Cross claim in the new civil code

• Author: Adriana Pascan
• Position: Ph.D. Lecturer, 'Danubius' University of Galati, Faculty of Law
• Pages: 26-28

CROSS CLAIM IN THE NEW CIVIL CODE

Adriana Pascan*

Abstract

When analyzing the right to pr operty and its restr ictions, an important component is r epresented by the

historical and, later, the politica l one. In time, the political thought makes a mar k o n the understanding and

concretization of the right to pr operty.

Key words: cross cla im, proper ty, servitude, civil code.

Introduction

The task of solving the conflicts of interests in the society and establishing a n equitable balance

between different individuals and different social groups, in the conditions o f the limited mater ial resources

through the reports of “assuming” material goods by actual subjects has returned to the institution o f the r ight

to proper ty.

The doctr ine

1 ha s remained consistent in refusing to equalise the property, as economic r elation a nd

the right to pr operty as judicial rela tion.2

General considerations

The economic ap proach was at the beginning a reflex or a component of the religious way of t hinking

comprised in texts with sacred value, resulting from this frame of moral-religious thinking and philosophical-

political only in the modern times, in antiq uity the dominant perception over the natural order and social

organization being a fundamental religious one.

The doctrine3 is unanimous in recognizing that the property has been, is and will continue to be a

constant and universal fact in all the states and in all times and proximity a reality felt more or less intense

depending on the age and environment.4 “No less, the right t o property, locus communis “at the crossroads on the

judicial co ncepts, theories and ideas” has its pre mises and finalit y in the human freedom and safety,

complementary features in the judicial order and which cannot be dissociated”.5

The property relations represent the most important element in the set of production relations, together

with the activity exchange between humans, as the basis of the rest of the production relations as the individual

property is an indispensable condition of freedom.6

Definition and content

The property7 r epresents a social relation of proximity8 being at the same time an economic relation of

property, acknowledged as a proximity relation between people for the material goods as a condition of their

existence9, of assuming the material premises of a production process that also creates a particular behavior for

the neighbors10. “Good proximity entails at least two duties: first, the neighbor will not prejudice the neighbor

and second, the neighbor will not inconvenience the neighbor in an intolerable manner”11. When this pr operty is

protected and guaranteed by the coercive force of the state, it becomes a property relation, namely the right to

property and is part o f the economic basis of every h uman society12 the j urisprudence having the creative role

and difficult task to conciliate the legitimate interest of the proprietor with social interest, when the discussion

regards the proximity relations based on laws, regulations, customs and jurisprudence 13.

*Ph.D. Lecturer, “Danubius” University of Galati, Faculty of Law, e-mail:adriana.pascan@univ-danubius.ro.

1 C. Bîrsan, Drept civil. Drepturi reale pr incipale, All Beck Publishing House, Bucharest, 2001, p. 29.

2 C. Sttescu, C. Bîrsan, Drept civil. Teoria general a drepturilor reale, 2nd Edition, University Publishing House in Bucharest, 1988, p. 27.

3 C. Bîrsan, P. Perju, M. M. Pivniceru, Codul civil adnota t, volume I, Hamangiu Publishing House, 2008, Bucharest, p. 114.

4 O. Ungureanu, Reflecii privind abuzul de drept şi inconvenientele anormale de vecintate, Acta Universitatis “Lucian Blaga”, Sibiu, no. 1-

2/2003, Rosetti Publishing House, Bucharest, 2004, p. 35.

5 V. Stoica, Drept civil. Drepturile reale pr incipale, volume I, Humanitas Publishing House, Bucharest, 2004, p. 71.

6 D. Alexandresco, Drept civil român, Tom I, National Publishing House, Iaşi, 1900, p. 110.

7 I. Dogaru, T. Sâmbrian, Drept civil român. Teoria general a drepturilor reale, Tratat, volume II, Europa Publishing House, Craiova, 1966,

p.80.

8 G. Boroi, L. Stnciulescu, Drept civil. Curs selectiv. Teste gril, 2nd edition, All Beck Publishing House, Bucharest, 2003, p. 209

9 D.C. Florescu, Dreptul de proprietate şi alte drepturi reale principale, Titu Maiorescu University Publishing House, Bucharest, 2002, p. 71

10 “Solomon in his Instructions, said «My neighbour close t o me means more than my brother far away» (27, 10); Cicero (De Officis, I, 18).

Therefore, proximity is found in the example of negative fraternity: do not harm each other a nd go through each other, reference after O.

Ungureanu, quoted.

11 O. Ungureanu, quoted, p. 35.

12 D. C. Florescu, quoted, p.71.

13 O. Ungureanu, Cornelia Munteanu, I. C. Rujan, Evoluia istoric şi fundamentele filosofice, juridice, sociologice, economice şi teologice

ale proprietii asupra pmântului, in Pandectele Române, no. 5/2005, p. 108.