Regime of community property. Act of ownership vs. Act of administration

The High Court of Cassation and Justice ruled that, according to the provisions of Art. 345 of the New Civil Code, each spouse may enter not only acts of conservation or acts of administration regarding any of the common goods on their own, but also acts of acquisition of common goods. Insofar as its interests in what concerns the community property have been prejudiced by a certain legal act, the spouse who did not participate at entering the act can only claim damages from the other spouse. This allows for the rights acquired by third parties acting in good faith not to be affected. In the present case, one of the two spouses, claiming that its consent is missing, has requested for the agreement to terminate a sale contract of a building, entered by the other spouse with the seller under the provisions of Art. 1550 of the New Civil Code, to be declared null. By means of the said agreement, the parties have ascertained the non-performance of the obligation to pay the price and have agreed to terminate the contract. The High Court held that this agreement is not an act of ownership whereby the provisions of Art. 346 of the New Civil Code (according to which the acts of ownership or those of encumbrance of real rights upon common goods can only be entered with the consent of both spouses) become applicable. The Court further explained that the agreement does not match with the hypothesis of the said legal text requiring for the act to be an ownership one, but it is an act of friendly settlement of the impossibility of performance of the contract. Thus, it is an act of administration which does not require for the consent of the spouse, in what concerns the provisions of Art. 345, para. (2) of the New Civil Code.

(Decision no. 525 of the 17th of February 2015, given by the 2nd Civil Section of the High Court of Cassation and Justice, covering the declaration of nullity of an agreement to terminate a sale contract)

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Andreea LUCACI

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