The Romanian Civil Code provides that part of the deceased’s estate shall be granted, even against his wish – manifested through donations or wills –, to a category of heirs called forced heirs (for the legal regime of forced heirship, see Articles 1.086 – 1.099 of the Romanian Civil Code, 2009). However, since this is effectively a limitation of a person’s possibility to freely dispose of his property and, as such, a limitation of the right to property, a question arises: is this limitation compatible with the right to respect for private property enshrined in Article 1 of Protocol no. 1 of the European Convention on Human Rights (hereinafter referred to as ECHR)?

“It is hard to fight an enemy who has outposts in your head.”
(Sally Kempton)

The way society reacts to and treats mentally ill individuals who commit criminal acts has been an example of the coexistence of two vastly differing approaches throughout human history. On the one side, we often find spurn, repugnance, even disgust. The most significant problem, however, is the general – multiple – stigmatisation that is related to insanity and criminal behaviour going hand in hand. On the other side, we can observe the shaping of another attitude to treat mental illness more like actual sickness than criminality. (Dósa, 1995, p. 327.)

1. Introduction

Despite being a common law creation, “drag along” and “tag along” clauses have gradually come into practice in Romania. Due to the recent years’ strong economic progress and the growth of some economic sectors (e.g. the IT market) institutional investors, such as venture capital investors, private equity investors, even business angels (individual investors who provide capital for businesses) have appeared. For them an exit from their investment is particularly important. There are many ways to withdraw from an investment, but this article will focus on the drag along and tag along clauses. These clauses are considered universally valid, regardless of jurisdiction and I will try to determine how they fit into the Romanian legal system.

In the field of contracts, the Romanian private law system underlines the presence of the principle of good faith in each phase of a contract, starting with the negotiation and ending with the performance of the obligations. Moreover, the Civil Code and doctrine also talk about good faith in the context of termination of the contract, when the parties have to choose between legal remedies. When it comes to breaking this public order obligation doctrine brings into question the existence of abuse of right. 

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