SHORT CONSIDERATIONS ABOUT THE PRECIPUT CLAUSE IN RELATION TO MATRIMONIAL CONVENTIONS Gabriela FIERBINŢEANU * Ioana PĂDURARIU ** Anca Nicoleta GHEORGHE *** Abstract The preciput clause is a subject of dispute since the new Civil Code entered into force.Several question arise in this field: is this clause a liberality or a donation, which matrimonial regime is compatible with the preciput clause, for what reason the legislature choose to regulate preciput as a clause and not as an agreement and the expressed doubts can be continued as regard to the new civil law.The authors of this article are not having in mind to put an end to all those debates they are just proposing an investigation of the preciput clause under two aspects:legal nature and aplicability as related to the matrimonial regimes – legal community, separation of assets and conventional community with accents on the normative evolution as a result of social and economic changes. Keywords: preciput clauses, matrimonial conventions, liberality, donation, agreement. Introduction * ** *** The patrimony benefits that are not a current creation in the different legislative systems will always be a debate theme of the doctrine makers, if we consider their effects on the patrimonies of persons who are alive, but especially the consequences of their establishment over the patrimonies sent to the heirs. The reasons that lead to their genesis and the change step by step of the optics concerning the implementation means in the variable positive norms depending on each community are especially of our concern. As species, the matrimony benefits at the crossroad between the family law and the inheritance law integrate the idea of “freely interested” which is set at the crossroad between the bounds and donations without being yet able to be embedded with arguments in any of both categories. It is imposible to talk about the preciput without analyzing the matrimonial conventions, organizing the patrimonial relationships between spouses or future spouses.As will be pointed during this study the evolution of those notions is indestructibile attached to the evolution of society, of the position of the separation of the wife”s fortune from the husband”s fortune and at last but not least of the intention of the spouses by reference to their relationship and in the same time to the heirs.This connection makes it so * Gabriela Fierbinţeanu, research assistant, PhD, Faculty of Law, “Nicolae Titulescu” University of Bucharest (e-mail: gabriela.fierbinteanu@gmail.com) ** Ioana Pădurariu, Lecturer, PhD, Faculty of Law, “Nicolae Titulescu” University of Bucharest (e-mail: padurariu_ioana@yahoo.fr) *** Anca Nicoleta Gheorghe, Lecturer, PhD, Faculty of Law, “Nicolae Titulescu” University of Bucharest (e-mail: anca.gheorghe@univnt.ro) 1 for the details about the inheritance vocation, based upon the heirs’ masculinity principle and the benefits granted by inher itance to husbands, who did not have a dovery see Bianca Albu, Daniel Chelariu, “The husbands’ preciput – a protective “Legal arachnea”?, scoaladreptuluiorganic.ro/aplicațiimetodologice/preciputul_sotilor.pdf, Nadia Cerasela Aniței, Preciput clause in the matrimonial agreements, http://edituralumen.ro/wp-content/uploads/2012/07/jurnalul-de-studii-juridice-supliment-3-2012.pdf 2 Eugeniu Safta - Romano, Legal archetypes in the Bible, Polirom Publishing House, Iasi 1997, p 99 3 Ion Chirilă, Marriage and inheritance law elements in church legislation, p.8 and further, http://www.studia.ubbcluj.ro/download/pdf/ 713.pdf difficult to define, beyond the aplicable legal provision, the true intention and also the moral one when a preciput clause is intervening. Evolution The preciput clause is not a novelty, being known as a mechanism since the II B.Ch. millennium, proofs of the practices regarding the preferential partition being identified in the Ur or Nipur 1 cities. The first new born right as patrimony benefit of him is even mentioned in the Old Testament, as in the case of father’s death, he received two parts of the inheritance, and the others, one part 2 . Although “the paradigm of legal relation between the giver and receiver”, loaded with a certain “moral consistence”, having its origins in the principles applicable to an old testamentary heir right, was taken over by either forms in the encodings along the times. 3 However, we think that the delimitation of civil authority areas from the ecclesial area in the matrimony field or in its related one is one of the most acute, by the sociologic change of approach of the family institution and implicit of the subsequent inheritance rights (by the Decision of French Cassation Court, this was decided as not being contrary to the good habits, the liberality whereby its author follows the maintenance of an adultery