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
SUMMARY

The importance of the fiduciary guarantee has not reached its full potential in the Romanian market, nor in the European area. The ongoing "dispute" between the fiduciary operations (familiar to the continental law) and the trust (with its common -law heritage) seems to be won by the latter. However, considering the express provisions on the fiduciary operations in the Romanian Civil Code entered ... (see full summary)

 
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The fiduciary guarantee
1
in the Romanian and European legal context
2
Professor Cornelia LEFTER
3
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
1
For the p urpose of this article, the reference to “fiduciary guarantee” means the fiduciary op eration
used for guarantee purp oses.
2
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.
3
Cornelia Lefter - Dep artment of Law, Bucharest University of Economic Studies,
contact@lefter.org
4
Günay Duagi - Doctoral School of Law, Bucharest U niversity of Economic Studies,
gunayduagi@yahoo.com

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