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The parties to the juridical relation

The natural person

The concrete capacity

As a definition, the concrete capacity of the natural person means the


possibility of the person to actually exercise his subjective rights and assume
his obligations, by concluding juridical acts in his own name.
As mentioned before, any natural person has abstract capacity. In
addition, the content of the abstract capacity is the same for any natural person.
Nevertheless, concerning the concrete capacity, certain categories of natural
persons have no concrete capacity at all or they have a limited concrete
capacity. Actually, the concrete capacity supposes the existence of an
intentional and free will or understanding, namely the discernment or the
judgment, in order to be able to evaluate correctly the juridical consequences
of his actions or his expressions of the will. The discernment or the judgment
depends on the age of the natural person, but also on his mental health.
As a consequence, taking into account the existence and the quality of the
discernment in relation to the age, the concrete capacity of the natural person
has three stages:
a. the lack of the concrete capacity;
b. the limited or restrained concrete capacity;
c. the full concrete capacity.

a. The lack of the concrete capacity

According to the law, the minor under 14 years old and the person
who benefits from special guardianship lack the concrete capacity.
A person, including a minor, can benefit from special guardianship if he
suffers from an alteration of his mental faculties which is total and, where
applicable, permanent and he needs to be represented in a permanent way in the
exercise of his rights and freedoms. Consequently, at the request of the persons
concerned, the judge examines the mental state of the person and pronounces a
judgment instituting the special guardianship of this person.
Concerning these categories of natural persons who lack the concrete
capacity, their juridical acts are concluded by their legal representatives,
namely the parents or a legal guardian.
As an exception, the law allows these categories of persons, who lack
the concrete capacity, to conclude by themselves ordinary and unimportant
contracts, such as for example buying tickets for the bus.

b. The limited or restrained concrete capacity

A minor between 14 and 18 years old, as well as a person who


benefits from judicial counselling, have a limited concrete capacity. It
means that the juridical acts of these persons are concluded by them, but they
need the preliminary approval of his legal representative or legal guardian
and sometimes, when it is expressly requested by the law, the authorization of
the judge.
A person can benefit from judicial counselling when the deterioration
of his mental faculties is partial and he needs to be advised on a permanent
basis in the exercise of his rights and freedoms. Consequently, at the request of
the persons concerned, the judge investigates the mental state of the person and
pronounces a judgment instituting the judicial counselling.
As an exception, the person having limited concrete capacity does not
need the preliminary approval for concluding ordinary and unimportant
contracts. In addition, this person is allowed to conclude, without preliminary
approval, conservation and administration acts. Conservation acts are
juridical acts meant to avoid the loss of a subjective right. Administration acts
are juridical acts meant to assure the normal use of the goods belonging to the
person and the increase of the value of his patrimony.
In addition, the law forbids the person having limited concrete
capacity to conclude certain categories of juridical acts, even if he has
obtained the authorization of his legal representative or legal guardian and the
judge, such as for example the donation contract.

c. The full concrete capacity

The full concrete capacity represents the possibility of the natural person
to exercise all his subjective rights and to assume all his obligations, by
concluding by himself, without any authorization or representation, all the
juridical acts allowed by the law. The full concrete capacity is the general
rule, meaning it is the usual situation in the field of concrete capacity.
According to the law, the full concrete capacity begins when the
natural person reaches the age of 18 years old.
As an exception, through marriage, the minor gets full concrete
capacity. Thus, according to article 272 Civil Code, the minor may marry at the
age of 16 years old, but he needs the doctor’s opinion and the approval of his
parents.
In addition, according to article 40 Civil Code, under exceptional
circumstances and for justified reasons, the judge may recognize the full
concrete capacity to the minor, starting from the age of 16 years old.

The legal person

The legal person is the collective subject of law, meaning a group of


natural or legal persons which participates to juridical relations and is the owner
of rights and obligations.
According to the law, the legal person means any entity having its own
organization and its own patrimony that gives to the legal person the
possibility of achieving a certain legal goal, which is in conformity with the
general interests of the society.
Therefore, the main constitutive elements of any legal person are the
following:
a. its own organization
This element refers at least to the existence of an internal structure of the
legal person and its own management bodies.
b. its own patrimony, different from the patrimonies of its members
The patrimony consists of all rights and obligations having economic,
monetary value that belong to the legal person. Actually, the participation of the
legal person to juridical relations, as a separate subject of law, which has the
capacity of exercising its rights and assuming its obligations, depends on the
existence of its own patrimony. Thus, as a rule, the legal person is liable for
its obligations with its own patrimony.
c. its own goal, which has to be determined, lawful and corresponding to the
general interests of the society.
Actually, the goal justifies the existence of the legal person. It is its
object of activity.

The classification of legal persons

The legal persons may be classified according to several criteria.


1. According to the branch of law which they belong to, the legal persons are
divided into two categories, as follows:
a. legal persons of public law;
b. legal persons of private law.
The legal persons of public law are mainly the following: the state, the
local administrative units (the county, the town and the village), the Parliament,
the bodies of executive power (the ministries, the government, the president of
Romania), the bodies of judicial power (the courts of law), the state institutions
and the political parties.
The legal persons of private law are mainly the following: the private
companies, the labor unions, the associations and foundations, the religious
churches.

2. According to their nationality, the legal persons are divided as follows:


a. Romanian legal persons, which have their main headquarters in Romania;
b. foreign legal persons, which have their main headquarters located in another
country.

3. According to their goal, the legal persons are divided in two categories, as
follows:
a. legal persons having patrimonial goal, which have as a main purpose
obtaining benefits, such as the companies;
b. legal persons having non-patrimonial goal, such are state institutions,
associations and foundations, religious churches.

The setting up of legal persons

According to the law, the legal person may be set up in the following
three ways:
a. through the constitutive act adopted by the competent body of the state,
meaning a law adopted by the Parliament, a normative act (decision) adopted by
the Government or a decision adopted by local council or council of the county.
This way of setting up legal persons refers mainly to state legal persons,
meaning the bodies of legislative power (the houses of Parliament), the bodies
of executive power, the bodies of judicial power, the local administrative units,
the public institutions and the companies belonging to the state.
b. through the constitutive act concluded by the members of the legal
person, which must be authorized by the competent body of the state.
This way of setting up legal persons refers mainly to political parties,
private companies, associations and foundations and so on. The authorization
for the setting up of the legal person in this way is provided by a judicial
authority or a body of the executive power.
In order to set up completely and validly a legal person in this way, the
law also requests, in certain cases, the incorporation or the registration of the
legal person in different registers established by the state authorities. As a
general rule, through this formality of registration or incorporation the legal
person gets full abstract capacity.
c. by other ways provided by the law, as for example the Romanian State,
which is declared legal person by law.

The legal capacity of the legal person

The legal capacity of the legal person is composed by two elements, as


follows:
a. the abstract capacity;
b. the concrete capacity.

The abstract capacity


Concerning the abstract capacity of legal persons, we should make a
difference between legal persons having patrimonial goal and legal persons
having non-patrimonial goal.
Thus, legal persons with patrimonial goal may have all the rights and
obligations, except those that refer to the natural person. Nevertheless, the
abstract capacity of legal persons with non-patrimonial goal is special, they
are allowed to have only the rights and obligations that correspond to their goal.
This rule is known as the principle of specialty of the abstract capacity.
According to the law, the abstract capacity of the legal person is obtained
on the date of its registration or incorporation. Concerning the legal persons that
are not submitted to incorporation or registration, their abstract capacity begins
on the date of the juridical act through which they are validly set up.
However, even before the date of incorporation or registration, the legal
person has a limited or anticipated abstract capacity, starting from the date
of conclusion of its constitutive act. It means that during this period, the legal
person may have the rights and the obligations that are necessary for its valid
setting up.
The abstract capacity of the legal person ends on the date of ending its
legal personality, meaning at the moment of its dissolution.