Mecanismele executării private în cazul luării pașnice în posesie a bunului afectat unei garanții reale mobiliare
The mechamisms of private enforcement in case of peaceful taking possesion of the asset assigned to a security interest

Summary/Abstract: Title VI („Legal regime of the security interests in personal property”) of the Law no. 99/1999 regarding the acceleration of the economic reform brings a series of innovations within the Romanian legal system. One of these innovations consists in the possibility given to the lenders who benefit of a security interest in personal property to take some private actions just before enforcing the secured obligation. This procedure is called „peaceful repossession of collateral” and refers to the taking the physical control over the collateral by the secured lender. This procedure should constitute a powerful tool for the secured creditor by which the latter shall insure the cooperation of the debtor in performing the secured obligation. Unfortunately, the practice is still hesitating in making use of this procedure. Aside of the harsh penalties provided by the law in case of nonobservance of the legal framework, the unclearly character of the legal provisions represents a discouraging factor for the creditors. In this paper we will try to demonstrate that peaceful repossession could have a quite generous applicability which is not limited to the cases when the debtor voluntarily hands over the collateral to the creditor. In order to preserve the peaceful character of the repossession it is sufficient for the debtor not to be submitted to violence (either physical or moral) and the third parties not to be damaged because of breaching the peace of the community. Once these two limits are observed, there is a great range of actions at the discretion of secured lenders. For example, avoiding the debtor and, to a certain extent, even the tricking of the debtor could constitute into legal repossession techniques. In these times when the lack of repayment of the loans becomes everyday life, peaceful repossession will become the preferred way of reducing the losses for a large typology of professional lenders: commercial banks, leasing companies and other non-banking financial institutions. It rests with the courts that will judge the disputes generated by such repossessions to set clear rules for actual actions that are within or outside the limits of the law.

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