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Cristinel MURZEA

Laura MUREAN Cristian POINCU

Theoretical issues regarding

the juridical institution of the

consumer protection in Romania.

Commented and annotated legislation

TransilvaniaUniversity Press

Braov

2011


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2011 EDITURA UNIVERSITII TRANSILVANIA DIN BRAOV

Adresa: 500091 Braov,

B-dul Iuliu Maniu 41ATel:0268 476050Fax: 0268 476051

E-mail : [email protected]

Toate drepturile rezervate

Editur acreditat de CNCSISAdresa nr.1615 din 29 mai 2002

Refereni tiinifici: Prof. dr.Nicolae VOICULESCUConf. univ. dr. Carmen Adriana GHEORGHE

ISBN 978-973-598-892-0

ACKNOWLEDGEMENT: This book is supported by the Sectoral Operational

Programme Human Resources Development (SOP HRD), financed from the

European Social Fund and by the Romanian Government under project

number POSDRU/89/1.5/S/59323.


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TABLE OF CONTENTS

Fundamental theoretical elements related to the juridical regulationof the consumer protection in Romania ....................................................... 6

Chapter I. Law and its functions the role of the law in the juridical

consumer protection in Romania .................................................................. 71. General law notion ....................................................................................... 72. Civil law and commercial law. General notions .......................................... 83. Civil juridical norm and commercial law juridical norm ........................... 17

Chapter II. The normative document regarding the juridicalconsumer protection in Romania ................................................................ 21

1. The law sources which are the normative documents of the juridicalconsumer protection in Romania .................................................................... 212. Formal juridical sources of the juridical consumer protection inRomania ......................................................................................................... 22

2.1. Sources of internal system of law ............................................... 222.2. European sources of law.............................................................. 27

3. Informal juridical sources of the juridical consumer protection in

Romania ......................................................................................................... 28

Chapter III. Application and interpretation of the consumer

protection law in Romania .......................................................................... 32

1. Application of law ...................................................................................... 321.1. Application of the consumer protection law in time ................... 321.2. Applying the consumer protection law in space ......................... 351.3. Application of the consumer protection law to persons .............. 35

2. Interpretation of the law ............................................................................. 36

Chapter IV. Civil and commercial aspects of the juridical relation

between the consumer and the trader in Romania ................................... 42

1. The terms of civil juridical relation and commercial law juridicalrelation ............................................................................................................ 422. Structure of the juridical relation between the consumer and the trader ... 47

2.1. Parties of the juridical relation .................................................... 472.2.1. Traders, general characters ................................................ 502.1.2. Consumers ......................................................................... 56

2.2. Content of juridical relation ........................................................ 61

2.3. Object of the juridical relation .................................................... 63


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Chapter V. Civil and commercial aspects regarding the juridical act

concluded between the consumer and the trader ...................................... 71

1. Notion and classification of the civil juridical act and the commercialjuridical act ..................................................................................................... 712. Conditions of the juridical act .................................................................... 82

2.1. Capacity to perfect a juridical act ................................................ 832.2. Consent ........................................................................................ 852.3. Object of the civil juridical act and of the juridical actconcluded by the consumer ................................................................ 872.4. Cause of the juridical act ............................................................. 92

Chapter VI. Administrative law issues related to legal documents

issued by public authorities with responsibilities for consumerjuridical protection ....................................................................................... 941. Juridical norms regulating the activity of consumer protection publicauthorities ....................................................................................................... 942. Juridical relations whose subjects are consumer protection publicauthorities ....................................................................................................... 973. Documents issued/adopted by administrative authorities in theconsumer protection field ............................................................................... 99

Juridical and economic analysis of the consumer protection

legislation in Romania ................................................................................ 101

Chapter VII. The legislation regarding the protection of the

consumers of food ecological products in Romania ................................ 1021. The food ecological products ................................................................... 1022. Legal analysis of the harmonization of the Romanian legislationwith the community legislation in the field of ecological food labeling ..... 105

Chapter VIII. The legislation regarding the ecological label applied

to the non-food products and services in Romania, element of

consumer protection ................................................................................... 113

1. The non-food ecological products and ecological services ...................... 1132. The juridical analysis of harmonizing the Romanian legislationwith the community legislationin the field of the ecological labelapplied to the non-food ecological products ................................................ 115


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Chapter IX. Risks and implications of the genetically modified

products in the consumer protection field ............................................... 124

1. Risks for the health of the consumers of genetically modifiedorganisms ..................................................................................................... 1242. Harmonising the Romanian legislation related to the geneticallymodified organisms to the community legislation ....................................... 130

Chapter X. The legislation regarding the protection of the

banking services consumers, expression of the corporate social

responsibility ............................................................................................... 155

1. General aspects regarding the corporate social responsibility ................. 155

2. The relation between the banking commercialcompanies in Romaniaand the corporate social responsibility ......................................................... 156

Bibliography ............................................................................................... 165

Contribution of authors is as follows: Prof. PhD. Cristinel Murzea: Chapters I, III, V, VI.

Postdoctoral Researcher PhD. Laura Murean: Chapters II, IV, VII, VIII. Ec. PhD. Cristian Poincu: Chapters V, IX, X.


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Fundamental theoretical elements

related to the juridical regulation of the

consumer protection in Romania


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CHAPTER I

LAW AND ITS FUNCTIONS THE ROLE OF

THE LAW IN THE JURIDICAL CONSUMER

PROTECTION IN ROMANIA

1. General law notion

Law has emerged once the first human community forms have appeared.At first, law rules have not been distinguished from moral rules or religious

rules. Even the creators of the Roman law have confused the religious norms

(fas) with the juridical norms (jus); the juridical norm had the power and the

authority of religion. The person who broke a juridical rule came into conflict

with the supreme force; the sanction for such an action was the death

punishment.1

The juridical literature in Romania2 defines law as a totality of rules

provided and guaranteed by the state, which are meant to organize and

discipline the human behavior in its main social relations, in an environment

where liberties coexist, and the essential human rights and social justice are

protected.

The rules issued (elaborated) by the state are named juridical norms.

The juridical norms are guaranteed by implementing sanctions (includedin the juridical norm), if that juridical norm is broken. The implementation is

made by the state, by means of the public authority which has competence on

a certain territory.

1 Murzea C.: Noiuni de drept civil. (Notions regarding civil law) Editura EMA, Braov.2000, p. 3.2

Popa N.: Teoria general a dreptului. (General theory on law)Editura Actami, Bucureti.1994, p. 91.


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2. Civil law and commercial law. General notions

The state is an absolute reality because it does not acknowledge any

higher authority. The state exercises its attributions on a certain territory. The

state organises the law on this certain territory and for the people living there.

Each state thus legislates on its own territory. Certain law norms are applied

only to the respective states in their internal relations, reunited norms of

internal law. Other norms are applied to different states coming in contact in

the international area (the norms are applied to the states as such, or to thesubjects of several states when they come into contact), forming the external

or international law.1

The national law system (similarly as the international law system) is

divided into public law system and private law system.2

Figure no. 1

The public law system deals with the constitution of the state, the public

powers, and the relations between the state and citizens, in general. Namely,

the public law system regulates the public order, and considers the

1 Djuvara M.: Teoria general a dreptului drept raional, izvoare i drept pozitiv. (Thegeneral theory of law rational law, sources and positive law) Editura All, Bucureti, 1995,

p. 43.2

Ungureanu O.:Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti.2000, p. 3.

Internationallaw system

Public law system

Private law system

Commerciallaw system

Law

system Nationallaw system

Public law system

Private lawsystem

Civil lawsystem


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organization and activity of the state and public powers constituted within the

state, and also the juridical relations established between government and

citizens.1

Private law deals with the private peoples acts, which are related only to

their private interests. In other words, private law system deals with the

private juridical order, regulating and protecting the individual private social

relations, established between private natural persons and legal persons.2

The private law system mainly includes: the civil law, commercial law,

family law, etc. There are authors3who divide the private law system into

only two main branches: civil law and commercial law.

The difference between the civil law system and the commercial law

system consists in the fact that the commercial law is applied only to those

juridical operations which have either an object that law considers to be

commercial (in considering the object), or those operations in which traders

participate (in considering the parties, their profession).4Thus, the civil law

norms would be applicable to those acts or facts which either do not have anobject considered by the law to be commercial, or neither of the operation

parties is a trader.5

The civil law system is the most important branch of the private law

system. The domain of the civil law system includes those acts which can be

performed by any citizen, irrespective of their profession. The civil law

system is the general private law system because it governs the most

important juridical relations and acts of the private persons. All other private

1Guillien V. R.:Droit public et droit prive. Melanges Brethe de la Gressaye, 1967, pp. 311et seq.2Micescu I.: Curs de drept civil. (Civil law course) Editura All Beck, Bucureti. 2000, p. 59.3Georgescu I. L.: Drept comercial romn. (Romanian commercial law) Vol. 1, Editura AllBeck, Bucureti. 2002, p. 5.4Finescu I. N.: Curs de drept comercial. (Commercial law course) Vol 1, Editat de Al. ThDoivescu, Bucureti. 1929, p. 7.5Bodu S.:Drept comercial completat cu noiunile fundamentale de drept civil. (Commercial

Law completed with fundamental notions of civil law) Editura Rosetti. Bucureti, 2005,pp. 17-18.


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law branches only deal with certain special juridical relations, being special

private law systems.

It can be stated that the civil law system is the basis of the private law

system. The civil law system is the common law in the private law system.

This means that it dominates the entire private law system, i.e. whenever no

dispositions are available, the civil law shall be applied.1

The civil law term can have three different meanings.2The commercial

law can also have three different meanings:

First of all, the civil law or commercial law designates a law branch of

the Romanian law system, i.e. the totality (ensemble) of the juridical norms in

that field.

Second of all, the civil law or commercial law evokes that possibility

(prerogative) acknowledged by the law to the holder of that right (called

active subject) by virtue of which he can ask for a proper behavior to his right

from the passive subject, and when needed he can resort to the coercive force

of the state for the protection of his right. In this respect, right means a powerof the individual (called subjective right). This power from certain people

implies submission from others.

Purchase of a product

The right of the consumer to the guaranteefor the purchased product The obligation of the trader tooffer a guarantee for the sold product

Figure no. 2

1 Djuvara M.: Teoria general a dreptului drept raional, izvoare i drept pozitiv. (Thegeneral theory of law rational law, sources and positive law) Editura All, Bucureti, 1995,

p. 84.2

Ungureanu O.:Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti.2000, pp. 1 et seq.

Right of subject 1 ofthe uridical relation

Obligation of subject 2of the uridical relation


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In the example shown in figure 2, the right of the consumer (subject 1) to

a guarantee for the purchased product tallies with the obligation of the trader

(subject 2) to offer a guarantee for the sold product, based on the sale and

purchase contract concluded between the consumer and the trader. This

contract establishes the power of the consumer regarding the guarantee of

the purchased product and the submission from the trader.

Thirdly, the civil law or the commercial law designates a branch of the

juridical science, science which has as an object the civil or commercial

rights of the natural and legal persons (subject matter).

The Romanian civil law system was defined in the juridical literature1to

be that branch which regulates patrimonial and non-patrimonial juridical

relations established between natural and legal persons, who are juridically

equal.

In order to understand the definition of the civil law system, the

patrimonial and non-patrimonial juridical relations must be defined. The

juridical relation whose content can be evaluated in money is patrimonial,

and the juridical relation whose content cannot be evaluated in money is non-

patrimonial.

An example of patrimonial juridical relation: the juridical relation whose

juridical source is a sale and purchase contract.

An example of non-patrimonial juridical relation: the juridical relation

related to the right to a name (for the natural person), or to the right to adenomination (for the legal person).

Although the commercial law only includes patrimonial relations,

because the trader mainly focuses on obtaining a profit, we consider that the

consumer protection institution includes patrimonial relations but also

1

Beleiu G.: Drept civil romn. (Romanian civil law) Editura ansa SRL, Bucureti. 1993,pp. 25 et seq.


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personal non-patrimonial relations, taking into account the social nature of

this law branch.

The consumer protection institution is that juridical institution which

regulates patrimonial and non-patrimonial relations established between

natural and legal persons which are juridically equal.

An example of a non-patrimonial relation belonging to the legal

institution of the consumer protection is the relation containing the

consumers right to food safety.

The consumer is legally1 defined as any natural person or group of

natural persons organized in joint ventures, buying, acquiring, using, or

consuming products which are outside their professional or commercial

activity. The consumer is the subject of a commercial law relation with a

mixed nature because the second subject of this relation is a trader.

The civil law subjects develop civil juridical relations. The civil law

subjects are: the natural person (civil law individual subject) and the legal

person (civil law collective subject).

The juridical position of the civil law subjects is of juridical equality,

neither of the parts is subject to the other. Similarly, as in the case of the

commercial law relation, or the relation in whom a consumer is involved, the

juridical position of the subjects is of equality.

The commercial law system has emerged from a deep need to adapt the

law rules to the needs of trade development and blossoming, as an historicalact of emancipation and protest against the civil law system and the old

traditions which stayed in the way of the trade development.2

1 Legea nr. 449 din 12.11.2003 privind vnzarea produselor i garaniile asociate acestora(Law no. 449 of 12.11.2003 on selling products and their guarantees), art. 2, lit. a.2

Schiau I.: Curs de drept comercial. (Commercial law course) Editura Rosetti, Bucureti.2004, p. 28.


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The trade notion is used with several meanings1:

Etymologically, the trade term originates in the Latin wordcommerciumthat means with goods (cumand merx). Trade would

consist, according to this meaning, in a series of operations

involving goods.

Economically, trade is defined to be an activity whose purpose is theexchange and circulation of goods from manufacturers to

consumers. Thus, trade would include all operations performed from

the moment when the goods are manufactured, put into circulation,

until the goods get to the consumers. These operations are made by

the traders, who are named merchants, who are economic agents

different from goods manufacturers. This is the most common

meaning for trade notion, and most widespread. From this

perspective, the commercial law system would be defined as all the

juridical norms regarding the interposition and circulation of the

goods from the manufacturers to the consumers.

Juridically, the trade notion has a broader content than the tradenotion defined in the economical sense. Trade includes more than

the goods interposition and circulation operations, performed by the

traders, but also the goods manufacturing operations, performed by

the manufacturers, together with the execution of works and service

provision, performed by the contractors, i.e. the service providers orin general the entrepreneurs.

1

Crpenaru S. D.: Drept comercial romn. (Romanian commercial law) Ediia a VI-arevizuit i adugit. Editura Universul Juridic, Bucureti. 2007, p. 7.


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In that context, the commercial law system is defined by juridical

doctrine1as the totality of the juridical norms which regulates the commercial

activity, i.e. goods manufacturing and circulation (distribution), works

execution and service provision.

The commercial law system has also been defined as a law branch which

includes all the juridical norms belonging to the private juridical relations,

which derive from the performance of juridical acts, facts and operations,

considered as commercial facts by the law, as well as juridical relations in

which traders participate.

The Romanian legislators option for one or another system establishes

the object of the commercial law system.

According to the classical meaning of the commercial law system, there

are two systems which allow the establishment of the commercial law

systems domain:

A subjective system according to which the commercial law has as anobject the juridical norms used by traders. According to this system,

the commercial law system is perceived as a professional law

system, which is applied to all persons who have the trader position

(quality).

An objective system according to which the commercial law systemincludes the juridical norms applicable to the trade (juridical acts,

facts and operations, considered by the law as commercial),irrespective of the person who commits them.

1



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According to this system, the norms of the Romanian commercial law

system are applied to a category of juridical acts, facts and operations

(commercial facts), not to a category of persons (traders).1

The Romanian Commercial Code, in force on this date, is governed by

the objective system. Art. 3 of the Commercial Code establishes the juridical

acts, facts and operations considered commercial facts by law, to which the

Commercial Code is applied, regardless of the fact that the person who

commit them is a trader or not. Thus, in Romania, the law relations between

traders and consumers are commercial law relations.

The vastness of the community legislation and Romanian legislation

regarding the consumer protection, subject of the commercial relations,

suggests a special attention given to the commercial goods and services, both

at community, and internal levels.

However, although the legislation is rich, the problem rising from the

doctoral marketing research performed and called Ethics and social

responsibility in the marketing field analyses the problematic effectiveness

of the activity performed by the public institutions dealing with the consumer

protection in Romania.

The juridical norms of the commercial law system, as well as the

juridical norms of the civil law system, are included in the private law

system. So, they concern the business acts (iure gestionis), not the power acts

(iure imperii).Regarding the autonomy of the commercial law system to the civil law

system, it must be mentioned that at the beginning of the XIXth century, the

needs to develop the trade, and implicitly, to defend the interests of the

1

Crpenaru S. D.: Drept comercial romn. (Romanian commercial law) Ediia a VI-arevizuit i adugit. Editura Universul Juridic, Bucureti. 2007, pp. 8-9, 13-16.


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traders have led to the acknowledgement and promulgation of the

commercial law, as a special law system as compared to the civil law system.

The autonomy of the commercial law system is imposed by the following

commercial conditions:

The frequency and celerity of the commercial transactions needsimple rules, with no formalism, as well as great freedom for the

trader in preparing the juridical acts. The non-trader concludes

juridical acts fairly rare, having necessary time for legal protection

measures. The trader, on the contrary, frequently concludes juridical

acts, and the rapidity of concluding them is for him a condition of

success (time is money). As he is more prepared for such an activity,

the trader must have a larger liberty in movement, using simple

forms for concluding his juridical relations (telephone, telex, fax or

even verbal agreements), and benefiting from the possibility to

prove his juridical acts by using all juridical instruments.

The role of the commercial transactions in achieving the interests ofthe traders implies a better punctuality in executing the obligations

taken upon them. The interconnection of the juridical relations in

which the traders participate imposes a strict compliance with the

contractual obligations. In order to achieve this, the commercial law

system has certain means, e.g. interests juridical flow.

The commercial law system is the most alive part of the private lawsystem; it is a laboratory for experimenting with juridical solutions,

in order for them to be adapted to the requirements of the economic

life. These solutions can also be regulated in the civil law system

only if these solutions prove to be good for the traders.


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The juridical institution of the consumer protection combines elements of

the commercial law, civil law and elements with a particular nature. The

norms of the civil law are generally applied to the consumer, although he is a

subject of the commercial law juridical relation.

In the field of the juridical consumer protection institution, a special

legislation has been adopted in Romania particularly regulating the protection

of the Romanian consumer. To the extent to which this special legislation is

not sufficient to regulate a relation between the consumer and the trader, the

commercial juridical norms or the civil juridical norms shall be applied (as

the civil law is the common law in the private field).

3. Civil juridical norm and

commercial law juridical norm

The juridical norm was defined in the juridical literature in Romania1as a

general behaviour stipulation which can be enforced, if necessary, by thestate force of compulsion.

We consider that the general theoretical aspects regarding the civil

juridical norm can be extended also in the case of the commercial law norm,

or the consumer protection norm.

The juridical norm of the consumer protection has characteristic features:

It is obligatory, the persons who break a juridical norm are punished.

Ii is general, a juridical norm is applied to all natural persons(consumers) or legal persons (traders) who are aimed at.

It is permanent, the juridical norm is applied to a series ofundetermined or similar situations or cases, since it comes into force

until it is cancelled.

1

Poenaru E.: Drept civil. Teoria general. Persoanele. (Civil law. General theory. Thesubjects) Editura Dacia Europa Nova, Lugoj. 2001, pp. 20 et seq.


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It is adopted (issued) by the public authority which is invested withthe promulgation power.

It is sanctioned by the public force, not by the private force, i.e.nobody, no consumer, can make justice to himself.

Figure no. 3

From the perspective of their structure, the commercial law norms are

made up of:

a. Hypothesis: shows the circumstances under which the respectivenorm is applied.

b. Disposition: defines the legal behaviour imposed by the law norms,indicating what is imposed, allowed or forbidden by the law.

c. Sanction: shows effects of breaking the disposition.

Obligatory GeneralPermanent

Punished bythe public force

Characteristic features of the

juridical norm

Adopted by the public authoritywhich is invested in this res ect


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The commercial law juridical norms can be classified according to the

civil norm model.

Figure no. 4

1. According to the prescribed behavior, the consumers protection norms

are divided into:

A. Imperative norms: impose o the subjects the obligation to perform

an action, or to refrain from doing something. The imperative norms

are divided into:A.1. Oneratives norms: impose an action;

A.2. Prohibitive norms: impose inaction.

According tobehaviour disposition

According toapplication domain

Iimperativenorms

Dispositionnorms

Generalnorms

Juridical

norms

Onerativesnorms

Prohibitivenorms

Permissivenorms

Suppletivenorms

Specialnorms


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B. Dispositive norms: allow the derogation from the provisions

included. The dispositive norms are divided into:

B.1. Permissive norms: allow certain behaviour for juridical

subjects;

B.2. Suppletive norms: establish a particular behaviour which

becomes obligatory when the juridical subjects have not

established otherwise).

2. According to application domain, the consumer protection norms are

divided into:

A. General norms: are applicable to all social relations or to certain

branches of law.

B. Special norms: are applicable only to certain categories of relations

within this branch of law.


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CHAPTER II

THE NORMATIVE DOCUMENT

REGARDING THE JURIDICAL CONSUMER

PROTECTION IN ROMANIA

1. The law sources which are the normative documents of

the juridical consumer protection in Romania

The law system sources which are the normative documents of the

juridical consumer protection in Romania include the civil law sources,

commercial law sources, and specific sources of the juridical institution of

the consumer protection.

The civil law source is defined1as a specific expression form of the civil

law system norms. It can be said that the law source which is the normative

document of the juridical consumer protection in Romania is a specific

expression form of the consumer protection system norms.

The civil law system norm is defined as the general and abstract rule

which regulates the subjects behavior in their civil juridical relations. So, the

consumer protection juridical norm can be defined as a general and abstract

rule which regulates, mainly, the behavior of the consumers and traders,subjects of these juridical relations, but also the relations established between

these and the public authorities operating in the consumer protection field.

1

Ungureanu O.:Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti.2000, pp. 22, 6.


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The juridical source notion may have two meanings1:

A first meaning of the juridical source (material meaning) is related to

the material conditions of existence which generate the norms of this branch.

A second meaning for the juridical source (formal meaning) is related to

the specific expression forms of the juridical norms.

The formal meaning of the juridical source notion must not be

confused with the individual juridical relation sources notion.

The juridical sources are related to the juridical/normative acts, which are

adopted by the three state-constituted powers.

The individual juridical relation sources also refer to the juridical

(individual) acts and facts.

2. Formal juridical sources of the

juridical consumer protection in Romania

The formal juridical sources of the juridical consumer protection inRomania can be internal mainly adopted by the Romanian Parliament,

and European adopted by the European Union authorities.

2.1. Sources of internal system of law

The internal law sources of the juridical consumer protection institution

in Romania are the normative documents adopted by the administrative

authorities having such prerogatives.

1



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Laws (in a strict meaning)

These are the normative acts adopted by state legislative authority (the

Romanian Parliament).

The laws adopted by Romanian Parliament can be classified into three

categories:

Constitutional laws: which contain, first of all, the RomanianConstitution (the fundamental law which stipulates the principles of

the state organization, citizens fundamental rights and obligations,

general norms referring to the most important civil law system

institutions, common to the commercial law system - juridical and

natural persons, the property right general norms referring to the

commercial law institutions the organizational principles of the

economic activities, etc.)

Organic laws: which develop and describe in detail the principlesincluded in the Constitution.

Ordinary Laws: which include all the other laws adopted by theRomanian Parliament, and promulgated (by decree) by the president.

The Romanian Constitution includes o series of juridical norms with

implications in the field of the juridical consumer protection.

Art. 31, regarding the right to information, establishes at alignment (2)

the fact that The public authorities, according to their competences, are

obliged to provide the correct information of the citizens on public matters

and issues of personal interest. This text, which has a general nature, also

concerns the obligation of the public authorities operating in the consumer

protection field to educate and inform the consumers.


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Art. 34 related to the protection of health establish the fact that The right

to health protection is guaranteed. The state is obliged to take action in order

to provide hygiene and public health. These constitutional stipulations also

concern the consumers right to food or non-food safety. The products

purchased by the consumer, either food or non-food, must not affect the

consumers health, or endanger his life.

Codes play an important part among the ordinary laws (for example:

Civil Code, Commercial Code, Consumption Code, Civil Procedure Code,

etc.) which group and systematize in one legislative body all (or a many as

possible) regulations applicable in a particular activity field usually (indicated

in the code name).

The Commercial Code is the main regulation of the commercial activity.

It includes juridical norms which regulate the fundamental commercial law

system institutions: commerce facts, traders, commercial obligations, etc.1A

few juridical norms - included in the Commercial Code - regulate particular

institutions of the commercial law system (commerce facts, traders quality,

commission contract, etc.). Certain norms included in Commercial Code

are derogations from the Civil Code rules (favor terms, etc.). Other

Commercial Code norms regulate the Civil Code institutions, adapting them

to the commercial activity needs (sale and purchase contract, mandate

contract).

The Consumption Code has as an object the regulation of the juridicalrelations between traders and consumers related to the purchase of products

and services, including financial services, providing the proper framework for

the access to products and services, their complete and correct information on

their essential features, protection and provision of legitimate rights and

1

Crpenaru S. D.: Drept comercial romn. (Romanian commercial law) Ediia a VI-arevizuit i adugit. Editura Universul Juridic, Bucureti. 2007, pp. 19 et seq.


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interests of the consumers against abusive practices, their participation in the

fundamentation and decision-making which concerns them as consumers.

The most important laws are:

Law no. 30 of 1991 regarding commercial companies, republished in2004,

Law no. 296 of 28 June 2004 regarding the Consumption Code,republished in 2008,

Law no. 449 of 2003 regarding product sale and product guarantee,republished in 2008.

Decrees and Law-Decrees

The most important Decrees and Law-Decrees, which are applicable to

the field of juridical consumer protection in Romania, are:

Decree no. 31 of 1954 regarding natural and juridical persons,Decree no. 167 of 1958 regarding the extinctive prescription.

Government Decisions and Ordinances

The Government Decisions and Ordinances are normative acts adopted

by the Government. In exceptional cases, the Government can adopt

Emergency Ordinances which would regulate a field, ordinances whichwould subsequently be approved by means of a law adopted by the Romanian

Parliament.


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In the field of the legal consumer protection in Romania, a series of

documents of a normative nature have been adopted:

Emergency Ordinance no. 43 of 2007 of the Romanian Governmentregarding the deliberate bringing into the environment and market of

the genetically modified organisms,

Emergency Ordinance no. 34 of 2000 of the Romanian Governmentreading the ecological agricultural food products,

Romanian Government Ordinance no. 21 of 1992 regarding consumerprotection, republished in 2008,

Romanian Government Decision no. 189 of 2002 regarding the

establishment of the procedure for granting the ecological label,

Romanian Government Decision no. 329 of 2001 regarding theimport and marketing of used products.

Other normative documents, subject to the law

These can be formal juridical sources for the institution of the juridicalconsumer protection if they contain juridical norms from this domain.

They are the acts adopted by different public administration central

authorities (instructions, regulations, etc.), and acts adopted by the public

administration local authorities (local council decisions, mayors

dispositions, etc.). In the field of the juridical consumer protection, a series of

documents with a normative nature have been adopted:

Order of the National Authority for the Consumer Protection no. 448of 2009,

Order of the Ministry of Environment and Water Management no. 55of 2007 related to the establishment of the National Registry of

Information regarding the genetic modifications in the genetically

modified organisms, and sending the information to the European

Commission.


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2.2. European sources of law

The community normative documents which are applicable in Romania

once Romania has adhered to the European Union are also part of the sources

of the juridical consumer protection institution in Romania. Such documents

are:

Regulations no. 271 of the Commission of 2010 to modifyRegulations (CE) no. 889/2008 establishing the application norms of

Regulations (CE) no. 834/2007 of the Council, regarding the logo of

the European Union for the ecological production,

Council Regulations no. 834 of 2007 regarding the ecologicalproduction and labeling of the ecological products,

Regulations CE 1946 of the Parliament and Council of 2003regarding the transboundary movements of GMOs,

Regulations of the European Parliament and Council no. 1980 of2000 regarding the revised community system of granting thecommunity ecological label,

Directive no. 18 of 2001 of the European Parliament and Councilregarding the deliberate dissemination of the genetically modified

organisms, and annulment of Directive 90/220/CEE of the Council.

The regulations are applied to all persons entering their application

scope.1

The regulations create subjective rights in the favor of privatepersons, citizens of the member states, both natural and legal persons. As

compared to the regulations, the directives have an obligatory power only for

each member state, to which they appeal to regarding the outcome to be

attained. These community normative documents (directives) cannot be

1

Fuerea A.: Drept comunitar european. Partea general. (European community law.General part) Editura All Beck, Bucureti. 2003, p. 108.


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invoked in the relations between private persons but only against a member

state to which they are addressed, as they cannot impose obligations to the

persons, as regulations can.

3. Informal juridical sources of

the juridical consumer protection in Romania

Besides the formal juridical sources, there are other juridical sources

called informal or real (customs, doctrine, extrajudicial practice) which are,

in general, disputed in Romania.

Morals or social cohabitation rules

Morals include all human behavioral rules.

As compared to the law system the totality of social behavior norms,

which when needed are implemented by state coercion force morals are thelaw proximal type.

In most cases, the legally regulated rules coincide with morals.1 So,

morals are not a distinct juridical source but a derived juridical source to the

extent to which it is included in the law.

For example: the situations in which a person feels morally obliged to

execute an obligation (even if the law does not impose that obligation andthat person is free to make a choice). But once that obligation is voluntarily

executed, law intervenes so that the work can no longer be restored to the

person who did it, and acted driven by conscience (this is the natural

obligation).

1

Abbott K., Pendlebury N., Wardman K.: Business Law. 7th

Edition, Editure Continium,London. 2002, p. 13.


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Tradition or customs

(land tradition, juridical usage)

This is a behavior rule established in time by the social life practice, rule

which tends to become a law rule. It manifests itself in an instinctive and

non-intentional form.

Customs must include two elements:

a material element, i.e. a behavior with a certain frequency, habitude,a psychological element, which implies a behavior perceived as

obligatory by the public opinion.

The custom has features similar to the law:

- it is expressed in a general and impersonal form,

- it has a particular notoriety,

- it can have an obligatory nature, as the case may be.

For these reasons, certain authors1 claim that the custom must be a

juridical source in Romania (a secondary and accessory juridical source, as

compared to the law, which remains the essential juridical source).

The Romanian Law can anytime supress a custom for opportunity

reasons, when the law considers that the custom is badly established.

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Jurisprudence (judicial practice)

Jurisprudence means the totality of juridical solutions included in the

judiciary authority decisions.

Jurisprudence is not an actual juridical source in Romania, but only a

derivate, interpretative and partly creative source. The particularity of the

jurisprudence is that the judicial instances are not obligated to align

themselves to a crystallized jurisprudence. But, in fact, in most cases, the

juridical instances comply with such a judicial practice, even if those

solutions are based on conviction, imitation or fear for the fact that the

decision might be canceled by the superior instances.

De lege lata (in conformity with the existing legislation in force), the

judicial precedent is not and it cannot be a source of the juridical consumer

protection institution in Romania. It influences the interpretation and correct

application of the norms which are included in the normative acts. Thus, the

judicial precedent offers a possibility for the legislator to perfect his

creation.1

Doctrine (the law science)

The doctrine represents the works written by the specialists who explain,

comment and interpret the juridical norms.

Although the doctrine is not an actual juridical source in Romania, it

elaborates the juridical interpretation norms, and creates, in most cases, the

vocabulary and juridical notions.

1

Popa V. V.: Drept civil. Partea general. Persoanele. (Civil law. General part. Thesubjects) Editura All Beck, Bucureti. 2005, p. 27.


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The doctrine often influences the legislator who simply takes doctrine

tendencies and incorporates them into laws.

As the judicial precedent, at present, the juridical doctrine is not

permitted to elaborate laws in the Romanian legislation. Doctrine is not and it

cannot be a source of the juridical consumer protection institution in

Romania, but it has a great influence upon the legislative powers, when it is

created by reputed authors.1

Jurisprudence and doctrine are considered to be indirect juridical sources

in the Romanian law system, because even if they have no competence to

establish obligatory norms, they can deliver solutions or formulate ideas,which impose themselves by their persuasion power, and whose violation or

neglection can entail, for example, the judicial decision annulment by the

superior authority for the wrong application of law.2

1 Popa V. V.: Drept civil. Partea general. Persoanele. (Civil law. General part. Thesubjects) Editura All Beck, Bucureti. 2005, pp. 28 et seq.2



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CHAPTER III

APPLICATION AND INTERPRETATION OF

THE CONSUMER PROTECTION LAW

IN ROMANIA

1. Application of law

We consider, as the specialized literature in Romania1in the private law

field, that laws simultaneously operate in three respects:

during the time when laws follow each other (application of law intime),

on a certain territory on which laws coexist (application of law inspace),

regarding certain subjects, called law recipients, having specificsubject categories to which laws apply (application of law to

persons).

1.1. Application of the consumer protection law in time

Law, including the consumer protection law, is applied under these three

aspects while it is in force.

In time, laws have their own life, between the moment of their coming

into force and the moment when they are no longer in force.1

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The consumer protection law, adopted by the Romanian Parliament,

comes into force either on the day of its publication in the Official Journal, or

on the day mentioned in the law content (if the law specifically mentions acertain date).

By the fact that the consumer protection law comes into force, it becomes

obligatory; an absolute presumption of knowing the law is applied, a

presumption which is applied to all persons, irrespective of their citizenships

(nemo censetur legem ingnorare nobody is considered unknowledgeable

regarding the law). This means that nobody can avoid the application of thelaw for reasons of not knowing the law.

The consumer protection law is no longer valid when it is abrogated; its

abrogation can be explicit or implicit. The express abrogation implies the

specification within the new law of the old law, which is no longer valid. On

the other hand, the implicit abrogation is incident when the new civil law is

incompatible with the dispositions of the old law.

The coming out of the effect of the law can also be accomplished by

means of the procedure called falling into disuse. The disuse implies that the

law has not been applied for a long time or that there have been changes in

the circumstances which motivated that particular law. But the juridical

literature in Romania2does not acknowledge disuse (or rational abrogation)

as a way of coming out of the effect of the law, especially in the field of the

juridical protection of the consumers rights, a relatively new field in the

juridical domain.

1Ungureanu O.:Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti.2000, pp. 30 et seq.2Beleiu G.: Drept civil romn. (Romanian civil law) Editura ansa SRL, Bucureti. 1993,

p. 49; Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck,Bucureti. 2000, p. 32.


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From the point of view of the law application in time, the new law can

have immediate effects (operating, thus, at present), retroactive effects

(applying also over the past), or ultra-active effects (applying also over thefuture, to certain juridical facts or situations occurring after the law has been

abrogated).

Law Retroactivity Consumer protection law Law Ultra-activity

Past Present Future

Figure no. 5

In the domain of the law application in time, the following principles are

valid1:

1. The principle of the law non-retroactivity means that the new law is

only applied to the juridical situations occurring after the law has come into

force (the new law is not applied to juridical facts or acts which have

occurred before it has come into force).

2. The principle of the immediate application of the new law means that

the new law must immediately be applied to all facts which have occurred

after its coming into force, but also to all future facts (all that happens under

the new law must submit to it).If the occurrence of a juridical situation means the accumulation of

circumstances or elements which take place successively in time, then the act

creating the respective juridical situation shall be considered to be valid only

according to the law in force at the latest moment of its successive creation.

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1.2. Applying the consumer protection law in space

Solving the law conflict in space is made depending on the conflictual

norms adopted by each state.

An example of law conflicts in space: the case of a Danish citizen who

purchases a TV set manufactured in Italy, but sold by a trader from Romania.

The conflictual norms in Romania are stipulated by Law no. 105 of 1992

(the regulation of the international private law juridical relations). The

Romanian Parliament has adopted a new civil code, law no. 287 of year2009, which shall come in force on a date which shall be established in the

implementation law of this code, a law which has not been adopted yet. Law

no. 287 of year 2009, the new civil code, shall regulate the subject matter of

the private international law.

1.3. Application of the consumer protection law to persons

The fundamental principle which regulates the application of the law to

persons is the principle of the subjects equality to the law.

According to the category of subjects to which it is applied, we can speak

about three law categories:

Laws with general application vocation. For example: the Civil Code,Decree no. 31 of 1954 regarding natural and juridical persons.

Laws with the application vocation only for natural persons. Forexample: The Consumption Code, Law no. 449 of 2003 regarding

product sale and related guarantees.

Laws with the application vocation only to juridical persons. Forexample: Law no. 31 of 1990 regarding commercial societies, Law


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no. 15 of 1990 regarding the reorganisation of the economic units as

self-governed companies and commercial companies.

2. Interpretation of the law

A law cannot be read like a short novel. The juridical text must be

deciphered, interpreted (in most cases).1

To interpret a law means to determine the exact meaning and sense.2 In

other words, the interpretation of the consumer protection law means the

logical-rational operation of explanation, explanation of the juridical normscontent and sense, aiming at its just application, by correctly framing various

situations from everyday life into their own hypotheses.3

The interpretation is a stage in the process of law application. It is the

necessary operation for the correct framing of a practical case into the law

hypothesis which stipulates it, which is not always an easy thing.

The civil law interpretation can be classified depending on the authorityperforming the interpretation of the law and the result which is obtained.

According to the authority which performs the law interpretation, the

interpretation can be:

A. Official interpretation: this is performed by a state authority,

abilitated to make this interpretation.

B. Authentic interpretation: this is performed by the authority that has

adopted the norm which is subject to interpretation. For example:

Parliament, Government, etc.

1Ungureanu O.:Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti.2000, pp. 38 et seq.2 Poenaru E.: Drept civil. Teoria general. Persoanele. (Civil law. General theory. Thesubjects) Editura Dacia Europa Nova, Lugoj. 2001, pp. 33 et seq.3



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C. Legal interpretation: this is performed by a certain state authority

which has been empowered by the law to interpret the laws. For

example: before 1989, the State Council.

D. Judiciary interpretation: this is performed by the judiciary

authorities when the norm is applied to practical juridical situations,

when the litigations subject to the competent authorities are solved.

Unlike the other two types of official interpretations, the judiciary

interpretation is not obligatory.

E. Unofficial interpretation (doctrinal): this is performed by the persons

who do not have the official quality of the state authority, thus not

having an obligatory force. For example: the interpretation

performed by specialists professors, researchers in their

scientific studies, the interpretation performed by lawyers in their

pleading or written conclusions.

According to the results, the interpretation can be:

1. Literal (strict) interpretation: in this interpretation, the legal text shall

strictly be applied to the situations which the legislator has had in

mind (determined by the phrases used in the text). An example: Art.

6 stipulates the fact that the provisions included in this Code are

mandatory for all the consumers and economic operators performing

trade acts and facts, according to the law. Interpreting this text, the

conclusion is: it applies to all consumers and economic operators inRomania, with no exception, which means a strict or literal

interpretation.

2. Extensive interpretation: which means that the area of the juridical

situations to which the law is applied is extended, as compared to the

area which seems to result from the terms used by the legislator.

This means that the juridical norm does not cover all the situations


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which (in the legislators intention) should be covered. Extensive

interpretation is inadmissible: when the law includes a limitative

enumeration, when the law expressly restrains a norm application to

a practical situation, when the law establishes an exception from the

general rule.

3. Restrictive interpretation: which means that the area of juridical

situations for which the law is applied is restricted as compared to

the area which seems to result from the terms used by the legislator.

An example of restrictive interpretation: item 13 of the Annex of the

Consumption Code - the consumer term is defined as any natural

person or group of natural persons constituted in joint ventures,

which operates for purposes outside their commercial, industrial or

production activity, hand-made or liberal. In the literal sense of the

word, the consumer term includes, especially in the specialized

economics literature, both natural persons (individual consumers),

and legal persons (organizational consumers).

Interpretation methods that can be used in the Romanian law system shall

further be presented.

a. Grammatical interpretation is performed using the meaning of the

words used by the legislator, and the way they are placed and connected in

the sentence. It implies a morphological and syntactic analysis of the text.

Sometimes, certain words have a specific meaning in the juridicallanguage, different to the usual meaning from the literary or everyday

language.

An example: in a strict sense, third person means the third, but in the

private law system, third person refers to all others except the contractual

parts (or except the real right holder). The grammatical interpretation also

implies an analysis of the connection between words in a sentence or clause.


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b.Logical interpretationis performed according to certain national rules

called arguments (interpretation procedures and sayings used by the

interpreters of the law systems). The most widespread arguments are further

presented.

b.1.A pari argument (analogical) states that the reasons are the same, the

same law must be applied, respectively the same solution found. Analogical

argument must cumulate the following conditions in order to operate:

the social relation must not be stipulated expressly by the law,that particular relation must have some similarity with the juridical

relation, regulated by the norm which will be applied using analogy

(cannot be considered a comparison based on intuition only).

There are two kinds of analogies:

analogy of laws (analogia legis): when the completion of the lawslacunas are covered using a civil juridical norm,

analogy of law systems (analogia juris): when the same thing is doneusing the principles of the civil law.

b2. Using the a fortiori argument, we can extend a norm application from

a case stipulated in a law or principle, to a case not expressly stipulated. This

is because the reasons which determined the norm adoption can be used a lot

more in that practical case. The A fortiori argument is expressed into the

Latin adage qui potest plus, potest minus(who can more, can less).

b3. The per a contrario argument emphasizes the logical rule: whensomething is stated, the contrary is negated (qui dicit de uno, negat de

altero). So, if a legal stipulation regulates some particular aspects, it is

understood that that legal stipulation negates the contrary aspect and vice

versa: if the legal text negates one aspect, it means that it affirms the

contrary.


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This argument must carefully be used: the laws silence regarding a

solution cannot always lead to the conclusion that the adoption of the

contrary solution was aimed at.

b4. The reductio ad absurdum supposes that a certain solution is possible

rationally speaking; the contrary solution is absurd and so it cannot be

accepted.

b5. The ab eodemargument (the argument of equivalent form) supposes

the following situation: although a form stipulated by the law was not

observed, this non-compliance with this form is covered if another equivalent

form was used. The law system considers the forms that attain the same goal

as equivalent.

The application of the logical interpretation of the law must be limited

strictly to the situation when the contradiction between the letter of the law

and the spirit of the law is obvious.

Systematic interpretation focuses on the place of the norm, whichmust be interpreted in the law context (in chapters, sections, titles

etc.) or in the entire legislation context (interpretation is done

according to the general or special character of the law, the civil or

commercial character of the law etc.).

Historical interpretation is concerned with the social-historicalconditions in which a law was adopted, preparation operations,

parliamentary amendments and discussions which took place beforethe law was adopted, and other.

Teleological interpretationhas the aim envisaged by the legislator inthe adoption of that particular norm. This aims at finding the text

significance (which has to be as close as possible to the legislators

presumed intention).


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Structuralist interpretationimplies an analysis of the legal text on thewhole. This is an explanation of the general spirit of the law, taking

into consideration the frequency of using a word, the arrangements

of words in clauses and sentences, the connection between two

terms, legal dispositions symmetry or asymmetry etc.

In the process of interpreting the law, the interpreter must have a more

active and creative position, attitude that can give him the possibility to find

an appropriate solution in cases of law lacuna or ambiguity. He cannot

deviate from the text because our law system does not allow the judge to

create a law rule in an arbitrary way.

The interpretation methods cannot be used in a separate way, but

together, or, sometimes, it is possible to use only a part of them.


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CHAPTER IV

CIVIL AND COMMERCIAL ASPECTS OF

THE JURIDICAL RELATION BETWEEN THE

CONSUMER AND THE TRADER IN ROMANIA

1. The terms of civil juridical relation

and commercial law juridical relation

While living together, people establish relations. The social relations can

be the attribute of regulating several domains. Thus, the moral relations are

driven by the rules of ethics, while the confessional relations are driven by

the religious normativity. The social relations, in which the society is mostly

interested, are regulated by the law, and thus the social relations become

juridical relations. Therefore, the civil juridical relation is a species of the

juridical relation, and governs the matter of the social relations phenomenon

which is subject to the civil law.

The civil juridical relation is defined by the specialized juridical literature

in Romania,1 as a patrimonial social or non-patrimonial personal relation,

which is regulated by the civil law norm. Thus, the personal (non-

patrimonial) relations and the patrimonial relations regulated by civil lawnorms are civil juridical relations. These are, for instance, property relations,

obligation relations, succession relations, etc.

1

Popa V. V.: Drept civil. Partea general. Persoanele. (Civil law. General part. Thesubjects) Editura All Beck, Bucureti. 2005, pp. 40 et seq.


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We consider that we can define the juridical relation between the

consumer and the trader as a social patrimonial relation or non-patrimonial

personal, which is regulated by the consumers protection norm, which is

established between the subjects of this juridical relation.

Regulatesbehavior norm

Social relation between

Figure no. 6

Before analysing the elements of the civil juridical relation, we consider

that the features of the civil law juridical relation must be enumerated:

a) The civil juridical relation is a social relation, i.e. a relation betweenindividuals, not a relation between a person and a thing. Any rightimplies a relation between people; it cannot exist outside the social

relations.

b)The civil juridical relation has a volitional nature, i.e. the civil lawact is determined by the will of the civil subject.

c) The civil juridical relation implies the legal equality of the parties,which is an application of the equality in front of the law principle in

the civil law field.

Juridicalnorm

Juridical relation

Consumer Trader


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These features, we believe, are also applied in the case of the juridical

relation belonging to the juridical consumer protection institution.

The source of the concrete juridical relation is defined1 as being a

circumstance (act or fact) to which the civil law associates the occurrence of

a concrete civil juridical relation. The act or fact which is the source of a

concrete civil juridical relation is also the source of the subjective civil rights

forming the content of the respective juridical relation.

As it can be seen in figure no. 7, also the source of the actual juridical

source between the consumer and the trader is a circumstance, act or fact to

which the law connects the emergence of this actual juridical relation.

regulates determines

social relation

Juridical Juridical Juridical Juridicalpossibility duty possibility duty

Figure no. 7

For instance, a relation between a consumer and a trader regarding the

granting of the guarantee in the case of a purchased laptop is determined by

the fact that that laptop has got defective. A source of this relation belonging

to the juridical consumer protection relation is the actual deterioration of the

laptop, previously purchased by the consumer.

1

Boroi G.:Drept civil. Partea general. Persoanele. (Civil law. General part. The subjects)Editura All Beck, Bucureti. 2001, pp. 41 et seq.

Juridicalnorm

Source of thejuridicalrelation

- Acts- Facts

Trader

Consumersright

Consumersobligation

Tradersright

Juridical relation

Consumer

Tradersobligation


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The sources of the concrete civil juridical relations can be classified

depending on a series of criteria. We consider that also the actual juridical

relations belonging to the consumer protection juridical institution can be

subject to the same classification criteria.

1. Depending on their dependence of independence of the human will,

the sources of the juridical relations belonging to the consumer protection

juridical institution can be divided into:

1.a. Human deeds: (comissive or omissive) performed by the legal

subjects belonging to the consumer protection juridical institution

with or without the intention of producing legal effects. The law

associates to them the occurrence, modification or termination of

concrete juridical relations belonging to the consumer protection

juridical institution. This category comprises both the voluntary

(wanted) actions or inactions, and the involuntary (unwanted) ones.

Depending on their being compliant with the law or not, we

distinguish the licit and illicit deeds.

1.b. Natural deeds (events): they are the circumstances which occur

irrespective of the mans will, and to which the law associates the

occurrence of juridical relations.

2. Depending on their range, we distinguish between the broad-sense

legal fact (human deeds performed with or without the intention of producing

legal effects, and natural facts), and the legal fact in a restricted sense (humandeeds performed without the intention of producing legal effects, but

produced on the grounds of the law, and natural facts).

3. Depending on their structure, the sources of the concrete juridical

relations belonging to the consumer protection juridical institution are simple

(broad-sense legal facts whose structure is made up of one single element

which creates through itself the concrete juridical relation), and complex


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(legal facts whose structure is made up of several elements producing valid

legal effects only if all of them are united, either successively, or

concomitantly).

4. Depending on the subjective civil rights they create: we distinguish

between sources of patrimonial rights (which are divided into ways of

acquiring real rights and sources of obligations), and sources of non-

patrimonial personal rights.

Thus, the consumer protection juridical institution includes both juridical

patrimonial relations, and personal juridical non-patrimonial relations. The

difference, highlighted in figure no. 8, between a juridical patrimonial

relation and a personal juridical non-patrimonial relation is that in the first

case the juridical relation can be evaluated in money. An example of

patrimonial juridical relation regards the purchase of a TV set by a consumer,

from a trader.

The non-patrimonial personal juridical relation cannot be evaluated in

money. An example of non-patrimonial personal juridical relation regards the

consumers right not to have his health endangered by theproduct purchased

from the trader.

behavior normregulates

social relation

Figure no. 8

Juridicalnorm

Juridical relation

patrimonial can be evaluated in

money

personal nepatrimonial can be evaluated in

money


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As any juridical relation, the one regarding the juridical consumer

protection domain has three constitutive elements1: parties, content, object.

2. Structure of the juridical relation

between the consumer and the trader

2.1. Parties of the juridical relation

The subject of the juridical relation belonging to the consumer protection

juridical institution can be defined as the person who has the attribute of

being the holder of the rights and obligations creating the content of the

juridical relation belonging to the consumer protection juridical institution.

They are subjects, individuals or legal entities among which a juridical

relation belonging to the consumer protection juridical institution is created,

and have, one towards the other, either subjective rights, or civil obligations

correlated to these rights.The person acquiring or exerting subjective rights is an active subject

(creditor in the obligation juridical relations), while the person who has the

obligations is a passive subject (debtor in the obligation juridical relations).

Usually, each party of the juridical relation belonging to the consumer

protection juridical institution is both an active subject (holder of certain

rights), and a passive holder (having certain obligations). Generally, the civilrights and obligations are correlative (the right of a party tallies with a

correlative obligation of the other party).

There are two subjects in the juridical relation belonging to the consumer

protection juridical institution: an active one and a passive one. There are

however relations in which several persons can be active (or passive)

1



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subjects. In these cases, the correlative rights and obligations are divided

between the active or passive subjects. Sometimes however, they are not

divided.

In this sense: if two consumers buy an apartment from a trader, the seller

is obliged to hand over the entire apartment to any of them; he cannot hand

over to each of the buyers a half of the apartment.

We witness here indivisibility (both the obligation, and the correlative

right are indivisible).

The rights and obligations are not divided into several active or passive

subjects, not even in case of solidarity (when either the law, or the will of the

parties imposes the obligation to be executed / the right to be exerted

undividedly, by any of the debtors, or in the favour of any of the solidary

creditors).

For instance: if several persons commit together an illicit and culpable

deed a manufacturer and, then, a trader sell a product which endangers a

consumers health and thus cause damage to another person the consumer

who has purchased the product gets ill , the authors of the deed are solidarily

responsible to the victim. This means that the victim, the consumer, can claim

and receive the entire compensation from any of the co-doers, manufacturer

or trader. The one who completely indemnifies the victim can then recover

(by regress action) from the other co-debtors the part incumbent on each of

them for bearing the obligation to repair the damage they have done together.The civil capacity to use the civil law subjects is defined as the general

disposition to have civil rights and obligations (the disposition to be a civil

law subject, and thus be included into civil juridical relations). It is

acknowledged by law to all individuals, with no discrimination.


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The civil usage capacity is general (it comprises all the subjective rights

and all the civil obligations acknowledged by the objective law), and it is

equal for all individuals. Nobody can be restricted in their usage capacity (as

a law subject), except for the cases and conditions expressly provided by the

law.

The civil usage capacity of the individuals starts when the persons are

born and ends when the persons die.

The civil usage capacity of the human being starts when the person is

conceived (on condition that the person is born alive) in the case of acquiring

rights (but not assuming obligations).

As for the legal entities, the civil usage capacity occurs when the legal

entity is established (or acknowledged, authorized, registered), and ends

when it is annulled (or it stops existing by merging, division, dissolving).

This capacity is not however general and equal (as with the individuals) but,

according to the principle of speciality of the usage capacity of the legal

entities, each such person has the capacity to acquire only those rights and

assume those obligations corresponding to his/her purpose provided by the

law, setting up document or statute.

The civil exercise capacity of the civil law subjects is defined as the

capacity of the persons to acquire rights and assume obligations by way of

their own legal acts. If all individuals have their usage capacity

acknowledged by the law, based on the simple fact that they exist as humanbeings, not all individuals have the exercise capacity, only those who have a

conscious will, who have the power of discernment of their deeds (only they

can comprehend the consequences of their deeds producing legal effects).

The rule is the following: the individuals acquire the full exercise civil

capacity when becoming of age (18 years old), an age at which the legislator

implies that they have a conscious will and have the discernment to evaluate


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the importance and consequences of the legal acts they perform. Exception:

the persons under age who get married acquire, through this fact itself, the

full exercise capacity.

Until 14 years old, the persons under age are completely deprived of the

exercise capacity, as the law presumes they possess no discernment. As they

have the usage capacity, they can become holders of rights and obligations

but the legal acts from which these derive, must be concluded, on behalf of

the person under age, by his legal representatives.

The persons under age who have turned 14 years old acquire a restricted

exercise civil capacity (with the previous agreement of their parents or tutor

who, according to the law, provides their protection).

As a rule, the exercise capacity acquired at the becoming of age lasts the

entire duration of life, and ends (as the usage capacity) only when the person

dies.

As an exception to the rule, the law provides that also the persons of age

can sometimes be deprived of the exercise capacity: when, because of

suffering from mental alienation or mental debility (being deprived of

discernment, conscious will), are laid under an interdiction by a legal

decision.

As for the consumers use capacity and exercise capacity, we consider

that this is not relevant in the field of the juridical consumer protection

institution. Also, we consider that the special restrictive regulations related tothe asset purchase should be complied with, i.e. the trader should check the

fulfillment of the restrictive conditions provided by the special legislation

regarding certain assets.

The legal entities exert their rights and assume their obligations through

their organs (through the individuals entrusted with the management of the

respective legal entities according to the law, setting up document or statute).


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The trader, involved in the juridical relation belonging to the juridical

consumer protection institution, must comply with the legal conditions

regarding the capacity of the legal person.

2.2.1. Traders, general characters

The subjects of the commercial juridical relation can be traders or non-

traders, according to the Romanian Commercial Code. The Romanian

Commercial Code is based on the objective system.1 Its regulations are

applied to any person who performs objective commercial facts, which arestipulated by the Commercial Code in Article 3. That way, the priority is the

character of performed facts, not the condition that the person who performed

it has or has not the quality of a trader.

A condition for a person to become a trader is for that person to perform

commercial facts of professional character (Article 7 Commercial Code).

Article 4 Commercial Code stipulates the following: once the quality of atrader is acquired, all acts and operations made by this person are presumed

to be commercial.

Although the subjects of the commercial juridical relation are traders or

non-traders, the commercial activities are performed, in general, by the

traders.

Also, the trader is one of the subjects of the relation belonging to the

juridical consumer protection institution.

1

Crpenaru S. D.: Drept comercial romn. (Romanian commercial law) Ediia a VI-arevizuit i adugit. Editura Universul Juridic, Bucureti. 2007, pp. 65-426.


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The commercial juridical doctrine1 defines the trader as any person

natural or juridical who performs a commercial activity, i.e. performs

commercial facts of professional character.

Because the commercial activity includes the activity that products goods

and services and the circulation activity (distribution) of goods, the trader

notion is a generic notion. This notion means that any person natural or

juridical performs, in a professional manner, a commercial activity, no

matter what its object might be.

Article 7 Commercial Code divides traders in two categories: natural

person traders (individual traders) and Commercial companies (collective

traders). But these categories are not the only ones. Article 1 align (2) from

Law no. 26/1990, republished in 2008, includes self-governed companies and

cooperative organizations. Law no. 161/2003 regulates a new category of

traders: economic interest groups.

Smaller traders have a special situation.

Traders, natural persons

Natural persons who perform commercial facts of professional character

have the quality of traders.

The Commercial Code defines the natural person trader not by his/her

affiliation to a certain professional group, but by the acts and operations commercial facts he/she performs in a professional manner.

Natural persons can perform economic activities in an individual manner

or can create familial associations.

1



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The familial association is started at the initiative of a natural person and

is formed by this persons family members: husband, wife and children up to

16 years, and the relatives up to the 4thgrade.

The familial association is an associative form with no juridical

personality. It is represented in relations to third parties by the person who

has the initiative to form that familial association or by the person mandated

based on a certified proxy.

Natural persons and familial associations can perform economic

activities in all domains, jobs and occupations, except for those which are

regulated by special laws. The natural person and the familial association

must have the administrative authorization and the registration certificate,

which are issued under the condition stipulated by Emergency Ordinance

no. 44 of 2008 regarding the development of economic activities by the self-

employed persons, individual enterprises and family enterprises.

Commercial companies

The juridical regime of the commercial company was regulated, initially,

only by the Commercial Code. But, in 1990 these stipulations were replaced,

in general, by stipulations included in Law no. 31/1990, republished in 2004,

regarding commercial companies. Additionally, for commercial companies

which operate in certain activity areas, a special legislation (in bank area,insurance area) was adopted. But the general legislation regarding

commercial companies and the special legislation regarding certain

commercial categories of companies are completed by the Commercial Code

and the Civil Code stipulations.


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The civil society was defined, by the specialized juridical literature in

Romania1, as a contract according to which two or more persons (associates)

understand to put in common certain goods in order to perform together a

certain activity, having the purpose to obtain and divide the resulting benefits.

The commercial company was defined, by the specialized juridical

literature in Romania2as a group of persons constituted, based on a company

contract and benefiting from juridical personality, in which the associates

understand to put in common certain goods, in order to perform certain

commercial facts, with the purpose to obtain and divide the resulting profit.

Regarding commercial companies, the Commercial Code just stipulates

that they have the quality of a trader. Commercial companies are

acknowledged to have the quality of a trader because of their commercial

object.

The commercial companies include the commercial companies organized

in conformity with the conditions stipulated by Law no. 31/1990 and

commercial companies with public capital organized in conformity with Law

no. 15/1990.

Certain commercial companies with public capital, having the object:

activities of national public interest are named national companies or

national associations.

The self-governed companies were created from public economic unities

reorganized in conformity with the conditions stipulated by Law no. 15/1990,in strategic areas of national economy.

1 Crpenaru S. D.: Drept comercial romn. (Romanian commercial law) Ediia a VI-a

revizuit i adugit. Editura Universul Juridic, Bucureti. 2007, p. 153.2Idem. p. 156.


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The self-governed companies perform an activity comparable with the

activity performed by the commercial companies. They are not juridical

persons and they operate based on the economic administration and the

financial autonomy.

The cooperative organizations deal with goods production and goods

distribution, and servic

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