ro fr
universul juridic magazin
Revista Română de Drept Privat

Could the accessory transform the principal? On the Nature of collateral

This paper starts from the observation that the legal status of the hypothec offers a good example of legislative unification that deletes the barriers laid down by the traditional classes of assets. In this quest, starting from the legal treatment of the (accessory) in rem right (the hypothec), we looked at the usefulness of the doctrine of placing each asset into a specific class having its own sacrosanct rules. Since the (secured) asset is an essential element of the hypothec, its nature should materially influence the nature of the hypothec (which could now cover both movable and immovable assets). The analysis goes on by looking at the evolution of the classification of assets as movables and immovable in order to understand the reasoning behind this (relatively) recent splitting. And with the reason being a politically/ economically-based one the question emerges to what extent the maintaining of rigid classes is justified since both the political climate and the economic context dramatically changed in the past 200 years. Therefore, we tried to offer a more flexible picture of classes of assets. In this analysis, we realized that the accessory assets are a class of its own, which cannot be merged with either movables or immovables. Based on these observations, we then analyzed the legal treatment of the hypothec created over collateral that (seems to) change its nature during the existence of the lien. It emerged that being an accessory asset does not alter the nature itself of the asset, but only (some of) the legal rules that apply to it. Despite being itself an accessory (right), the hypothec does not change its status, but rather holds with its nature as does the collateral.