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ENGAGEMENT – A LEGAL INSTITUTION RECENTLY INTRODUCED IN THE NEW ROMANIAN CIVIL CODE
Abstract
Among the many changes made following the entry into force of the new Civil Code in family law field, the civil engagement institution is governed by Articles 266-270. Even though there is so far a genuine judicial practice (although some unsuccessful actions began to be resolved), an analysis of this institution we find particularly timely, especially given the fact that the doctrine has not reviewed until now this institution. This paper proposes a critical analysis of legislation and formulates proposals for lege ferenda, using the logical structure of a presentation: preliminary considerations, the concept of engagement, the relationship between engagement and partnership cohabitation, substantive analysis and formal conditions for the conclusion of the engagement, breaking engagement penalty.
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There was another attempt to legislate the engagement in the Civil Code promoted by King Carol II in 1940, but this normative act was suspended by General Ion Antonescu; the engagement was also regulated in our old statutes (Pravila lui Matei Basarab and Pravila lui Vasile Lupu, Andronachi Donici Code, Calimah Code and Caragea Code); for more details on this subject, including an analysis of comparative law, see Dan Lupaşcu, Raluca Gâlea, Unele consideraţii privind reglementarea logodnei în noul Cod civil român şi în unele legislaţii străine in Lex et Scientia International Journal, Juridical Series, nr. 1/2010, pp. 155-176. In the Roman Empire, Sposalia (engagement) precede marriage and ended initially by the pater familias on behalf of those under their power. Thereafter, the engagement ended by consent of the intending spouses whose power was stood. In the classical era produced effects only moral engagement, but since Emperor Constantine became a legal relationship with legal consequences for those concerned. For more details see Hurbean A., Drept roman - note de curs. Seria didactica, Romania, p.58, 2014.
For more details see Alexandru-Virgil Voicu, Instituţia logodnei în noul Cod civil român, in Scientia Juris, nr. 2/2011, pp. 23-50; Adina-Renate Motica, Consideraţii privind instituţia logodnei în Codul civil român in Analele Universităţii de Vest Timişoara, nr. 2/2013, Seria drept, pp. 119-139.
The doctrine opinions are different, from this point of view, some authors considering that we are in front of a pre-contract of marriage (Florian, E., Dreptul familiei în reglementarea noului Cod civil, Ediţia a 4-a, Editura CH Beck, Bucureşti, p. 15).
For more details see Laura Cetean-Voiculescu, Dreptul familiei. Note de curs şi manual de seminar, Editura Hamangiu, Bucureşti, 2012, pp. 51-53.
Adina-Renate Motica, Consideraţii privind instituţia logodnei în Codul civil român, in Analele Universităţii de Vest Timişoara, nr. 2/2013, Seria drept, pp. 119-139.
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