The novelties brought in the matter of seizin by the law number 287/2009

• Author: Ilioara Genoiu
• Position: Lecturer Ph.D. 'Valahia' University of Târgoviste, Faculty of Law and Social-Political Sciences, Law Department
• Pages: 333-337

THE NOVELTIES BROUGHT IN THE MATTER OF SEIZIN BY THE LAW NUM BER 287/2009

1

Ilioara Genoiu

Abstract

In the present paper we intend to a nalyse the matter of seizin with all the aspects that this issue

involves, in the light of the provisions o f Law n umber 287/2009 rega rding the Civil Code 2. We also intend to

point out the new aspects that are brought by this nor mative act in the matter submitted to our ana lyse in

comparison with the Civil Code of 1864. We’ll also consider on their justness and opportuneness .

Keywords: actual possession, r ight to administrate, successional patrimony, heirs with seizin, heir s

without seizin.

Introduction

The new Civil Code regula tes the seizin in the IVth Book “About inheritance and liberalities”, in the IVth

Title “The transmission and the partition of the inheritance”, Chapter I “The inheritan ce transmission”, the 4th

Section “The seizin”, art. 1125-1129. Thus, the new Civil Code defines the seizin, identifies the heir s that ha ve

seizin and r egulates the obta ining of the seizin by the heirs without seizin, the entry of the sole legatee or of the

legatee under an universal title into the inheritance possession and it also r egulates the delivery of the legacy

under a particular title. Thus, we can notice that in compar ison with the Civil Code of 1864 that dedicates to this

judicial institution o ne legal text (a rt. 653) in which the heirs with seizin are identified, the new Civil Code

regulates th e seizin in detail.

1. The notion of seizin

According to the provisions of ar t. 1125 of the new Civil Code “Besides the actual possession exercised

over the successional patrimony, the seizin also gives to the heirs with seizin the right to administrate this

patrimony and the right to exercise the defunct’s right and action”.

In the light of these legal provisions, the seizin can be defined as a benefit, as a fiction of law and by

virtue of it certain heirs (named as heirs with seizin) have by law the inheritance actual possession, they al so

have the right to administrate the successional patrimony and the right to exercise the rights and the actions that

belonged to the defunct, beginning with the inheritance opening day3.

Therefore, in the lig ht of the new Civil Code provisions, the seizin gives to the heirs with seizin the

following rights, beginning with the inheritance opening date:

- the actual possession of the successional patrimony;

- the right to administrate the successional patrimony;

- the right to exercise the defunct’s right and action.

Comparing the definition of the seizin given by the ne w Civil Cod e with the doctrinarian one that was

stated in the light of the previ ous Civil Code, we do not identify any difference of substance because the seizin

confers the heirs with seizin the same prerogatives. But, we can see that the new Civil Code utilizes the notion of

“inheritance act ual po ssession” instead o f t he notio n utilize d by the doctrine in the light of the previous Civil

Code “possession o f the inher itance”. However, in the light of the previous Civil Code too, the inheritance

possession had special significance which was different from the ordinary law one.

We consider that the new Civil Code, by using this proceeding it avoids the merging of the seizin with

the ordinary law possession regulated by ar t. 916 of the new Civil Code; the latter one involves the fulfillment of

two elements: cor pus (the material possession of goods) and a nimus (the intention of owning the goods for

itself). Therefore, the essence of the seizin only consists in the material po ssession of the good; the seizin does

not involve the second element of the possession – a nimus.

The seizin cannot be confounded with the transmission of the successional rights which operates on the

inheritance opening date, no matter if the heirs have or they don’t have seizin.

1 This work was supported by CNCSIS-UEFISCSU, project number PN II-RU, code PD_139/2010, contract number 62/2010.

 Lecturer Ph.D. “Valahia” University of Târgovişte, Faculty of Law and Social -Political Sciences, Law Department,

ilioaragenoiu20@yahoo.fr

2 It was republished in “the Official Gazette of Romania”, part I, no. 505, 15 July 2011. The provisions of this law are only enforceable to the

testamentary executions that regard the successions which were opened after 1 October 2011 which its date of entry into force . According to

the principle of tempus regit actum, the inheritances opened after this moment is to be governed by the provisions of the Civil Code of 1864.

3 To be seen: M. Eliescu, Moştenirea şi devoluiunea ei în dreptul Republicii Socialiste România, Academia Republicii Socialiste România

Publishing House, Bucharest, 1966, p. 60; Fr. Deak, Tratat de drept succesoral, IInd Edition, updated and enlarged, Universul Juridic

Publishing House, Bucharest, 2002, p. 468; D. Chiric, Drept civil. Succesiuni, Lumina Lex Publishing House, Bucharest, 1996, p. 258; L.

Stanciulescu, Drept civil. Contracte şi succesiuni, Hamangiu Publishing House, Bucharest, 2008, p. 447, Veronica Stoica, Dreptul la

moştenire, Universul Juridic Publishing House, Bucharest, 2007, p. 312-313; I. Popa; Curs de dr ept succesoral, Universul Juridic Publishing

House, Bucharest, 2008, p. 328; I. Dogaru, V. Stnescu, Maria Marieta Sorea, Bazele dr eptului civil. Volume V. Succesiuni, C.H. Beck

Publishing House, Bucharest, 2009, p. 440; Ilioara Genoiu, Drept succesoral, C.H. Beck Publishing House, Bucharest, 2008, p. 345.