SPECIAL GUARANTEES OF CIVIL OBLIGATIONS

WEST UNIVERSITY OF TIMISOARA

FACULTY OF ECONOMY AND BUSINESS ADMINISTRATION

ECONOMIC INFORMATICS

SPECIAL GUARANTEES OF CIVIL OBLIGATIONS

COORDINATOR: Group:
Boldea Bogdan-Ion Cobordan Naomi Sidonia
Curuescu Cristina-Geanina
Flocea Dan

Timisoara
Year 2020
SPECIAL GUARANTEES OF CIVIL OBLIGATIONS 2

SUMMARY

1. Introduction................................................................................................................................... 3
2. Fidejusiunea…………………………………………...………………………………………… 4
3. Pledge.................................................................................................................................. 6
4. Mortgage.............................................................................................................................. 7
5. Privileges.............................................................................................................................. 9
6. Right of retention..................................................................................................................11
7. Case study.............................................................................................................................13
8. Conclusions...........................................................................................................................14
9. Bibliography.....................................................................................................................................15
„ ” 3

SP ECIAL GUARANTEES OF CIVIL OBLIGATIONS

Summary:

The paper examines from an original point of view the guarantees of obligations in civil and
commercial law. The special legal means of guaranteeing obligations are recognised only to
creditors, being different from those which any creditor may use within the limits of the general
right of pledge.

The concept of guarantee is examined in depth, taking advantage of the way in which it has
been shaped by Romanian and foreign legal doctrine.
It is viewed with circumspection an overly comprehensive definition, according to which by
guarantees of obligations all technical means, extrinsic to the obligation ratio, but which come
to join it, should be understood in order to contribute to the preservation of certain goods in
order to be able, later to be enforced in order to compensate the creditor if the performance of
the obligation assumed by the debtor no longer takes place.
Therefore, these contracts are of particular importance for reducing the risks of non-payment of
debt, the bank taking all measures to avoid a non-performing loan, thereby instilling the
customer.
Keywords: fidejussion, pledge, mortgage,privileges, right of retention.

1. Introduction

Special guarantees of the execution of their obligations, an expression which designates those
legal means which confer on the secured creditor certain rights and prerogatives in addition to
those granted to any creditor and which consist in the possibility conferred on the creditor,
where the debtor does not voluntarily perform his benefit, to pursue another person or to
establish, on behalf of the creditor, the attributes of follow-up and preference.
The main classification of guarantees takes into account their subject matter. According to this
criterion, d rept systems know two broad categories of guarantees: personal and real.
Personal guarantees, legal means of guaranteeing obligations by which one or more persons
undertake by an ancillary contract concluded with the creditor, to pay this debt to the debtor if
he does not pay it himself, (e.g. trust, solidarity, indivisibility, etc.).
Personal guarantees do not change the creditor's situation towards his debtor – he remains to
all of them acreditor, whose only means of satisfying the claim is a simple personal action
against his debtors.
Actual guarantees, legal means of guaranteeing obligations by affecting an asset of the debtor
in order to ensure the obligation assumed. The asset constituted as collateral is removed from
SPECIAL GUARANTEES OF CIVIL OBLIGATIONS 4

the pursuit of the other creditors, and is intended to track and satisfy the secured claims as a
matter of priority.

The new Civil Code regulates the following types of real guarantees and privileges: special
privileges, real estate mortgage, movable mortgage (including accounts and receivables),
pledge (in the form of a real guarantee with dispossession) as well as the right of retention (in
the form of a real guarantee against the damage).

The main role of guarantees is to ensure credit security. On the other hand, the guarantees
required by the law or by the judge express concern for the protection of certain categories of
subjects of private law: it is the case of numerous legal law, legal mortgages or legal and judicial
bails.
However, some guarantees present some economic inconveniences. Thus, they can increase
the cost of the credit, whenever their formation involves a notarial act, which must be public
(the case of collateral); or when the guarantor asks, in order to cover the risk he assumes,
remuneration (the case of personal guarantees). In addition, guarantees may be a hindrance to
the movement of goods: the resale of a mortgaged immovable property or a movable property
pledged will create difficulties in the performance of the guarantee (tracking and sale at public
auction), which would thus become slow and lazy.
2. Fidejussion

Definition.

Fidejussion is a contract whereby a third person, called a fidejusor, undertakes to the creditor
of another person to pay the debtor's debt if he does not do so himself at maturity (VDZ, op. p.
108). It is, therefore, an ancillary and personal agreement between the creditor and the debtor,
which gives the creditor the right to claim payment of the debt from the fiduciary if the debtor
does not do so, for whatever reason. In this way, the creditor has, in addition to the debtor's
general pledge, that of the fiduciary.

The ways of Fidejussion

According to the doctrine, the fidejussion can be: conventional, legal, judicial. The criterion of
division is not rigorous because in all cases the fidejussion is conventional. The fact that the law
or the judge requires it does not rob it of its contractual nature. The difference is that, in the
case of conventional trust, the parties determine the need for guarantee, while in the other
two situations, the law or the judge requires it.

1. Conventional fidejusis is the one which the parties agree to, without being imposed.
2. Legal defiance is when the law requires, requires the guarantee of a certain obligation.
Goodness, the usufructuary is obliged, in accordance with Article 1364 C. civ., to give bail that
he will use the good as a good parent; the accepting heir under the benefit of the inventory
may be obliged to give bail for the price of the moving switches contained in the inventory and
for the portion of the price of the immovable property not delegated to the mortgage creditors.
3. The court's court shall impose the court on various cases: for the temporal execution -
Article 279 C. civ.; for the suspension of the execution of a judgment subject to review – Article
325 C. proc. civ.; for the establishment of an insurance seizure.
„ ” 5

Characters of fidejussion:

1. It's contractual in nature. The agreement of will is sufficient for the valid agreement of
will, without requiring the written form, ad validity, and is therefore a consensual contract. It is
required to be express and to comply with the limits laid down in the contract (Article 1656 C.
civ. )
2. It is a unilateral act because it gives rise to obligations only in the charge of the fiduciary.
The relationship between the fidejusor and the debtor has another source.
3. It is a free contract, the fidejusor not pursuing an equivalent in exchange for the
guarantee. It is not, however, a donation because the fiduciary has a regression action against
the guaranteed debtor. Nothing prevents the parties from agreeing to a onerous nature of the
guarantee.
4. It is an ancillary contract because a primary obligation is guaranteed. According to the
Accessorium sequitur principal rule, the extent of the trust may not be greater than the
debtor's debt, Article 1654 C.civ., ordering that the fidejussion is valid up to the main
obligation. Nothing stops her from looking at only part of the mandate.
5. The indefinite return of a principal obligation extends to all the accessories of the debt
and to the costs of the proceedings and those of the forced prosecution. The interpretation of
the fiduciary is made in favor of the fidejusor, according to the principle in dubio pro reo.

Conditions for the fidejusor

In addition to the general conditions, certain special conditions shall be met for the validity of
the contract:

➔ the fidejusor must have full exercise capacity. Even with the consent of the legal
guardian and guardianship, the minor cannot guarantee another. The guarantee obligation is
considered to be of particular gravity in its specific consequences and is not necessary for the
minor;
➔ the fiduciary must be a solvent person, i.e. to possess wealth in the east, in order to
guarantee an obligation "
➔ the domicile of the fiduciary is within the territorial radius of the court in which the
obligation is to be enforced.

The effects of trust.

The effects of trust are treated differently in the relationship between the fiduciary and the
creditor, between the fidejusor and the principal debtor and between the fidejusor.

The effects of trust in the relationship between the fiduciary and the creditor are based on the
fiduciary contract. The main effect is the creditor's right to demand payment of the fiduciary in
the event of non-performance of the obligation by the debtor. That right corresponds to the
obligation of the fidejusor which is ancillary and subsidiary in nature.

Effects of trust in the relationship between the fiduciary and the debtor
SPECIAL GUARANTEES OF CIVIL OBLIGATIONS 6

When the fiduciary has paid the debtor's debt, he has the right of regression to obtain the
repayment of the benefit. The basis of the regression is the payment of the debt of another
which legitimizes either the personal action arising from the mandate or the business
management, or the subrogatory action in the rights of the paid creditor, after the payment
was made with the consent of the debtor or on his own initiative.

Effects of fidejussion in the relations between co-fidejusor

According to Article 1674 C. civ., where several persons have secured the same debtor for one
and the same debt, the fidejusor so lvent has the right of regression against the other
fiduciaries for their share.

Extinguishing the trust.

Extinguishment of the fiduciary duty shall be effected by indirect means, as a result of the
extinguishment of the principal obligation by one of the means of extinguishing the obligations
or by direct means, independent of the principal obligation, by one of the following ways: the
remission of fidejusor, the waiver of the creditor to fiduciary duty, the confusion between the
assets of the fiduciary and that of the creditor.

A specific way of extinguishing the fiduciary duty is cedentarum actionum, which is the right of
the fidejusor tool to oppose the prosecution brought by the creditor against him if the
creditor's fault has lost the rights and collateral which accompanied the claim.

3. Pledge

The pawnshop is a contract whereby the debtor remits a mobile thing to his creditor towards
the security of the debt. The pledge can beco-institutional, legal and judicial. It may relate to a
tangible or intangible movable property (a right of claim which the debtor has vis-à-vis a third
person).

The pledge can be of two kinds:

1. pledge of dispossession, where the debtor is dispossessed of his property, which may be
in the possession of the creditor or a third person (depositor);
2. pledge without dispossession, where the property remains in the debtor's possession
with the obligation to preserve it in order to satisfy the creditor, in the event of non-
performance of the obligation by the debtor;

The pledge agreement is ancillary to the main obligation which it guarantees and follows the
legal regime of the binding legal relationship.

If the pledge is dispossession the contract will be real and is considered from the moment the
asset subject to the pledge is remitted, either to the creditor or to a third party, who will be
obliged to keep the asset until the moment of payment of the debt.
„ ” 7

If the pledge is without dispossession, the contract is consensual. The pledge agreement is
unilateral in nature because it creates obligations only for the person who keeps the good,
namely: to preserve it, to keep it and to return it to the debtor after payment of the debt.

The pledge shall be valid if the following conditions and formalities are fulfilled:

● the person constituting the pledge has the capacity to exercise fully and is the owner of
the property which is the subject of the pledge; the minor may constitute a pledge, but with the
prior consent of the guardianship authority;
● must meet certain advertising conditions in order to be enforceable against third parties
(other creditors of the debitor). The pledge shall be recorded in a document, registered with
the notary where a copy of the pledge shall be kept;
● the obligation to draw up the document and its registration does not exist in the
situation of tangible furniture which guarantees a debt with a wave of less than 150 lei;
● if the object of the pledge consists of intangible real estate (claims), there is an
obligation to draw up the document and register it, even if the amount of the secured debt is
less than 250 lei, plus, as a formality, the need to notify the debtor of the pledged claim.

The pledge agreement creates obligations only on the creditor or the third person who receives
the pledged good in storage. The creditor is responsible for the loss and damage of the pledged
good, if yours comes from his fault, the creditor having no right to use the pledged work. The
creditor is obliged to repay the work received in the pledge if the debt has been paid, he
benefits from certain rights:

● retain work until the debt is paid;

● to review the work on the basis of the right of pledge;
● the creditor is a mere precarious holder, the debtor remaining the owner;
● to claim the debtor's reimbursement of the expenses incurred in the preservation and
preservation of the property.

If the debtor fails to fulfil his obligation, the creditor shall have the following rights:

● ask the court for approval to retain the property on account of the claim, on the basis of
judicial expertise on the value of the asset;
● to request the sale at public auction of the pledged work.

The pledge shall be extinguished as a result of the extinguishment of the principal obligation by
payment, compensation. It may subsist on the obligation: the existence of another debt of the
debtor to the same creditor; the new debt is contracted after the surrender of the pledged
object; the debt becomes due before the payment of the first debt. The creditor is not obliged
to repay the pledge until both debts are paid.

But the pledge can also be extinguished independently of the main obligation by the usual ways
of extinguishing obligations.

Also, Law No. 31 / 1990, on companies, provides in the case of joint stock companies the
obligation of directors to lodge a cash guarantee constituting a real pledge with dispossession.

4. Mortgage
SPECIAL GUARANTEES OF CIVIL OBLIGATIONS 8

The mortgage is a real guarantee, serving to guarantee a debtor's obligations to his creditor
through an immovable property of his own assets, namely legally designated for this purpose
(the mortgage does not imply the dispossession of the debtor of immovable property). Sintetic,
the mortgage is a real collateral, real estate, consisting of a real accessory right on a real estate
of the debtor

The real estate mortgage is a real right on the property of another, constituted by registration
in the land book, and the mortgage agreement is concluded in authentic form by the notary
public, under the sanction of absolute nullity.

The movable mortgage, on a particular movable asset or on a movable universality, gives the
secured creditor the opportunity to pursue and satisfy himself preferentially from the
mortgaged asset, in the event that the debtor fails to fulfil his obligation.

The contract constituting a movable mortgage shall be concluded in authentic form or under
private signature, subject to the sanction of absolute nullity. The Publication of the securities
mortgages is ensured by their inclusion in the Electronic Archive of Real Estate Guarantees.

The main methods of enforcement of securities established by the New Civil Code are:

1) sale of the mortgaged property;

2) taking over the mortgaged property t in the account of the claim;
3) taking over the asset for administration (possible only in the case of a mortgage on the
assets of an undertaking).

Legal character of the mortgage

a. It is a real accessory right – this right gives its holder the possibility of increasing the
good in the hands of anyone who is in the hands of anyone who is in the hands of him and
assigns a right of preference to satisfy his claim before the other creditors. As an accessory, the
mortgage accompanies the debtor's obligation to the creditor, whose fate is fully shared. She's
not a real dismembered right. The owner continues to hold all the attributes and advantages of
the property.
b. It is a real estate guarantee – it refers strictly to real estate.
c. It is subject to the principle of specialisation – the determination of the PRin the
mortgage contract of the certainty of the value of the secured claim.
d. It is indivisible – the mortgage will continue to exist on the whole property, if only part
of the debt has been paid or if, in case of sharing of a mortgaged property, the property passes
into the lot of a co-owners (he will have to bear the pursuit for the entire debt because the
guarantee is incorporated into the property)
Grounds for establishing a mortgage
The mortgage is established under the law (legal mortgage) or the contract (conventional
mortgage). The legal mortgage applies to the provisions on the conventional mortgage, unless
the law establishes otherwise.
„ ” 9

The grounds for the establishment of the legal mortgage are:

(i) State claims for amounts due under tax law;
(ii) claims arising from a court decision, as determined by the legislation.
The legal mortgage is established by registering in the Register of Real Estate an opinion,
indicating the immovable property subject to the mortgage, the basis and size of the claim. The
notice submitted for registration shall be given to the opinion submitted for registration, proof
that the opinion has been made known to the mortgage debtor, as well as the judgment of the
court or the document confirming the Claims of the State against the mortgage debtor arising
under the tax legislation.
The mortgage lender who has registered the legal mortgage has the right to pursue the
mortgaged immovable property under the conditions laid down in this law.
Clauses prohibiting the disposition of the mortgaged property lose their effectiveness under the
new regulation, provided that such acts of disposition are valid even if the acquirer of the
mortgaged property is aware of the contractual prohibition on the disposal of the mortgaged
property. Also, clauses requiring early and immediate payment due to the provision of another
guarantee on the same asset already mortgaged, should be deemed unwritten.

In the case of a movable mortgage agreement, the description of the property must be
sufficiently precise and the individualisation of the asset is not mandatory if it can reasonably
be identified. In the case of a universality of goodness, the nature and content of the good ies
must be described. The formula "all movable goods present and future" is not considered by
the new Civil Code as a sufficient description. Bank accounts must also be individualised
separately.

With regarding mortgages on bank accounts, the new Civil Code introduces an alternative form
of advertising, namely "control over the account". The mortgage lender acquires control over
the mortgaged bank account at any of the following sites:

(i) where the creditor is the bank of account itself;

(ii) where, under the agreement between the constituent, the bank of account and the
mortgage lender, the latter may dispose of the amounts in the account;
(iii) when the mortgage lender becomes the account holder; it should also be noted that the
mortgage of the creditor who has control over the account is always preferred to the mortgage
of a creditor who has no control over that bank account.

In general, the sistheme of the enforcement of transferable mortgages maintains the principles
established by Title VI of Law 99/1999 on securities (repealed at the date of entry into force of
the new Civil Code), with a number of amendments and some new concepts, such asthe right of
the secured creditor to take over the mortgaged property as a measure prior to the recovery of
the mortgaged movable property.

5. Privileges

Privilege implies that right which falls to a creditor to satisfy his claims as a matter of priority to
other creditors,subject to the quality of his claim (e.g. the guarantor). The quality of the claim
means the cause or legal fact from which the claim was born.
SPECIAL GUARANTEES OF CIVIL OBLIGATIONS 10

Each privilege gives the creditor the right of preference, i.e. to satisfy his claims with a priorate
vis-à-vis the other creditors. If the creditor forcibly sells the property over which the privileged
creditor is privileged, the claim of the privileged creditor shall be paid preferably from the price
received. After its full payment, the other creditors will also be paid. The right of prosecution is
conferred only on certain privileges, namely real estate and some special transferable
securities.

The main criterion for classifying privileges is their subject matter. According to this criterion,
privileges are known by two major categories: general and special.

1) General privileges – cover all the debtor's assets, i.e. movable and immovable.
2) General transferable privileges – these relate to the debtor's movable property.
3) Special transferable privileges – have as object certain movable assets of the debtor,
being established by law.
4) Special real estate privileges – these relate to a particular property of the debtor or
certain immovable property of the debtor.
General privileges are mere personal rights of preference, and special ones are true real rights,
recognized to the creditor by law. General privileges shall be preserved, without any formality,
while, for the possibility of special privileges,the requirements laid down by law must be met,
as longas a complete and detailed, precise information must be provided from the creditor who
satisfies his claim.
Special transferable privileges confer on the privileged creditor only the right of preference, i.e.
the right to satisfy his claims as a matter of priority over other creditors. In the case of real
estate privileges, the creditor has both the right of pre-eminence and the right to pursue.

Privileges become enforceable against third parties without the need to enter them in the
advertising registers,unless otherwise provided by law. By Article 2342(2), two exceptions to
the rule that privileges become enforceable without the completion of disclosure formalities
are established:

1. The lender who enjoys a special privilege is preferred to the holder of a perfect
mortgage if he registers his privilege in the archive before the mortgage has become perfect.
2. Similarly, the privileged creditor is preferred to the holder of a real estate mortgage if he
registers his privilege in the land register before the mortgage has been entered.

Competition between creditors of general privileges:

● privileges over all movable or immovable property shall be established and exercised
under the terms of the Code of Civil Procedure, with regard to their identification and rank;
● the amount realised shall be apportioned among creditors in proportion to each other's
claim for claims with the same order of preference; the exception shall be allowed if the law
provides otherwise.
● the rank of claims with general preference.

Competition between creditors receiving general privileges and holders of other collateral
„ ” 11

Claims, representing costs for precautionary or enforcement measures, for the preservation of
assets the price of which is distributed, and any other expenses incurred in the common
interest of creditors, are preferred to those who are accompanied by a pledge or mortgage
(Article 564 C. pr. civ.). The two real guarantees, the pledge and the mortgage are preferred to
the other general privileges (art. 564 C. pr. civ.).

Competition between creditors receiving special privileges.

Article 2339 (2) shall be replaced by the following: (1) the new Civil Code lists two special
transferable privileges:

● the seller's privilege over the movable property sold, for the payment of the price, when
the buyer is a natural person; the seller's claim for payment of the price is not privileged when
the buyer acquires the good for the service or operation of an undertaking (Article 2339 para.
(1) (a) the new Civil Code]
● the privilege of the person exercising a right of retention over the property held, as long
as the retention is maintained (Article 2339 (2) of the Treaty). (1) (a).b the new Civil Code).

Competition between creditors receiving special privileges and holders of other collateral.

In the field of furniture, Article 2342 (2) shall be replaced by the following: (1) the new Civil
Code establishes the following order of priority: privileged claims on movable property under
Article 2339 the new Civil Code are preferred to those guaranteed by mortgage or pledge.

Accessory extinguishing
Privilege no longer makes any sense to exist in the absence of a guaranteed claim. That is why
Article 2337 of the new Civil Code provides for the termination of the principle of the
extinguishment of the guaranteed obligation.
Extinguishing by main route, independent of the secured claim.

The special privilege is extinguished by the alienation, transformation or loss of the property
(art. 2340 new Civil Code). As an exception to the stated regula, the seller's privilege over the
mobile property sold is not extinguished by its alienation by the buyer. It will continue to exist
on the resold asset. If the price of the second sale is not paid, the seller's privilege will be
preferred to that belonging to the first buyer (art. 2341 new Civil Code). In addition, where the
encumbered good has perished, the special privilege shall not be extinguished, but shall be
moved on to the insurance allowance or, where appropriate, to the amount owed to you as
compensation(Article 2330 (2) of the Code). (1) the new Civil Code].

The privilege shall be extinguished independently of the secured claim and under the conditions
of Article 1622 (2) of the Treaty. (3) the new Civil Code, according to which: "The debtor who
could oppose the compensation and who paid the debt may no longer prevail, to the detriment
of third parties, the privileges or mortgages of his claim". In other words, the person who paid a
debt of his own, even though he had a claim, which makes it possible to cover the legal
SPECIAL GUARANTEES OF CIVIL OBLIGATIONS 12

compensation, will retain his right of claim against the debtor. However, he will no longer have
the benefit of the privileges which accompanied his claim, which will practically have been
extinguished as a result of the compensation.
6. Right of retention

Right of retention, called and debitum cum re iunctum, receives an express regulation in the
new Civil Code, defined as that imperfect real right of guarantee, which consists in the
possibility of the holder of a movable or immovable thing of another to refuse the remission or
return of that thing to the creditor, as long as the creditor does not compensate him for the
necessary and useful expenses he has made for that good or for the damage which the good
has caused him (art. 2495 para. (1) C.civ.).
We will define retention as that subjective civil right which confetti holder - creditor of the debt
arising in connection with the good - the power to retain and refuse the return of a good until
his debtor extinguishes the obligation which was born in his charge in connection with that
good.
According to the law, enjoy a right of retention:
1) the seller on the work sold, until the price is paid;
2) the depositary, on the work stored, until payment of the costs incurred in keeping it;
3) the co-owner, on the immovable property subject to the report, until payment of the
amounts due to him for expenses or improvements;
4) the guarantor on the pledged asset, until the debt is paid in full with interest and related
expenses;
5) the lessee, on the rented property, until the payment of compensation to the owner
according to the law, etc.
The foundation of the right of retention
What justifies the existence of the right of retention is the presence of a special link between
the claim of the retentor creditor and the good, called its objective material connection.
We are in the presence of a material connection, when the right of claim is born in direct
connection with the good. This is the case when the creditor makes necessary and useful
expenses on the encumbered asset (Article 2495 (2) of the Treaty). (1) new Civil Code]. There is
also a connection between the claim for compensation for the damage caused to the reserving
creditor and the property which caused the damage (Article 2495 para. (1) the new Civil Code].
Material connection must not, however, be limited to these situations, but its existence must
be reported whenever the birth of the right of claim is closely related to the good.
The right of retention should not be confused with the exception of non-performance of the
contract. At its core is the legal connection between two obligations originating in the same
synallagmatic relationship.
Conditions of birth of the right of retention
„ ” 13

The birth of the right of retention presupposes the existence of a material connection between
the claim and the good, representing the very foundation of that right, as well as the fulfilment
of the following conditions:
1) the secured claim must be certain, liquid and payable; it must also be posterior or, at
most, concomitant with the moment of the retentist's entry into the possession of the
property;
2) the encumbered good must be in the detention of the retentor; it should be noted that
the detention of the property must not come from an unlawful act, be not abusive or unlawful
(Article 2496 para. (1) the new Civil Code];
3) the encumbered good must be a corporal good (the logical consequence of the previous
requirement); whether the property is movable or immovable; (1) the new Civil Code].
The fulfilment of all these requirements leads to the birth of the right of retention. The creditor
has a intention to take credit for or not to make use of the existence of retention. The use of
the right of retention can take place both extrajudicially and judicially. The power of the judge
is limited to determining whether or not the elements necessary for the birth of the detention
are fulfilled, since he cannot refuse recognition of that guarantee.
Characters of the right of retention:
1) real right – is enforceable not only against the holder of the right in rem, but also
against mortgage lenders and acquirers under sequences of the property
2) imperfect real right – does not confer the prerogative of prosecution; if the owner of the
property has voluntarily dismissed the good, then he has at hand a possessive action.
3) the right of retention does not confer possession – the owner of the property is a
precarious sense of detention, so cannot reap the fruits of the good
4) is indivisible – operates on the whole asset until the debt is paid
5) may be used by way of exception in the event of a trial or by way of a challenge to
enforcement of a judgment on the restitution of
Extinguishing the right of retention
The loss of the right of retention may take place by ancillary means, as a result of the
guaranteed obligation or principal, when the claim which it guarantees survives the retention.
The Civil Code regulates two ways of extinguishing the right of retention in the main way: in
accordance with Article 2499 (2) of the Treaty, the Member States shall take the necessary
measures to ensure that the right of retention is limited to the provisions of article 2499 (2) of
the Treaty. (1) the new Civil Code,the retention document shall be extinguished in the event
that the person concerned records the amount claimed or provides the retente with a sufficient
guarantee.
In accordance with Article 2499 (2) of the Treaty, the Commission shall, in accordance with the
procedure laid down in Article 2499 (2) (2) the new Civil Code, the right of retention shall not be
extinguished by the involuntary dispossession of the return from the encumbered good, he
being able to request his return subject to the incidence of the prescription of the principal
action and the acquisition of movable property by the possessor of good faith. Per a contrario,
SPECIAL GUARANTEES OF CIVIL OBLIGATIONS 14

the retention is extinguished by the voluntary dispossession of the retentist, which has the legal
nature of a tacit waiver of the right of retention
In addition to these methods of extinguishing expressly provided for by law, the right of
retention shall be extinguished:
● by the material loss of the good;
● as a result of the loss of the retente publisher, by way of sanction, when abusing the use
of the property or even as a result of the mere fact of its use.

7. Case study

S.C. "Helvetica Milk" was founded in 1994. The associate agreed that the new company should
be organised as a limited liability company, established in Timişoara, 10 I. Maniu Street, Sc.B,
Ap.13, Jud Timiş, registered in CF 23023 Timiş.

The company can open workstations, trading points, subsidiaries and representations in all
localities in the country. The company shall be set up for an unlimited period of time. The
starting capital of S.C. "Helvetica Milk" SRL is 300 mil. Lei. Turnover increased progressively as
the company's products were placed on the market, reaching at the end of 1994 to be equal to
the amount of 450 million lei. Percentage Ally, turnover increased by 20% monthly.

The sole associate agreed that the object of the company's activity should be the production of
milk and other milk products and all commercial transactions involving milk and milk products.

The unit is placed in a specially arranged space with all necessary dependencies in a total area
of 220 m2. The space was rented from the Agricultural Society "16 December" Timiş, which
also represents one of the suppliers of raw materials.

At first, production was focused on the manufacture of pasteurized and normalised consumer
milk at a fat percentage of 2.5%, fresh cream and fermented cream, delivered in bulk to
restaurants and confectionery.

The financing of the investment was made from own money and a loan from BRD Arad, which
was repaid in full during the first 3 years of activity. After the repayment of the loan, some
investments have been made which have led to the diversification of production, so that the
manufacturing programme currently includes acidophilic products (yogurt, sana, buttermilk),
consumer milk, cheeses (teleme, fresh cheese), fermented cream and fresh cream.

As the company will open a new point of work, an investment of €500,000 is required to
purchase and arrange a space positioned in a known area with a good sale in Dumbrăvița.

The administrator needs a loan of EUR 280,000, with the remainder coming from his own
sources. To this end, he studied offers from other banking institutions and, following analysis of
credit costs, chose Libra Bank. The major advantage was that the bank offered him 80% of the
guarantee value of the property. It has been decided that it will come under warranty with the
property to be purchased, amounting to 350. €000. Thus, the bank granted him the sum of
„ ” 15

€280,000. After analysing the credit and approving it in the committee, the date of 12.04.2020
for the signing of contracts was set:

● Credit agreement;
● Real estate mortgage agreement;
● Contract of sale-purchase;
● The mortgage agreement (account pledge);
● The contract of fidejussion;

The signing of the contracts was scheduled at the Romanian Notarial Office Remus.

The mortgage agreement was autentificat edit by mr. notary. By this, the manager of the
company brings the acquired property to the bank, in accordance with the sale-purchase
agreement drawn up and authenticated. Through the mobile mortgage agreement
(commitment on the accounts), the bank has the right to use any amount that enters the
account opened at the company's Libra Bank, if the customer's rate has not been paid on the
due day.

The trust contract is an equally important contract, since the administrator is responsible for
the credit hit-up of all present and future assets that he will hold.

These contracts require the client Popescu Ianis - unique associate of the company, to pay his
rates on time, otherwise, having major repercussions on these tuia. The bank also requested
that his wife, Popescu Maria, sign a trust agreement, as she owns several properties in her
name. It is also obliged to sign the real estate mortgage agreement. In the event of
enforcement,in order to cover the balance granted and the execution fees, the bank shall also
have the right to use the wife's present and future own assets. Contracts will be signed in 3
copies, one of which will be handed over to the customer.

8. Conclusions

Special collateral agreements (trust, mortgage, etc.) are of particular importance for reducing
the risks of non-payment of debt, with the bank taking all measures to avoid a non-performing
loan, instilling in the customer.

With the analysis of credit applications, guarantees and their assurance should be highlighted in
the lending process. Credit insurance guarantees shall be recorded in contracts ancillary to
credit agreements.

9. Bibliography
https://www.juridice.ro/259588/garantiile-de-executare-a-obligatiilor.html
[last accessed: 11.12.2020]
https://graduo.ro/referate/drept/contractul-de-gaj-324147#_=_
[last accessed: 11.12.2020]
https://biblioteca.regielive.ro/download-349738.html
[otheraccess me: 11.12.2020]
SPECIAL GUARANTEES OF CIVIL OBLIGATIONS 16

https://legeaz.net/dictionar-juridic/garantii-speciale-ale-executarii-obligatiilor
[last accessed: 11.12.2020]
https://legeaz.net/dictionar-juridic/garantii-personale
[last accessed: 11.12.2020 ]
https://legeaz.net/dictionar-juridic/garantii-reale
[last accessed: 11.12.2020]
https://www.juridice.ro/172372/privilegiile-si-garantiile-reale.html
[last accessed: 11.12.2020]
https://dreptmd.wordpress.com/cursuri-universitare/garantarea-executarii-
obligatiilor/ipoteca/
[last accessed: 11.12.2020]
https://www.budusan.com/q-a/garantiile-de-execu-hard-of-obligations-civil-and-commercial
[last accessed: 11.12.2020]
https://legeaz.net/dictionar-juridic/drept-de-retentie
[last accessed: 11.12.2020]
https://ro.scribd.com/doc/46141328/Dr-de-Retentie-Si-Gajul
[last accessed: 11.12.2020]
https://www.juridice. ro/259588/garantiile-de-executare-a-obligatiilor.html
[last accessed: 11.12.2020]
https://dreptmd.wordpress.com/cursuri-universitare/garantation-execution-
obligations/privileges/
[last accessed: 11.12.2020]
https://legeaz.net/dictionar-juridic/privilegiile
[last accessed: 11.12.2020]