The Institution of the Legal "Enigma". Nature of the Preciput Clause in Romanian Law

Abstract

At the time of the marriage, each spouse has a certain property situation. Depending on the interests that the spouses have with regard to the family, they have the right to choose which matrimonial regime will govern their conjugal bond. This highlights human diversity and the need to build more possibilities for coexistence in order to preserve this affectio conjugalis that lies at the root of founding a family. A particular characteristic conferred by the marriage convention is that of the existence of a matrimonial advantage, one type of matrimonial advantage being the preciput clause, an accessory to the accessory convention. Since the Romanian legislator has not expressly provided for the legal nature of this preciput, controversy has arisen among specialists about it, as it is often associated with a liberality. This paper aims to analyse this institution using a comparative method, both between various institutions of Romanian civil law and in relation to similar foreign regulations relevant to the subject, in order to establish its legal nature. However, the main objective is to highlight the importance of the existence of family-specific institutions in a broader sphere than the traditional, generally accepted one. The benefits of an institution regulated by a particular branch of law representing the common law should be extended to all categories of people, regardless of how they choose to live together and with whom they choose to do so. The foundation of the family is affection, love for your close ones. Love is a truth that is felt, not concealed and restricted by various legal provisions in harmony with the Constitution, but in disharmony with the human nature. The preciput clause raises the emotional bond between two people to a spiritual level, continuing the stability and familiarity of marriage for the surviving spouse, and is shaped as a family memory in which the emotional element becomes superior to the financial interests of others. Thus, through a jurisprudential analysis, various proposals for lege ferenda emerge regarding the regulation of the preciput in art. 333 NCC, amplifying its uniqueness. The nature of the preciput clause may remain an enigma, free of any labels.