Transfer of mortgage in case of assignment of claim pursuant to the Civil Code Cover Image
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Strămutarea ipotecii în cazul cesiunii de creanță în temeiul Codului civil
Transfer of mortgage in case of assignment of claim pursuant to the Civil Code

Author(s): Marian Nicolae
Subject(s): Law, Constitution, Jurisprudence
Published by: Uniunea Juriștilor din România
Keywords: mortgage; assignment of claim; publicity; conditions of transfer and of opposability against third parties.

Summary/Abstract: Unlike the old Civil Code, in the system of the new Civil Code (NCC) the assignment of claim enjoys a superior regulation, including as regards the problems of the publicity formalities stricto sensu. In this regard, the publicity formalities towards third parties, separate from those necessary for informing the assigned debtor, provide the possibility of taking knowledge about the assignment by any person concerned (successive assignees, mortgage creditors, pursuing creditors etc.). In principle, the assignment becomes opposable against third parties only from the moment of registration in the Electronic Archive for Security Interests in Movable Property [Article 1583 (2) of NCC]. This is the general rule of common law, from which the law also provides exceptions when considering the nature or the source of the assigned claim. The main exceptions refer to the assignments of real estate incomes and to the seizure of a real estate mortgage claim, which are noted in the land register [Article 902 (2) points 6 and 15 of NCC]. From the date of registration of the assignment in the public register, the assignee’s rights, that is the claim right and all its ancillary rights, including movable property and real estate mortgages, become opposable to third parties. The sanction of non-registration is the non-opposability of the assignment against the third parties concerned.

  • Issue Year: 2014
  • Issue No: 12
  • Page Range: 61-79
  • Page Count: 19
  • Language: Romanian