ABSTRACT

Doctoral thesis Doru Florel Trăilă

Keywords – civil action, reduction of excessive gifts, forced estate, free estate,
hereditary petition, partition of succession.

The doctoral thesis is entitled “Successional civil actions”

The doctoral thesis is structured in four titles, each divided into chapters, sections,
and subsections.

Title I, “Civil Actions” contains five chapters, as follows:

- the first chapter develops aspects pertaining to Roman law actions, by analyzing
procedural Roman law as an instrument for achieving the rule of private law, as the
socio-economic imperatives required the preservation of the appearance that the law
remained unchanged. Self-power, the non-judicial protection of one’s rights, is also
analyzed, as it has certain echoes în the Romanian law system, initially in title VI of
Law no. 99/1999, and presently in articles 2439 – 2440 of the Romanian Civil Code.
Another Roman procedural institution that has made way into the Romanian law
system is jus retentionis, also analyzed herein. The last part of the analysis of Roman
law refers to the various definitions of the civil action, especially the definitions
proposed by Celsus and Justinian;
- the second chapter analyzes the civil action’s definition and its elements, as
proposed by legislation and doctrine. The Civil Procedure Code’s legislator has
chosen (as per the Civil Code’s model) to define the civil action as the ensemble of
procedural means provided by law for the protection of subjective rights or any other
legal situations claimed by either party, and for the ensuring of proper defense of the
parties in litigation. In other words, if a person’s subjective civil right – defined as
the active subject’s lawfully acknowledged possibility of having a certain conduct,
within law and morality, of claiming a certain conduct (to give, to do, or to abstain
from doing) from the passive subject and to avail themselves of the coercive power

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of the state if need be – is infringed, the means to restore it is the civil action, by way
of a civil proceeding. The analysis and regulation contained in the Civil Code,
pertaining to the limitation of an action, was proposed and inspired by the author of
the dualist nature of the right of action, distinguishing between the material right of
action and the procedural right of action. The material right of action, not to be
confused with the infringed, contested or threatened subjective civil right, is the
possibility to obtain, by coercive force, the execution of a right, the recognition of a
threatened or contested right, or, if the case need be, the application of another civil
sanction. On the other hand, the procedural right of action would be the right to
freely address the justice system – a public subjective right – constitutionally
recognized for any person, as being the faculty or possibility to address a court and to
claim the judge to rule on the request, without a necessarily favorable response, as
this pertains to the factual matters at hand. This opinion was imposed when the legal
text pertaining to the limitation of an action was drafted, as follows: the material
right of action, henceforth the right of action, is extinguished by limitation, if not
exercised within the time limit set forth by the law. For the purposes of legal
provision cited above, the right of action means the right to compel a person using
public force to enforce a particular benefit, to comply with a certain legal situation or
to incur any civil sanction, as appropriate. The caveat present in paragraph 2 of
article 2500 of the Civil Code is welcome, because defining the right of action in the
Civil code, including its procedural aspect, would have brought forth both theoretical
and practical difficulties. The right of action, according to the above author, is the
subjective right holder’s and the persons’ or organs’ who have a legal possibility to
do so, to resort, if necessary, to the state’s coercive powers. As far as I’m concerned,
the legislator’s clear option for objectively defining the civil action has underlined
the fact that the civil action is a complex institution, not to be confused with the
subjective right, nor with the application for summons, as the civil action is the
ensemble of procedural means provided by law for the protection of subjective rights
or any other legal situations claimed by either party, and for the ensuring of proper
defense of the parties in litigation.
- the third chapter covers the classification of civil actions, by analyzing the
distinction between actions and applications for summons, according to criteria

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established by doctrine: classification by the procedural path chosen by the applicant
for his right’s protection and this classification’s importance; classification by the
material purpose sought by the applicant and the classification by the nature of the
right brought forward by that respective action. One of the procedural methods by
which the civil action is exercised is the motion, by way of which any person, natural
or artificial, address claims to the court in order to protect their legitimate rights and
interests. The motion has two functions: firstly, to transform the civil action from an
abstract notion into legal proceedings, and secondly, to notify the jurisdictional body
to decide the claim put forward by the motion. Generally, the motion is the
procedural act by which the author addresses the court with a claim, requesting,
where appropriately, to rule on that claim or to do any subsequent procedural acts the
law binds it to do. The motion is a procedural act that both invests and requests: the
investiture is a reflection of the principle of litigant-led conduction of litigation, and
the request is a reflection of the right of free access to justice and of the court’s duty
to answer any motion according to its nature and purpose. However, it was observed
that, in reality, the notion of action is used in two senses - one general, represented
by all means organized by procedural law for the protection of subjective civil rights,
and one particular, whereby the action is synonymous with the motion for
proceedings. The classification of actions and all the criteria proposed for this
classification both entail this particular sense. As such, the differences and
connections between the civil action and the civil motion explain the regulation
contained in article 29 of the Civil procedure code, which contains the civil action’s
definition and the regulation containted in articles 30 and the following of the Civil
procedure code. Moreover, the literature preceding the Civil Procedure Code
correctly shows that "when dealing with the classification of actions, one should not
forget for a moment that the law envisages the motion, one of the manifestations
action, and not the action itself".
- chapter four analyzes the conditions governing the civil action: civil capacity, civil
standing and its transmission, the assertion of a claim, interest and the sanctions for
the infringement of these conditions. The doctrine states that the exercise of the
action is free, meaning that no one can be held accountable for unjustified claims
and, on the other hand, its exercise is not subject, in principle, to any guarantees or

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prior authorization. The civil action is optional, and to trigger its procedural forms, a
will to act is necessary.
Once this will exists, the aforementioned conditions must be accomplished.
Procedural capacity is the procedural reflection of the common civil capacity,
divided in capacity of use, and capacity of exercise. The former is one person’s
aptitude to have civil rights and obligations, as shown by article 34 of the Civil Code,
while procedural capacity is a person’s aptitude to have procedural rights and
obligations as shown by article 56 of the Civil procedure code. Article 36 of the Civil
procedure code underlines the symbiosis between substantive and procedural law,
because civil standing is the procedural transposition of the subjects of the concrete
civil link - civil standing arises from the identity between the litigating parties and
the parts of the civil relationship being analyzed by the court. The existence or
inexistence of the rights and obligations being analyzed is a question of substantive
law. Article 32 letter c) states that another condition for the exercise of a civil action
is affirming a claim, either a subjective civil right or another legal situation that can
only be realized in a court of law. The New Procedure Code has avoided using, in
article 30 par. (1) and in article 32, the ancient expression of “affirming a right” or
“pretending a right”, because fears have been expressed that by so affirming, the
judge should verify if the right exists or not, at the very onset of the trial. In reality,
the said verification is done by way of the civil action, when the judicial decision
will clarify any uncertainty pertaining the parts’ affirmations before the court.
Interest is another condition for the exertion of the civil action, and it is the practical
use that one part wishes to obtain by way of the procedural means contained in the
civil action. It’s normal for the judicial procedure to only be sustained if it could
bring the party some advantage, and not if the civil action were a means of teasing
the other party, thereby submitting useless issues before the civil courts. This
commonsensical solution has been proposed ever since the XIXth century,
suggestively expressed by two old maxims: „pas d’interes pas d’action” (no interest, no
action) şi „d’interes est la mesure des actions” (the interest is the measure of the action).
By analyzing art. 32 I’ve noticed that paragraph 1 sets forth four conditions to
exercise the civil action (procedural capacity, procedural standing, interest and the
assertion of a claim). The name of article 40 generically notes the sanctions for

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breaching the aforementioned conditions, but, in reality, article 40 paragraph 1 only
covers three of these conditions, procedural capacity, standing and interest. Motions
set forth by a person with no capacity are null or annullable, respectively. Also, when
standing or interest is lacking, the court shall reject the motion or the defense as
being put forth by a person or against a person with no standing or lacking of
interest, accordingly. The doctrine has correctly shown that such a rejection would
not be definitive, as the proceedings can be restarted, by a person with standing, or
against a person with standing. The Code does not normally permit replacing a
person without standing with one that has standing during a pending trial. This is
unless article 39 would be applicable, or if the applicant does not modify his motion
according to article 204 paragraphs 1 and 3 or if, in the case of real actions, if the
true right holder is shown, according to articles 75 – 77 of the New Civil procedure
code. The rejection of the motion or the defense also happens when the court finds
interest lacking, or if the interest doesn’t fulfill the legal conditions for its protection.
A lack of interest can be invoked by way of an exception which, because of its
nature, is a procedural, peremptory exception. Consequently, it can be invoked by the
Court ex officio, or by the prosecutor. Paragraph 2 of article 40 states that the breach
of the rules set forth by the title which governs the conditions of the civil action can
attract other sanctions than those expressly set forth by paragraph 1, and he who has
suffered damages has the right to be compensated according to law. For example, art.
187 paragraph 1 point 1 letter a) states that the introduction of a motion, be it main,
accessory, additional or incidental, as well as exerting a means of appeal if they are
obviously unfounded is liable to attract a judicial fine.
- the final chapter enumerates the successional civil actions, and identifies the ones
that will be analyzed by this thesis: the action for the reduction of excessive gifts, the
hereditary petition and the partation of succession.

Title II analyzes the action for the reduction of excessive gifts, taking into
consideration the notion and history of this action in Roman law, ancient laws of our
country (The Ipsilanti Code, The Caragea Code and the Calimah Code) and in other
countries’ law systems (French and Common law).

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The following chapters comprise the analysis of this action in the New Civil code:
the relevant articles, definition, its correlation with the reporting of donations and
with judicial partition, persons with active standing (forced heirs, their successors
and the forced heirs’ general creditors) and persons with passive standing, the order
the reduction is realized (first the reduction of testamentary gifts and the situation of
an insolvable beneficiary), its ways of realization (by agreement or by judicial
means), its statute of limitations, its effects (the inefficacity of testamentary gifts, the
annulment of donations, restitution in nature and in equivalent), as well as some
particularities, like the reduction of the usufruct and of the life annuity, the reduction
of excessive gifts when in breach of the special forced inheritance of the surviving
spouse, gifts pertaining to article 1090 of the Civil Code, the presumption of a
donation and the reduction of excessive gifts in intellectual property cases. The title
ends with a chapter analyzing the French law on this matter and a chapter with some
conclusions.
Thusly, this action is the ensemble of procedural means by which a party can protect
its forced inheritance, taking into account his or her nature of a forced heir, legally
protected by articles 1086 – 1088 of the Civil Code. If the concrete forced
inheritance (the sum of the individual forced inheritances, of each forced heir as
according to the law) is breached by the gifts made by the deceased (both donations
and testamentary gifts), they will be reduced to the limits of the free inheritance. The
reduction of excessive gifts is intrinsically linked to the forced inheritance. The latter
is one of the most controversial institutions in modern civil law, with different
conceptions as far as it’s concerned, from its total denial, to recognizing it in certain
limits.
As far as its range is concerned, the legislator has moved passed the system of the
Cuza Civil Code, which combined several methods of determining the fored
inheritance, the forced inheritance in the New Civil Code being half of what part of
the estate each forced heir whould have received, as a legal successor, without gifts
or disinheritances. The institution of the surviving spouses’ special free estate is
maintained, with all the practical difficulties it entails, according to article 939 of the
Cuza Civil Code. The new regulations were meant to simplify the matter at hand,
but, several years after the introduction of the New Civil Code, two currents of

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interpretation and application can be observed. Thusly, non-raportable gifts made to
the surviving spouse, who claims the estate with other descendants than those
common to her and her deceased spouse, cannot be more than a quarter of the total
estate or the part of the descendant who received the least. If the deceased did not
make gifts out of the difference between the free estate as determined by article 1089
and the special free estate, this difference will pass on to the descendants. The above
apply, correspondingly, when the aforementioned descendant was directly
disinherited, and this disinheritance would profit the surviving spouse.
Both common, disguised, indirect and small donations, as well as testamentary gifts
are analyzed, be they universal or individual (including the testamentary gift of sums
of money deposited in bank accounts). In these conditions, gifts in surplus of the free
estate and in breach of the forced inheritance will be reduced, to the limits of the free
estate. The free estate, according to art. 1089 of the Civil Code, is the part of the
estate not reserved by law, with which the deceased can do as he pleases, including
gifting it. The free estate is a fraction of the total estate that the dead person could
have disposed through gifts, even though forced heirs exist in his case. According to
the present regulation, the free estate will always be at least half of the estate – and
will be obviously affected by any forced heirs that effectively come to claim the
estate of the deceased. Article 1096 of the Civil Code presents the order excessive
gifts are reduced. Of course, this issue becomes relevant when the deceased made
several gifts (donations or testamentary gifts) that are in breach of the free estate.
Thusly, the three rules set forth by article 1096, that govern the order of the reduction
of gifts are: a) first the reduction of testamentary gifts; b) the proportional and
concomitant reduction of testamentary gifts; c) the successive reduction of donations,
starting with the most recent. The principle behind these three rules is that gifts are to
be reduced according to their age, as according to the Latin adage prior tempore,
potior iure. Only if the gifts have the same age will they be reduced proportionally to
their total value. The reduction of excessive gifts is an institution that tends to keep
assets inside the family, encouraging their passing on through the generations, and to
protect the forced heirs, the law states that they are entitled to a part of the estate,
even against the deceased’s will. Breaching the forced inheritance is against the
most elementary moral rules, as the forced inheritance also fulfills a social role, as

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family is the basic nucleus of society. Consequently, the reduction of excessive gifts
is a means to protect the forced inheritance, and is justified by fulfilling a natural
debt of piety between descendants and ascendants and between spouses. If the
deceased party could have disposed freely of all his assets, some parents’ possibility
to freely estrange all their estate would come into play. The same issue would come
into play between spouses or between parents and their children when the natural
order of things is inversed, and parents would collect their deceased children’s estate
as forced heirs. However, one wonders if, by limitation of the pater familias’ powers,
he would be exposed to the indifference of his descendants (or, indeed, the
indifference of his ascendants, in cases where no descendants exist) who, judging by
their protection by the law by way of the forced inheritance, would only need to
abstain from grave actions resulting in their own indignity in order to obtain part of
the estate. This part of the estate is sizeable enough for the aforementioned risk to
manifest itself.

Title III analyses the hereditary petition, and is structured in seven chapters, as
follows:
- the first chapter contains the notion and history of this institution. The hereditary
petition has been defined as an action by which a person claims the court to
recognize his status as a legal or testamentary heir and asks the court to order the
restitution of the estate’s assets he is owed (either the entire estate, or a fraction of
it) from the person who also claims he is a legal or testamentary heir and holds the
reclaimed assets, and whose rights are incompatible with the claimant’s. In the
current regulation, the hereditary petition has kept its configuration since Roman
times. The hereditary petition is one of the oldest actions in Roman law, having
suffered only minor modifications until the present day.
- the second chapter comprises aspects pertaining to the hereditary petition,
respectively the fact that the claimant can only be a universal heir or his successors in
rights – buyers of the success oral rights, the claimant’s own heirs (including heirs
that came unto the claimant’s assets before his own hereditary status was clarified),
and the respondent can only be a person who claims to be a universal heir and that
possesses the estate’s assets in this position.

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- the following chapters analyze the judicial characteristics of this action, the
materially and territorially competent court, the proof of the heir’s attribute, this
action’s effects (between the true heir and the apparent heir and effects as far as third
parties are concerned), means of appeal. Like the title before it, this analysis
concludes with a chapter dedicated to the French law on this matter. In my opinion,
the idea formulated regarding the Cuza Civil Code, insofar as the hereditary petition
is a real action is still correct as far as the New Civil Code is concerned. The
divisible aspect of this action was also analyzed, in a sense that each presumptive
heir – in cases in which there are several such heirs – must act or defend himself, and
cannot – by effect of the law – represent the others as well, and the decision will only
be effective inter partes litigantes. Article 1130 of the Civil Code provides that one
can “at any time obtain recognition of his statute as an heir…”. This way of
formulating leads to my conclusion that this action has no statute of limitation, a
solution that was also sustained by a part of the literature written before the New
Civil Code. According to article 1131 of the Civil Code, once recognized, the statute
of an heir binds the other parties that hold the assets to return those assets according
to the rules provided by article 1635 – 1649. Consequently, the same assets will be
returned to the true heir, and if this is not possible, by equivalent, whose value will
be judged as reported at the moment the one held to return received said assets. As
far as affecting third parties, article 1131 paragraph 2 is to be corroborated with the
conditions set forth by the law for maintaining all acts made by the indignant heir
upon the estate, in article 960 paragraph 3 of the Civil Code. Thusly, acts of
conservation and administration that profit the true heirs, concluded between the
apparent heir and third parties are maintained.
Title IV contains the analysis of the joint inheritance’s severance (the judicial
division of the inheritance).
- The first chapter of this title includes the concept and history of the regulation in
Roman law (the parties in actio familiae herciscundae, the effects of the action in
Roman law and placitum divisionis). Thus, a synthetic definition is that partition
(division) is the legal operation which ends the state of joint ownership, in the sense
that the asset or assets jointly owned are divided in their materiality, between the
holders. Even since the Law of the Twelve Tables the actio familiae herciscundae

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(action which sought to divide the inheritance) was recognized, and whose initiation
gave rise to a judicium duplex (each litigant being at the same time, claimant and
defendant), so that at the end, this action could lead to the conviction of the
applicant. Such actions are represented by the three actions of division – actio
familiae herciscundae, actio communi dividundo and actio finium regundorum¸ who
were also called actiones mixtae. Although this was not possible from the start - to
meet the interests at stake, to allow each co-owner to have two roles in the severance
of the joint tenancy, that of the claimant, as well as defendant, the action of
severance was amended accordingly, and thus they became duplicae (according with
the original procedure, only the claimant’s conclusions could be considered).
- the following chapters include the analysis of the substantive law and procedural
law rules regarding: the parties; the object of the judicial partition; the competent
court; aspects regarding the request for summons and the court referral; judgment of
partition; effects and means of appeal against the court decision.
In Roman law, the partition conferred or transferred property, and, therefore, was not
declaratory. This method implies that each co-owner is assumed to hold his rights
against the other co-owners. The assets that form a portion, before forming the object
of an exclusive right by a co-owner, are assumed firstly to pass through the
deceased’s patrimony, and then through the patrimony of all the other heirs. And this
is only the consequence of the fact that the Romans conceived the partition as a
variety of exchange - each co-owner was understood to lose his rights in the portion
of the others, in exchange for the other heir’s rights in his portion.
The consequences of this perspective were important - each co-owner was bound to
respect the rights accorded over the assets in his lot, by others, during the joint
tenancy.
For a long period of time, including in our civil law, division or the partition act has
had a declaratory effect, therefore retroactive, and this was due to several factors.
Typically, it is argued that the main reason for the retroactive effect was that in the
old French law, transfers of ownership were subject to tax in the benefit of the lord.
Thusly, as long as the division continues to be seen as a transfer of ownership, as in
Roman law, it was subject to the payment of these taxes. As a weapon against feudal
taxation, the idea of the retroactivity of the partition was devised– co-owners were

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considered to own their rights directly from the deceased, so that no taxes were due
on the severance on top of the taxes due to be paid for the succession as such.
However, specialized studies concluded that, in fact, reasons of civil law and not tax
law have determined the idea of the partition’s retroactivity. And this mainly in terms
of one of the co-owners debts which may constitute and guarantee an asset from the
partition of succession. Following the division of assets, the property encumbered by
the said warranty was assigned to another co-owner. Between 1538 - 1595 there were
several decisions that have invalidated such foreclosures. Moreover, the Parliament
of Paris, in its judgments of 1569, 1581 and 1595, pronounced that such mortgages
established during the joint ownership by one co-owner cannot, after the division,
affect the other’s lots. At this time, starting with the rules of the Civil Code - art. 680
- and ending with the rules of the Civil Procedure Code - art. 994 - the Romanian
legislator returned to the tradition of Roman law, giving the partition a constitutive
effect, whether voluntary or judicial.
Thus, each co-owner becomes exclusive owner of the assets or, as appropriate, of the
amounts of money that have been assigned, only from the date established in the
partition, but not before the conclusion of the agreement, in case of voluntary
partition or, where applicable, the final court decision.
Regarding immovable assets, the aforementioned provision of the Civil Code is
correlated with art. 885 of the Civil Code concerning the constitutive effects of
registration in the Land Registry, so that the legal effects of partition occur only if
the authenticated partition or a definitive court decision, where appropriate, were
submitted in the Land Registry.
I consider that the provisions of art. 680 para. (2), regarding the legal effects of
partition only if the partition or final court decision were submitted in the land
Registry, must be applied at this time in light of art. 56 of Law no. 71/2011
implementing the Civil Code.
The Civil Code provisions regarding the acquisition of immovable property by the
effect of their submission in the Land Registry are applied after the completion of the
cadaster for each territorial unit and opening, on request or ex officio, of the Land
Registry for the buildings concerned, according to the provisions of Cadaster Law
and real estate publicity no. 7/1996, republished, amended and supplemented.

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Until completion of cadastral works for each territorial unit and opening, on request
or ex officio, the land registry for those estates, the submission in the Land Registry
of the property right and other real rights, on the basis of documents which were
transmitted, modified or validly established, are made only for purposes of
enforceability against third parties.
Regarding this special procedure, conservation measures and precautionary measures
are also analyzed, so are any measures that can be taken in connection with the assets
forming the partition’s objects and elements of comparative law - French law and
European law. Judicial seizure, particularly analyzed in this paper, is defined by the
Code of Civil Procedure in art. 971 – as the freezing of the assets forming the object
of the dispute or, under legal conditions, of other assets, by entrusting their guard to a
seizure-administrator. As regards judicial seizure, there should be noted that, from
procedural perspective, the establishing procedure, as special procedure is governed
by art. 971-976 Civil Procedure Code, but under certain substantive issues, the Civil
Code - art. 2138-2143.
The title ends with a chapter which includes conclusions, personal analysis and
proposals. Thus, the real estate property in Romania, namely land ownership is
highly fragmented and the average size of farms has decreased - in absolute numbers
- to the level of 1905, when the average size was 3.27 ha / infield to 1.73 ha / infield
in 2002 and 1.95 ha / infield in 2012.
Since the average age of the holders infields is extremely high - 44.4% of the infields
belonging to several individuals over the age of 64, the breaking up of the infields
seems to follow an upward trend. It is fair, however, that at this moment, we have
several factors that encourage the coagulation of agricultural property- constitutional
and legal relaxation regarding the acquisition of land by foreigners and the rising
levels of foreign investment in agriculture, coupled with the smaller rural population,
caused not only by the aging of the population, but also by the exodus of young
people to urban areas -in the period of 1990-2011, the rural population decreased by
750,000 individuals, and the employment in agriculture fell by 800,000 individuals.
In the body of the thesis I have analyzed the changes to the partition procedure that
have taken place after the entry into force of the Civil Code in 2011 and also with the
entry into force of the Civil Procedure Code in 2013. To what extent do the new legal

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dispositions support the development of the agricultural exploitation and also to what
extent do they stop the fragmentation process of these exploitations, seeing that the
principle of equality in nature did not receive any corrective, such as those
implemented in France for example? I would say they don’t help at all.

Under these circumstances, I think it is up to the doctrine and jurisprudence to tame

the potentially destructive impetus of the equality principle in the partition, without
taking into account the nature of the joint assets. And this can be achieved even
through the prevalence of the equality of value principle over the principle of
equality in nature. Using this logic I have showed in the above paragraphs that the
provisional assignment is fully compatible with the hypothesis according to which
the only good among the joint assets is an infield, for example. Only by this measure
can we overcome the current of current jurisprudence and doctrine, thereby
harmonizing the general and particular interests herein.

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