Dificultãtile conceptuale ale ipotecii imobiliare abstracte
Concept difficulties of the abstract mortgage on land/buildings

Summary/Abstract: This text examines to which extent it is possible to create a type of lacking cause real estate mortgage similar to the German Grundschuld in a conventional way, in the present stage of the Romanian law. The approach starts from the aspect that certain mortgage causal covenants proposed in the banking practice include provisions setting forth the abstract nature of the obligations arisen in the charge of the borrower referred to in the respective document, a specific feature of the above-mentioned guarantee instrument. The derogation from the incidental nature of the mortgage seems to be admissible taking into consideration the way in which the NCC texts are drawn up2) and which set forth that the respective nature depends on the nature of this guarantee, but not of its substance. In exchange, it is more awkward to determine a correspondence between the way in which the German law and respectively, the Romanian law, make up the legal content of the mortgage. To this end, there should be examined whether, in the Romanian legal system, the right of the guarantee holder to have his fill of the product of forced capitalization of the asset subject to liens and encumbrances, shall be a prerogative attached to this actual right, just as in the German opinion about the mortgage. The conclusion shall be that, despite this method of understating the mortgage as an actual receivable due under the same conditions as the guaranteed obligation is not entrenched in the Romanian tradition, certain recent legislative evolutions seem to start just with such an assumption. The interest of the analysis arises from the fact that, in the event of an affirmative answer, due to the advantages identified by the practice when using this mechanism, the abstract mortgage created according to the German legal model is intended to become predominant in the practice of the credit operations.

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