ro fr
universul juridic magazin

What is this: the hypothec over movable assets? (II). About the security agreement

This paper makes an analytical presentation of the legal status of (movable) hypothec agreement under the New Civil Code. It explores the legal characteristics of the security agreement by explaining its classical traits (unilateral act, with performance at once, regulated by the law, accessory, directly enforceable and requiring consideration) and by offering an in-depth analysis from practical point of view those traits that resulted in certain hesitations of the legal literature and case law (formal/solemn act, transferring rights in rem and onerous). The study offers several annotations on the format of the security agreement as a basis for exploring its legal content. The analysis turns then on the mandatory clauses, the rights and obligations that are implied by the law and the clauses that are considered non-written by the law. Finally, the paper analyses the specificity of the security agreement as far as the parties are concerned, with a special view on the trilateral transactions (security provided by a surety) and multiple creditors’ transactions (represented by the security agent). Together with the earlier study on the security interest in personal property, this paper offers an overview on the new regulation of the subject matter under the New Civil Code. The scholastic approach of the contractual analysis is joined with the highlighting of the practical consequences implied by a correct legal characterization of the agreement.