Regulation of engagement in the new romanian civil code and other international legislations

• Author: Marta Cornelia Ghilea
• Position: University of Arad - Romania
• Pages: 55-71

AGORA International Journal of Juridical Sciences, www.juridicalj ournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No. 4 (2013), pp. 55-71

55

REGULATION OF ENGAGEMENT IN THE NEW ROMANIAN CIVIL

CODE

1

AND OTHER INTERNATIONAL LEGISLATIONS

M. C. Ghilea

Marta Cornelia Ghilea

Faculty of Law, Private Law

“Vasile Goldi” Western University of Arad, Romania

*Correspondence: Marta Cornelia Ghilea, “Vasile Goldi” Western University, 94 Revoluiei

Blvd, Arad, Romania

E-mail: marta_ghilea@yahoo.com

Abstract

Engagement is making a comeback to the landscape of the new Romanian civil

legislation, being known that it has deep roots in the history of Romanian law. The

institutionalization of engagement was justified by experts as a traditional reality in Romania.

This article investigates aspects concerning the evolution of engagement, the content of this

sui generis legal act, its legal nature, the substantive and procedural conditions, as well as

considerable issues relating to the legal effects of engagement, particularly its rupture.

Keywords: new Civil Code, engagement, liability.

Introduction

Our old legislations, namely the Calimach, Caragea and Donici Codes, have

regulated engagement as a pre-contract binding the parties to marriage. Subsequently, the

Romanian Civil Code, following the model of the French Civil Code, and then the Family

Code, did not regulate engagement, in order to give absolute consistency to matrimonial

freedom. The institution of engagement is considerably old, being even mentioned in the Old

Testament, where it was represented by the Hebrew word “aras”, meaning marriage

commitment or marriage covenant.

Engagement, a symbol of the union between a man and a

woman, after their solemn covenant to marry, was also present in Roman law

2

, as designated

by the term “sponsalia”.

From a spiritual standpoint, engagement is almost as important as

marriage, as it signifies a confession of mutual feelings and a vow to enter into marriage,

while it may also imply the blessing of the relationship by the parents and by the Church.

But

engagement is legally important only to the extent as the law recognizes it as such.

A. The place of engagement

Currently, “engagement” as a civil law institution is inseparably linked to marriage

and is governed by the provisions of Art. 266-270 contained in Book II – On Family, Title II-

Marriage, Chapter I – Engagement, of Law no. 287 of 17 July 2009 on the Civil Code, as

republished.

1

New civil Romanian Code, Law no. 287/2009, published in the Official Gazette of Romania, P art I, no. 511 of

24 July 2009.

2

I. Chelaru, Ma rriage and divorce. Judicial issues on civil, religious and comparative law matters, A92 Acteon

Publishing House, p. 27.

REGULATION OF ENGAGEMENT IN THE NEW ROMANIAN CIVI L CODE AND OTHER INTERNATIONAL

LEGISLATIONS

56

We emphasize that engagement is specifically regulated in international legislations,

such as the German Civil Code

3

, the Swiss Civil Code

4

, the Italian Civil Code and the Anglo-

Saxon system, etc.

B. The definition and legal nature of engagement

According to the New Civil Code, engagement is defined as “mutual promise to enter

into marriage.”

Engagement is nothing but a mutual promise of marriage, a solemn covenant of two

persons of opposite sexes to marry, which is usually done in a festive setting. Engagement, in

the view of the New Civil Code, is a social, moral and cultural relationship, with possible

legal consequences for unilateral and abusive rupture.

Engagement is a civil law institution, included and addressed in the new legal

structure of regulations on family life. The new Civil Code also defines marriage as “(...)

freely consented union between a man and a woman, entered into under the law”.

In the academic literature, engagement is not considered to be a contract, but a simple

legal fact which can produce, at the most, extrinsic effects to marriage, especially in the case

of unilateral and abusive rupture.

However, there are also views that share the contractual hypothesis of engagement,

considering that denying the contractual aspect of engagement would be divergent to

psychological and social reality. The argument of these views lies in the fact that the contract

does not have the contents of a pre-contract of marriage, so that the parties would not commit

to enter into marriage, but only pledge to loyally try to establish such relationship as to be

likely to lead to marriage.

Thus, matrimonial freedom would not be reached because either party may

unilaterally terminate the contract at any time, and, as such, they cannot be held responsible

unless the termination was abusive. Therefore, the engagement contract leads to the same

practical consequences as the classification of engagement as a simple legal fact.

Recently, according to an emerging view in the academic literature, based on the

confrontation of the two pieces of legislation, it can be seen that, while for engagement the

agreement of will is highlighted exclusively, emphasis in marriage is placed on the legal

status subsequent to the expression of consent

5

.

According to this view, differentiation is not justified, since both institutions stem

from a legal act and generate a legal provision, a statute governed by law and which cannot be

neglected.

For these reasons, the term of “engagement” may be given two meanings:

a. that of a legal act;

b. that of a legal status.

Thus, engagement is defined as a legal act in which the future betrothed mutually

promise, by prior agreement, to meet a common goal, namely “entering into marriage”, which

can lead us to the idea of convention, following the synallagmatic promise to enter into

marriage

6

.

Therefore, we acquiesce in the view that engagement is a sui generis legal act, which

entails a certain legal status for the betrothed, thus agreeing with the definition given to

engagement, according to which it is a facultative legal status, prior to marriage, stemming

from the mutual promise made, under the law, between a man and a woman, to enter

marriage

7

.

C. The legal characters of engagement

3

1900 German Civil Code, art. 1297-1302.

4

Swiss Civil Code, art. 90-93.

5

Lupacu, D., Crciunescu, C.M., op. cit., 2011, p. 38

6

E. Florian, op. cit. 2009, p. 632-633.

7

Ibidem, p. 39