Cum (de)construim o instituţie juridică: despre esenţa ipotecii
How to (de)construct a legal institution: on the essence of security interest

Summary/Abstract: More often than we think, the law claims its autonomy by creating specialized institutions that remains entrenched in their form. The historical evolution of the security interest is a prime example of such an artefact where the legal system pretended to have stenciled certain essential traits. Starting from the observation that any legal institution is nothing more than a human creation where the form is only meant to define the space of action for the substance, this paper seeks to find the essence of the security interest beyond its various formal disguises. Reaching the conclusion that the only essential characteristic is the purpose of ensuring the performance of an obligation by using a right as collateral, the paper then applies this finding in certain practical areas. In doing so, it demonstrates that the security interest over the income of a real estate is not a mortgage but a security interest in personal property, the statutory mortgage keeps certain conventional basis in the ability of the mortgagee to waive its right and the retention of assets as security is substantially different from a security interest.

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