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- Title
Prescripţia extinctivă prin prisma prevederilor noului Cod civil (Legea nr. 287/2009).
- Authors
Ţ&acaron;nd&acaron;reanu, Nicoleta
- Abstract
The article „Limitations (extinctive prescription) under the New Civil Code (Law no. 287/2009)" is developed in two parts, and aims for a comprehensive approach of the institution under the new view. In the first part, the article defines the subject of the limitation, lists the prescriptive and imprescriptible action rights (clarifying the nature of an action for declaration of the lack of right of claim and action for declaration of absolute nullity by linking art. 2502 with art. 1249); deals with the right of appeal concerning the accessory rights and right of appeal for successive benefits; deals with limitation waiving - as new institution (clarifying its nature and effects), deals with claiming of limitations (seeking an interpretation of art.2513 - improperly drafted and determining the effects of the prescription claimed by a joint debtor or guarantor to the other co-obligor); deals with general rules applicable to prescription and also the prescription beginnings (as a rule and for certain actions - action for restitution of services provided pursuant to a void or cancellable document, abolished by resolution or other cause of inefficiency, action for the enforcement of successive benefits, action for annulment of a juristic act, action for compensation of damage caused by a juridical fact, action for flaws liability). Suspension and interruption of prescription are discussed in the II-nd part of the article. Thus, each of the suspension causes listed in the code are discussed in detail with emphasis on clarifying the causes of suspension provided for in: art. 2532 section 6 - throughout the negotiations for disputes amicable settlement, and art. 2532 section 7 - during the preliminary procedure; art.2532 section 8 - if the rightholder or the person who violated the right is part of the Romanian armed power, as long as they are in a state of emergency or war; art. 2532 Section 9 - if the one against which the limitation runs or would run is prevented by force majeure to act towards prescription interruption. Prescription interruption situations listed in art. 2537 are presented in detail, approaching, in particular: the voluntary act for enforcement or acknowledgment of the right whose action is prescribed, filing an application for court action or an arbitration application, entry of the claim to the list of creditors in insolvency proceedings, filing the intervention application under forced pursuit started by other creditors, invoking, by way of exception, of the right whose claim is subject to limitations. Effects and their extension are also addressed, as well as the limitations suspension and disruption benefit, as well as calculation of the prescribed periods.
- Subjects
PRESCRIPTION (Law); REAL property; JOINT ventures; DEBTOR &; creditor; CIVIL restitution; JURISTIC acts
- Publication
Romanian Case Law Review / Revista Română de Jurisprudenţă, 2012, Issue 1, p238
- ISSN
1844-6450
- Publication type
Article