ASPECTE TEORETICE ȘI PRACTICE CU PRIVIRE LA NATURA JURIDICĂ ȘI FELURILE FIDEIUSIUNII

By reference to the real guarantees, which, theoretically, ensure a greater security of the
execution, the fidejussion prevails by a lower degree of formalism and by a much higher degree of
flexibility.
Through the fidejussion mechanism, the creditor will have as common guarantee at least two
patrimonies: first of all, of course, the patrimony of the main debtor, but in addition to this patrimony it
can also be satisfied from the patrimony of the fidejussor or fidejussors.
No one can become a fidejussor-guarantor against his will. Regardless of its nature,
the fidejussion has a contractual nature, being able to arise only through the agreement between
the creditor and the fidejussor. The law or the judgment only requires to bring a personal
guarantee.
When a person is obliged, by law or by convention, to provide bail, and he does not voluntarily
fulfil his obligation, the judgment of conviction does not convert the bail into a judicial one, it still
remains legal or conventional, as the case may be. The judge only orders the execution of the legal
provision or of the convention.
Exceptionally, in certain situations, the law absolutely presumes the quality of a certain person
as fidejussor. For example, there is a fidejussion, called an assimilated fidejussion, also in case a
party undertakes to another party to grant a loan to a third party, in which case the creditor (the
person to whom the commitment has been made) is guarantor (fidejussor) of the obligation to repay
the loan received by the third party.