THE MANDATE BETWEEN SPOUSES UNDER THE PROVISIONS OF THE CIVIL CODE

Abstract

In order to perform various acts and operations that are required to be met by the spouses during marriage and to give legal certainty to the civil circuit, in the interests of third parties in good faith who would deal with the spouses, the new Civil Code established by art.314 the conventional mandate between spouses. We note that the conventional mandate between spouses, regulated by art.314 of the Civil Code shall fall within the general terms that define the contract of mandate. Research literature indicates that although art.314 of the Civil Code has a clear and concise regulation expressing the essence of the conventional mandate between spouses institution, however this legal text cannot answer all questions that might arise in practice in connection with this mandate. Thus, to find the best solutions, we will need to refer to other articles of law, to the fundamental principles of civil law, to the contract of mandate of the new Civil Code, and to the extent possible, to the doctrine. Marriage can go through crisis situations whether it's an internal crisis, caused by the inevitable disagreements between spouses, reckless, individualistic attitudes of one of them, or outside family life, with an objective character (for example, the impossibility of s spouse to manifest the will to conclude a specific act necessary and useful to the conjugal union). The primary system’s goal is to provide solutions to overcome the crisis, having two types of mechanisms that are intended to dose spouses’ powers, either to extend the powers of one of them, or by limiting the powers of the other. An important role in these moments has the court, which is called to order the provisos needed, adjusting thus, until the return to normal the patrimonial relations between spouse.. Judicial expansion of powers of a spouse occurs in certain situations where, in the interest of the family, a spouse is entitled by justice, exceptionally, to exercise the rights of the other spouse according to the matrimonial regime. In terms of procedure, the establishment of the judicial mandate may be qualified as non-judicial procedure (graceful). Next we will try to analyze the contract of conventional mandate between spouses in terms of art.314 of the Civil Code and art.2009-2038 of the new Civil Code.