Guarantee on all the assets of the debtor in insolvency proceedings

• Author: Roxana Anca Adam
• Position: Transilvania' University of Brasov, Brasov Court Judge, Romania
• Pages: 1-7

GUARANTEE ON ALL THE ASSETS OF THE DEBTOR

IN INSOLVENCY PROCEEDINGS

Assistant professor Roxana Anca ADAM

1, Phd student

Abstract

Unsecured creditors in the insolvency of the debtor's creditors are those who do not have collater al security

aga inst the debtor' s assets a nd who ar e not accompanied by liens privileges whose cla ims a re curr ent at the opening

proceedings and claims us for current a ctivities dur ing observation. In the matter of the bankruptcy secured cr editors

set for secured debts are cla ims receiving colla teral on the debtor's proper ty, whether it is the primary obligor or third

party gua rantee to persons benefiting from collatera l. The secured creditor' s secured claim in the insolvency procedur e

is given by the value of collateral assessment a rising a fter the opening of insolvency pr oceedings the debtor. These

special legal pr ovisions contained in the bankruptcy, derogating from the common law, they often generate d ifferent

practica l situa tions a nd ha ve created jurispr udence. In judicial pra ctice of insolvency have encountered situations

where the credito r secur ity budget, which requires to be entered in the final table of the debtor in the ca tegory of

secured creditors, the debt claim, warr anty claims for his claim is the universa lity of the debtor's a ssets. The study on

which we focused includes a nalysis of these categor ies of claims in insolvency proceedings a nd the solutions adopted in

judicial pr actice.

Keywords: insolvency, procedure, deb tor, unsecured creditors.

JEL Classification: K22, K23

1. The concept of patrimony

An analysis of the concept of universitas facti or universitas juris has the concept patrimony

of as a starting point.

Patrimony is defined in literature2, as the total of all entitlements with economic value3 or of

pecuniary nature4 belonging to a real person or a juristic person.

One of the characteristics of patrimony is universitas juris5.

The Civil Code6 while not having defined the concept of patrimony, or that of universitas

juris or universitas facti, references these in several of its provisions, particularly in succession

matters.

The New Civil Code7 has regulated both notions, of patrimony and universitas facti.

Thus, art.31 of the New Civil Code provides that “An y real or juristic person is the holder of

patrimony that includes the totality of its rights and liabilities that can be appraised in money and

belong to it.”

Further, according to art.541 of the New Civil Code, universitas facti represents “the

aggregate of the property belonging to one person and that have a common destination established

by its will or by law. The property representing universitas facti can as a whole or separately be the

object of distinctive judicial acts or relationships.”

In legal practice rela ted to insolvency frequently creditors occur, who by the claim

(receivable) request require their being recorded in the preliminary table of the debtor’s creditors, in

1 Roxana Anca Adam -"Transilvania" University of Brasov, Brasov Court Judge, Romania, bularcaroxana@yahoo.com

2 Ioan Adam, Drept civil. Drepturile r eale, All Beck Publishing House, Bucharest, 2002, p.4;

3 Ion Lul, Unele probleme privind noiunea de patrimoniu, in Dreptul Review no.1/1998, p.14;

4 Constantin Hamangiu, Ion Rosetti – Blnescu, Alexandru Bicoianu, Tratat de dr ept civil român, All Publishing House,

Bucharest, p.522;

5 Ioan Adam, op. cit., p.6;

6 Decreed on 26 11 1864, promulgated on 04 12 1864 and enforced on 01 12 1865;

7 Law no.287/2009 regarding the Civil Code, published in Monitorul Oficial [Official Journal] no.511/24 07 2009, republished in

Monitorul Oficial [Official Journal] no.505/15 07 2011, modified by OUG [Government Emergency Ordinance] no.79/2011,

published in Monitorul Oficial [Official Journal] no.696/30 09 2011 and by Law no.60/2012, published in Monitorul Oficial [Official

Journal] no.255/17 04 2012;