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

Author:Günay Duagi
Pages:178-190
SUMMARY

The similarity of fiducia with other law institutions of the Civil Code2 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... (see full summary)

 
FREE EXCERPT
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).

To continue reading

REQUEST YOUR TRIAL