Mortgage contract. Limitation of the right to obtain enforcement. Interpretation of the term „real estate shares”. Enforceable mortgage actio

JURISPRUDENȚĂ COMENTATĂ ȘI ADNOTATĂ

Abstract

With the introduction of Article 405 of the Civil Code of 1865, the legislator did not make any mention to the effect that only the principal rights in rem (ownership, usufruct, use, tenancy, servitude and superficies) would benefit from the 10-year term, as they are in any case imprescriptible. Since all other rights in rem, other than mortgages, are imprescriptible and can only be lost by usucaption, it is clear that the introduction of Article 405 into the Code of Civil Procedure of 1865 clearly referred to the right of mortgage, which in all cases is linked to a right of claim. In the light of all these considerations, the court concluded that the limitation period for the right to obtain enforcement of 10 years, calculated from 12 June 2013, when the bank declared the three loan agreements to be due in advance, by reference to the date of the enforcement applications, 5 March 2019 and 17 April 2019 respectively, had not expired and that the limitation period did not apply.