The Content of the Juridical Relation

7/26/2019 The Content of the Juridical Relation

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The content of the juridical relation

It is the main element of the juridical relation which includes rights of the active party and

obligations of thepassive party. Within a civil juridical relationship the rights and obligations areinterdependent. It means that to the right of the active party it corresponds the obligations of the

passive party, and vice versa.Sometimes only one of the parties has the position of the debtorand only the other one is thecreditor(e.g. borrowing contract one of the parties will be the debtor, the other one being the

creditor).

There are some civil juridical relations in which both parties have at the same time rights and

obligations(e.g. the selling contract both parties have the double uality of active and passive

party). In such a case the rights are interdependent and mutual.

!he content of a juridical relation has " components#

The active party which includes the rights

The passive party which includes the duties

Civil Rights

The rightis the juridical possibility recognized by the law to a natural or legal person to have

within the limits of the law a certain behavior and to pretend to the other persons, as passive

subjects, one of the 3 things: to give, to do, not to do something.

To give to transfer a real right (the right of property)

To do to perform a certain activity, a positive action in favor of the active party (e.g. the

obligation of the employee in the benefit of the employer)

ot to do the obligation of the passive subject to abstain to do something that he is

otherwise entitled to do (the clause of non$competition)

!he rights can be classified based on their content in patrimonialand non!patrimonialrights.

!henon!patrimonial rights are those with no economic content (e.g. right to life, copyright).

"atrimonial rightshave an economic content. !hey can be evaluated in money.

In case of patrimonial rights we have debt rightsand real rights.1. #ebt rights. !he active party is the creditor and he can pretend to the other party (debtor) to

give, to do, or not to do something.Both subjects are known from the beginning.

2. $eal rights. %re those rights according to which their owners can e&ercise the attributes to

the goods without the intervention of another person'

In case of a real rightonly the active subject is determined. We only know the active side. In the

passive side we include the whole society, all members of the society.!hey will have the general

obligation to do nothing in order to disturb the real right. eal rights are rights connected to goods.

In case of the debt rightwe now both subjects. We know the active subject (the creditor, and the

passive subject is also determined from the beginning, from the moment when the contract has beenconcluded.

!here are * main elements of distinction#


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!nly in case of the debt right the passive subject is known from the beginning

"eal rights are limited in number.They are e#pressly provided and regulated by the law. The

debt rights are unlimited. They are at the simple imagination of the parties. They may createany contract according to their interest.

In case of a debt right the corresponding obligation may be to give, to do or not to do

something. In case of a real right the corresponding obligation is always not to do.

!he first inds of obligations to give, to doare positive obligations, they consist of actions.

!he last one, not to do, is a negative obligation. It consists of an abstention, in refraining from

doing something. It may correspond, to a debt right and real right. Its content is different in each

case. !he negative obligation which is corresponding to a debt right has a precise content. It belongsto a certain person. !he negative obligation which corresponds to a real right has an undetermined

content and it belongs to an undetermined person. +y not to do a person refrains from doing an

action that is not forbidden by the law, but the debtor himself, through his own will has limited hisown right. (.g. the debtor can sell by concluding the contract though his own will has limited his

right).

!he most important distinction between the debt rightsand the real rightsis that the debt

rights are relative rights, while the real rights and the non$patrimonial rights are absolute rights.

The relative right. %ccording to it the definite active subject (the creditor) has the

possibility to pretend from the definite passive subject a certain behavior, to give, to do or not to do

something for him. +oth the active and the passive subjects are determined from the beginning of

the juridical relationship. % relative right is only opposable to a definite person (it is opposable erga

certam personam).

The absolute rights. !hey are civil rights according to which the established owner has thepossibility to e&ercise it alone and all the other persons have the general and negative obligation not

to do something that could jeopardi-e the owners right. !he juridical relation that contains an

absolute right is established between the owner, as definite active subject and all the other persons aspassive subjects. We may say that absolute right is opposable to all persons (opposable erga omnes).

It means that everybody has to observe the owners absolute right. !he real rights and all the non$

patrimonial rights are very similar

.g.# "roperty right and the right to a name. !hey can be e&ercised in front of everybody. In bothcases we have an active subject who e&ercises the right alone. +oth are opposable erga omnes.

"eal rightsmay be#

/. "rincipal real rights. !hey dont depend on any other rights. !hey are self sufficient..g.# 0roperty rights.!he property rights include * prerogatives# the possession, the use, the

disposition. Since the property is a comple& right it may be dismembered into components, andthe rights which result are named dismemberments of property(e.g. It is possible to separate

the disposal prerogative from the other two prerogatives. % certain person can possess and use

the good and another person can dispose of it. !he dismemberment is called usufruct in thiscase). !he dismemberments have the same configuration as the property right itself. !hey are

real, principal, and absolute rights. !he owner (active subject) may be a private person (a rule)

or a public person (the e&ception).


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In case of private property the owner can be any person, any individual or legal person, or even

the state.In case of public propertythe owner can only be the state or the local authorities.

". The accessory rights. !hey depend on a debt right. In this category we may include the

mortgage and the pledge.

The mortgage has " meanings# It is a contract between the parties

It is a right %real, patrimonial, absolute right&

%ccording to our 1ivil 1ode the mortgage contract can be concluded between an owner of a real

estate which is in the same time the debtor and his creditor. !he mortgage is considered to be in the

same time a real right, on the affected property constituted as a corporal security to the payment of a

an obligation. 2pon the 1ivil 1ode the mortgage can be constituted not only on the basis of thecontract but also on the basis of the law.

!here are " inds of mortgages#

The legal mortgage. .g.# It can be found in the law regarding the financial administrator.

!he employment contract in their case can be concluded only constituting a certain

mortgage. The conventional mortgage. It is that net imposed by the law but concluded between parties

as an e&pression of their own interests.

!he mortgage contract has the following characteristics#

/. It has an accessory character. Its e&istence depends on the e&istence of the principalcontract

". The mortgage has a formal character. It means that the mortgage contract may be

concluded only in an authentic form reuired by the law for the validity of the contract.

The mortgage righthas the following characteristics#

/. It is a real right. It is a real right because it may be e&ercised directly on the real estate. Ifthe debtor doesnt pay his obligation to the creditor, the real estate will be sold in a publicauction and the creditor will see his claim covered from the price obtained through this

auction. ven if the debtor, the owner of the real estate, sells the house, the land to a third

person the creditor has the possibility to as for this public auction.". It is an accessory right. If the debtor fulfills his obligation the mortgage is instantly

e&tinguished. It cannot survive being an accessory right. In case of a mortgage the principleof specialization is applicable. If there are more than one claims of the creditor, themortgage has to be speciali-ed.

*. It is indivisible. ven if the debt has been partially paid, the mortgage over the whole estate

continues to e&ist until the final payment of the debt.

3. It has an estate character. 2nlie the pledge, the object of a mortgage can only be a realestate. In case of a pledge the objects may be goods. !he debtor has to be the owner of the

real estate in the moment of conclusion of the contract. +ut the mortgage has not as

conseuence the dispossession of the debtor. !he debtor will be able to e&ercise all hisprerogatives resulting from his property rights. 4e also has the right to alienate the real

estate. %s a conseuence the auction of the real estate is possible even if it is now under

somebody elses property.

In conclusion:

!he active subject has " rights#


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' debt right$ opposable only to the debtor the right to pretend the payment

' real right opposable to any person who would be the owner of the estate at the moment

of the settling day. The real right is accessory% it depends on the debt right. If the debtor willmae the payment, the mortgages will com to an end.

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The Content of the Juridical Relation