INTERNATIONAL CONFERENCE - Facultatea de Drept

Conference Proceedings - Galaţi, 24 th -25 th of April 2009
Year I, Vol. I - 2009
Petre BUNECI
CONSIDERATIONS REGARDING THE SALE OF THE PROPERTY
BELONGING TO ANOTHER, WITH REFERENCE TO IMMOVABLE
PROPERTY SOLD TO TENANTS IN ACCORDANCE WITH LAW NO.
112/1995
Abstract
The limiting possibility of the former proprietor, to recover the immovable
properties, in kind, taken over by the State, infringes the provisions of the Article 20 § 1
and 2 of the Constitution of Romania, related to the priority of international regulations to
which Romania is a party, on municipal law, because the ECHR has repeatedly stated that
"the sale by the State, of an asset belonging to another, to third parties of good faith , even
prior to final compliance, in court of the property right of the plaintiff, combined with lack
of compensation, constitutes a deprivation of property contrary to Article 1 of Protocol 1 to
the Convention ".
The ECHR held that Law No. 112/1995 invoked by the Romanian State, doesn’t
allow it to sell its tenants a property abusively nationalized, since the law only regulates
the sale of the properties legally entered into State’s patrimony.
The appeal in the interest of the law admitted by the High Court of Cassation and
Justice, has established in a final and binding manner, that irrespective of the solutions
pronounced by the trial courts, the European Convention has priority, so that solutions of
domestic courts should be in line with the European law.
In the conclusion of a sale-purchase contract, since the parties
pursue an exact aim, namely, the transfer of the property right, it results
undoubtedly that on its closing date, the vendor must be the proprietor of
the asset, this being the prerequisite for that document to be valid.
The origin of this institution has its roots in Roman law, it being
considered perfectly valid at that time, because, by the sale of the property
belonging to another derived only the seller’s obligation to assure the
purchaser of the peaceful possession of the property, this one wouldn’t
complain that he bought a property that didn’t belong to the seller, in the
circumstances in which he wasn't threatened with eviction by the real
owner.
In the Romanian legislation it was concealed the truth concerning
the sale of the property belonging to another than the seller, situation in
which there were expressed several opinions regarding the validity or the
invalidity of the sale, which led to the adoption of different solutions by the
trial courts.
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