Fiducia, A Novelty Under Recent Romanian Legislation

 
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If timely assimilated by the business community and followed by detailed provisions, in particular on its fiscal and insolvency treatment, the newly regulated fiducia creates an opportunity of new business for certain actors and may lead to a more flexible structuring of secured finance-banking transactions.

On 17 July 2009 an important piece of new legislation was passed in Romania: the new Civil Code1. It aims to forge into one corpus (i) the principles set out in the old Civil Code and the Commercial Code (to the extent they reflect modern societal needs), (ii) various regulations that have been enacted in those fields throughout the past 140 years and (iii) additional new concepts (e.g. imported from continental statutes or the common law tradition).

The new Civil Code sets forth a series of changes to preexisting concepts that will most likely impact the way finance- banking transactions are shaped under Romanian law. It brings changes that may create the opportunity of new business for credit and financial institutions and change the structure of existing business. Among these changes is the concept of fiducia.

Fiducia – A Romanian version of the common law concept of "trust"

Articles 773-791 of the new Civil Code are the backbone of fiducia's statutory framework2. No guidance is given as to the mode d'emploi of this new legal concept. Only a remote indication is given in the recitals to the new Civil Code as to the fact that fiducia is modelled after a widely used common law concept that has already been adapted to and adopted into some continental legal systems3.

Fiducia is defined as the legal operation whereby one or more grantors (constituitori) transfers various patrimonial rights, present or future, to one or more fiduciaries (fiduciari), who administer those with a given purpose, to the benefit of one or more beneficiaries (beneficiari). These rights constitute an autonomous patrimony, separate from the other rights and obligations in the fiduciary's own patrimony. Therefore, in case insolvency proceedings are initiated in relation to the fiduciary, the rights transferred to the latter under the fiducia (masa patrimoniala fiduciara) are segregated from the insolvent's estate and transferred to the beneficiary or re-transferred to the grantor.

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