Brief considerations on the warant, as representative title of goods in warehouses, analyzed from the perspective of its function of payment instrument, in the light of special regulations and provisions of the new civil code

• Author: Alexandru Bulearca
• Position: Athenaeum University, Bucharest, Romania
• Pages: 46-52

BRIEF CONSIDERATIONS ON THE WARANT, AS REPRESENTATIVE TITLE OF

GOODS IN WAREHOUSES, ANALYZED FROM THE PERSPECTIVE OF ITS

FUNCTION OF PAYMENT INSTRUMENT, IN THE LIGHT OF SPECIAL

REGULATIONS AND PROVISIONS OF THE NEW CIVIL CODE

Assistant professor Alexandru BULEARC

1, PhD. student

Abstract

In terms of terminology, both the doctrine a nd nationa l regulation or community law are making confusion

between the terms „payment instruments” and „means of payment” when they need to designate the document through

which is made the payment to a pecuniary obligation by the deb tor. In or der to highlight the legal sta tus of warant as

payment tool of inter national tra de law ha s been used both the method of compara tive law and rules of interpr etation

specific to the interna tional tr ade la w science, and rules of interpretation common to all branches of law, including

commercial a nd banking law. Thus, in a first perspective was considered t    according to

which as long as the document by which is made the payment of a pecuniary obligation relating to a legal relationship

with a foreign element is a document, either on a material support or dematerialized, we hold th at the appropriate

term to describe this is payment instrument and not means of payment, because the latter means, on the one hand,

how the payment is made, and on the other hand, international liquidity - in currency - used in economic exchanges.

From another perspective, have been considered the proposals to update national legislation both in terms of financial

and banking practice set globally and the progress made in information technology, widely used to achieve cross-

border payments.

Keywords: payment instruments; payment services; deposit contr act; the warr ant

JEL Classification: K22

I. The contract of deposit in the common law

In the common law, the deposit is governed by articles 2103-2123 of the new Civil Code.

Generally, the deposit governed by the common law is a contract free of charge. However,

considering the monistic character of the current national legislation, the legislator stated that the

deposit is basically free2 unless the parties agreed otherwise, or from usages or circumstances such

as the profession of depositary, it results that the deposit is paid.

However, even if the current legislation provides for the possibility of the depositary in a

situation in which the parties agreed in this way, or from usages or profession of the depositary shall

be deducted such a possibility, the common law rules are not applicable in a situation where we

refer to the temporary storage of quantities of goods until the delivery to foreign markets, or the

contract of deposit is international3.

By virtue of the common law, the deposit represents a convention by which the depositary

receives from the depositor a movable, with the obligation to keep it for a period of time, and to

repay it in kind.

Therefore, the deposit is voluntary, in the sense that the deponent has the freedom to choose

the depositary and real, which means that the valid conclusion of such contract is made through the

effective delivery of the asset that is the subject of storage.

Regarding the sample of the contract of deposit, the common law held that it is recorded by

a document assumed by parties, namely the contract of deposit4, without having to prove the

ownership of the deponent on the goods stored.

1 Alexandru Bulearc - Athenaeum University, Bucharest, Romania, office@officeatlaw.ro

2 Article 2106 of the new Civil Code;

3 In this case are the provisions of Law no. 153/1937 for general stores and warranting goods and cereals and is the object of analysis

in the Section III of this article;

4 Article 2104 of the new Civil Code;