Acta Universitatis George Bacovia. Juridica - Volume 9. Issue 2/2020 - http://juridica.ugb.ro/ - Ciprian Raul ROMIȚAN

Rights and obligations of the usufructuary and of the bare owner

Ciprian Raul ROMIȚAN PhD, „Romanian-American” University of Bucharest, Romania Partner of “Ros & Co” Firm [email protected]

Abstract: The is that main, essentially temporary real right, granting its holder, referred to as usufructuary, the right to use the (-ies) (i.e., the prerogative of use the property(-ies) belonging to another and the prerogative of enjoying its fruit), subject to the obligation to preserve its substance and return the property(-ies) to the owner upon the expiry of the usufruct. The bare owner and the usufructuary are not co-owners of the property and the usufruct right arises as a result of subdivision of the attribute and the passing of the two elements, and use, which form the attribute of use, from the owner to the usufructuary. The study presents a number of rights and obligations of the usufructuary and of the bare owner regulated in the Civil Code.

Keynotes: usufruct; bare owner; usufruct right; usufructuary rights; usufructuary obligations; rights of the bare owner; obligations of the bare owner. Framing subdomain:

Introductory concepts and regulation

Usufruct is defined in to art. 703 of the Civil Code, as being “the right to use another person’s property and to enjoy its fruit, just like the owner, but with the obligation to preserve its substance” [1]. According to some authors, expressed in the specialized literature prior to the adoption of the Civil Code in force [2]” usufruct is “that main real right giving its holder (referred to as the usufructuary) the possession and use of the property belonging to another person (referred to as the bare owner) under the obligation to preserve the substance” [3], “that derivative main real right, essentially temporarily, on the property or belonging to another person, which confers on its holder, known as usufructuary, the possession and use attributes and obliges it to preserve its substance, and to return to the owner on cessation of the usufruct” [4] or “a real right of use in one thing belonging to another and which shall expire at the latest on the death of the usufructuary” [5]. After the entry into force of the current Civil Code, the specialized literature also analyzed and defined the usufruct right. Thus, according to some authors [6], usufruct is that “main, essentially temporary real right, granting its holder, referred to as usufructuary, the right to use the property(-ies) (i.e., the prerogative of use the property(-ies) belonging to another and the prerogative of enjoying its fruit), subject to the obligation to preserve its substance and return the property(-ies) to the owner upon the expiry of the usufruct” or “subdivision of the right of private property, of temporary nature, wich grants its holder the attribute to hold another person’s property as usufructuary, as well as the attribute of use (ius utendi and ius fruendi) on that property, including the possibility of ceding the emoluments of this use, with the duty to preserve its substance, attributes which must be exercised observing material and legal limits” [7]. It results in other words that the bare owner and the usufructuary are not co-owners of the property and the usufruct right arises as a result of subdivision of the ownership attribute and the passing of the two elements, possession (usus) and use (fructus), which form the attribute of use, from the owner to the usufructuary. Without the two elements (usus and fructus), the property becomes a bare property [8]. III, art. 709-745 Civil Code (Dismemberments of the ownership right) Book 3 (On properties) regulates a series of rights and obligations of the usufructuary and of the bare owner which are going to present and analyze herein after.

= ISSN 2285-0171 ISSN-L=2285-0171 Acta Universitatis George Bacovia. Juridica - Volume 9. Issue 2/2020 - http://juridica.ugb.ro/ - Ciprian Raul ROMIȚAN 1. Rights of the usufructuary

Civil Code regulates in detail the following rights of usufructuary, which, as an author claims [9], are in fact “mere manifestations” of the attribute of possession (usus) and attribute of use (fructus): - the right to require the bare owner to hand over for use the property which is the object of the usufruct. According to Article 709 Civ.C, usufructuary has the right to use the property exclusively. In order to realize this right, the usufructuary shall have the right to ask for and obtain from the bare owner or his/her successors, where the usufruct was created by a legacy clause, the handing over of the property which is the object of the usufruct. If the handing over of the property is not done voluntarily, the usufructuary may proceed with a confessory action against the bare owner or his/her successors. On the grounds of Article 705 Civ.C., the confessory action for usufruct may be brought against any person preventing the exercise of the right, even against the owner who constituted the right of usufruct. The usufruct on an immovable property may also be defended by the possessory actions, and if the usufruct was born of the , the usufructuary may ask the owner to hand over the property by personal action [10]. - the right to use the property exclusively and to enjoy its fruits. As provided for in Article 709 Civ. Code, unless otherwise stipulated, the usufructuary shall exercise the powers of exclusive use of the property and the collection of the fruits produced by it. By the act of constitution, as stated in a case [11], it can be established that ”use shall be exercised by both the usufructuary and the bare owner.” The prerogative of using the property shall be exercised by the usufructuary under the same conditions as this one is exercised by the owner [12]. As it results from the interpretation of Article 728 Civil Code, the usufructuary’s right to collect the fruits produced by the property, object of the usufruct, exists from the date of the establishment of the usufruct. The right to collect fruit extends to all categories of fruits: natural and industrial fruit (art. 710 Civil C.) and civil fruits (art. 711 Civil C.) [13]. Thus, according to the provisions of Article 710 Civil C., the natural and industrial fruits ”collected after the usufruct was constituted belongs to the usufructuary, and those collected after the usufruct had been extinguished shall belong to the bare owner, without being able to claim each other compensation for the costs incurred in producing the fruits.” Regarding the civil fruits, according to Article 711 Civil C. these ”are due to the usufructuary pro rata with the duration of the usufruct, the right to claim them being acquired on a daily basis.” In other words, civil fruits are distributed between the usufructuary and the bare owner by reference to the duration of the usufruct right, whether or not they have been collected. The rules set out in Article 710-711 Civil Code are supplementary which means that, by virtue of the principle of will, the parties may derogate from their contents [14]. If the usufruct includes young forests intended by their owner for periodic cutting, pursuant to Article 717 (1) Civil Code, the usufructuary may exploit these forests, but it is obliged to maintain the order and the size of the cutting, in accordance with the rules laid down by the owner according to the legal provisions [15]. Regarding the exploitation of tall forests, pursuant to Article 718 (1) Civ. Code, the usufructuary may, in accordance with the legal provisions and the usual use of the owner, exploit the parts of tall forests which have been intended for regular cutting, whether such cutting is carried out periodically on a specified stretch of land, or is carried out only on a number of trees selected on the whole surface of the fund. In other cases, as may be provided for in paragraph 2 of the same article, the usufructuary may not cut the tall trees; however, it may use accidentally fallen trees to carry out the repairs which he is forced to perform; for this purpose, he may even cut the necessary trees, but with the duty to establish, in the presence of the bare owner, this need. At the same time, in accordance with the provisions of Article 719 Civ. C. the usufructuary may take props from forest for the vines, as well as annual or periodic produce of the trees, in accordance with the usual use of the owner, within the limits of the legal provisions. According to the art. 720 Civ. C., the holder of the right of usufruct is entitled to fruit trees which wither and those accidentally fallen but having the duty to replace them with others. Finally, as it is also stipulated in Article 721 Civ.C., the usufructuary has the right exactly as the bare owner of stone and sand quarries that are in exploitation on the constitution of the right of usufruct [16]. - the right to assign the usufruct. Under Article 714(1) Civ.C., unless otherwise provided, the usufructuary may assign his right to another person without the consent of the bare owner. The of usufruct right shall become enforceable on the bare owner, only from the date on which it was notified, with two consequences, namely:

= ISSN 2285-0171 ISSN-L=2285-0171 Acta Universitatis George Bacovia. Juridica - Volume 9. Issue 2/2020 - http://juridica.ugb.ro/ - Ciprian Raul ROMIȚAN - according to art. 714(2) Civ.C., until such time as the assignment is notified, the usufructuary and the assignee shall be jointly liable for the fulfillment of all the obligations toward the bare owner. Pursuant to Article 1443 Civ. C. with the marginal “Solidarity between debtors”, both the holder of the right of usufruct and the assignee may be held separately for the entire obligation and the performance of the obligation by one of them releases the other toward the bare owner; Pursuant to Article 714 (3) Civ.C., after notification of the assignment, the assignee is bound to the bare owner in respect of all obligations arising after notification of the assignment. In this case, the legal provisions in the field of fidejussion (art. 2.293 Civ.C) shall adequately apply to the usufructuary. After the assignment, according to the provisions of art. 714(4) Civ.C., the right of usufruct shall remain in force, as applicable, until the elapse of the initial term, or up to the decease of the initial usufructuary [17]. - the right to mortgage the property object of the usufruct. According to Article 2.379(1)(b) Civ.C, the right of usufruct relating to immovable property with its accessories may be the subject of mortgage on immovable property or of forced execution of immovable property [Article 813(2) Code of Civil Procedure]. Also, according to Article 2.389(l) Civ. C., the movable property usufruct may be mortgaged. - the right to lease or farm lease the property object of the usufruct. As provided for in Article 715 (1) Civ.C., the usufructuary shall have the right to lease or, as the case may be, farm lease the property received in usufruct. From the reading of paragraphs 1 to 3 of Article 715 Civ.C. we note that their text refers to the legal regime for after the end of the right of usufruct [18]. Thus, pursuant to Article 715(2) Civ.C., in the case of cessation of the usufruct by death or cessation of legal existence of the usufructuary, the leases of immovable property entered in the land book shall be enforceable against the owner or his/her heirs until their term has expired, but not more than 3 years after the cessation of the usufruct. In the case of renewals of leases of immovable property or farm leases made by usufructuary and entered in the land book before the expiry of the initial contracts, shall be binding against the owner and his/her heirs for a period not exceeding six months or, as appropriate, one year, if at the time the usufruct was extinguished the usufruct has not been executed. Under no circumstances may leases last for more than 3 years from the date when the usufruct was extinguished [Article 715(3) Civ.C]. If the usufruct has been extinguished by the expiry of the period, the leases shall in all cases cease to exist once the usufruct has been extinguished [art. 715 (4) Civ.C.] [19]. - the right to be indemnified. For this purpose, Article 716 (3), sentence I Civ.C. provides that the usufructuary may, for expenditure which he has incurred in connection with the necessary works added, claim a fair indemnification. In addition, pursuant to Article 716(3), second sentence, Civ.C., the usufructuary may also claim a fair indemnification for the other works added or for improvements made with the consent of the owner if this increased the property value. Finally, the usufructuary has also a number of rights in special situations. For example: - in the case of usufruct on a receivable, in accordance with Article 738 Civ.C., the usufructuary shall be entitled to receive the capital and to receive interests on the receivable and to perform all acts necessary for the preservation or collection of interests; - according to Article 739 Civ.C., life-annuity usufructuary has the right to collect, during the period of its usufruct, the incomes acquired daily; - where the bare owner has increased the capital which is the subject of the usufruct (e.g. movable assets), the usufructuary has the right to exercise his right over the property thus acquired. If the bare owner transfers his right, the property acquired as a result of the alienation is handed over to the usufructuary and the usufructuary is accountable at the end of the usufruct (art. 740 Civ.C.); - according to Article 741 Civ.C., the voting right attached to a share or other movable asset, an undivided share, of the right of ownership or any other property belongs to the usufructuary. However, the vote which has the effect of modifying the substance of the main property, such as the share capital or the co- ownership property, or the change of destination of the property or the cessation of the company, the reorganization or cessation of the legal person or, where applicable, of an enterprise, shall belong to the bare owner;

= ISSN 2285-0171 ISSN-L=2285-0171 Acta Universitatis George Bacovia. Juridica - Volume 9. Issue 2/2020 - http://juridica.ugb.ro/ - Ciprian Raul ROMIȚAN - dividends the distribution of which has been approved, according to law, by the general meeting during the usufruct shall be due to the usufructuary from the date fixed by the decision of the general meeting (Article 742 Civ.C.). In order to defend his rights, the usufructuary has several legal actions available to him [20]: - by virtue of Article 705 Civ.C., usufructuary may exercise the confessory action for usufruct by which to obtain recognition of his right and the removal of any disturbances which might be brought to it. As I have already pointed out, the confessory action can be brought against both third-parties and against the bare owner; - having the capacity of owner in relation to third parties, the usufructuary may also exercise the possessory action against them, requesting observance of his possession as a mere state de facto; - where the right of usufruct has been established by convention, the usufructuary may also exercise a personal action against the bare owner, arising from that convention (for example by requesting the handing over of the use of the property) [21].

2. Obligations of the usufructuary

In relation to the time of their occurrence, the obligations of the usufructuary can be classified into three categories: obligations arising at the beginning of the usufruct; obligations arising during the exercise of the usufruct and obligations arising at cessation of the right of usufruct [22]: - obligations arising at the beginning of usufruct. According to Article 723(1) Civ.C, at the beginning of the usufruct, the holder of the right of usufruct has the obligation to make an inventory [23] of movable property and to ascertain, by concluding an act of ascertaining, the condition of the immovable properties, unless the usufruct of a movable property is acquired by usucaption. In other words, inventory is only mandatory for movable property. From the interpretation of Article 723(1) Civ.C., and also pointed out in a case concerning [24] the recognition of a right of usufruct, the court has held that “the inventory is to be carried out only in respect of movable property, and in respect of immovable property, only the condition thereof is ascertained”. It should be noted that the inventory is drawn up only in the presence of the bare owner or after notification thereof [Article 723(2) Civ.C.]. According to some authors [25], the text of the article is “poorly drafted” because it does not refer to the ascertaining of the condition of immovable properties, which, for identity of reason, should be made "in the presence of the bare owner or after his notification". At the beginning of the usufruct there is also an obligation on the usufructuary to submit a guarantee for the performance of his obligations [art. 726 par. (1) Civ.C.]. Under paragraph 2 of the same article, the seller and donor who have reserved their usufruct right shall be exempt from submitting a guarantee [26]. If the usufructuary is unable to provide a guarantee, article 727 (1) Civ.C. provides that, at the request of the bare owner, the court will appoint an administrator of the immovable properties and will order that the civil fruits and the sums representing the value of the natural and industrial fruits collected be deposited with a credit institution chosen by the parties. In this case, the usufructuary will receive only the relevant interests. Also if the usufructuary is unable to provide a guarantee, paragraph 2 of that article provides that the bare owner may require the sale of the properties which are worn by use and the deposit of the amounts with a credit institution chosen by the parties. Interests occurred during the usufruct shall belong to the usufructuary. However, by way of exception from the provisions of Article 727 (1) and (2) Civil Code, the usufructuary may require that part of the movable property necessary for his use or family be left to him, with the obligation to return it when the usufruct is extinguished. In conclusion, the obligations of the usufructuary born at the beginning of the usufruct are: the obligation to inventory movable property and to establish the condition of immovable property, regulated in Article 723 Civ.C., and the obligation to deposit a guarantee, regulated in article 726-727 Civ.C. - obligations arising during the exercise of the usufruct. The interpretation of article 729(1) Civ.C. makes it compulsory for the usufructuary to carry out maintenance repairs for the property. According to paragraph 2 of the same article, major repairs are the responsibility of the bare owner, and when they are caused by failure to perform maintenance repairs, they are the responsibility of the usufructuary [Article 729(4) Civ.C.] [27]. Another obligation on the usufructuary is to notify the bare owner of the need for large repairs [art. 730(1) Civ.C]. If the bare owner does not make the major repairs in time, the usufructuary may perform

= ISSN 2285-0171 ISSN-L=2285-0171 Acta Universitatis George Bacovia. Juridica - Volume 9. Issue 2/2020 - http://juridica.ugb.ro/ - Ciprian Raul ROMIȚAN them at his own expense, the bare owner being obliged to return their equivalent amount by the end of the current year, updated on the date of payment [Article 730(2) Civ.C.]. In exercising its right, the usufructuary is also obliged to observe the destination given to the property by the bare owner, unless an increase in the value of the property is ensured or at least the interests of the owner are not prejudiced in any way (Article 724 Civ.C.). At the same time, usufructuary is also obliged to bear all costs and expenses arising from disputes concerning the use of the property, the collection of fruits or the collection of income. If the good is insured, during the period of the usufruct insurance premiums are paid by the usufructuary (Article 733 Civ.C.). According to article 734 Civ.C., the usufructuary shall be obliged to inform the bare owner without delay of any usurpation of the fund and of any challenge of the ownership right, under the sanction of the obligation to pay damages and, in accordance with Article 743(3) Civ.C., the universal legatee of the usufruct or with universal title is forced to pay, pro rata to the object of the usufruct and without any right to return, the legacies with particular title, having as object maintenance obligations or, as appropriate, life annuities. As a conclusion, we can show that the obligations of the usufructuary born during the exercise of the usufruct are: the obligation to use the property as a good owner [art. 729 Civ.C. and art.730(1) Civ.C.], the obligation to use the property exactly as the owner (articles 724 Civ.C. and 733 Civ.C.), the obligation to notify the owner of any infringement of his right (article 734 Civ.C.) and the obligation to pay the legacies with particular title, having as object maintenance obligations or, as applicable, life-annuities [art. 743(3) Civ.C]. - obligations arising from the cessation of the right of usufruct. At the cessation of the right of usufruct, the law provides the obligation of the usufructuary to return the property, object of the usufruct right, with two exceptions: - quasi-usufruct, when the usufructuary, in accordance with Article 712 Civ.C., must return properties of the same quantity, quality and value or, at the owner's choice, their equivalent value at the time the usufruct is extinguished; - If the usufructuary has also disposed of properties which, without being consumable, are rapidly damaged by use, the value which the property had at the time the usufruct was extinguished shall be returned (Article 713 Civ.C.) [28]. Where appropriate, on the grounds of article 725 Civ.C., the usufructuary shall be liable to compensate the bare owner for any prejudice caused by improper use of the properties given in usufruct, except as provided for in Article 731 Civ.C., according to which the usufructuary shall not pay damages if the perishing or damage has occurred from a fortuitous event or because of the age of the property. Where the object of the usufruct is a herd which has perished entirely by reason not attributable to the usufructuary, in accordance with the provisions of Article 736 Civ.C., it shall refund only the skins or the value thereof. If the herd has not perished entirely, the usufructuary is obliged to replace the lost animals with the breeding ones. The usufructuary of the annuity is obliged to return the incomes received in advance (Article 739 Civ.C.) [29] and the usufructuary of a goodwill [30] that disposes of the assets that make it up has the obligation to replace them with similar ones and of equal value (article 745). Civ.C.) [31].

3. Rights of the bare owner

The rights of the bare owner arising from the fact that he benefits from ius abutendi, and in relation to the usufructuary of ius possidendi are as follows: - the right to dispose of the property, including by alienation, but must observe the attributes belonging to the usufructuary. In other words, it can alienate (sell, donate, change, mortgage or pledge) or otherwise encumber the bare property [32]; - the right to benefit from the products of the property. For example, according to the art. 722 Civ.C., he will be able to open new quarries of stone and sand after the usufruct is constituted, which he will exploit on his own; - the possibility of taking legal action in order to defend the rights conferred on him by the bare ownership. For example, he may exercise the action for recovery of possession, the possessory action, the personal action arising from the convention establishing the right of usufruct and the negatory action [33].

= ISSN 2285-0171 ISSN-L=2285-0171 Acta Universitatis George Bacovia. Juridica - Volume 9. Issue 2/2020 - http://juridica.ugb.ro/ - Ciprian Raul ROMIȚAN 4. Obligations of the bare owner

The bare owner shall have the following obligations: - obligation not to obstruct or hinder the exercise of the right of usufruct; - obligation to bear all expenses of major repairs. Thus, according to the art. 729 Civ.C., the bare owner has the obligation to bear the high expenses [34]. If the bare owner fails to perform the major repairs in time, the usufructuary may perform them at his own expense, the bare owner being forced to return the equivalent amount until the end of the current year, updated on the date of payment (art. 730 Civ.C.); - obligation to bear the costs and duties of property. According to the art. 735 Civ.C., if they were borne by the usufructuary, the bare owner is obliged to reimburse them, and in the case of usufruct for a consideration, also to pay the legal interest; - obligation to guarantee for eviction. This obligation of the bare owner exists where the right of usufruct was established by an onerous convention; - obligation to return the amounts advanced by the usufructuary. According to Article 743(1) Civ.C., if the universal or universal title usufructuary pays debts relating to the patrimonial assets or part of the patrimonial assets given in usufruct, the bare owner shall return the amounts paid in advance, on usufruct cessation, without any interest. If the usufructuary does not pay those debts, the bare owner may, at his choice, on the grounds of paragraph 2 of the same article, pay them himself or sell a sufficient part of the properties given in usufruct. However, if the bare owner pays these debts, the usufructuary owes interests for the entire period of the usufruct.

Conclusions

It follows from the above study that, while the usufructuary has the right to use the property exclusively, the right to collect the fruits, the right to assign the usufruct, the right to lease or farm lease the property received in usufruct and the right to defend its usufruct right against any person, the bare owner shall have the right to possess the property, the right to dispose of the property and the right to ensure the protection of its bare ownership. As regards the obligations of the usufructuary and the bare owner, these are: the obligation to preserve the substance of the property, the obligation to observe the destination of the property, the obligations of the usufructuary at the time of occurring of the usufruct, the obligation of the usufructuary during the usufruct, the obligation of the usufructuary at the cessation of the usufruct, respectively the obligation not to prevent or hinder the exercise of the usufruct right; the obligation to bear all costs of major repairs, the obligation to bear the costs and charges of the property, the obligation to repay the sums advanced by usufructuary, the obligation to guarantee for eviction (this obligation of the bare owner exists where the right to usufruct was established by an onerous convention).

References

[1] Art. 517 of the 1864 Civil Code defined the usufruct as “someone's right to enjoy another person's property, just like the owner, but subject to the obligation to preserve its substance”. [2] Law no. 287/2009 on Civil Code, published in the Official Gazette no. 511 of 24 July 2009. The Civil Code came into force on 1 October 2011. [3] Ovidiu Ungureanu, Drepturi reale. Curs practic, Editura Rosetti, București, 2001, pp. 123-124; Ovidiu Ungureanu, Cornelia Munteanu, Tratat de drept civil, Bunurile. Drepturile reale principale, Editura Hamangiu, București, 2008, p. 468. [4] Liviu Pop, Dreptul de proprietate și dezmembrămintele sale, “Lumina Lex” Printing House, Bucharest, 2001, p. 159. [5] Constantin Hamangiu, I. Rosetti Bălănescu, Alexandru Băicoianu, Tratat de drept civil român, volume II, collection Restitutio, Editura All Beck, București, 2002, p. 193. [6] Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, Curs de drept civil. Drepturile reale principale, Ediția a 2-a revizuită și adăugită, Editura Hamangiu, București, 2013, p. 177. [7] Valeriu Stoica, Drept civil. Drepturile reale principale, 3rd Issue, C.H. Beck Printing House, Bucharest, 2017, p. 229. See also Corneliu Bîrsan, Drept civil. Drepturile reale principale în reglementarea noului Cod civil, Ediția

= ISSN 2285-0171 ISSN-L=2285-0171 Acta Universitatis George Bacovia. Juridica - Volume 9. Issue 2/2020 - http://juridica.ugb.ro/ - Ciprian Raul ROMIȚAN a 4-a, revised and updated, Editura Hamangiu, București, 2020, p.303; Eugen Chelaru, Drept civil. Drepturile reale principale, 5th Issue, C.H. Beck Printing House, Bucharest, 2019, p.369. [8] For the definition of bare owner and bare property, see Dumitru Rădescu, Elena Rădescu, Georgeta Stoican, Dicționar de drept civil și proceduri civile, Ediția 2, Editura C.H. Beck, București, 2017, p. 634. [9] Valeriu Stoica, op.cit., (2017), p. 236. [10] Cristian Jora, Ioan Ciochină Barbu, Drept civil. Drepturile reale, Ediția a III-a, revised and supplemented, Editura Universul Juridic, București, 2019, p. 234. [11] Iași Court of Appeal, Civil matters, Decision no. 1531/1998, in Viorel Terzea, Noul Cod civil, adnotat cu doctrină și jurisprudență, ediția a II-a, vol. I, Editura Universul Juridic, București, 2014, p. 915. [12] Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, op.cit., (2013), p. 182. [13] For details, see Iosif Robi Urs, Petruța Elena Ispas, Drept civil. Teoria drepturilor reale, Ediția a 2-a, revised and supplemented, Editura Hamangiu, București, 2015, pp. 229-230. [14] Gabriel Boroi, Mona-Maria Pivniceru, Carla Alexandra Anghelescu, Dragoș-Nicolae Dumitru, Bogdan Nazat, Ioana Nicolae, Teona Rădulescu, Tudor-Vlad Rădulescu, Fișe de drept civil: partea generală, persoane, drepturi reale principale, obligații, contracte, succesiuni, familie, Ediția a II-a, Editura Hamangiu, Bucharest, 2017, p. 350. [15] For developments regarding legal provisions on forests, see the Forestry Code - Law no. 46/2008, republished in the Off. G. 611 of 12 August 2015, as subsequently amended and supplemented. [16] According to Article 722 Civ.C., with the marginal ”Situation of unopened stone and sand quarries and treasures”, “Usufructuary has no right over the quarries unopened yet, nor over the treasures that may be discovered during usufruct”. [17] It should be noted that according to Article 70 of Law 71/2011, all the provisions of Article 714 Civ.C. concerning the assignment of the usufruct apply irrespective of the date of constitution of the usufruct. In the case of the usufruct constituted by convention concluded prior to the entry into force of the Civil Code, it is and remains non- assignable, unless the parties agree otherwise (see Article 70 of Law No 71/2011). [18] For an analysis of the rights to use the property, to assign the usufruct and to lease or farm lease the properties received in usufruct, as well as of other rights in special situations, see Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, op.cit., (2013), pp. 181-186; Valeriu Stoica, op.cit., (2017), pp. 235-238; Corneliu Bîrsan, op.cit., (2020), pp. 309-312; Eugen Chelaru, op.cit., (2019), pp. 373-376; Cristian Jora, Ioan Ciochină Barbu, op.cit., (2019), pp. 234-239. For an analysis of the usufructuary’s rights carried out under the auspices of the old regulations (the Civil Code of 1864), see Ovidiu Ungureanu, Cornelia Munteanu, op.cit., 2008, pp. 489-497; Ion P. Filipescu, Andrei I. Filipescu, Drept civil. Dreptul de proprietate și alte drepturi reale, edition revised and supplemented, Editura Universul Juridic, București, 2006, pp. 357-360; Constantin Hamangiu, I. Rosetti Bălănescu, Alexandru Băicoianu, op.cit., (2002), pp. 201-219. [19] Regarding the enforcement in time of the provisions of Article 715 (2) to (4) Civ.C., Article 71 of Law No 71/2011, provides that they shall apply only in cases where the conclusion or renewal of lease or farm lease contracts takes place after the entry into force of the Civil Code. [20] Gabriel Boroi, Mona-Maria Pivniceru, Carla Alexandra Anghelescu, Dragoș-Nicolae Dumitru, Bogdan Nazat, Ioana Nicolae, Teona Rădulescu, Tudor-Vlad Rădulescu, op.cit., (2017), p. 352. [21] Ion P. Filipescu, Andrei I. Filipescu, op.cit., (2006), p. 357. [22] For an analysis of the three categories of obligations of the usufructuary, see Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, op.cit., (2013), pp. 186-188; Corneliu Bîrsan, op.cit., (2017), pp. 274-278; Eugen Chelaru, op.cit., (2019), pp. 376-378; Valeriu Stoica, op.cit., (2017), pp. 238-241; Iosif Robi Urs, Petruța Elena Ispas, op.cit., (2015), pp. 231-232; Cristian Jora, Ioan Ciochină Barbu, op.cit., (2019), pp. 239-244; Bujorel Florea, Drept civil Drepturile reale principale, Editura Universul Juridic, București, 2011, pp. 202-203. For an analysis of the obligations of the usufructuary carried out under the auspices of the old regulations (the Civil Code of 1864), see Ovidiu Ungureanu, Cornelia Munteanu, op.cit., 2008, pp. 498-503; Ion P. Filipescu, Andrei I. Filipescu, op.cit., (2006), pp. 360-362; Constantin Hamangiu, I. Rosetti Bălănescu, Alexandru Băicoianu, op.cit., (2002), pp. 219-238. [23] The inventory shall be “an act establishing the quantity and nature of movable property subject to the usufruct. It contains the listing and description of properties and very often their value (...). The inventory serves to determine beforehand and precisely which properties must be returned at the expiry of the usufruct, or what damages are due from the usufructuary for lost or broken things” [Constantin Hamangiu, I. Rosetti Balanescu, Alexandru Baicoianu, op.cit., (2002), p. 219]. [24] Oltenița Law court, Civil sentence no. 2303 of 23 December 2015, available online on website https://www.avocatura.com/speta/487325/uzufruct-judecatoria-oltenita.html (accessed on 27.03.2020). [25] Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, op.cit., (2013), p. 186. [26] According to Article 726(3) Civ.C., “Where the usufructuary is exempt from the guarantee, the court may order the submission of a guarantee or a protective measure to be provided where the usufructuary, by his act or by his state of insolvency, jeopardizes the rights of the bare owner”.

= ISSN 2285-0171 ISSN-L=2285-0171 Acta Universitatis George Bacovia. Juridica - Volume 9. Issue 2/2020 - http://juridica.ugb.ro/ - Ciprian Raul ROMIȚAN [27] According to Article 729(3) Civ.C., “Major repairs means those which have as their object a significant part of the property and involve exceptional expenditure, such as those relating to the consolidation or rehabilitation of constructions relating to the supporting structure, internal and/or external walls, roof, electrical, thermal or sanitary installation related thereof, when replacing or repairing the motor or bodywork of a car or of an electronic system as a whole”. [28] According to Article 713 Civ.C., “(1) If the usufruct is on properties which, without being consumable, are worn out as a result of their use, the usufructuary has the right to use them as a good owner and according to their intended purpose. (2) In such case, he shall be obliged to return them only as they were at the time the usufruct was extinguished. (3) The usufructuary may dispose, as a good owner, of the properties which, without being consumable, are rapidly deteriorating by use. In this case, at the end of the usufruct, the usufructuary will return the value that the property would have had at this latter date”. [29] According to Article 739 Civ.C., “The usufructuary of the life annuity shall have the right to collect, during the period of its usufruct, the incomes acquired daily. It will only be obliged to return the incomes received in advance”. [30] For developments on goodwill, see Stanciu D. Carpenaru, Tratat de drept comercial român, Ediția a II-a, revised and supplemented, Editura Universul Juridic, București, 2011, pp. 132-151. [31] According to the art. 745 Civ.C., “Unless otherwise stipulated, the usufructuary of a goodwill cannot dispose of the properties that make it up. If he disposes of such properties it is obliged to replace them with similar ones of equal value”. [32] For details see Valeriu Stoica, op.cit., (2017), p. 241. [33] Gabriel Boroi, Mona-Maria Pivniceru, Carla Alexandra Anghelescu, Dragoș-Nicolae Dumitru, Bogdan Nazat, Ioana Nicolae, Teona Rădulescu, Tudor-Vlad Rădulescu, op.cit., (2017), p. 355. [34] According to Article 729(3) Civ.C., these are high expenses, “those which have as their object a significant part of the property and involve exceptional expenditure, such as those relating to the consolidation or rehabilitation of constructions relating to the supporting structure, internal and/or external walls, roof, electrical, thermal or sanitary installation related thereof, when replacing or repairing the motor or bodywork of a car or of an electronic system as a whole”.

= ISSN 2285-0171 ISSN-L=2285-0171