Garantiile reale mobiliare: un rau necesar sau un instrument util
Security interests in personal property: a necessary evil or a useful tool

Summary/Abstract: For aver four thousand years security interests are part of the legal system. Near all human civilization has known this figure. Consequently, the existence of security interests looks like a historical necessity. Even so, in the past years several opinions questioned the (social) utility of security. This paper tries to answer the critics of the current system of security interests (in personal property) by focusing on the economic advantages they create to the modern world. Even if the Romanian literature did not directly question the existence of security some commentaries and case law show behind their arguments a deep but silent distrust of their utility. Our analysis starts from the two essential elements of the lending activity: the term (any loan requires that the discharge of an obligation is delayed) and the trust (extending credit means that the parties have a certain degree of trust in each other). From those elements, the trust was often underestimated and the consequence of this misconception is the difficulty surrounding the explanations of secured credit. On this basis, we will try to apply a method relatively new in the legal field: the economic analysis of law. As such, we shall show the main traces of this method and then we will apply it to the theory of property (and security) interests. The efficiency criterion is the red line showing from the entire law & economics literature. This paper presents how the efficiency analysis explains the typology of security interests. In a future study we shall use the theoretic basis laid down herein for presenting a case study of the evolution of security interests in Romania over the past decade.

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