The fiduciary guarantee in the Romanian and European legal context

• Author: Cornelia Lefter - Günay Duagi
• Position: Department of Law, Bucharest University of Economic Studies - Doctoral School of Law, Bucharest University of Economic Studies
• Pages: 103-116

The fiduciary guarantee

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in the Romanian and European legal context

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Professor Cornelia LEFTER

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Ph.D. student Günay DUAGI

4

Abstrac t

The imp ortance of the fiduc iary guaran tee has not reach ed its full pote ntial in th e

Romania n marke t, nor in the Europ ean area. The o ngoing “di spute” between the fidu ciary

operat ions (famili ar to t he cont inental law) a nd the tru st (with its co mmon -law heritag e)

seems to b e won by the latter. Howe ver, considering the express p rovisions on the fidu ciary

operat ions i n the Romani an Civil Code ent ered into force in 20 11, similar t o the

introd uction of the same legal i nstrument i n the Fre nch Civi l Code in 2007, cou ld give a

boost to this ancie nt tool, present from the Roman era . Even if the Europ ean legal

framework d o not provide many rules on this instit ution, however, the Fina ncial Coll ateral

Directive raised man y questio ns on h ow the fidu ciary guaran tees can be used in pra ctice,

and co ntributed to the chang e that followe d in this area .

Keywords: fiduciary gu arantee, benefici ary, collatera l, t rust, leg al framewo rk,

Finan cial Colla teral Directive, Roman ian Civil Co d.

JEL Cla ssification: K12, K22, K33

1. Introduction

As a new legal institution of the Romanian civil law, the fiduciary

guarantee incites the juridical doctrine to analyze it deeply and the practice to

verify its potential.

The previous analyses focused on the theoretical aspects of the fiduciary

guarantee, or on the historical perspective. Other authors focused on the

comparison between fiduciary guarantee and trust.

Considering the above, our study envisages focusing on the following

aspects we consider of interest. We will make a brief presentation of the most

important and controversial provisions relevant for fiduciary guarantee in the

Romanian Civil Code. Also, we will mention the European Union legislation with

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For the p urpose of this article, the reference to “fiduciary guarantee” means the fiduciary op eration

used for guarantee purp oses.

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This art icle was submitt ed to 6th Int ernational Conference “P erspectives of Bus iness Law in the

Third M illennium”, 25 -26 November 2016, the Bucharest University of Economic Studies,

Bucharest, Romania.

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Cornelia Lefter - Dep artment of Law, Bucharest University of Economic Studies,

contact@lefter.org

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Günay Duagi - Doctoral School of Law, Bucharest U niversity of Economic Studies,

gunayduagi@yahoo.com