Aspecte de drept material şi procedural privind valorificarea bunului grevat de garanţie reală: preţul comercial rezonabil şi opoziţia la vânzare
Substantive and procedural law considerations on realization of property encumbered by proprietary security rights: commercially reasonable price and opposition to sale

Summary/Abstract: Moldovan and Romanian law follow international trends in the matter of enforcement of proprietary security rights and employ the test of sale in a commercially reasonable manner to find a balance between the interests of the secured creditor and the security provider. This test focuses on the procedures the creditor follows. However, Moldovan law is more invasive and adds the test of reasonable commercial price. The fact that the secured creditor has breached the standard of conduct to act in a commercially reasonable manner or, more specifically, breached the requirement of reasonable commercial price cannot entitle the security provider to the avoidance of the sale, as these are mere obligations of the secured creditor, and not requirements of validity of the contract of forced sale of the encumbered property. This can be explained by the fact that, in the Republic of Moldova, the forced extrajudicial sale of the pledged asset covers, equally, movable and immovable assets. Instead, Romanian law allows extrajudicial enforcement only for movable property and applies the commercially reasonable manner test only to the forced sale of movable property. We conclude that the standard of commercial reasonableness is a limitation on the secured creditorʼs absolute freedom to dispose of the encumbered property as it sees it. It is a compass in its hands when navigating unknown and stormy waters with possible legal risks.

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