General configurations of the discernement in Romanian civil law

Abstract

The current paper focuses on a critical analysis of the legal connotations of discernment. Our Civil Code has made a step forward towards embracing this non-legal (i.e., psychological) concept, by explicitly mentioning it throughout its articles. We offer a critical review of these articles, in order to create a general contemporary image of how discernment is defined and understood by the Romanian legislator. Also, we explore which are the main legal consequences associated with this concept.

Historically, indirect references to the concept of discernment date back to the Roman period. They can also be found in the old Romanian laws and classical Romanian doctrine. In a historical analysis on this matter we identify the terminological precursors of discernment, as well as the original account of the disputed doctrinary term of “natural incompetence”.

The final section of the article encompasses a critical overview of the existing doctrine related to discernment. We highlight the importance of fully understanding this concept, as it is embedded in the structure of three fundamental legal concepts: civil competence, consent and delictual responsibility.