The fiduciary guarantee1 in the Romanian and European legal context

AuthorCornelia Lefter/Günay Duagi
The fiduciary guarantee
in the Romanian and European legal context
Professor Cornelia LEFTER
Ph.D. student Günay DUAGI
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 (famil iar 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 sa me le gal inst rument in the French Civil Code in 200 7, could 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 .
Keyword s: 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
For the p urpose of this article, the reference to “fiduciary guarantee” means the fiduciary op eration
used for guarantee purp oses.
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.
Cornelia Lefter - Dep artment of Law, Bucharest University of Economic Studies,
Günay Duagi - Doctoral School of Law, Bucharest U niversity of Economic Studies,

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