About the pledge on future revenues from ongoing agreements or how “relevant” may be the “protection” granted to the secured lender in insolvency Cover Image
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Despre ipoteca mobiliară asupra veniturilor viitoare din contractele în derulare sau cât de „corespunzătoare” poate fi „protecţia” acordată creditorului garantat în insolvenţă
About the pledge on future revenues from ongoing agreements or how “relevant” may be the “protection” granted to the secured lender in insolvency

Author(s): Simona Maria Miloş, Andreea Deli
Subject(s): Law, Constitution, Jurisprudence, Civil Law
Published by: Universul Juridic
Keywords: movable mortgage over the receivables; ongoing contracts; proper safeguards/protection; proper protection of securities; assessment of securities;

Summary/Abstract: This survey is intended to discuss some aspects related to the securities established in current and future proceeds under the ongoing contracts signed by the debtor before the opening of the insolvency proceeding, the rights of the creditors holding movable mortgages in the amounts to be collected and the restrictions that these rights may be subject to in case of insolvency of the debtor.Basically, it confirms an aspect which the case law in the matter of insolvency has outlined, that is, the compatibility between the rules of the insolvency proceedings and the rules of the Civil Code and the compatibility between two fundamental principles underlying the insolvency proceedings, that is, the creditor’s right to realize its securities by setting unitary rules to be applied uniformly and the debtor’s right to continue its business as an ongoing concern and to continue making payments to the known creditors whenever the right to administer its business was preserved. The existence of the two principles underlying the insolvency proceedings – one which refers to the rights of creditors holding privileged rights in the proceeds resulting from ongoing contracts and the other one which refers to the right of the debtor in insolvency to continue its business as an ongoing concern, which further requires the use of amounts resulting from receivables collected pursuant to those contracts – raises a practical problem, that is, the need to ensure a balance between the secured creditor’s interests and the interests of the debtor undergoing insolvency. The main topics addressed by this survey are: how does the principle of proper safeguards for creditor’s securities actually operate and how satisfying is this protection for the creditor, how is the protection actually offered, how are the securities assessed in practice and which is the solution intended to balance creditor’s and debtor’s interests altogether.

  • Issue Year: 2020
  • Issue No: 01
  • Page Range: 82-98
  • Page Count: 17
  • Language: Romanian