Mortgage regulations in the new romanian civil code. Practical aspects

AuthorSilvia Lucia Cristea
PositionAssociate professor
Associate professor Silvia Lucia CRISTEA
This study starts from a n analysis of the juri dical regime of the mortga ge which "migrates" from the a rea
of actual rights to the jur idical regime of the debt r ights! Legislative ar guments sustain this idea, deriving from the
regulations governing the mortgage in the new Romanian Civil Code (section 2), from the comparisons with other
similar juridica l institutions (section 3) and from pra ctice (section 4). The conclusions explain the usefulness of the
changing of the juridical regime of actual guar antees in international tra de as well.
Keywords: mortgage, new Civil Code, pledge, the patrimony of affectation, the fiduciary operation, the fidejussion
JEL Classification: K12
1. Introduction
According to the new Civil Code, the mortgage is an actual right over movable or
immovable property affected to the exercising of an obligation (art. 2343); it has an accessory
and indivisible character (art. 2344). However, we consider that commercial practice has imposed
the redefining of the concept in terms of its nature of being an actual right and its character of
being an accessory. This is not new; the doctrine formulating the opinion regarding the mixed
nature of the actual guarantee starts from the theory regarding the debt pledge.
According to this concept, regarding its mixed nature, the guarantee right is between the
actual rights and the personal rights and it has characteristics belonging to each category
In our opinion, the tendency of the mortgage to become an autonomous debt right can be
sustained with new arguments. This study therefore shall firstly present the arguments formulated
from the mortgage regulations (section. 2) and from regulations of new juridical institutions
(section. 3). Then, the study shall present examples from practices of the commercial banks and
of notaries public that confirm the trend to „transfer” mortgages into the category of loan
securing forms.
2. Arguments pertaining to the current mortgage regulations
The New Romanian Civil Code unified the regulations of actual guarantees, including at
least two aspects: in terminology, we differentiate between movable property mortgage and
immovable property mortgage (the pledge shall define only the movable property guarantees
achieved by the depossessing of the debtor); in terms of legislative technique, the law maker has
stipulated a set of common provisions for movable property mortgage and immovable property
mortgage before the articles dedicated exclusively to each form of guarantee.
2.1. Common regulations for the two forms of mortgage
a) Advance mortgage, before the debtor is assuming the obligation based on which a
mortgage is established (according to art. 2371) is explained by the fact that, eventually, the
creditor shall acquire a debt right over the debtor (when he fulfils the obligation).
Silvia Lucia Cristea, Bucharest University of Economic Studies,
See Alexandru Mihnea Angheni „Unificarea reglementrilor privind garaniile reale în cadrul Noului Cod civil” in the volume
of J.C.J. entitled „Justiie, stat de drept şi cultur juridic annual scientific session, 13 May 2011, Bucharest”, Universul Juridic
Publishing House, p. 715.

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