Comparative analysis between fiducia and other contracts in the Romanian Civil Code

• Author: Günay Duagi
• Pages: 178-190

Comparative analysis between fiducia and other contracts

in the Romanian Civil Code

PhD. student Günay DUAGI1

Abstract

The similari ty of fiducia with other law institutions of the Civil Code 2 can be made

to a certain extent. However, fiducia remains a profoundly different contract than other

contracts such as the administration of the assets of others, the mandate or the mortgage and

a thorough comparative analysis is necessary. Thus, the use of fiducia for certain operations

and under certain conditions is perfectly justified. The comparison between fiducia and

mandate bears many similarities, however a great difference is that in the case of the mandate

there is n o transfer of ownership. Also, fiducia can be confused with th e administration of

the assets of others, from which it also borrows some attributes in the matter of the fiduciary's

remuneration. However, in this case, the differences are of substance. There are also many

similarities to guarantee agreements as both types of contracts are accessories to a main

contract that they guarantee. It is also worth mentioning that the introduction of fiduciary

operations into the Civil Code is not only a complement to the alrea dy existing contract

framework with another similar contract, but a real evolution towards the opening of

Romanian civil law to a completely different category of advanced contracts that allow

sophisticated business operations.

Keywords: fiducia, fiduciary, fiducia ry contract, asset management, mandate,

mortgage.

JEL Classification: K12, K15, K22

1. Introduction

Fiducia has generated and has the potential to generate many debates both

in academia and between practitioners. However, this institution is still not used to

its full potential in Romania, or as some French authors have shown in the EU, this

institution still has an unexplored potential3. We believe that one of the reasons for

this is the fact that both law specialists and practitioners make the mistake of

considering that instead of the innovative fiducia they can used other various

contracts without realizing the advantages that can be of fered by fiducia. Thus, in

1 Günay Duagi - Doctoral School of Law, Bucharest University of Economic Studies, Romania,

gunayduagi@yahoo.com.

2 Civil Code of July 17, 2009 (Law no. 287/2009 on the Civil Code) - Published in the Official Gazette

of Romania no. 511 of 24 July 2009.

3 Bouteille Magali, La fiducie. Un potentiel inexploité, without details of publications, article available

at the web address: http://cnriut09.univ-lille1.fr/articles/Articles/Fulltext/75a.pdf (last visited on

04.11.2018).