Romania: Law on Security Interests in Personal Property and Commentaries

Abstract

AbstractThis paper presents the Romanian Law on Security Interests in Movable Property, together with commentaries on its main articles. It also discusses the background research and analysis that preceded the enactment of the law. Problems in the legal and institutional framework for secured transactions ranked high among the factors that limited access to credit in Romania. Limited access to credit, in turn, led to lower rates of investment and, thence, to lower rates of economic growth. Moreover, since the existing credit system could safely take as collateral only large holdings of real estate, the credit system discriminated heavily against those with mainly movable property as assets—the poor and operators of small businesses and farms. These legal problems reduced access to credit in Romania more than did macroeconomic instability or a variety of other structural features of the economy. Moreover, these limits would have lingered on undiminished long after macroeconomic stability could have been achieved. Limited access to credit has been generally recognized as constraining growth and aggravating poverty. Many donors and governments have attempted to address this problem without remedying its underlying legal roots: they have supported directed credit programs, state loan guarantees, state-funded guarantee funds, and direct loans by state agencies. These efforts typically end in disaster. Even where employees of such institutions matched their private counterparts in their desire to collect loans, the legal and regulatory framework prevented collection. State lenders may be able to make loans that the private sector will not make; however, they are no more able to collect them. No one has devised a feasible and effective economic remedy to this legal problem. Good public policy relaxes limits to access to credit by addressing the legal roots of this problem. Notwithstanding the importance of collateral to lenders and of movable property to producers, before the reform, the laws and legal registries of Romania largely prevented private lenders from taking movable property as collateral for loans. The new Romanian Law on Security Interests in Personal Property remedies this problem. It sets out a comprehensive framework for using personal property as collateral for loans. It introduces a broad system of security interests in personal property that derogates the existing narrow regime of non-possessory pledges. The law broadens the range of property that can serve as collateral under the concept of security interests (Garantiile Reale) far beyond the scope of what the pre-reform pledge. Today, a wide variety of property and transactions can secure a loan. The law sets out a compulsory and unique system for establishing priority among creditors in collateral. It provides that the first creditor who files a notice of the security interest shall be the first entitled to receive the proceeds from the sale of the collateral should the borrower default. These provisions apply to any secured creditor and to any creditor who—under any contract—has a right to satisfaction from property of the debtor or from property in the debtor's possession. This includes creditors in financial leases, conditional sales, warehouse operations, and accounts receivable financing. The law provides that the ranking of priority depends only on the time of filing a notice of the security interest in an Electronic Archive. Unlike a pledge registry, this Archive system does not register the security agreement. Rather, it files in a database a notice that a security interest exists. This notice contains minimal information about the parties to the transaction and the security interest. Furthermore, the law sets out—for the first time anywhere in the world—a registry archive in the Internet that may be accessed on-line both to file and to retrieve information.