Concursul dintre dreptul de retenție asupra unui bun mobil și dreptul de ipotecă asupra unui bun imobil: considerații practice
Concurrence between the lien over a movable property and the right under a mortgage over an immovable property: practical considerations

Summary/Abstract: The question of the order of the satisfaction of claims is often raised in practice if there are several creditors of the same debtor (or even of certain different debtors), who, however, hold concurrent guarantee rights over the same property. In theory, the question should be settled in compliance with the prior tempore, potior iure principle, so that the first creditor, which made its guarantee right known, should take precedence over the satisfaction of its claim. However the situation becomes more complicated when we have to deal with two (or several) guaranteed creditors, whose guarantees are placed over different assets, which are unified by accession, under the circumstances in which each creditor was the first to fulfil the advertising formalities with respect to the asset over which its guarantee is placed.Concretely, the following question is raised: What happens to the lien over a movable property, under the circumstances in which the creditor as beneficiary of this lien enjoys a special privilege as well, recognized by the provisions of art. 2339 para. (1) letter b) of the Civil Code, in case the holder of the lien is involuntarily stripped of the movable property [in case of voluntary stripping, it shall result in the extinction of the lien according to art. 2499 para. (2) sentence I of the Civil Code, but also in an extinction of the special privilege according to art. 2340 of the Civil Code], and it is incorporated in an immovable property over which another creditor holds a right under a mortgage.This matter is of relevance given that both guarantee rights were made known by their record in the public registers, and thus, each of the creditors participating in the competition holds a first rank guarantee regarding the asset over which it is placed.

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