATION

THROUGH THE ADVOCATE

4.1.1. INTRODUCTORY NOTIONS ON CONTRACT FOR

LEGAL ASSISTANCE

4.1.2. LEGAL NATURE, DISCUSSED, DEFINITION AND THE LEGAL CHARACTERS OF

CONTRACT FOR LEGAL ASSISTANCE

4.2. MUTUAL AND TACITE COUPLE’S MANDATE

4.2.1. GENERAL ASPECTS ON MUTUAL AND TACITE SPOUSES’ MANDATE

4.2.2. INVALIDITY ACTS THROUGH WHAT ARE OVERLOOKED

LEGAL PROVISIONS RELATING TO MUTUAL AND TACITE SPOUSES’S MANDATE

4.2.3. MUTUAL AND TACITE SPOUSES’S MANDATE FORESEED BY THE PROJECT OF

CIVIL CODE

4.3. GENERAL ASPECTS REGARDING ADMINISTRATION MANDATE IN RIGHT OF

THE AUTHOR’S MATTER AND CONNECTED RIGHTS

4.3.1. COLLECTIVE ADMINISTRATION CONTRACT

4.3.2. BODIES OF COLLECTIVE MANAGEMENT OPERATION

V. SELECTIVE BIBLIOGRAPHY

4.1. LEGISLATION

4.2. DOCTRINE

4.3. CASE­LAW OR JURICEPRUDENCE

SECTION 1.1.

THEORETICAL AND PRACTICAL ANALYSIS OF THE CONDITIONS OF VALIDITY IN

CIVIL MANDAT AGREEMENT

1.1.1. REGULATION OF LEGAL CONTRACT

MANDATE.

1.1.1.1. Precise preconditions.

The doctrine said that his mandate is at the origin of all contracts 1 . Without being so kind with it, we

appreciate that the mandate of special importance because, through him, it is easier to end other civil

or commercial contracts are legal relationships dynamised by private law.

1.1.1.2. Legal regulation of the contract term.

The mandate, appointed in plastic and doctrine contract with a thousand faces 2 , occupies a special

place among civil contracts because, through it, participants can complete the circuit civil, in

principle, any legal act, except for which puts the law expressly provided that the staff concluded by

the parties 3 .

1.1.2. THE DEFINITION OF CIVIL CONTRACT MANDATE.

1.1.2.1. General points.

1 See: Ph. Malaurie and L. Aynés, Cours de droit civil. The contracts speciaux, Editions Cujas, Paris, 1991, p. 235.

2 See: Fr. Dutilleul and Ph. Delebeque, civils et comercieux Contracts, Publishing Dalloz, Paris, 1993, p. 339.

3 So, in principle, can not be made by representative legal acts strictly personal (intuitu persons), such as, for example, the end of a marriage because, in this case, according to art. Article 16. 1 C.fam., Future spouses are required to give consent to the marriage personally, in front of marital officer status and in the presence of two witnesses. There are, however, legal acts, even strictly personal, which may be made by special representative to procure authentic. For instance, the recognition of maternity, in conditions of art. 48 C.fam. Or recognition of paternity of the child outside marriage, according to art. 57 C.fam. May be made by the attorney with special authentic. In this regard, see: Al. Bacaci, VC and C. Hageanu Dumitrache, family law, edition 6, Publishing CH Beck, Bucharest, 2007, p.176 and 202.

According to art. 942 C.civ., The contract is the agreement between two or more persons to be

extinguished or between dânşii a legal report (sn) 4 .

In our opinion, the definition of civil contract, given the legal texts cited, in addition to an apparent

disagreement between the grammatical subject of "persons" and name "them" is flaw in at least four

aspects, namely:

­­ Firstly, it failed to make an indication that we are talking about an agreement will. Indeed, is widely

accepted in doctrine that a contract can not exist without the wishes of the contracting parties 5 .

Actually, whether under a contract there is no agreement between the contracting parties will, would

be brought into question their legal equality, that is a key qualification for the contract as being civil

in nature;

Secondly, there isn’t surprised circumstance that, by contract, the parties may change and legal

relationships. This conclusion is free from it, but classic principle of law according to which that

potest maius, potest and less, that is, specifically, who can conclude a contract or dies, and may

modify that contract;

1.1.2.2. The definition of the contract term.

In Roman law, the mandate was an agreement by which a person called agent is obliged to provide a

free service for the benefit of another person, called mandante.

The mandate has taken the form of an agreement to end the Republic only in terms of diversifying the

economy and the development of trade relations, when the same person had to defend their interests at

the same time in different places. Missing long time from home, the Romans recurgeau services to

others for the purpose of administration of goods or recovery of rights. Obviously, those absent could

not use the services of slaves, whereas the latter, even if have the necessary intellectual qualities,

4 According to art. 1001 French of the Civil Code, the contract is a convention at par une ou plusieurs quelle people s'obligent envers an egg to give others a cause, or we do not quelque chose. 5 See: R. Niţoiu, general theory of random contracts, Publishing All Beck, Bucharest, 2003, p. 6; TR Popescu and P. Anca, a general theory of liability, Scientific Publishing, Bucharest, 1968, p. 2; I . Albu, civil contract. The contractual liability, Dacia Publishing, Cluj­Napoca, 1994, p. 7.

lacked the capacity to engage in legal proceedings. Thus, the burden of property management could

only be entrusted to people free.

Thus, under Article. 1532 C.civ., The mandate is a power contract in which a person shall, without

payment, to do something on account of another person from which he received the duty (sn ­ AB).

As far as we are concerned, compared with the observations we've made in connection with the

contract generally civil and particularities deducted from the legal mandate established for civil,

define the term as the civil contract by which one party, called agent, pledges, usually without pay,

within the limits of the law that are interested in public policy and good manners, to conclude one or

more civil legal acts in the name and on behalf of the other party, called mandante, from which he

received the empowerment and which one represents.

1.1.3.1. Precise preconditions.

From an analysis of legal rules that are established, it may be inferred that the mandate the following

legal character:

­­ Is a called contract; In our opinion, even if for some contracts law establishes legal rules or

supletive devices, they can not be used by parties to govern their relationships and legal framework of

contracts nenumite because, in these circumstances, the rules that retains the special character, is

therefore subject to exceptiones are strictissimae interpretations 6 .

Is basically unilaterally; In our opinion, compared with some rules that are intended, the mandate,

along with a donation, loan service, warehouse and fidejusiune, falls into the category of unilateral

contracts 7 , which may, after their conclusion, we occasionally, give rise to the task of creditor

obligations, obligations which it has not assumed initially 8 .

­­ Is, in principle, free of charge, instead, in accordance with the provisions of Article. 946 C.civ., The

contract for free or charity is that which one of the parties to get without equivalent, plus one other.

Free of charge principle was placed on the special nature of relations between mandante and agent,

realized on mutual confidence. In reality, at home, those who meet certain duties in the interests of

6 For a contrary view, see: TR Popescu and P. Anca op. cit., p. 37­38; Stătescu and C. C. Bârsan, op. cit., p. 38. Thus, it argues that in the case uncalled parties can express their willingness that these contracts should be applied in whole or in part, alone or in combination, the rules of called contracts. Insofar as the willingness of the parties is not such an indication, will apply the general principles manage contracts and obligations. 7 See: L. Pop, op. cit., p. 37. 8 Sometimes, doctrine, such contracts are called in May and contracts sinalagmatice imperfect. For a critique of this theory, see: L. Pop. Op. cit., p. 37; Stătescu and C. C. Bârsan, the Treaty of civil law. The theory of general obligations, Publishing Academy, Bucharest, 1981, p. 31.

others were Slavs or people who become partial free, who could not claim a remuneration for the

services made use for the boss or employer.

­ is basically consensual; there are consensual 9 , according to doctrine 10 , those contracts are terminated

by the mere agreement of the parties will, without any other formality, namely solo consensu and

solemn contracts are those contracts for which valid conclusion necessary the agreement of the parties

will be exteriorized in a form expressly required by law.

Nevertheless, in case law, recently decided that once the legal adviser to the delegation, by directing

a bank for the conclusion of a mortgage contract, constitutes a valid mandate specifically concluded,

in conditions of art. Article 35. 1 and 2 of Decree no. 35/1954, art. And Article 1532. 1533 C.civ. This

solution was motivated by that art. 1536 C.civ. does not provide for this mandate, the ad validitatem

authentic 11 .

In our opinion, and other authors 12 , the jurisprudance’s solution referred to above is essentially wrong.

Thus, under Article. 1772 C.civ., Conventional mortgage can not be established only through genuine

act. As a result, under the principle accesorium sequitur main mandate granted to conclude the

contract of mortgage should take the form and authentic. Compared with no provisions of Article

equivocal. 1772 C.civ. Jurisprudancial solution proves to be correct only if the mortgage is made up

solely by the effect of the law.

­­ Is, as appropriate, with instantaneous execution (uno icto) Contracts with instantaneous

execution (uno icto) contracts are those in which the parties have an obligation to execute them and

what benefits due to the same time, which coincides, as a rule, when the contract is concluded.

­­ Intuitu the people character. The intuitu guest of the contract of mandate resulting from numerous

provisions of the Civil Code, of which, by way of example, we show those of the art. Article 1539. 2,

according to which the agent is obligated to finish the business started at mandante’s death and those

of art. 1542, under which the agent is responsible for the deed on the person who has a substitute­in

performing the mandate.

So, the agent, because of the intuitu guest of duty received, must fulfil the mandate in person, have no

right to substitute someone else and in fulfilling the mandate received. If, however, shall supersede

9 The term consensual derived from the Latin consensus that has the significance of consent or agreement. In other words, are consensual those contracts for which will not only sufficient consent of the Contracting Parties. Ultimately, it is a pleonasm when it says about a contract that is consensual, because any contract entails, according to art. 942 C.civ., An agreement will, that is a consensus. 10 A see: L. Pop, op. cit., p. 41; T. R. and P. Anca Popescu, op. cit., p. 30. 11 See: Supreme Court, p. civ., in December. No. 5411/2000, "Right, no. 12/2001, p. 161 12 A see: Cl. Red, op. cit., p. 25

one other person, the agent responsible for substitute facts, as responsible for their deeds 13 . The

circumstance that under Article. Article 1542. 2 C.civ., Mandante may start an action for damages

against the person directly and the agent and a substitute­a not remove the guest intuitu mandate, but

constitutes a legally conferred benefit to mandante, which thus have a greater chance to recover and

the injury suffered 14 .

SECTION 1.2.

Theoretical and practical aspects reffering on the conditions in form and for proof of civil

mandate agreement

1.2.1.THE FORM OF CIVIL CONTRACT MANDATE

1.2.1.1. General points.

Stricto sensu the form of legal act in general and civil contract, in particular,is to understand how to

exteriorize a manifestation of will or means to exteriorize internal will Affairs.

­­ Requirements for the form itself or the validity of the contract requirements validatem ad or ad

solemnitatem;

­­ Requirements of form for the likelihood required for the contract or ad probationem requirements;

­­ Opposition requirements required for the contract against third parties

1.2.1.2. Requirements form for the civil contract term.

A . General rule.

In our opinion, but these legal rules can not be interpreted as meaning that the assumptions on which

it seeks would require a mandate to form a solemn declaration requirement. In reality, even the

interpretation of literary texts in question, it may be established with certainty that the provisions in

question have only the aspects of the mandate and not the form.

Also, in our opinion, any reference in the art. 1543 act that were set up several agents or people who

13 A see: Tribal. Supreme p. civ., in December. No. 60/1971, Directory ... the years 1969­1975, p. 140. 14 In Meanwhile, the provisions of Article. Article 1542. 2 C.civ. constitute an exception to the principle established by art. 973 C.civ. According to which conventions have effect only between the contracting parties.

obtain something can not be interpreted as meaning that establishes the requirement for written form

contract term. Indeed, the reference in the text without distinction to act indubitable leads us to

conclude that it is mindful of the Act establishing the mandate that got negotium, and not considered

the ad probationem.

B. Exceptions to the general rule.

As a general rule, because in terms of mandate operating principle of autonomy of will, in our

opinion, nothing to oppose to mandate that can empower the agent through a proxy authentic, to

conclude legal acts for which the law does not impose any specific requirement form.

C. Express mandate express and mutual mandate.

Unanimously is accepted in doctrine that excerpt "expressly mandate" and "mutual mandate" the field

office form, and the "general mandate" and the "special mandate" by the scope of his mandate 15 .

D. Apparent Mandate.

There's mandate when it apparently lacks the will to mandante may be represented by a particular

person, whether the mandate was revoked, whether mandante called for a new business representative

said, but both hypotheses, mandante was not brought notify the third party, with which agent is to

conclude the act, such circumstances.

1.2.2. The agent proof.

1.2.2.1. General points.

In general, by means middle trial basis for determining the existence of an act or law and fact, a

consequence of civil rights and obligations that make up the basis of a report.

1.2.2.2. Special rules apply in respect of

mandate likelihood pg.79­84

In the narrow sense, the subject likelihood in terms of mandate circumscribe bid to prove the

existence of his mandate, acceptance of office, content and limits of his mandate.

In the broad sense, the subject of likelihood relating to circumscribe the mandate, in our opinion, to

prove the existence of the circumstances mentioned above and, where appropriate, and the following

15 See: D. Chirică, op. cit.260.

aspects: that the mandate is specifically or generally either expressly or tacitly, the execution of the

mandate; unperformed office; delayed execution of the mandate, inadequate enforcement of the

mandate; revoking the mandate, apparently to confirm the mandate, to surrender his mandate;

representative substitution by other people.

SECTION 1.3.

THEORETICAL AND PRACTICAL QUESTIONS ABOUT

FORM AND CONDITIONS FOR PROOF OF CIVIL MANDATE AGREEMENT

1.3.1. previous precisions.

In general terms the legal act requirements are imposed by law for the validity or effectiveness of the

legal act.

After the criterion aspect referred to the legal act, in general, are dividing in terms of substance and

form.

The conditions are substantive requirements of the law relating to the civil legal act, and the form, as

May noted, are the legal requirements relating to how exteriorize a legal will.

1.3.2. party ‘ capacity

1.3.2.1. Capacity of the officer (mandante).

Among the essential conditions necessary for the validity of the Convention, art. 948 C.civ. lists and

the ability to contract. Undoubtedly, the ability to contract represents exercise capacity 16 , natural

16 We specify that, according to Decree no. 31/1954, the capacity of civil natural person, as otherwise a legal entity and has two sides, namely the ability to use and exercise capacity. In this regard, under Article. Article 5. 1 of this normative act, the person has the ability to use and, besides the cases provided by law, exercise capacity. According to art. Article 34. 1, the legal person can not have only those rights that they meet the goals established by law, the act establishing or status.

ability or legal person to exercise personal and one civil rights and to undertake and execute the same

way, civil obligations through the end of the civil legal acts 17 .

As for the agent, doctrine in the field, in general, is unanimous in assessing that this should take

himself capacity of civil exercise complete legal act for which it mandates the representative 18 . The

solution is logical because the agent does not conclude the act in its own name but on behalf of and in

the interest of the agent.

1.3.2.2. Capacity of the representative.

Concerning the capacity of representative in doctrine outlined were three positions.

In a first position, it concludes that the agent must be in all cases, a person with full capacity of

exercise. They admit, however, an apparent exception to this rule. It is for the sent or messenger case,

which is a simple messenger (nuncius) the declaration of willingness of the person who sent you, and

not a representative of it, and may be a person lacks capacity to exercise.

Under the second doctrinal positions, it argues that it is not important representative capacity, because

it does not personal contracts, but the name and on behalf of the office 19 . In this opinion, in the

interwar period, it was stated that the office, which has appointed an agent unable, will bear the risks

of bad duty office by free agent experience 20 . The incompetent will respond, but the dol in fulfilling

its mandate.

In the third doctrinal position, it argues that the agent must have in all cases full capacity of exercise 21 .

1.3.3. The consent

1.3.3.1. General points.

The consent is the fundamental element of any convention is stipulated by Article. 948 points 2 C.civ.

Juridical point of consent has a double meaning, namely:

17 person exercising legal rights and civil bind, according to art. Article 35. 1 of Decree no. 31/1954, through its organs. 18 See, for example: E. Safta­Romano, op. cit., p.236; Fr.Deak, op. cit., p. 343, D. Chirică, op. cit., p. 258. 19 A see Hamangiu C., I. Rosetti Bălănescu and Al. Băicoianu, op. cit., vol 2, p.1007; MN Costin, Lexicon civil law, MN Costin, M. V. Muresan and Ursa, Scientific Publishing and Enciclopedica, Bucharest, p. 133. 20 A see Hamangiu C., I. Rosetti and Al­Bălănescu. Băicoianu, op. cit., p. 618. 21 A see: M. Muresan, op. cit., p. 83; D. Chirică, op. cit., p. 259.

­­ A first in effect, means consent manifestation of will by which one party expresses its determination

to conclude a legal act, namely to compel juridicaly. In this respect are the provisions of Article. 948

points 2 C.civ., according to which, for the validity of conventions, it is necessary valid consent of the

party which pledges;

­­ In a second sense, the term consent agreement will designate the parties in civil bilateral legal

instruments, namely consensus.

To be valid, legal will must meet several requirements, namely:

­­ To exist;

come from a person with discernment;

­­ Be serious, that is to be shown with the intention to produce legal effects and not to be made in joke

(iocandi cause) or simple courtesy times for the purpose of injuring the recipient 22 ;

Be free, that is not affected by the vices of consent.

In bilateral legal acts, further, that should be the wishes of the parties, namely to contract offer and

acceptance to be concordante.

To produce legal effects, internal person will be exteriorized, because only thus can be known by

others, and about consequently accepted, amended or rejected, whereas voluntas in mente retenta nihil

efficit.

In principle, the exteriorization will not stopped by certain form requirements, it may be exteriorized

through words, in writing, by signs and even the behavior conclusive.

1.3.3.2. Challenges mandate of the offer and acceptance of the mandate.

In our opinion, offer mandate represents a manifestation of office’s will to be represented in the law

that are interested in public policy and good customs, in one or more legal acts by another person.

Mandate’s Offer may be express or mutual. Bid characterof his mandate shall be deducted, as May

noted, especially from the provisions of Article unequivocal. Article 1533. 1 C.civ. Indeed, according

to this text, the mandate may be express or mutual.

22 A see: See: D. Cosma, op. cit., p. 138; I. Albu, op. cit., p. 72; Stătescu C., C. Bîrsan, op. cit., p. 42­44; L. Pop, op. cit., p. 46; I. Dogaru, P. Drăghici, op. cit., p. 124. In contractual matters, are autori they believe the offer, which expresses the intention of the offeror to contract, is an unequivocal bid. In this regard, see: IR Urs, S. Angheni, op. cit., p.192. In the design of other authors, lack of supply expressed equivocal nature of accurate and complete. In this regard, see: C. C. Stătescu Bârsan, op. cit., p. 43. In our opinion, the offer unambiguously reflects the lack of ambiguity in all its aspects, namely, as well, in terms of intention to legal employment, content, address and the period of validity.

1.3.3.3. Act itself with himself and dual representation or self­control

Act itself with himself and dual representation exists when the legal act, which form the subject of

office, appearing as a contracting party agent, that a third person everything that he represents.

1.3.3.4. The mandate in common interest.

The mandate of the common interest is an exception to the rule of interest mainly the office, making

it possible to prevail (and) that of others, such as interest or even representative of a third party.

1.3.4. SUBJECT AND CIVIL MANDAT

1.3.4.1. General points

The object of the Convention, generally means the conduct of the parties established by the

Convention, namely the actions or failures to which parties are entitled or which are held as a result of

their agreement wishes 23 .

Isolated in doctrine, said that the object of legal act, in general, is regulated in the interests of parties,

under and within the limits of the law, the legal act through mediation 24 .

Without entering into details, in our opinion, this acceptance’s object legal act can not be received

because it is in a manifest contradiction with the provisions of Article. 962 C.civ. Thus, according to

art. 962 C.civ. Subject to the conventions is that when parties or only a part of the pledges.

1.3.4.2. The object of his mandate.

The object of the contract term can only form of legal acts, namely legal acts or bilateral or unilateral

23 In May doctrine is the subject of claims that the legal act is regulated in the interests of parties, under and within the limits of the law, the legal act through mediation. This sentence can not be accepted, because the interest is the cause of the legal act and not the object. (In this regard, see: D. Cosma, op. Cit., P. 213; GH. Beleiu, op. Cit., P.160).

24 see: T. R. Popescu, op. cit., p. 64; D. Cosma, op. cit., p. 212­213; Henri, Leon and Jean Mazeud, Leçons de droit civil, t. II, p. 190­219; G. Marty and Pierre Raynaud, Droit civil, t. II, vol 1, p . 150­154.

contracts.

1.3.4.3. Extent of office.

A. General points concerning the scope of his mandate.

The excerpt "laying mandate" means the act or acts of civil office that it mandates the agent to

conclude them in the name and on his account.

B. Particular mandate.

Mandate is especially when it comes to a single legal operation (procuratio unicus rei) or for certain

specified legal operations, listed in the proxy, except those that can not be exercised by proxy.

In just, in our opinion, the doctrine 25 stated that the mandate requirement for special request to

surrender judgement, imposed by judicial practice, to get to a confusion between dispense with a

law 26 and the renunciation of judgement in relation to that right 27 .

In our opinion, to reach the solution presented above, the Supreme Court has taken action to an

extensive interpretation of the term "renunciations", the content of art. Article 69. 1 C.pr.civ. Ie

meaning that relate alike, both at renunciations to prosecute and to itself the right to renunciations

claimed.

C. General Mandate.

The mandate is generally when given for all business or a category of office’s business, except for

those who make the law provided a particular mandate or which can not be exercised by proxy.

1.3.5. DUE TO CONTRACT MANDATE.

Article 948 paragraph 4 C.civ. lists, among the essential validity of the Convention, a licit question

and art. 966 C.civ. provides that the obligation without question or a question based on false or unlicit

25 A see: Cl. Red, op. cit., p. 34­35. 26 Waiving the right claimed himself to be governed by art. 247 C.pr.civ. Under Article. Article 247. 1 C.pr.civ. In case of surrender himself to the right claimed, the court gives a judgement that will reject the application on the merits and will decide on costs of court.

27 Renunciaton the court is governed by art. 246 C.pr.civ. According to art. Article 246. para. 1 C.pr.civ., The complainant may waive any time to prosecute or in plenary verbally or by written request.

can not have any effect (sn ­ AB).

From a legal viewpoint, the cause or purpose is, together with consent, one of the constituents of the

legal wishes. Indeed, as any human deed, the legal act is made in a particular purpose, to achieve that

obligation is not only the middle. Taking an obligation no one purpose can only be the work of a

person unreasonable. Therefore, consent can not be separated from the question and decisive element,

which gives meaning the decision to conclude the legal act is exactly the purpose or, in the

terminology civil code, "because".

As a general rule, the cause may consist, for example, the following:

­­ Counterservice for the cocontraction party , from sinalagmatice contracts;

­­ Giving the property, real contracts;

­­ The intention to reward of the contracts for free.

CHAPTER II. THEORETICAL ANALYSIS ON PRACTICE

LEGAL EFFECTS OF CIVIL MANDATE CONTRACT

SECTION 2.1.

MANDATE OF CONTRACT BETWEEN CIVIL PARTIES

2.1.1.Representative’s obligations .

2.1.1.1. General points.

From an analysis of art. 1539­1545 C.civ. enshrined representative duties may be inferred that it is

incubated by following obligations:

­­ Comply with the mandate (Article 1539);

­­ To give office ratio (art. 1541);

­­ Responding to the facts and the person who was a substitute­in fulfilling the mandate (Article

1542).

The New Civil Code to regulate the obligations representative in art. 1604­1611, taking over, largely,

but with some improvements, the existing rules.

In comparing the right, there are some significant differences with regard to representative duties.

Exempli gratia, we show on the following 28 :

­­ French law, is deemed the most important duties of that are representative of and execute the

mission, which is considered a primary obligation, and therefore to give account;

­­ Right in italian, traditionally, the representative him incubate the following obligations: to execute

the mandate, to give account other obligations to give, do or not do something. In this system of law,

representative obligations are grouped under the issue chronologically in two categories, namely

specific obligations in the initial phase and phase in specific obligations to be transmitted to the office

outcome of the representation. In the first phase enter the obligation to fulfil the mandate and give

ratio, and in the second enter the economic powers type translativ and benefits, consisting of

obligations to, to do or not to give;

­­ Hungarian right under the contract term, the agent is obliged to solve the task entrusted by mandant

in accordance with the interests and indications of the latter. Actually, in this system as a primary

function of the mandate is to give legal representative actions are considered the main form of

contract diligence. It is considered mandate any activity performed by a person of interest and another

person, whether that activity can not be qualified as another contract. In concrete terms, the agent has

the following obligations: to execute the mandate, to inform the running agent to mandate, the secrecy

of operations, to account.

2.1.1.2. Fulfilling its mandate.

Fulfilling the mandate is the chief representative of obligation.

This requirement is stipulated by Article. Article 1539. 1 C.civ., That the agent is obligated to execute

the mandate as long as it is responsible and liable for damages interests that might stem from his

failure cause.

To sumarize and systematise, according to art. 1540 C.civ. Responsibility representative is subject to

the following rules:

­­ The agent responsible whether he acted intentionally or by guilt;

­­ If the agent has acted intentionally, his responsibility will be equally committed, whatever the

mandate that is free or onerous;

­­ If the agent acting on culpă,'s liability will be engaged with more rigour in the assumption that the

mandate is onerous than when it is free.

In our opinion, the mandatory sentence and that there is an obligation mandant in solidum can not be

accepted, because the obligations in solidum circumscribed those situations where two or more

persons are called upon to respond to damage caused by acts of another, provided that the author’s

28 For details, see: Cl. Red, op. cit., p. 41­43.

deed be detrimental to the guilt acted, and if liability of legal persons for damage caused by illegal

acts perpetrated by their governing bodies within the limits established powers. It is however clear

that if the agents pluralităţii, mandantul not obliged to respond to the facts agents since the Civil Code

governing the three cases of responsibility for the deed to another, including lists and not him. In

concrete terms, the Civil Code, art. 1000, governing the liability of parents for adverse facts of their

minor children who live with them (para. 2 and 5), the comitents for damage caused by prepuşii in

fulfilling their duties entrusted (para. 3) and instructors or craftsmans damage caused by students or

apprentices under their supervision (para. 4 and 5).

2.1.1.3. The obligation to give account(ratio).

This requirement is stipulated by Article. 1541 C.civ.

Thus, under this text, dator agent is, and always will, yes to office

account of its work and submit all of which would be received in the power of office, even when

what would have received would not have office due.

Under this obligation, the agent is released for the office everything that has received the mandate to

perform the office or from third parties.

Furthermore, in the event of the goods or sums of money received from third­party agent, but the

power of office, are unduly, it is obliged to give the officer. The solution should be, because what

gives the third party representative does not explain it, but because of the office. On a consequence, an

obligation to refund undue payment made and it will return the office and not representative.

2.1.1.4. The obligation to respond representative of the facts and the person who was a substitute­in

fulfilling its mandate.

In principle, the agent must execute personal duty he received from the office because, as outlined in

the May paper, the term is concluded, as a rule, intuitu persons, namely in the person considering

representative. In this regard, former Supreme Instance decided that the agent must fulfil the mandate

in person, have no right to substitute someone else and in fulfilling the mandate received. If, however,

shall supersede one other person, the agent responsible for the facts substitute, all as responsible for its

own facts.

The representative doesn’t respond, but in any case, for damage caused by crime by a third person 29 .

We believe that the unlogical solution of the legist is to provide cumulative prohibition that the person

be incapable with that of being insolvent. In our opinion, would have provided a more comprehensive

protection for the office if those two prohibitions would have been provided alternative, because

obviously in violation of each party is sufficient to significantly affect the agent’s interests.

2.1.1.5. Pluralitatea of agents.

Article 1543 C.civ. the situation in the same task for which there are two or more agents. Thus,

pursuant thereto, when the act were set up several agents or attorneys, there is solidarity, except when

given his stated.

As I outlined in the May of this work, usually included in art. 1543 C.civ. constitutes an application

specifically in the principle embodied in art. 1041 C.civ., According to which the obligation of

solidarity is not presumed, it must be expressly stipulated. This rule does not cease only when the

obligation of solidarity takes place right under the law.

2.1.2. Officer’s (mandante’s) obligations

2.1.2.1. General points.

Civil code governing the obligations of the office arising from the contract of mandate:

2.1.2.2. Duty to meet contractual obligations on his behalf and his addition.

­­ A duty to fulfil the obligations contracted in the name and on its addition (Article 1546); In this

regard, under Article. Article 1546. 1 C.civ., The agent is indebted to meet the obligations contracted

by the agent within the limits of power.

2.1.2.3. The obligation of undetriment for the representative.

The office’s obligation of paying back the agent assumed, according to Civil Code, the following:

­­ Amounts to reimburse representative representing the anticipated things and charges made by him

29 See: Tribal. Supreme p. civ., in December. No. 60/1971, Directory of practice in civil court to the Supreme Court and other court in the years 1969­ 1975, Scientific Publishing and Enciclopedica, Bucharest, 1976, p. 140; C. Turianu, op. cit., p. 218.

for the performance fee (Article 1547 sentence 1);

­­ Representative to cover all losses suffered during the fulfilment of the mandate (Article 1549);

­­ To pay the amounts anticipated interest representative of the day considered probate payments

(Article 1550).

In our opinion, the foundation of these obligations is the principle of fairness. Indeed, the agent would

suffer inequitable to bear the expenses made to promote the office’s interests, especially when the

mandate is free.

2.1.2.4. The obligation for payment of the fee(remuneration).

Payment in general, being governed by art. 1092­1125 C.civ., Is the main way of remission of civil

obligations. In context, we specify that the rules for payment are included in Chapter VIII, entitled

"about the extinction of obligations" (sn ­ AB) of Title III (on contracts and conventions) Paper III

(about different ways that acquires ownership) of the Civil Code.

2.1.2.5.The solidarity of the officers.

Article 1551 C.civ. agents’ governing solidarity, that is a situation in which several people were

nominated for a common affair, a single agent. Thus, under this text, when more people for a common

business, have designated a single agent, each of which is jointly responsible for the mandate.

Obviously, if provided for by Article. 1551 C.civ. we are in the presence of a legal case of passive

solidarity.

2.1.2.6. The right of retention representative.

In doctrine, even in the absence of a law expressly text, it is recognized that an agent has the right of

office’s retention things in a situation in which it is not running and reward the obligation or payment

of compensation 30 .

Case law has constantly expressed in the sense that the right level 31 , as being a real guarantee

30 See: Fr. Deak, op. cit., p. 354; R. Sanilievici, general theory of liability, the "Al. Al.I.Cuza "Iasi, 1976, p. 324; ML Ghinea, some problems relating to the right of retention," The Romanian law, "no. 11/1983, p. 10.

31 A see: Tribal. Supreme p. civ., in December. No. 528/1988, "The Romanian law," no. 2 / 1989, the Supreme Court of Justice, p. civ., in December. No. 1648/1990, "Right, no. 7­8/1991, p. 125; Tribal. City of Bucharest, p. IV of civil December. No. 1273/1992, C.P.J.C. 1992, p. 81.

imperfect, who owns a mobile work of building or another, to be released it, may withhold that good,

refusing restitution until the creditor holder of the asset will pay the amounts they spent with the

preservation, maintenance or improvement that good.

Romanian civil code does not include a principle of the right retention, scoring only some of its

applications 32 , of which judicial practice and doctrine have inferred the existence, the general

application of a principle when, obviously, there is a re debitum how ictum 33 .

However, the essential condition to be able to invoke the right level, is that debt, the holder of a work

from creditor claims refund to be connected, have about work, be made by this, that is either as a

32 A see art. 771 (relating to report things received as a donation); art. And Article 1322. 1323 (in terms of sale / purchase); art. 1444 (in terms of rental); art. And Article 1618. 1619 (in terms of deposit); art. 7 section 1730 (relating hotelărie and transportation). 33 Right retention is the real law which gives the creditor, while the debtor's obligation to refund (teaching) of the property of another, can retain that good in his mastery and deny restitution by the debtor until its creditor of work, will pay the debt that was born in charge in connection with his work. Code civil and judicial practice enshrines the right of retention following cases: which reported the building in kind, may withhold its posesion until actual payment of amounts that are due for expenses or imprvement (Article 771 C.civ.) ; Seller is not dator to return to work if the buyer fails to pay the price (Article 1322); residents and can not be deprived of mastery of the property, where the real estate sale, before being indemnify the lessor or the buyer (Article 1444 C.civ). Depositary may hold working in the warehouse until full payment of amounts that are due by the deponent (Article 1619 C.civ.) Third party acquirer of good faith of a stolen or found property, which bought at the entertaiment, fair or at a public sale or store, you may forfeit until the owner pays the price with which to buy (Article 1910 C.civ.) business can retain the property until it pays the expenses necessary and useful work done with; agent, who has mastery work, you can hold until full payment of expenses made with the work; owner defendant in an action claim can hold up to work full claimed to compensation by the owner who won process; constructor on the land of another, has a right of retention on construction until the land owner pays full compensation (Article 494 C.civ.) retention of the right of the husband's assets common shares until the other spouse, and which they were assigned, paid it. To recognize the right of retention should be cumulatively met the following conditions: its claim is to be certain, liquid and due, the right level to be invoked only against the owner of the property and present; between work and claim to have connection, ie have a duty to respect with the work. The link may be physical or legal. Working should be a good real estate or mobile body found in mastery. Right retention is a real guarantee as imperfect as it is not only against the debtor but also others. It is an imperfect as real as not recognized attribute tracking. The right of retention may be exercised as long as is in possession of the property. As a result, retention stops right when they voluntarily man is deprived of property. If the man lost involuntary mastery of work, he can regain a path of action on the claim, as the owner. Right retention confer him only a simple detention precarious because it does not have work. On a consequence, he can not invoke the effects of possession in favor. Instead, holders can exercise that any actions precarious. Sometimes the right level is confundă with the exception of non sinalagmatice contracts. Nevertheless, there are between them a crucial distinction. Thus, the right of retention are absolutely, against all, and except for non­may be just the opposite party to the contract, so the effect is relatively. (In this regard, see C. C. Stătescu Bârsan, general theory of obligations ,..., and watch p. 407.).

debitum re ictum. Too, because the right level to be applicable, the property on which the claim to be

the exclusive property of the debtor who is the holder of both the expenses claimed 34 .

SECTION 2.2.

The effects for MANDATE OF CONTRACT TO CIVIL

NON­MEMBERS

2.2.1. THE REPORTS BETWEEN OFFICER (MANDANTE) AND THIRD PARTIES

According to art. Article 1546. 1 C.civ., the office is indebted to meet the obligations contracted by

the agent within the limits of power. This text is a solution for the principle embodied in art. 991

C.civ., that the master, whose affairs were managed well, it is obligate to meet obligations on behalf

of its , the allowance of all those who contracted it personally and pay all costs useful and necessary

as a made.

As a result of acts concluded substitute or agent thereof 35 , between office and others to create direct

legal relationship. In other words, in fact, deals with the third party agent or substitute, and as with the

office 36 .

2.2.2. THE REPORTS BETWEEN REPRESETATIVE AND THIRD PARTIES

The value of principle, whereas agent contracts in the name and on behalf of the office between it and

third parties with whom contracts not to create direct legal relationship.

In comparison with the agent, the act done within the limits of empowerment received no effect, thus

the incident neque nocere neque prodesse potest. For example, the payment made for officet, even if

they were in all or in undebted part not extinguished a possible requirement that an agent is against

accipiens.

34 See Tribal. Supreme p. civ., in December. No. 857/1968, Directory ,..., the years 1969­1975, and Mihuţă I. A. Lesviodax, Scientific Publishing, Bucharest, 1970, Bucharest, p. 195.

35 In the present case, for example, even if no representative was given the right substitution, but no substitute has been expressly forbidden, the notice concluded replaced the limits of the powers conferred by mandate, takes effect against mandant. So the debtor, who paid to the substitute will be freer because the substitute is. Compared with the officer. However, under Article. And Article 1540. 1542 C.civ. For the acts and deeds substitute will respond not only this but also the agent initially. 36 In this regard, see: Fr. Deak, op.cit., P. 356­357.

Instead, for its excessive acts agent, which is required to meet the empowerment of its dealings

with third parties respond in the sense that they are held to ensure the validity of such acts concluded.

This conclusion can be detached from a per contrario interpretation of art. 1546 C.civ. In this case, the

representative responsibility towards others is a responsibility externcontractually as agent has not

contracted for it, but for the office.

SECTION 2.3.

CESSATION OF CICIL CONTRACT MANDATE’S

EFFECTS

2.3.1. CASESE IN CONTRACT TERMINATION OF CIVIL MANDATE

2.3.1.1. General points.

In general, contractual obligations to the sting run by the expiry of the period stipulated or performing

the ones who rezolve the situation condition,through the fortuitous impossibility of performance

because of the casual disappearance of the property.

In addition to these general cases, the mandate is extinguished, according to art. 1552 C.civ. through

the following ways:

2.3.1.2. Revocation of the mandate.

The mandate is basically revokable.

In this regard, no provisions are equivocal art. 1533 C.civ., Under which may the office when he

wants,he revokes the mandate and constrains, if necessary, the representative to submit the entry of

empowerment.

In our opinion, the foundation of the rule contained in art. 1533 C.civ. lies in the fact that, in principle,

the person is obliged by its own will and only exceptionally by the will of another person.

In the event there are plurality of officers, revocation representative can be done only by consent of

all. Instead, in case of plurality of agents, some of them may remain empowered, while others may be

dismissed.

2.3.1.3. Waiving the mandate.

Waiving the mandate is governed by art. 1556 C.civ. Is established the following rules:

­­ Agent may waive the mandate, notifying the office to surrender (para. 1);

­­ Where the surrender is ill­timed or abuse, the agent remains accountable to the office of the damage

caused by surrendering to (excerpt. 2 sentence I). We indicate that the common language, such as

legal and otherwise, "ill­timed" the significance of the event are surprising or unexpected product or

unwanted event 37 . However, surrender or ill­timed abuse a representative from reaua mandate shows

the faith and, therefore, will determine liability of civilian employment contract. In the context we get

in again that the principle of good faith is the constitutional order, as stipulated by Article. 57 of the

Constitution. Indeed, under this text, Romanian citizens, foreign citizens and stateless persons must

exercise their constitutional rights and freedoms in good faith, without infringing the rights and

freedoms of others. In matters of contract this principle is stipulated by Article. Article 970. 1 C.civ.,

According to which, conventions must be done in good faith;

­­ If the surrender is determined by feeling representative to continue the mandate, it will not be

forced to pay damages to the interests of the office (excerpt. 2 sentence II). In our opinion,

"incapacity" of the content of the text has no meaning unable to implementing the mandate

determined by "a foreign question, which may not be charged" representative. It is necessary that

conclusion because, otherwise, notwithstanding the principle stipulated in Article. 1082 C.civ. In the

event considered the liability would representative objective, namely should intervene and force

majeure.

2.3.1.4. Death of a party.

Typically, because of his intuitu people, the mandate expire by office’s death representative,

according to art. 3 C.civ section 1552. The same effect it produces and judicial declaration of death or

representative of the office.

2.3.1.5. Other causes of termination of the mandate.

Article 3 C.civ section 1552. cover and other causes of termination of the mandate, namely the

prohibition, insolvency and bankruptcy of the office or his representative.

2.3.2. the effects in termination of civil contract mandate

The value of principle, in the event of termination of the mandate, regardless of the reason agent is

obliged to refund the purchase of office received when the mandate is expressly, and to teach them

any documents or goods received in the course of executing the mandate.

After the termination of the mandate, the representative can not act on behalf of the office, unless

stipulated by Article. Article 1539. 2 C.civ. Ie to complete business started by the office the date of

37 See: Dex, p. 497.

death, if the delay would cause a significant loss for the heirs.

Also, according art.1557 C.civ. remain valid documents made by the agent after stopping it, as long as

it is not known because of termination of the mandate. In this hypothesis, under Article. 1558 C.civ.,

stipulated by the Article. 1557 C.civ. remain valid contracts with third persons who were bona fide.

So, for a contrario, if third parties with whom contracted agent in conditions of art. 1557 C.civ. are

acting in bad faith, contracts with them, even if agent does not know the cause of termination of the

mandate will be void. This conclusion is based basis, whereas fraus omnia corrumpit.

Furthermore, contracts with third parties of good faith and are valid under the conditions invoked

againstthe office apparently, even if the agent would have known the cause of termination of the

mandate. This conclusion is based on the provisions of Article. 1554 C.civ. reported in the art. 1558

C.civ. Indeed, under Article. 1554 C.civ., revoking the mandate, notified only representative, can not

be opposed to another person who, in unknoledge that, contracted in good faith with him.

We point out that the provisions of Article. 1557 C.civ. will be taken in an improved form of art. Draft

of 1624. Thus, according to the text of this article Project, whatever agent made on behalf of the

office, before knowing or being able to know the cause of termination of the mandate is considered as

valid in the execution.

CHAPTER III. . LEGAL ASPECTS OF PARTICLULARLY JURIDICAL ASPECTS OF THE

CIVIL MANDATE WITHOUT REPRESENTATION

SECTION 3.1. INTRODUCTORY notions RELATING TO civil mandate

WITHOUT REPRESENTATION.

3.1.1. The notion of civil mandate WITHOUT REPRESENTATION

We represent an indication that, in general, consists of a thong made by a person appointed

representative, on behalf and on behalf of another person, called represented a legal act whose legal

effects are produced directly in person and heritage of the latter 38 .

It is noted that the representation in some matters, are devoted to legal definitions. For example, in

consecutively terms , under Article. 664 C.civ., The representation is a fiction of law, which has the

38 See: D. Cosma, a general theory of the legal act ,..., p. 76.

effect put in place representatives on the extent and in the right representative.

The deadline is met representation in the Civil Code, particularly in terms of mandate (Article 1532­

1559), but also in other matters, of which exempli gratia, we show the following: the representation

borrowers solidarity by their codebtor (Article 1059), in terms (Articles 664 and following.) waived

in succession (Article 598).

The Civil Code does not include general provisions relating to representation, realized­only make

application of the principles of representation in some matters, in particular the mandate.

Nevertheless, between representation and mandate can not be made the sign of identity because, as

will develop in the following, without any representation mandate and the mandate without

representation. So, the mandate is only a representation of conventional sources, but there species of

foreign representation of any contractual relationship between the representative and representative. In

this regard can be exemplified legal representation and the legal proceedings.

The cases meet mandate without representation, meaning that the agent acts made legal the office

account, but in his own name. So, although agent working outside the office, completes the legal act

in his name personally, but not represent the office. In such situations can not speak about

representation, because missing one of the conditions required for its existence, namely the conclusion

of legal documents in question only account the one who represent and not in its name or, in other

words, alieno nomine.

In such situations, the contract between the agent and the office is called the doctrine mandate without

representation 39 .

Among the species mandate without representation fits the commission, the consignment, the dispatch

and the interposition persons or prête­nom.

In comparing the two types of concepts, namely the mandate and representation, may be detached and

the idea that, while the mandate relates to the aspect of internal relationships between representative

and represented, representing the external aspect of these relationships, namely relations between and

the representative, on the one hand, and the third party contractor, on the other.

As outlined in May, under representation lies in the possibility of substitution of a person by another

person, substituting a law that requires legal representation in the case, or a permit, where

conventional and legal representation. Due representation made an act by a person to produce direct

effects of another person and heritage.

We specify that the mandate without representation is a commercial area because, as stated in

doctrine, the representation is not the essence, but only on the nature of the contract term. Thus, in

commercial terms, as already stressed, the mandate without representation may take the form of the

39 See: Fr. Deak, the Treaty of civil law. U.S. special ,..., p. 361.

commission, a consignment of contract and dispatch.

In civil matters, in future regulations, the new draft civil code 40 will regulate in the context of the

mandate, the commission (Articles 1627­1634), the consignation (Articles 1635­1638) and the

dispatch (Article 1639 ­1645).

In essence, the mandate without representation is a mandate or simulated, in other words, a case of

interposition between people. In this respect was expressed both Romanian doctrine 41 and the foreign

one 42 .

The recourse to this solution when a legal person, namely mandantul expects to conclude a legal act,

but so was the person may not be known by others, such as cocontrantantul representative occult and

other third parties or creditors, miscellaneous relatives with a possible successors to inheritance or by

way of private or only the latter, and countercontractwitness being witness to simulation.

3.1.2. The notion of cilvil mandate WITHOUT REPRESENTATION

3.1.2.1. The commission contract

A. Definition.

The commission is the contract under which a person called the principal, responsibility for another

person, called commissionaire, which supports the duty, to conclude a legal acts buying or selling

goods on the principal account, but on behalf commissionaire.

B. The commission envisaged in the draft regulation civil code.

In the project, the commission will be governed by art. 1627­1634.

We specify that, currently, the commission is governed only commercial matters, in particular, art.

C.com 405­412.

3.1.2.2. The consignment contract.

A. Definition.

40 The New Civil Code and Law No. project. 537/2004 was adopted by the Senate of Romania in 2005 and, currently, is on the role of the Chamber of Deputies. 41 See: R. Petrescu, practical aspects of the Supreme Court on simulaţia in legal acts, "The Romanian law," no. 1 / 1976, p. 35; D. Cosma, op. cit., p. 77; D. Chirică, Civil Law. U.S. special ,.... 271. 42 See: Henri et Léon Mazeud, Jean Mazeud, Leçons de droit civil, Paris, 1963, vol II, p. 741 and vol III, p. 1139.

The consignment is a contract that called the man who makes the consignment between the parties, in

exchange for remuneration, undertakes to sell in its own name but on behalf of the other party, called

consignant, given a good mobile, which the latter surrendered to the return for payment.

B. The consignment of regulating the project envisaged the New Civil Code.

This contract will be governed by art. Draft of 1635­1638.

3.1.2.3. The dispatch contract

A. Definition.

The dispatch is a contract whereby the party, called the sender, pledges to end his own name and in

the other party, called the principal, a contract of carriage and accessories to meet operations, in return

for a commission.

B. The planned dispatch of regulating the draft civil code.

The project envisages settlement of this contract in art. 1639­1645. We specify that, currently, it is

found in commercial code, in the context of rules relating to the transport contract (Articles 413­441).

Art Project of 1639 defines the dispatch as the mandate that the sender is obliged to conclude in his

own name and the principal account, a contract of carriage and accessories to meet operations (sn ­

AB).

3.1.2.4. The interposition between people.

The fact of interposing between people or the nom­prête is a contract whereby the person called

borrower names, pledges towards another person, called mandant, to conclude a legal act with a third

party being understood, but as true act in part to be the office.

Not if this act which, in reality, is a species of simulation relative, no representation, because its

effects are produced only in person and heritage lender name, unless the third party knew the real

contractor.

This contract is called "contract of loan title," whereas, this agent lease the office his name, which

does not want or can not appear with his name in a legal act which, however, wants it concluded in its

interest, which will act in the name negociator figure 43 .

43 A see: M. Muresan, Civil Law. The general Publishing Cordial Lex, Cluj­ Napoca, 1995, p. 92; Red C., contracts and the effects of their mandate in civil

In doctrine, in a dominant opinion, as already stated, the intersection of the contract or contract­nom

préte is considered a particular case of simulation 44 .

SECTION 3.2. THE LAW OF THE CIVIL MANDAte without

REPRESENTation

3.2.1. the intersects convention

The convention of interposing is a form of subjective relative simulation 45 .

We specify that, in general, relative simulation involves the existence of two papers, one of whom

apparently secret, and another who apparently amended the act on nature, the parties or the legal

operation.

In relation to the act subject third parties relative simulation may be subjective or objective.

The objective simulation is relative when it refers to the nature or contents of the legal act. In this

case, the legal act is simulated and it may and called disguised.

3.2.2. the reports BETWEEN office AND representative

in the civil mandate CASE WITHOUT REPRESENTATION

To identify the true legal relationship is created between the occult agent, namely between the agent

who, while working in the interest of the office, in fact, completed the legal act in his name

personally, and the office, you should go in analyzing the provisions of Article. 1175 C.civ.

Thus, we can added that, under Article. 1175 C.civ. the act secret, an act amending the public may not

have power only between the contracting parties and their successors Universal (thesis I) and that

and commercial law ,..., 92.

44 As a rule, doctrine, is deemed to have met there simulaţiei cumulatively the following requirements: an intentional discrepancy between the real willingness and the will stated, the disparity between the real willingness and the will must be declared joint work simulants, that is the result of the agreement simulatoriu; disparity of the real willingness and the will must be declared aim amăgirea third parties. In this regard, see: D. Cosma, op. cit., p. 394­396.

45 Doctrine and analyzes the simulation absolute form, that is when the act secret or, more specifically, the simulative agreement , missing public act, but apparently any effect. In other words, public act is more than apparent, because it is fictional. (In this regard, see: D. Cosma, op. Cit., P. 396).

such an act, can not have any effect against other persons (sentence II) 46 .

So, by default, art. 1175 C.civ. establish the validity and effectiveness of the rule act in secret

relationship between agent and the occult office and their successors and the Universal invalidity for

the same part of the act apparently. Finalmente, is respected act secret, really voit parties, and

removed the Act apparently will improperly parties.

The solution referred to above consistent with the principle of the dominant Romanian civil law in

matters of legal acts, the principle according to which will actually prevail over the wishes declared.

Since, in general, the simulation and, in particular, the interposing person, not causes of invalidity and

since it will actually enjoy the first between the agent and the occult officer has voit legally binding

instrument truly parties, otherwise, in accordance with the provisions of Article. Article 969. 1 C.civ.

Actually, is the doctrine argues that, unlike the absolute simulation, in which case an simulative

agreement are based exclusively negative, as it seeks the complete annihilation of public act, if

relative simulation, and as the interposing between person, the agreement has a simulative creative

role as seeking the production of actual legal effect of the agreement between the parties, that is, in

particular, between the agent and occult office 47 .

3.2.3. the reports BETWEEN THE PARTIES from mandate

REPRESENTATION AND THIRD PARTIES

Besides rule reviewed above, regarding the effects of secret agent or occult office and, as far as the

concerns will be others, too, do appeal to the art. 1175 C.civ. Which, as evoked May, and establishes

the principle that the secret act can not have any effect against others.

Again, that the value of a general rule, in the Romanian civil law, third parties, namely the foreign

legal acts concluded between other people, and are protected by the provisions of Article. 973 C.civ.,

According to which conventions have effect only between the contracting parties.

We specify that, in terms of interposition between person if the person who contracted agent occult is

bona fide in that it has not known the true legal relationship between it and the office, and it has

become a third party.

46 As a general rule, the provisions of Article. 1175 C.civ. to be released in conjunction with the art. Article 969. 1 and art. 973 C.civ., Which establishes the principle that, the conventions have made legal force of law between the contracting parties (para. 1), namely that which suited them, namely the conventions do not have effect only between the contracting parties (para. 2). Also, in our opinion, usually included in art. 1175 C.civ. and constitutes a natural consequence of the principle stipulated in Article. 977 C.civ., That the interpretation of contracts is common intention by the contracting parties and not the literal meaning of terms. 47 See: D. Cosma, op. cit., p. 404.

SECTION 3.3. CASES of inapplication in A CIVIL MANDAT

WITHOUT REPRESENTATION

Given to the simulation the mechanism and effects, including that which is through person’s

inerposition, the issue of whether it is compatible with any legal act and if not somewhat, due to the

nature of their legal status or their legal, some legal acts are not likely the simulation.

The doctrine is Romanian 48 and foreign 49 and claims that simulation involving an agreement will for

annihilation, altering or moving effects of the act apparently is not possible than in conventional

instruments.

Instead, in unilateral acts, characterized by the existence of a single party, such an agreement will not

be able to intervene and simulation would be confused with mental reserve. For example, the

acceptance of a series with the hidden intention of not accept that succession, is a simple mental

reservation, without legal effect. A simulation is not possible in this case because, being about a legal

act unilaterally, not subject communication, so without a destination determined simulatoriu an

agreement can not intervene.

The situation is however different in the case of unilateral acts subject of communication.

Thus, although in the case of these acts are a single part, they have a precise destination, with which

the act can be done in order simulati agreement for the third parties. Thus, for example, for evading

tax rules, the owner of a building can be understood with its lodger to give, under Article. Article

1436. 2 C.civ. 50 , leave only an apparently simulated, location remaining being far in May. In such a

situation, the simulative agreement on a legal act unilaterally subject of communication, namely leave.

That is the legal act unilaterally does not preclude the author and the recipient's to jointly create a

48 See: V. Loghin, Unconcordance aware of and will declare it in civil legal relationship established by legal acts, "People's law", no. 9 / 1956, p. 1034; D. Cosma, op. cit., p. 400. 49 See: Jaques Martin from Moute, L 'legal acts unilaterally, Paris, 1951, p. 229­230. 50 În under Article. Article 1436. 2 C.civ. If the contract was made location without term, leave, ie denunciation must be given from one party to another, observându­time habit of place. We specify that rule location, according to art. Article 1436. 1 C.civ. It is time for a cease and determine for itself through the end of the period.

legal walls, feature the simulation, to allure on third parties 51 .

In particular, if the interposition’s person because the interposition Convention is a legal convention,

which involves two parts, namely agent and occult office is possible the simultion.

In the case of contracts to be concluded, according to the law, intuitu people, the rules governing the

interpopsition don’t apply.

CHAPTER IV

PARTICULARLY ASPECTS OF THE MANDATE

IN SOME CIVIL LEGAL MATTERS

SECTION 4.1.

GENERAL ASPECTS ON JURIDICAL AND CONVENTIONAL REPRESENTATION

THROUGH THE ADVOCATE

4.1.1. INTRODUCTORY NOTIONS ON CONTRACT FOR

LEGAL ASSISTANCE.

According to art. 3. 1 point. b of the Law no. 51/1995 for the organization and practice of lawyers, the

work is done by the lawyer assistance and legal representation before the courts, prosecuting organs,

judicial authorities with powers of notaries public and judiciary executors, public administration

bodies and institutions and other legal persons, under the law (sn ­ AB). With the significant

differences in form, this text is resumed under art. Article 91. 1 of the profession of lawyer 52 .

From the legal text reproduced above shows that one of the ways of exercising the profession of

lawyer is "legal representation" of the parties, namely the fulfilment by a lawyer, on behalf and on

behalf of the customer, acts, methods and operations allowed by law and necessary care and

defending the interests of the client.

51 See: René Demoque, Traité des obligations in general, Paris, 1923, vol 1, p. 260; Cariota Luigi Ferrara, IL negazio giuridico nel diricto privato italiano, Napoli, without year of publishing, p. 543.

52 Statute of the profession of lawyer was adopted in the Council meeting UNBR dated 25 September 2004 and entered into force on the date of its publication in the Official Gazette of Romania, namely on 13 January 2005.

In concrete terms, lawyer representation is made, usually under a contract for legal assistance 53 .

Actually, the Statute of the profession of lawyer 54 , regulating the art. 126­154, the contract for legal

assistance, and includes references to legal representation.

To capture the specificity continue, we will analyze the legal assistance in terms of the nature of legal

regulation, and defined the main character's legal.

4.1.2. LEGAL NATURE, DISCUSSED, AND KEY CHARACTERS DEFINITION OF LEGAL

CONTRACT FOR LEGAL ASSISTANCE.

The doctrine was the problem of determining the legal nature of the contract of legal assistance, being

considered in a first opinion, it's a contract term and, in a second opinion, we have to do with a

contract location works 55 .

In our opinion, after the entry into force of new regulations relating to the profession of lawyer,

doctrinarry dispute 56 on the legal nature of this contract to be superfluous because a number of

provisions of their qualifying expressis verbis contract for legal assistance as a species of contract the

mandate.

Taking into account the legal rules that are established, we can define the legal assistance as a contract

called by either party, which has become a lawyer, pledges in return for a fee, grant assistance and

legal representation of a natural or legal persons, called customer, and the latter to pay the lawyer fee.

SECTION 4.2.

MUTUAL AND TACITE COUPLE’S MANDATE

4.2.1. GENERAL ASPECTS ON MUTUAL AND TACITE SPOUSES’ MANDATE

According to the rules of principle, under Article. Article 48. 1 of the Constitution and art. 1. 4 of the

Code family, in their economic relationship as in fact and in the personal, spouses have equal rights,

53 See: I. Leş, Organization of the judiciary, lawyer and notary work, lex Light Publishing, Bucharest, 1997, p. 190.

54 Brevitatis cause, to avoid the repetition and ease expression continue in this section, references to the profession of lawyer will be done, usually using the term "status".

55 For details, see: I. Leş, Organization of the judiciary,…, p. 191. 56 For some bibliographic references and details about this doctrinal dispute , see: Red C., op. cit., p. 201 and following.

which means that, on an equal legal position, are required to decide by mutual agreement. It is

necessary that conclusion because the legal texts mentioned above refers to the equality of spouses

without distinction to make about the nature of legal relationships envisaged. On a consequence, the

principle ubi lex non distinguit, nec nos distinguere debemus we should find that the legal equality of

the spouses is incidentă as regards their economic relations.

By the same token are, actually, and the provisions of art. Article 35. 1 C. fam., Under which the

spouses manage, use and disposal of goods along the common. Actually, the art. Article 35. 1

represents an application in concreto, economic relations, legal equality of spouses in marriage.

4.2.2. INVALIDITY ACTS THROUGH WHAT ARE OVERLOOKED

LEGAL PROVISIONS RELATING TO MUTUAL AND TACITE SPOUSES’S MANDATE

In connection with the nullity of the provision of legal documents by which one of the spouses

alienate a joint immovable property without the consent of the other spouse, doctrine have expressed

several opinions 57 .

Thus, were justified following sentences:

­­ Relative partial invalidity;

­­ Relative total invalidity;

­­ Absolute invalidity based on art. Article 35. 2 sentence II;

­­ Absolute invalidity based on art. Article 30. 2.

It appears that the total sentence relative invalidity was adopted by the Authority supreme

jurisprudence 58 .

4.2.3 MUTUAL AND TACITE SPOUSES’S MANDATE FORESEED BY THE PROJECT OF

CIVIL CODE

The project envisages the New Civil Code, as a general rule, art. 244, as a husband can give the other

spouse mandate to represent it for the exercise of rights they have under the matrimonial. Also, if one

57 For an analysis of these views, see: Al. Bacaci, the penalty provision of legal documents on the common property buildings, concluded one of the spouses without the express consent of the other spouse, "the Romanian magazine as" no. 11/1985, p. 36­37.

58 A see: Tribal. Supreme, in December. No guidelines. 18/1963, D. C. 1963, p. 27 and December. No. 2347/1974, CD 1974, p. 170; CSJ, v. com, in December. No. 419/2000 and December. No. 5603/2001, in jurisprudence Bulletin 1990­2003, Beck All Publishing, 2003, Bucharest, p. 484, respectively p. 483.

of the spouses is unable to express their will, the other spouse can obtain the permision court to

represent him for exercising rights they have under the matrimonial.

Under Article. 246 of the Draft, exceptionally, if one of the spouses conclude legal acts which

seriously endangers the interests of the family, the other spouse may ask the court that, on a fixed

period, the right to dispose of certain goods may be exercised only its express consent. This measure

may not exceed two years. Acts concluded with the court judgement failure hit invalidity are relative.

The right to prescribe action within 1 year, which is to begin on the date on which her husband injured

person is aware of the existence of the act.

Under the legal community, according to art. 272 of the Draft New Civil Code, each spouse will be

entitled to use the common good without the express consent of the other spouse. Nevertheless, a

change intended ¬ common asset underlying inflation will not be able to make only by agreeing

husbands. It also ¬ unexpected, each spouse will be able to perform single acts of conservation,

management acts regarding any of the common goods and documents acquisition of common goods.

Acts of available for the common goods, can not be concluded only with the consent of both spouses.

Nevertheless, any of the spouses will be able to provide alone, for valuable consideration, movables

common alienation which is not subject by law to certain formalities advertising.

Act concluded without the express consent of the other spouse when it is required under the law is

struck relative invalidity.

SECTION 4.3. GENERAL ASPECTS REGARDING ADMINISTRATION MANDATE IN RIGHT

OF THE AUTHOR’S MATTER AND CONNECTED RIGHTS

4. COLLECTIVE ADMINISTRATION CONTRACT.

Ab initio, is an indication that us being in the presence of a species of contractual mandate, to the

extent that the special provisions established by Article. Of Law No. 129­1291. 8 / 1996 regarding

copyright and related rights 59 , are insufficient will be completed properly with the art. 1532­1559

C.civ. concerning the mandate 60 . If the provisions of Article. 1532­1559 C.civ.they aren’t enough,

it will call upon the art. 942­1206 C.civ. relating to contracts or agreements.

59 Law no. 8 / 1996 was published in the "Official Gazette of Romania, Part I, no. 60 of 26 March 1996). Law no. 8 / 1996 was amended and supplemented by Law no. 285/2004 (published in the "Official Gazette of Romania, Part I, no. 587 of 30 June 2004), GPO No. 123/2005 (published in the "Official Gazette of Romania, Part I, no. 843 of 19 September 2005) and by Law no. 329/2006 on the approval O.U.G. No. 123/2005 (published "Official Gazette of Romania, Part I, no. 657 of 31 July 2006). 60 For details of the contract collecting economic rights of the author and those related, see: T. Bodoaşcă, right intellectual properties edition He has, Publishing CH Beck, Bucharest, 2007, p. 178 and following.

Under Article. Article 129. Of Law No. 1. 8 / 1996, the mandate of collecting the economic rights

of the author and is related directly granted by written contract, by rightholders.

In our opinion, the text quoted above is criticabil in at least two aspects.

Firstly, the imperative formulation of the text can be concluded that right­holders are required to

give a direct mandate collecting, circumstances that do not correspond to reality because, being us

in contractual matters, the incident is the principle of freedom of contract holders having only able

to give or not give such a mandate.

Secondly, the text does not specify who is granted the mandate given directly collecting. In reality,

the mandate is entrusted to a OGC

4.3.2. BODIES OF COLLECTIVE MANAGEMENT OPERATION

Law no. 8 / 1996, art. 130, governing bodies in detail the obligations of collecting. In analyzing

the content of art. 130, the obligations O.G.C. could be grouped into the following two categories:

­­ Obligations representation;

­­ Other obligations.

The first category we show the obligations as follows:

­­ To develop methodologies to their fields of activity, including economic rights due to be

negotiated with users for the payment of these rights in the case of those works whose mode of

operation makes it impossible to authorization by individual holders (lit. a);

­­ To conclude, on behalf of holders who have given mandate or on the basis of agreements

concluded with foreign bodies similar contracts with General organizers show, with users engaged

in public communication, with bodies or television broadcasting or with distributors service

programs via cable, with the authorization of use of the repertory protected (lit. c);

­­ To protect the interests of their members as regards the management rights due as a result of

using their own repertoire from the territory of Romania, through the conclusion of contracts with

organizations similar representation abroad (lit. d);

­­ To collect the amounts owed by users and to allocate between right­holders, according to the

provisions of the Statute (lit. e);

­­ To require users or their intermediaries communication of information and transmitting the

necessary documents to determine the amount of royalties they collect and use information on the

works, giving the holders, to be shared. Users or their intermediaries are required to provide, in

writing and electronically within 10 days of the request, information and documents required

under the signature legal representative and stamped (lit. h).

In the second category are part of OGC following obligations:

­­ To authorize the users at their request, made before the use of protected repertoire, written by

non­exclusive license, where were established methodologies, in return for payment (lit. b);

­­ To ensure their members access to information on any aspect of the business of collecting

amounts owed by users and distributing them (lit. f);

­­ To assist specialty holders and to represent the legal procedures, limiting their scope of work

(lit. g);

­­ Ensure the transparency of the work collecting between public authorities who have the right to

control (lit. i);

­­ Comply with any other activity, especially under the mandate received from holders of

copyright or neighbouring rights, the object of their activity (lit. j).

The methodologies, which collecting body must draw up, according to art. Article 130. 1 point. of

Law no. 8 / 1996, negotiated in a committee constituted under Article. Article 131. 2, by decision

of the Director General of O.R.D.A 61 .

V. SELECTIVE BIBLIOGRAPHY

5.1. LEGISLATION

5.1.1. Domestic legislation.

­­ Constitution of Romania (reviewed in the year 2003);

­­ Romanian civil code;

­­ The Romanian Civil Code (2004);

­­ Decree no. 31/1954 on individuals and legal persons;

­­ Decree no. 32/1954 for the implementation of the Code and Decree family on individuals and

legal persons;

­­ Nr.167/1958 Decree on extinguished prescribing extinguished;

­­ Law nr.18/1991 fund;

61 According to art. Article 131. 2 of Law no. 8 / 1996, the committee are: one representative of the main bodies collecting, who works for one category of rights onthe one hand, one representative of the main associative structures mandated by users, called each other, and how many a representative of the first major users 3, established on the basis of turnover and market share in their area, provided that they be declared at the Romanian Office for the Rights of Authors at their own risk and the public broadcasting company and television, as appropriate, on the other.

­­ Law nr.105/1992 regarding the regulation of relationships Romanian private international law;

­­ Rent’s law nr.16/1994;

­­ Law no. 33/1994 on the question of expropriation for public utility;

­­ Law nr.112/1995 for regulating the legal situation of buildings intended for housing, listed in

state ownership;

­­ Law no. 247/2005 on the reform in property and justice, and some adjacent measures;

­­ Law no. 7 / 1996 of land legister and public land;

­­ Law nr.114/1996 on housing;

­­ Law no. 213/1998 on public ownership and its legal regime;

­­ Law no. 1 / 2000 to reconstruct the right of ownership of land for forestry and required by law

nr.18/1991 fund and the Law nr.169/1997;

­­ Law no. 10/2001 concerning the legal status of properties in abusively March 6 during 1945­22

December 1989;

5.1.2. Earlier international norms.

­­ Universal Declaration of Human Rights (1948);

­­ International Covenant on Civil and Political Rights (1966);

­­ International Covenant on Economic, Social and Cultural;

­­ The European Convention for the Protection of Human Rights and Fundamental Freedoms (1951);

5.2. DOCTRINĂ

4.2.1. Books and university courses.

­­ P. J. H. Antonmatei and Raynard, Droit civil. The contracts speciaux, Editions Litec, paris, 1997;

­­ F. Alcaro, Ill. mandate, Giuffré Editore, Milan, 2000;

­­ D. Alexandresco, Explicaţiunea theoretical and practical civil Romanian, vol IX, Bucharest, 1910;

­­ I. Albu, concept and structure of obligation, Publishing dacia, Cluj­Napoca, 1984;

­­ I. Albu, Civil Law. Introduction to study obligations, Dacia Publishing, Cluj Napoca, 1984;

­­ I. Albu, Civil Law. Contract and contractual liability, Dacia Publishing, Cluj­Napoca, 1994;

­­ F. Alcaro etc., Ill. mandate, Giuffré Editore, Milan, 2000;

­­ Antonmatei and Raynard H. P. J., Droit civil. The contracts speciaux, Litec Editions, Paris, 1997;

­­ P. Anca and TR Popescu, general theory of liability, Scientific Publishing, Bucharest, 1968;

­­ Al Bacaci, economic reports in family law, edition II, Dacia Publishing, Cluj­Napoca, 2007;

­­ Al. Bacaci, C. Hageanu and VC Dumitrache, family law, will edition, Publishing All Beck,

Bucharest, 2006;

­­ Al. Bacaci, O. Ungureanu, C. C. Turianu and Jugastru, principles and institutions of civil law.

Course selective licensing 2002­2003, Walterskluwer Publishing, 2002;

­­ Al. Bacaci and Gh Comăniţă, Civil Law. Successions edition II, Publishing CH Beck, Bucharest,

2006;

­­ M. Banciu, Principle exercise of civil rights only for the purposes for the purpose of which were

recognized by law, in practice judicial contribution to the development of the principles of civil law

Romanian, Publishing Academy, Bucharest, 1978;

­­ M. Banciu, representation in civil legal acts, Publishing dacia, Cluj­Napoca, 1995;

­­ G. Baldini, Mandato e fiducia, Giuffré Editore, Milan, 2000;

A. Batteur, Le apparent mandate in private law, thèse Caen, 1989;

­­ Al. Băicoianu, and I. C. Hamangiu Rosetti­Bălănescu, Romanian civil law. Studies doctrine and

jurisprudence, Socec Publishing, Bucharest, 1943;

­­ A. Bénabent, Droit civil. The contracts speciaux, Paris, 1995;

­­ Gh Beleiu, Civil Law. Introduction to civil law. Topics of civil law, Universe Publishing Law,

Bucharest, 2001;

­­ Bigot and J. D. Langé, Traité de droit des assurances, Paris, 1999;

­­ Rosetti Bălănescu and Băicoianu, Romanian civil law. Studies doctrine and jurisprudence, Socec

Publishing, Bucharest, 1943;

­­ C. and C. Stătescu Bârsan, the Treaty of civil law. The theory of general obligations, Publishing

Academy, Bucharest, 1981;

­­ C. and C. Stătescu Bârsan, Civil Law. The theory of general obligations, Publishing All Beck,

Bucharest, 2000;

­­ T. Bodoaşcă, courts jurisdiction in civil, Publishing All Beck, Bucharest, 2002;

­­ T. Bodoaşcă, family law, Publishing CH Beck, Bucharest, 2005;

­­ T. Bodoaşcă, intellectual property right, edition II, Publishing CH Beck, bucharest, 2007;

­­ T. Bodoaşcă, studies on family law Publishing CH Beck, Bucharest, 2007;

­­ S. Cărpenaru and Fr. Deak, civil and commercial contracts, Publishing Lumina Lex, Bucharest,

1993;

­­ O. Căpăţână, commercial companies, Publishing Lumina Lex, Bucharest, 1991;

­­ D. Chirică, Civil Law. Contracts Special Edition Lumina Lex, Bucharest, 1997;

­­ D. Cosma, a general theory of civil legal act, Scientific Publishing, Bucharest, 1969;

­­ N. M. Costin, the Treaty of civil law. General theory of liability, Tirgu Mures, 1993;

­­ P. Cosmovici, Civil Law. Obligations, Publishing All Beck, Bucharest, 1998;

­­ D. Clocotici and Şt. Gheorghiu, Some considerations on the commercial agent contract in the

context of international trade relations, in Review of commercial law, no. 2 / 1995;

­­ MN Costin, NN Costin, M. V. Muresan and Ursa Dictionary of civil law, and Enciclopedica

Scientific Publishing, Bucharest;

­­ Cozianu M. et Viandier A Drot des societes, Litec Editions, Paris, 1992;

­­ Fr. Deak, civil law course. The theory of general obligations, Publishing and Pedagogic

Departments, Bucharest, 1966;

­­ Fr. Deak, the Treaty of civil law. U.S. special Actami Publishing, Bucharest, 1999;

­­ Fr. Deak, the Treaty of civil law. Contracts; Universe Publishing Law, Bucharest, 2003;

­­ Fr. Deak, the Treaty of inheritance law, Actami Publishing, Bucharest, 1999;

­­ René Demoque, Traité des obligations in general, Paris, 1923;

­­ I. Deleanu, Ficţiunile Legal Publishing All Beck, Bucharest, 2005;

­­ I. P. Drăghici and Dogaru, Civil Law. The theory of general obligations, Publishing All Beck,

Bucharest, 2002;

­­ M. Eliescu, civil tort liability, Publishing Academy, Bucharest, 1972;

­­ M. Eliescu, heritage and its opposite devoluţiunea Socialist Republic of Romania, Scientific

Publishing, Bucharest, 1967;

­­ J. Escarra, Principes de droit commercial, Paris, Sirey Publishing, 1934;

­­ Luigi Ferrara Cariota, IL negazio giuridico nel diricto privato italiano, Napoli, without editing year;

­­ I. P. Filipescu, Civil Law. General theory of liability, Actami Publishing, Bucharest, 2000;

­­ IP Filipescu, the Treaty of family law, Publishing All Beck, Bucharest, 2002;

­­ E. Florian, family law, Publishing CH Beck, Bucharest, 2006;

­­ S. S. Ghimpu and Grosu, capacity representation of the person, Scientific Publishing, Bucharest,

1961;

­­ N. Grossi, Ill. contracto del mandate, Giuffré Editore, Milan, 2000;

­­ GH. Guţu, latin­Romanian Dictionary, Scientific Publishing, Bucharest, 1973;

­­ C. Jugastru, Civil Law. Obligations, Argonaut Publishing, Cluj­Napoca, 2002;

­­ C. Hamangiu and collectively, the Treaty of Romanian civil law, the National Publishing,

Bucharest, 1929;

­­ TR Ionaşcu, general theory of contracts and obligations, Exchange, Bucharest, 1942;

­­ P. Hébraud, Rôlesde to voloné and abjectifs matters in the legal documents, Et. Maury, Dalloz,

1960;

­­ Lambert Y­Faivre, Droit des assurances, Dalloz, 1960;

­­ Ph. Malaurie, L. Aynés, Cours de droit civil. The contracts speciaux, Editions Cujas, Paris, 1991;

­­ Jaques Martin from Moute, L 'legal acts unilaterally, Paris, 1951;

­­ C. Mascala, C. Saint­Alary­Houin, Droit civil. The contracts civils et commerciaux, 33, Édition,

LGDJ, Paris, 2000;

­­ E. Molcuţ and D. Oancea, Roman law, House Press imprint and "Chance" ­ LLC, Bucharest, 1995;

­­ F. Moţiu and RI Motica, special civilian contracts. Theory and practice judicial lex Light

Publishing, Bucharest, 2000;

­­ M. Muresan, Civil Contracts Special Edition Cordial Lex, Cluj­Napoca, 1999;

­­ S. Niculescu, a general theory of liability, Lex Light Publishing, Bucharest, 2001;

­­ R. Niţoiu, random theory of contracts, Publishing All Beck, Bucharest, 2003;

­­ A. Politano, Le obligazioni del mandatario del mandante e leobligazioni, Giuffrè Editore, Milan,

2000;

I. Leş, participation of parties in civil, Dacia Publishing, Cluj­Napoca, 1982;

I. Leş, procedural penalties in civil, lex Light Publishing, Bucharest, 1997;

I. Leş, Civil Procedures special Beck All Publishing, Bucharest, 1999;

I. Leş, Romanian Organization of the judiciary, Publishing All Beck, Bucharest, 2003;

I. Leş, compared judicial systems, Publishing All Beck, Bucharest, 2002;

I. Leş, the Treaty of civil procedural law, edition II, Publishing CH Beck, Bucharest, 2005;

­­ I. Leş, Organization of the judiciary, lawiery and notary work, lex Light Publishing, Bucharest,

1997;

­­ I. Leş, Code of Civil Procedure. Comments on articles, 2nd edition, Publishing CH Beck,

Bucharest, 2005;

­­ SG Loginescu, Elements of the novel, Curierul Judicial Publishing, vol.II, Bucharest, 1929;

­­ Pétel Ph., Le contract mandate, Dalloz, 1994;

­­ A. Politano, Le obligazioni del mandatario del obligazioni it's mandate, Giuffré Editore, Milan,

2000;

­­ C. Red, regulation of commercial agents under Law no. 509/2002, "Review of commercial law" no.

12/2002;

­­ C. Red, contracts mandate and the effects of contracts in civil and commercial law, the lex Light

Publishing, Bucharest, 2003;

­­ C. Red and Motica RI, Romanian law and international trade, Publishing Alma Mater, Timisoara,

1999;

­­ E. Lupan, M. D. Răchită and Popescu, Civil Law. General theory, "Babes Bolyai University, Cluj­

Napoca, 1992;

­­ E. Safta ­ Romano, civil contracts, Collegiums Polirom Publishing House, Bucharest, 1999;

­­ R. Petrescu, a general theory of trade obligations, Romfel Publishing, Bucharest, 1994;

­­ R. Petrescu, major contracts civil law, Oscar Print Publishing, Bucharest, 1997;

­­ L. Pop, the general theory of liability, Lex Light Publishing, Bucharest, and the 1998 edition in

2000;

­­ Pop and R. L. Gidro, Civil Law. The theory of general obligations, Babes ­ Bolyai University, Cluj­

Napoca, 1982;

­­ D. Rizeanu and D. Protopopescu, the economic relationship between spouses in light of the family

code, Scientific Publishing, Bucharest, 1959;

­­ R. Sanilievici, Civil Law. The theory of general obligations, University of Iasi, 1976;

­­ F. Ştef, Dictionary of Latin legal phrases, Oscar Print Publishing, Bucharest, 1995;

­­ C. Turianu, Civil Law. The theory of general obligations, University of Iasi, 1976;

­­ C. Turianu, special civilian contracts. Practice judicial annotated, Publishing All Beck, Bucharest,

2000;

I. Bear, a general theory of liability, Oscar Prinţ Publishing, Bucharest, 1998;

O. Ungureanu, Civil Law. Introduction, edition will, Publishing All Beck, Bucharest, 1997;

­­ O. Ungureanu, Civil Law. Introduction, Publishing All Beck, Bucharest, 2000;

O. C. Jugastru Ungureanu, Manual of private international law, Argonaut Publishing, Cluj­Napoca,

1998;

O. Ungureanu, Nulităţile Civil Procedure. Romanian law and compared, Argonaut Publishing, 1997;

­­ O. Ungureanu, acts of civil procedure in civil, Chance Publishing, Bucharest, 1994;

O. C. Jugastru Ungureanu, Civil Law. Individuals, 2nd edition, revised Hamangiu Publishing,

Bucharest, 2007;

­­ I. Zinveliu, civil contracts ­ instruments of meeting the interests of citizens, Dacia Publishing, Cluj­

Napoca, 1978;

­­ S. Zilberstein, VM Ciobanu and I. Băcanu, civil procedural law. Enforcement, edition II, Lumina

Lex Publishing, Bucharest, 1998;

­­ S. Zilberstein and VM Ciobanu, civil procedural law. Treaty enforcement, lex Light Publishing,

Bucharest, 2001;

­­ Explanatory Dictionary of the Romanian language, published under the aegis of the Academy of

Romania, the Institute of Linguistics "Iorgu Jordan," Enciclopedic Universe Publishing, Bucharest,

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5.2.2. Surveys.

­­ P. Anca, law spouses regarding property, in "The Romanian law," no. 9 / 1976;

­­ Al. Bacaci, the penalty provision of legal documents on the common property buildings, concluded

one of the spouses without the express consent of the other spouse, "the Romanian magazine as" no.

11/1985,

­­ Al. Bacaci, Considerations on the actual marriage, "Right, no. 4 / 2001;

­­ M. Banciu, proposals to improve legislation representation in each other tacit mandate of the

spouses in the social dynamics of relations regulated by law flipped in theory and practice law, Babes­

Bolyai University, Cluj­Napoca, Center for Social Sciences, Division Legal Sciences, vol II, 1989­

1990;

­­ I. Balan, the effects of distance contracts and consumer protection ­ Government Emergency

Ordinance no. 130/2000, "Right, no. 1 / 2002;

­­ MD Bocşan, Mandate in common interest, "Right, no. 2 / 2001, p. 64­71;

­­ T. Bodoaşcă, Opinions on the nullity of legal documents that are nesocotite some laws on the legal

marriage, "right" no. 9 / 2004;

­­ Gh Beleiu, Note No decision. 206/1987 Court of Constanta county, "The Romanian law," no. 2 /

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­­ G. Chivu, the Note dec.civ. No. 102/1973 Court of Cluj county, "The Romanian law," no. 11/1973;

­­ D. Cotrutz, Note decision of 17 January 1929 the Court of Appeals Lyon, "Pandectele Romanian,

1931.III.62;

­­ D. Clocotici and Gheorghe Gheorghiu, Some considerations on the commercial agent contract in

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­­ D. Clocotici, commercial mandate, "Review of commercial law," no. 11/1996;

­­ I. Deleanu, Opozabilitatea. General considerations, "Right, no. 7 / 2001;

­­ M. A. Georgescu and Oproiu, Reflexii regarding the limits of the mandate under the tacit economic

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­­ N. Ghişoiu, Obligations representative in the commercial mandate, "Review of commercial law,"

no. 7­8/2000;

­­ P. Y, Gautier, Le prix from non­exclusivité: ľaffaire initiée par mandataire but "bouclée" by

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­­ Jean­Jaques Dupeyroux, Contribution à la théorie générale de l'acte à titre gratui, Paris, 1955;

­­ Cl. (I) and Red M. Enache (II), the validity of the mandate and the mandate verbally tacit request

for establishing property rights under the Law fund, "right" no. 1 / 1999;

­­ DF George and Gheorghe Gheorghiu, Amendment and the cessation of commercial office, "Review

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­­ ML Ghinea, some problems relating to the right of retention, "The Romanian law," no. 11/1983;

­­ V. Loghin, civil Note No decision. 210/1960 regional Court of Iasi, in the "People's Legality", no. 6

/ 1960;

­­ V. Loghin, Neconcordanţa aware of and will declare it in civil legal relationship established by

legal acts, "People's law", no. 9 / 1956;

­­ M. Mayo, family economic relationship in light of the family code, "Justice Nine" no. 3 / 1954;

­­ L. Michael, is applicable and acts disinterested presumption mandate tacit mutual between

spouses?, "The Romanian law," no. 8 / 1984;

­­ M. Nicholas, the validity of the mandate and the mandate verbally tacit request for establishing

property rights under the law fund, "Right, no. 7 / 1997;

­­ Fr. Ost, Droit et interest, vol III: Entre law and non droit: ľintérêt, Brussels, 1990;

­­ R. Petrescu, practical aspects of the Supreme Court on simulaţia in legal acts, "The Romanian law,"

no. 1 / 1976;

­­ I. Reghini, Remarks on the mandate of the civil common interest in the "Study Universitatis Babes

Bolyai" no. 2 / 2001;

­­ C. Red, No. validity of the mandate and the mandate tacit request for establishing property rights

under the Law fund, "right" no. 7 / 1999;

­­ C. Red, need to return conventions matrimonial freedom, "right" no. 1 / 1999;

­­ C. Red, conventional legal representation, "Right, no. 8 / 2002;

­­ C. Sasu, the validity of documents made available by one of the spouses on common property

without the express consent of the other spouse, "Justice Nine" no. 1 / 1962;

­­ C. Toader, the contract term. Aspects of law and comparative law, in Supplement to the "Pandectele

Romanian, no. 1 / 2003;

­­ P. Vasilescu, Looking on simulaţie action, "Review of commercial law" no. 7­8/1998;

­­ O. C. Ungureanu Munteanu, Remarks on the individual and the legal personality, "Romanian

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