Introduction

Harry C. Sigman/Eva-Maria Kieninger

The importance of the subject of security rights in movables has gained recognition in Europe recently.1 Long seen in the academic curriculum as little more than a sliver of the law of property, security rights in movables are now recognized as an important element in modern economies, of special importance to capital-hungry small and medium enterprises, and a much-needed addition to security in immovables and personal security. The importance of these rights has also been recognized from a financial supervisory point of view. Under the Basel II requirements, financial institutions require a clear and certain legal structure to support the efficient supply of credit, generating an immediate need for modernization of the law governing security in movables.

This volume focuses on security rights in tangibles. It will be followed by a volume on security rights in (and outright transfers of) receivables. Both volumes deal with substantive law and, given the increasing importance of cross-border transactions, with private international law as well.

The laws of seven European countries are studied in depth. These countries represent economies of varying sizes, different legal families and different approaches to the solution of the problems presented. They

1Not only has France just made extensive modifications to its secured transactions regime, but in the recent past most of the countries studied, as well as other European countries (particularly Central and Eastern Europe) have modified their secured transactions laws and/or their insolvency laws. In addition, many multilateral organizations (e.g., UNCITRAL (United Nations Commission on International Trade Law), UNIDROIT (International Institute for the Unification of Private Law), the Hague Conference on Private International Law, EBRD (European Bank for Reconstruction and Development)) have been and are currently engaged in projects affecting this field. See also the reform proposals made by the English Law Commission, whose Final Report can be found at Company Security Interests (Law Com No. 296, available at http://www.lawcom.gov.uk/lc_reports.htm (1 August 2007)). Cf.

Drobnig/Snijders/Zippro (eds.), Divergences of Property Law, an Obstacle to the Internal Market? (2006); Graham-Siegenthaler, Kreditsicherungsrechte im internationalen Rechtsverkehr (2005); Kieninger (ed.), Security Rights in Movable Property in European Private Law (2004); id., Nationale, europäische und weltweite Reformen des Mobiliarsicherungsrechts, WM 2005, 2305 et seq. and 2353 et seq.

reflect different stages in the legislative or judicial development of structures to accommodate the need for non-possessory security rights in tangibles and to respond to the increased need for credit in modern economies. A careful comparison at the practical level, examining the rules actually at work in the marketplace, reveals many significant differences between the countries, even where there are similarities or identities at the highest conceptual level. In certain countries, reliance for credit support is still based primarily on personal security and security in immovables (and, more recently, on security in financial instruments and receivables), reflecting the absence in those countries of a legal structure that facilitates security over tangibles and makes it effective.

All countries provide for a possessory pledge, and this device is, at the least, the baseline provision for security rights in the Civil Codes of all six Continental countries studied. Although Roman law knew of a nonpossessory pledge, this device became lost to memory and was functionally non-existent in the nineteenth century.2 By the beginning of the twentieth century, however, it had become clear that non-possessory3 security rights in tangibles were needed.

The following comparative overview, setting out the different paths on which secured transactions law developed in the seven countries, is drawn from the reports presented in this volume. References in the country reports to statutory provisions, court decisions and scholarly writing are not reiterated here. On various specific points, footnotes in this Introduction provide information about Article 9 of the Uniform Commercial Code, the secured transactions law in the states of the United States, primarily to illustrate contrasts in law-making technique, in specific rules or in policy.4 Because of the great importance of registration to modern secured transactions law, a more elaborate discussion of filing under UCC

2Zwalve, A labyrinth of creditors: a short introduction to the history of security interests in goods, in Kieninger (ed.), Security Rights in Movable Property in Euro-

pean Private Law (2004), p. 38 et seq.

3In contrast to the European distinction between possessory and non-possessory security interests, UCC Article 9 provides for a “unitary” security device, and does not treat possessory and non-possessory security interests as two distinct types of right. Instead, UCC Article 9 treats dispossession of the debtor as one of several possible methods of perfecting a security interest (depending on the nature of the

collateral, possession may be a permitted but not exclusive method of perfection,

the exclusive method of perfection or not available as a method of perfecting).

4For a thorough discussion of UCC Article 9, including the history of its development, its structure and concepts and a detailed discussion of its rules and the policies underlying them, see Sigman, Security in movables in the United States – Uniform Commercial Code Article 9: a basis for comparison, in Kieninger (ed.), Security Rights in Movable Property in European Private Law (2004), p. 54 et seq.

Article 9 is presented separately in Part IV of this Introduction. And because of the key role played by the filing system in the priorities regime, as well as the great difference in the modes of development and presentation of priority rules among the UCC and the legal structures of the countries studied, Part IV also includes a more elaborate discussion of the UCC Article 9 priorities regime.

We start with a brief description of the basic structure of the national systems, followed by a discussion of some core concepts. The Introduction then presents the Case Studies and continues the comparative overview on a case by case basis.

I.Basic structure and development

In Germany, the BGB provided for a possessory pledge and, as the only security arrangement without change of possession or other means of publicity, title retention as security for the unpaid seller. Only a few years after the adoption of the BGB, the courts permitted non-possessory security rights through the use of ownership. This was permitted to non-seller creditors in the form of transfer of title by way of security (also referred to as fiduciary transfer).

The German courts allowed the seller by contract to expand the benefit of the retention of title in the sold goods by also obtaining (i) a security transfer of the receivable generated in favor of the buyer by a subsale and (ii) a right in products resulting from the processing or manufacturing by the buyer of the sold goods.5 This right in such products is usually created by a contractual agreement that the buyer processes the sold goods on behalf of the seller, rather than by a security transfer. Further, the German courts also permitted the seller to condition transfer of title upon payment not only of the price of the sold goods but also payment of any other obligation.6 Through such expansions, coupled with the

5UCC Article 9 provides (in secs. 9-203 and 9-315) with respect to all security interests (including those retained by a seller) for an automatic security interest in all “proceeds” (broadly defined in sec. 9-102(a)(64)) of collateral. With the assistance of tracing rules provided under other law, proceeds may be identified even after they have been commingled with other property; also, the definition of “collateral” in-

cludes proceeds of proceeds.

6UCC Article 9 places no limits on the nature, source or extent of the obligation(s), present or future, that may be secured by a security interest (subject, of course, to the basic delineation of UCC Article 9’s scope provided in sec. 9-109). Qualification of a security interest in goods as a “purchase-money” security interest is limited to the extent that it secures an obligation “incurred as all or part of the price of the collateral or for value given to enable the debtor to acquire rights in or the use of

priority given by the courts to title-retaining sellers over competing interests (both as to the sold goods and also as to the receivables proceeds), German practice built the title retention device into something far more powerful than in any other European country, and without imposing any form of publicity (see the discussion in the report on Germany of the verlängerte und erweiterte Eigentumsvorbehalt). Consequently, title retention is a common, and possibly the principal, form of secured assetacquisition credit in Germany.

The fiduciary transfer device (Sicherungsübereignung) was, and continues to be, flexible enough to serve the business needs of borrowers and lenders, functioning as a non-possessory pledge but without any formality or publicity. The courts, however, recognized, at least in certain contexts, that the “title” transferred to the creditor is a fictitious one, intended only to serve a security purpose, and, by imposing fiduciary obligations on the financier, limited the benefit of the transfer to the security purpose intended by the parties; thus, for example, in insolvency, the holder of the fiduciary title is treated the same as a pledgee, i.e., the holder’s right is limited to the realization proceeds rather than in the asset itself (this result was reached judicially under the old insolvency law and is now expressly so provided under the new insolvency law). In principle, however, an actual “title” has been transferred, leaving the debtor7/transferor with only a personal claim against the transferee/cre-

the collateral if the value is in fact so used.” Qualification as a purchase-money security interest makes available a super-priority over an earlier perfected competing security interest and a grace period of twenty days after delivery for achieving perfection, both discussed below. Note that UCC Article 9 expands the class of benefited secured creditors beyond sellers to include any person that provides assetacquisition financing. With respect to the scope of collateral covered by a purchasemoney security interest, a special cross-collateralization provision applies with respect to inventory and there are also special provisions with respect to software acquired in an integrated transaction with the related goods when the software is acquired for the principal purpose of using it in the goods. See sec. 9-103. See further discussion of this subject in Case Study 4.

7References in this Introduction to “debtor” are intended to mean the person that grants the security right, whether or not that person owes the secured obligation. UCC Article 9 uses the terms “debtor”, “obligor” and “secondary obligor”, all defined in UCC sec. 9-102. Because the principal focus of UCC Article 9 is on the security interest, rather than on the secured obligation, “debtor” is defined as a person that has an interest (other than a security interest or other lien – interests that normally derive from and encumber the debtor’s interest) in the collateral, whether or not that person has an obligation to pay or otherwise perform the secured obligation. “Debtor”, therefore, also includes a transferee of the collateral (whether or not that person has assumed the secured obligation). The existence of a right of re-

ditor. This seems to have stimulated recent judicial recognition of an Anwartschaftsrecht (a form of expectancy interest, regarded as a proprietary right) in the buyer that has not yet fully performed its purchase contract. This reflects an implicit recognition that the conceptual approaches based on title, which leave the buyer or debtor, not having ownership, with nothing (or no more than personal claims) until it has fully performed, require ameliorating doctrines in order to fit comfortably with economic reality and modern business needs.

In sharp contrast, France took a completely different path, both in legal structure and in methodology. In France, title retention was an ineffectual and little-used device until the 1980’s amendment to the insolvency law made the retained title effective in that context. Further, even then, the title retention is limited to the goods sold and whatever substitute assets might qualify for “real subrogation”. With respect to tangibles, France did not recognize transfer of ownership for purposes of security generally until it adopted legislation in 2007 authorizing the fiducie, which may, however, be constituted only by a legal person, must involve a bank as fiduciaire (trustee) and must be registered. It remains to be seen precisely how and to what extent this will be developed into a useful commercial security device.

Instead of using fiduciary transfer of ownership to evade the bedrock principle of il n’y a pas de gage sans dépossession, France permitted, through a series of laws adopted throughout the twentieth century (e.g., gage sur fonds de commerce, nantissement d’outillage, warrants for specialized purposes), the creation of specific non-possessory pledges, substituting registration for dispossession. Only in 2006 was the Code civil amended to add a general gage sans dépossession (along with other modernizations), also based on registration. Even this legislation, however, failed to revise the subject comprehensively into a single coherent body, as it left the pre-existing devices in place alongside the new additions,8

course and the law of suretyship will determine whether the obligation of an “obligor” is primary or secondary. Useful illustrative examples are found in the Official Comment to UCC sec. 9-102. The significance of the categories is mainly in the context of post-default rights and remedies, governed by Part 6 of UCC Article 9.

8Both the German and French methodology and structure contrast sharply with the development in the United States (which commenced during the late 1940’s) of UCC Article 9, which presents a single comprehensive legislative treatment of the entire subject of secured transactions over movables (tangible and intangible). Article 9 established a single device, denominated a “security interest” (although terminology used by the parties and structure of the transaction are irrelevant under UCC Article 9), and, making the location of title irrelevant for secured transactions purposes, eliminated the possibility to use title as an alternative technique to obtain security. Further, in adopting a functional approach, UCC Article 9 effectively leveled the

although it did provide greater flexibility in enforcement of security rights.

Belgium largely followed the French technique of development by legislation and the French path of no fiduciary transfer for tangibles and no useful title retention until the 1997 amendment of its insolvency law. Belgium in 1919 adopted a gage sur fonds de commerce, based on registration, similar to the equivalent device found in France, although it excluded only 50% of the value of inventory while the French version excluded inventory entirely. Belgium has not, however, followed the French approach of supplementing this form of enterprise pledge by enacting a series of specialized pledges. On the other hand, Belgian law provides for an enforcement that is more speedy and efficient than many other European countries.

The Netherlands, although its earlier Civil Code had been modeled on the French Civil Code, generally followed, judicially, the German and English pragmatic/consensual path during the twentieth century until the new Dutch Civil Code was adopted in 1992. This Code expressly forbids fiduciary transfer; it substituted for that device an undisclosed or “silent” pledge, without dispossession and without registration. (Netherlands law refers to the requirement of submission to the tax authority of a copy of a non-authentic deed of pledge as “registration”, but this is not registration as that term is used in this volume. The submission is not to a publicly searchable record; rather, this mechanism is designed only to provide a date certain). Netherlands law continued to recognize title retention by sellers, although without as generous a widening and with no lengthening as Germany had developed.

Spain, in 1954, legislatively created a pledge without dispossession (Ley de Hipoteca Mobiliaria y Prenda sin Desplazamiento), with registration. Spain also has a legislated form of title retention, also with registration (Ley de Ventas a Plazos de Bienes Muebles); this law renders ineffective title retention with respect to property that is acquired for resale. Spain has continued to legislate refinements, and generally might be characterized as having somewhat flexible security devices, based on registration, but greatly limited, however, by somewhat rigid require-

competitive playing field among providers of acquisition credit., by making the same rules applicable to the (i) title-retaining seller, (ii) the lessor that leases goods under terms that in economic reality amount to a disguised conditional sale and, in an expansion not found in the systems of the countries studied, (iii) the security interest of a third-party lender who supplies the acquisition credit. Thus, by virtue of the enactment of UCC Article 9, modern secured transactions law in the United States, unlike German law, did not rely on judicial development and, unlike French law, is based on a single coherent legislative scheme, and, unlike both of them, does not use title as an alternative technique for establishing security.

ments concerning description of collateral. Therefore, although on a theoretical level there seem to be ample possibilities to take security rights over tangibles, in practice these devices are hardly used except for items that can be described individually and with great specificity, for example, by plate or chassis number.

Of the countries studied, Italy, acting primarily by sporadic legislation, can be said to have the least effective security regime (even taking into account the 1993-enacted Art. 46 Bank Charge), with limited scope, significant complexities and rigidities and significant uncertainties, such that, taken together, they effectively limit the utility of the available devices. Further, the available devices generally have very inefficient enforcement remedies. Even title retention, though expressly regulated in the Codice Civile since its enactment in 1942, is of extremely limited commercial utility, in particular due to strict formalities requirements and the unreliability of its effectiveness against third parties. Italy, like France (at least until the recent French enactment of the fiducie) and Belgium and the Netherlands (under the Dutch Civil Code) has rejected the fiduciary transfer.

All of the countries studied provide equipment acquisition financing through leasing. Indeed, in Italy and some of the other countries, it appears to be the most flexible and effective available device for such transactions. Financial leasing is discussed in detail in Case Study 4.

England has relied primarily on the judicial development of a scheme of legal and equitable rights, most importantly fixed and floating charges, to enable non-possessory rights to secure present and future obligations with rights in present and future movables. The English scheme provides for registration of charges granted by English companies and companies that have registered in England as foreign companies. Through the device of the private contractually-created receiver, England provides a most powerful enforcement device, although recent insolvency law modifications have changed this regime somewhat. At least in the context of company chargors, the existing regime is flexible and effective – extremely creditor-friendly. England does also recognize title retention, in the techniques of conditional sale (buyer committed to purchase) and hire-purchase (bailment with an option to purchase) and financial lease (see the extensive discussion in Case Study 4) – often the differences being of form rather than economic substance. The titleretaining seller may condition transfer of title on payment not only of the purchase price of the sold goods but also on the payment of any other obligation (which need not otherwise be related to the sale) owed by the buyer to the seller (often referred to as an “all monies” clause). On the other hand, the title-retention does not carry forward into proceeds of the sold goods, nor does it extend to the goods once they have been processed. Thus, the value of the title-retention is limited to the seller’s

being able to locate the goods in the hands of the buyer in their original form. None of these devices, being in the form of rights retained by the asset supplier rather than charges granted by the acquirer, need be registered.

In many of the regimes, the security devices are available only for the benefit of certain classes of creditors and/or may be created only by certain classes of debtors. England is the most extreme example of difference in regimes depending on whether the debtor is an individual or a company. In particular, floating charges are not granted by individuals and the charge registry is at Companies House. In France, the fiducie may not be constituted by an individual and the devices under the Code de Commerce may be provided only by a “merchant”. In Italy, the “dedicated assets” device may be granted only by a stock company and only a bank may enjoy the Art. 46 Bank Charge.

Some words about registration: In Germany and the Netherlands, there is no registration for security rights in tangibles. In the Netherlands, submission to the tax authority of a copy of a non-authentic deed of pledge with respect to an “undisclosed” pledge is required. As noted above, although this is referred to in the Netherlands as “registration”, this cannot be viewed as registration as that term is used in this volume; such submission is not to a searchable public record, and is merely a device to provide a date certain as an alternative to use of an authentic deed. In contrast, all the other countries studied do have registries, although they vary widely in coverage and in efficiency. None is fully electronic. In England, registration does not apply to security given by sole proprietors and ordinary partnerships. Further, it is flawed in that it imposes on searching parties two risks: the risk of a difference between the terms of the charge instrument and the information provided in the publicly available particulars, and the risk that a registration made subsequent to the search but during a 21-day “blind” period may nevertheless have priority. The Spanish registries accept only notarized documents and have very significant specificity of description requirements. The recently published regulations for the new French registration system provide for the user to submit both original documents and a summarizing bordereau. The regulations provide for an index searchable nationally via the internet, but require that the user specify not only the name of the debtor but also substantial further identification details (e.g., date and place of birth or entity details), and searches must be conducted separately with respect to particular categories of collateral. Even then, the search response does not provide the desired data but instead merely directs the searcher to the particular greffier who actually has custody of the registered documents. Belgian registration for the enterprise pledge is local (in the land register of the judicial arrondissement in which the enterprise is located), but is readily accessible. However, substantial

documentation – a copy of the pledge agreement and two copies of a summary (borderel) – must be submitted, and, more importantly, a prerequisite to such filing is the “registration” of the pledge instrument (the date of the instrument plays no role in determining priority), which entails payment of a fee based on a percentage of the credit (in addition to the minimal filing fee). In Italy there is quite a wide variety of registries, none of which is based on notice filing and none of which is completely electronic (searches may be made electronically but data entry is in the hands of the competent authority for each registry, to which complete documentation must be presented). Thus, while the majority of the countries studied do have some form of registration, none has an efficient electronic notice filing system that is speedy, inexpensive and easy to use for both the filer and the searcher.9

The extent to which a security right can be obtained over the proceeds of collateral that has been disposed of by the debtor varies from country to country,10 as does the technique for achieving this. In some countries, the extent of the right will vary based on the device used. The issue of proceeds is further developed in the discussion below of the Case Studies. In countries that provide for a flexible security right in future assets, the items that might become proceeds can be subjected to a security right in advance, but efficacy of this technique will depend on the ability to foresee, and to describe in a legally sufficient manner, all the types of property that might turn up as proceeds. While the matter of proceeds may not have been of great importance in less-developed economies and under regimes that precluded taking inventory as collateral, modern business needs for inventory finance and the replacement of equipment as it becomes obsolete, and the fact that a right in proceeds can be an important supplement to (and not infrequently of greater practical value than) a droit de suite, suggest that being able efficiently to encumber proceeds is of importance to a modern regime.

9 Generally speaking, the Continental systems are essentially variations of land registries; also, they typically fail to take advantage of modern technology. This contrasts sharply in purpose, design and operation with the notice filing systems found in New Zealand, the PPSA provinces and territories of Canada, Quebec (in significant respects) and the states of the United States under UCC Article 9. A discussion explaining notice filing under UCC Article 9 and highlighting how it differs from registration in the countries studied is found in part IV of this Introduction.

10Under UCC Article 9, the extension of the security interest into proceeds is automatic (see footnote 3, supra), and it is in addition to, not in lieu of, a continuing security interest (droit de suite) in the original collateral (although, of course, the secured party can ultimately realize from all sources no more than the amount of the secured debt).

Some words about “priority”. While it is typical to think of a priority contest in the secured transactions field as one between two secured parties (something that can happen with greater or lesser frequency under the various national regimes), the term priority is used in this volume in the sense of any competition between any two persons both of which claim a proprietary right in the same asset. It is not limited to secured creditor A versus secured creditor B (whether either or both has perfected its right, either has possession, one or both are acquisition financiers, one bases its claim on the asset as its initial collateral and the other on the asset as proceeds of its initial collateral, and whether subsequent advances enjoy the same priority as the initial advance, etc. – making clear that even this competition is far more complex than appears at first blush). Rather, it includes also the contests between each type of secured creditor and the insolvency administrator of the debtor, each type of secured creditor and a buyer from the debtor (whether the buyer is one that qualifies as a bona fide purchaser who takes free of the security right or one that does not so qualify), each type of secured creditor and one who repairs or stores the asset, each type of secured creditor and a donee from the debtor, etc.

One may say, on a very general level, that in the countries studied these various contests are decided on a first-in-time basis (although the relevant time is not always identical) or on extrapolations from one or more other principles.11 But this would hide the actual diversity and complexity. To illustrate the latter point, consider that the English priorities regime is an amalgam of all of the following: a basic nemo dat quod non habet rule, a first-in-time priority rule, a distinction between absolute interests (which may be used as financing devices) and security interests, registration systems that provide a first-to-register priority rule, the company charges scheme (Part 25 of the Companies Act 2006), which includes a registry but does not include any priority rules and instead leaves priority to be determined under principles of general law, except that registration under sec. 860 will be relevant in that a later registered charge may take priority over an earlier unregistered one and in that in some circumstances registration provides constructive notice (which is relevant to the priority of a legal interest over an equitable interest).

11In contrast, UCC Article 9 provides an elaborate array of very specific definitive rules for each contest, carefully tailored to maximize the efficiency of business practices. This minimizes the need for ex post judicial fact-sensitive determinations and provides the greatest possible ex ante certainty to the actors. It also benefits from the rules having been made by the legislator, institutionally far better equipped to make such rules and able to draw definitive and arbitrary lines rather than being confined to the announcement of general principles.

The various national approaches to enforcement of security rights are discussed in the context of Case Study 1. They vary from each other and within each country more often based on history and the particular type of the right rather than on coherent broadly applicable principles that reflect a sensible balancing of the interests of the debtor and competing creditors of the debtor and a careful consideration of the effect of the remedial scheme on the effectiveness of the security right to induce the extension of credit, the burden on the judicial system, etc.

This study makes clear that both modernization and harmonization are needed to produce coherence and efficiency within and among European countries. Harmonization issues are discussed in part III of this Introduction.

II. The Case Studies

The analytical approach of this volume is to present parallel responses to specific cases, to facilitate comparison by the reader. Each national report begins with an introduction describing the legal structure and explaining the historical development of movables security and the solutions adopted. The reports then continue with national responses to the Case Studies.

The scheme of the Case Studies and the structure of the reports are as follows.

Case Study 1

Case Study 1 presents the basic pattern of a security right in existing “equipment” (tangibles held by the debtor for use and not for sale12). The

12Under UCC Article 9 (see the definitions of the following terms in sec. 9-102), a computer might be classified as “consumer goods” (used by the debtor “primarily for personal, family or household purposes”), “inventory” (held by the debtor “for sale or lease” or out on lease by the debtor as lessor), or “equipment” (defined as all remaining goods [disregarding the category of “farm products”]; essentially, goods held by the debtor for use other than for personal, family or household purposes), depending on the use to which it is put by the debtor. This illustrates the use by UCC Article 9 of definitions not to make abstract statements of absolute meaning but rather to facilitate the efficient legislative expression of different rules for distinct situations. Thus, for example, subdividing “goods” into these categories enables the efficient formulation of rules tailored to effectuate different policy considerations based on factual differences, e.g., distinctions between inventory and

national reports describe the documentation and formalities required to create the right, as well as any additional steps required to make it opposable against third parties (herein, to “perfect” the right). The reports indicate that Germany (the most simple, requiring only a private contract), the Netherlands (also a private contract, but with an authentic deed or submission to the tax office of a copy of a non-authentic deed), England (with its simple fixed charge, also a private contract, but with registration of the charge in Companies House) and Spain (requiring a notarial deed and registration) provide relatively simple devices for the creation and perfection of a non-possessory right in a single machine or a group of machines, with the primary issue being one of the quality of the description of the collateral.13 Under the newly modified French regime, not yet tested in practice, France probably can be said to belong in this category as well. In Belgium, on the other hand, except for a chattel mortgage on an asset of the type that is registered, there is no simple device available for this basic transaction, as the basic non-possessory device is an enterprise pledge. In Italy, the Art. 46 Bank Charge might be used to encumber existing equipment, but, for the many reasons explained in the Italian report, can hardly be considered an effective practical device.

The question is raised whether mechanisms exist to enable a prospective secured creditor to discover the existence of any earlier-in-time nonpossessory rights that might be superior to, or preclude the existence of, the prospective creditor’s rights, the implicit assumption being that a creditor that is in a position to learn of the existence of actual or potential competitors will be better able to assess the credit risk involved and the value of the prospective collateral to offset the credit risk. This highlights the efficiency element of registration. Absence of registration raises the risk of “false poverty” (the assumption, for example, that, unless disproved by the debtor, everything in the debtor’s possession is subject to a title retention claim).

Next, the reports consider the consequences of a sale by the debtor of the encumbered asset, both with respect to the continuation of the security right in the asset after sale (droit de suite) and whether a security right in the proceeds of sale exists by reason of the security right in the original collateral, and, if so, whether it is in addition to or in substitution for the right in the original collateral.

None of the countries studied provides for an automatic security right in a replacement asset arising simply by virtue of its being a replacement

equipment are made with regard to super-priority, protection given vis-à-vis buyers

of the collateral, etc.

13Compare the description requirement under UCC Article 9, discussed in part IV, infra.

asset (i.e., as a form of “real” subrogation), although some of the jurisdictions provide a limited form of this device, with respect to insurance proceeds that replace a destroyed asset (and in Belgium, a claim arising out of a subsale falls under this concept).

Then the reports discuss the post-default remedies available to the secured creditor under each of the devices (judicial, nonjudicial and a right of appropriation or attribution (qualified or absolute)). The absence of speedy and effective remedies undermines the efficacy of even apparently sound security rights to actually induce the extension, or the lowering of the cost, of credit. Where nonjudicial remedies or special speedy judicial procedures are not provided, mandatory judicial involvement invites the use of the process to delay the exercise of remedies.

The most speedy and effective remedial schemes seem to be found in England (particularly in the form of the receiver), Germany, Belgium, and the Netherlands, and all countries appear to permit a debtor, after default, to agree with the secured creditor on a disposition procedure. Although France maintains in principle the requirement of judicial involvement, the recent Civil Code amendments appear to have largely abandoned the notion that no man can make his own justice by rendering effective an agreement by the debtor, made at the outset of the transaction, that the creditor may appropriate the collateral based on an appraisal by an agreed expert (although the French continue to be unwilling to trust the marketplace by permitting a nonjudicial disposition sale by the secured party). There is in France a form of debtor-protection, at least in some instances, in the rule that the creditor (even a title-retaining seller) may not profit from the debtor’s default, i.e., must account to the debtor for any surplus value, that is, value of the collateral in excess of the secured obligation, although it appears that the debtor may have the burden of initiating litigation in order to effectuate this protection, and this rule does not appear to override provisions of a crédit-bail that might well have the effect of depriving the “lessee” (or the lessee’s other creditors) of any excess of the value of the leased asset over the amount remaining due under the lease (this appears also to be true with respect to a lease under English law). The rule against the creditor profiting from the debtor’s default appears to be more broadly applied in Belgium, and perhaps also in the Netherlands. Thus, the degree of debtor-protection against forfeiture varies between countries and varies within countries depending on the security device involved. None of the countries studied appears to require that a secured party give notice to junior or other creditors before the secured party may exercise its remedies.14

14The UCC Article 9 post-default remedial regime: (i) allows for judicial assistance to any party that wishes to seek it, but does not mandate judicial involvement as a matter of course; (ii) permits the taking of possession of the collateral by the se-

The reports then discuss the position of the various security rights in the event insolvency proceedings are commenced by or against the debtor. In this context, too, we see a great variation among the countries studied in several different respects, including the extent of the subordination of the security holder’s ranking to various preferential or privileged claims; the degree of delay or interference with exercise of remedies by the secured party; the distinction between title-holders and holders of “mere” security rights (or a conversion of the fiduciary title-holder into a secured party); and the participation in the costs of the insolvency proceeding. Although all rank secured creditors above unsecured creditors, in several of the countries studied there are privileges or preferential claims that rank higher than security rights (usually not limited as to amount), with the consequence that in many instances, perhaps the majority, there is in fact little or nothing left for secured creditors. This has the obvious effect of degrading the value of security rights, undermining the goal of providing such rights in order to induce greater availability of credit at lower cost.

Treating title-based rights better than security rights denominated as such (as to ranking, degree of interference with remedies, etc.) has the effect of distorting the credit-supplying field. For example, in France,

cured party without judicial assistance if this can be achieved without breach of the peace (and the availability of speedy judicial assistance induces debtor cooperation in the vast majority of cases); (iii) permits non-judicial disposition of the collateral by the secured party, either publicly or privately, conditioned on the requirements that the secured party act in good faith and in a commercially reasonable manner and after notice to other creditors claiming an interest in the collateral; (iv) provides that the secured party may propose to accept the collateral in full or partial satisfaction of the secured obligation, with the debtor and all junior secured interests having the unconditional right to reject the proposal; (v) provides the debtor with the absolute right of redemption of the collateral, upon payment of the full amount of secured obligation, at any time prior to actual disposition by the secured party, and (vi) specifies a list of rights that a debtor may not waive (sec. 9-602), specifies certain rights that may be waived after default (sec. 9-624) and provides statutory remedies in the event of the secured party’s failure to comply with its obligations under UCC Article 9 (sec. 9-625). Notice prior to disposition or of the proposal to accept the collateral must be given to the debtor and to holders of junior security interests. UCC Article 9’s extremely flexible approach relies on the marketplace and the self-interest of all concerned to produce economically sensible results; it provides protection to the debtor and other creditors against secured party abuse without imposing cumbersome, expensive or time-consuming procedures; and it keeps down the costs to the parties and society generally by providing for judicial intervention only if specifically sought. This regime has proved to be effective and thus to encourage secured credit.

title-retaining sellers and crédit-bailleurs are effectively placed ahead of the privileges for the employees and the treasury (by being outside the insolvency estate, counter to the goal sought to be achieved by the privileges), while all gagistes are subordinated to those privileges, even those gages that secure acquisition credit. In Germany, fiduciary title-holding creditors are treated like pledgees, but title-retaining sellers are “excluded” from the insolvency system for security rights by treating them in effect as executory contracts, again resulting in favoring sellers over lenders that provide acquisition credit. Thus, differentiating between title-based security devices and those denominated as security devices is not merely a matter of conceptual distinction – it has very real consequences, precluding a level playing field among diverse sources of credit, to the detriment of those acquiring goods on credit.

This is not to suggest, however, that it is necessary to abandon the distinction in order to level the playing field. The same favored status vis-à- vis the insolvency trustee could be provided to all acquisition financiers, without regard to the location of title or the nomenclature used in the documentation of the transaction, by giving purchase-money secured lenders the same status and remedies given to title-retaining sellers and financial lessors. Or, on the other hand, the playing field could also be leveled by giving title-retaining sellers and financial lessors the same status and remedies given to purchase-money secured lenders. Either approach will produce a level playing field among competing sources of credit, and either could be accomplished by amending the security law or the insolvency law. The point is to establish internal coherence, with the results being determined, not by history or by extrapolation from concepts, but by the legislator making a conscious and transparent policy determination about the relative weight of the policy of supporting assetacquisition finance (and lower-cost more widely available credit generally) and the policy sought to be protected in insolvency in the form of the privileges.

In most of the countries studied, the general rules apply when the collateral consists of motor vehicles, despite the fact that, unlike most tangible collateral, this type of collateral is generally uniquely identifiable based on some type of registration number (there is everywhere a need for financing to make automobiles available to the mass market). An exception is Italy, where motor vehicles (along with aircraft and ships) are considered “registered tangibles”, and are subject to a public title registration system in dedicated registries. The inefficiency of the existing system, however, has prompted the legislator recently to consider reform, and cancellation of the register of title for motor vehicles has been suggested. In England, motor vehicle credit is the subject of voluntary private registration. In France, there is a special registration for those who finance acquisition of motor vehicles and they are treated as having a

fictitious possession, providing them with a right of retention, powerful even in insolvency. In Germany, there are no special legal provisions with respect to motor vehicle collateral, but there is a practical effect stemming from the fact that automobiles are registered and owners receive a document. It is customary for lenders to take possession of the document. The inability of the owner to display the document is usually considered sufficient to prevent a buyer that did not examine (or ask to see) the document from claiming protection as a bona fide purchaser. Thus, while the document is not an instrument that, taken by itself, enables the holder to sell the vehicle, practice has converted the document into the equivalent of a negotiable document of title in the negative sense, in that depriving the owner of possession of the document enables the lender to prevent the debtor from selling the vehicle to a bona fide purchaser.

Case Study 2

Case Study 2 goes beyond Case Study 1 by including after-acquired equipment, i.e., a floating security right over equipment.

In Germany, taking security over after-acquired equipment is possible by using the Sicherungsübereignung, the same device as described in Case Study 1 with respect to existing equipment. The only difference would be in the description of the collateral. In the Netherlands, there is likewise no difference between Case Study 1 and Case Study 2 other than the description of the collateral. In England, this would be possible using a floating charge to cover the after-acquired equipment (in addition to the fixed charge covering the existing equipment). This would be registrable in Companies House, like the fixed charge in Case Study 1. In practice, the charge instrument would likely contain a prohibition of the subsequent granting of a fixed charge (which would enjoy priority over the floating charge despite being later in time). So, in England, the primary difference between the two cases would be in the context of insolvency. In France, both the new gage sans dépossession and the gage sur fonds de commerce could include after-acquired equipment, again with special attention to the description of the collateral. In Belgium, we find the biggest contrast with Case Study 1, where there was no device available (other than in the context of acquisition finance) for a fixed security right in existing equipment. The gage sur fonds de commerce, a form of enterprise charge, would be available to create a security right on present and after-acquired equipment, although it would have to include as well all the other assets constituting the fonds de commerce, not just equipment. In Spain, after-acquired collateral cannot be covered by a nonpossessory pledge or a mortgage over movables. In Italy, a limited form

of floating right over equipment may be achievable under the Art. 46 Bank Charge.

Case Study 3

Case Study 3 varies from Case Study 2 with respect to the type of collateral – here it is inventory not equipment that is the subject of a floating security right.

In Germany and the Netherlands, there is no difference between Case Studies 2 and 3. In England, the only difference between Case Studies 2 and 3 would be that the entire inventory would be subjected to a floating charge (as even the existing inventory would be intended to be disposed of by the chargor in the ordinary course of business (the chargor would have a power to deal) and thus not amenable to a fixed charge). In France, taking a non-possessory right over present or future inventory was impossible prior to the recent reform. Now, it may be done under the gage sans dépossession, and it is also possible under the new gage sur stocks added to the Code de Commerce. The latter device, however, is available only to licensed credit institutions, and it is not clear whether they will be permitted to choose between these two devices or confined to the latter (which is less flexible). In Italy, such inventory financing is extremely difficult to achieve. An approximation might be possible under Art. 46 of the Banking Law and also possibly under Art. 2447bis C.c. Both devices are still to be tested in practice. The particular issue posed by the use of the Art. 46 Bank Charge to achieve a floating security right over inventory is the application of the strict provisions on description of the collateral, which would have to be loosely interpreted in order to permit a floating security over inventory. In Spain, there appears to be no confidence in inventory as collateral and a great concern about monitoring costs; as a consequence, little inventory financing occurs in practice, although it is theoretically possible under the existing available non-possessory security devices.

Inventory not owned by the debtor (e.g., acquired under title retention) may not be pledged under the new French law on gages sur stocks and sans dépossession. In England, a debtor holding an item of equipment pursuant to a conditional sale, an operating lease or a financial lease would have no right in the asset that could be used as collateral for further credit, no matter what its potential economic value. In the Netherlands, the prevailing view is, likewise, that the buyer under a title retention acquisition does not have a proprietary right in the asset that can be disposed of or encumbered, although it is argued by some that the buyer has a form of conditional proprietary right that may be encumbered. By way of contrast to these predominant views, under German law, the

buyer under retention of title can transfer its Anwartschaftsrecht according to the rules that apply to movables generally. Therefore, it can also transfer that right by way of a Sicherungsübereignung. It is clear, however, that the right obtained by the creditor by way of the security transfer is dependent on the buyer/transferor’s continuing to pay the purchase price to its seller. If the buyer defaults on the purchase contract, the Anwartschaftsrecht disappears. The creditor/transferee, however, may obtain, by contract, the right to pay the balance of the purchase price. Upon performance of the purchase contract, whether by the buyer or the creditor/transferee, title to the asset moves directly to the creditor/transferee. It is not yet clear how effective this new concept has been in practice to actually generate more credit.

This raises the general point that the functional approach of UCC Article 9 automatically makes available for use as collateral the value of any asset in which the debtor has an interest (which need not be full ownership) over and above the amount of any indebtedness for which the asset is encumbered in favor of another person. Thus, for example, if a debtor has an operating lease in an item of equipment, the leasehold right, even though less than full ownership, has value simply by providing for a needed item of equipment in place and in use, and it may have additional value if the rental is below market rate. The leasehold right may be subjected to a security interest under UCC Article 9, despite the fact that the debtor is not the owner of the equipment. Further, if the debtor holds and uses an item of equipment pursuant to either a conditional sale contract (title retention) or a financial lease, both of which are treated under UCC Article 9 as security agreements, the debtor may further encumber the equipment by granting subsequent security interests (with priority among these persons normally being awarded to the one that filed first). The functional approach enables the debtor to maximize the benefit that may be derived from its assets (and also eliminates any concern about over-security). This contrasts sharply with the situation in most of the countries studied.

It should be noted, however, recalling the discussion in the insolvency context in Case Study 1, that adoption of a functional approach does not require adoption of a unitary approach. What is achieved by the unitary approach is that automatically, because there is only one type of security right, all transactions that are functionally identical simply cannot be governed by different rules for secured transactions purposes. Put another way, because there is only one set of rules, the parties cannot (whether by choice of terminology or otherwise) evade those rules and invoke other rules instead. Consequently, the rules set forth in UCC Article 9 for the protection of debtors or third parties cannot be avoided, and all sources of secured credit must play by the same rules (again, for the benefit of debtors).

It is possible, though more complicated, to achieve essentially the same result via a non-unitary approach (that is, retaining the different forms of transaction) by modifying the substantive rules so that all forms of transaction produce the same outcomes, thereby achieving functional equivalence. Examples of at least partial applications of this approach already exist. In insolvency, Germany treats fiduciary ownership as a pledge (pursuant to express statutory provision). In the Netherlands, the tax authorities distinguish between title-retaining sellers and “true” owners in enforcing the tax super-priority in insolvency. Likewise, France, recognizing explicitly in the new legislation that title-retention is a form of security and continuing in effect a rule that had already been developed judicially, forbids a title-retaining seller from keeping any value in excess of the amount of the unpaid purchase price (the same rule that always applies to gagistes). Similarly, in Quebec (a civil law jurisdiction), the requirement of registration and the enforcement regime are applicable not only to hypothecs but also to instalment sales, sales with a right of redemption, trusts and leases (i.e., title-based devices that can serve security purposes), and Canadian insolvency law equates reservation of ownership in an instalment sale to secure the purchase price with hypothecary security (n.b., the parallel treatment is not complete with respect to leases).

Case Study 4

Case Study 4 presents the subject of asset-acquisition finance, i.e., techniques to enable a person to obtain rights in tangibles that are tantamount to ownership on a deferred payment secured basis. These techniques may be broken down into three categories, although the terminology often differs from one legal system to another. Indeed, even within a given jurisdiction, not only is the terminology often somewhat muddled, but the lines separating these transactions from others that are similar but are not tantamount to ownership transfer are often blurred. For purposes of this analysis, the three categories that are tantamount to ownership transfer are the following.

One: a transaction documented as a sale pursuant to which the buyer obtains a present right to possess and use the goods coupled with a deferment of the transfer of title subject to the condition precedent of full payment of specified obligations or a present transfer of title subject to a condition subsequent of divestment upon failure to make full payment. This category is referred to in this book as title retention (a form of conditional sale). Title retention is a form of credit provided by the vendor of the goods.

Two: a transaction documented as a lease or hire contract pursuant to which the lessee obtains a present right to possess and use the leased item coupled with the effective transfer of the full economic value of the leased item so that there is no meaningful anticipated residual value for the lessor at the end of the non-cancelable lease term, whether or not title is ultimately transferred.

Any of the following arrangements will produce those effects: (A) the non-cancelable lease term is not less than substantially all of the remaining useful life of the leased item so that the lessee will have enjoyed the full economic value of the item (and, thus, the lessee will typically have no interest in acquiring title); or (B) the lease is coupled with (i) an automatic transfer of title at the end of the non-cancelable term, or (ii) an option in the lease to become the owner at the end of the non-cancelable term (a) for no additional consideration, or (b) upon payment of a nominal sum or (c) upon payment of a sum that, though not nominal, is either less than the anticipated fair market value of the item at time of exercise or less than the cost of returning the item to the lessor, such that the exercise of the option is effectively economically compelled.15 It is not uncommon for such transactions to include a provision that, despite the fact that title is not transferred, allocates to the lessee all or virtually all of the proceeds received upon disposition of the goods – this reinforces the fact that the lessor has no expectation of enjoying any meaningful residual value. Transactions in this second category are herein referred to as financial leases.16

This definition of financial lease is intended to be independent of nomenclature used in any particular country, and the term is used herein independent of its qualification for tax benefits in any particular country. Many countries provide special tax benefits to a transaction (often denominated in the tax legislation as a “financial” or “finance” lease) in which title never passes and in which qualification focuses not on whether there is any meaningful anticipated residual value for the lessor but only on whether the lessee is obliged to pay an amount that in total is sufficient to allow the lessor to fully recoup its cost of acquisition of

15In this last situation, the amount payable at the end of the term is in fact not nominal; it is, however, for purposes of analysis, treated not as an anticipated residual value for the lessor but rather, because it is known at the outset that it will be paid (due to the economic compulsion), it is treated effectively as part of the noncancelable rent.

16For an elaborate analysis of this issue, see UCC sec. 1-203, which provides sophisticated guidance for distinguishing between a “true” lease and a lease that is in effect a disguised conditional sale (and thus, under UCC Article 9, a security interest). UCC Article 9 does not use the term “financial” lease; UCC Article 2A, which deals with “true” leases, does use the term “finance lease (see footnote 18, infra).

the leased item (often called a “full payout” lease). Whether or not the lease is a full payout lease is irrelevant to classification for secured transactions purposes, where the focus is on the existence vel non of an anticipated meaningful residual for the lessor. Thus, a lease that qualifies for tax benefits often will be but need not necessarily be a financial lease for secured transactions purposes. Likewise, treatment of the transaction for accounting purposes (which often describes the distinction as one between an “operating lease” and a “capital lease”) is irrelevant to classification for secured transactions purposes.17 Similarly, the relationship between the present value of the total obligation of the lessee and the fair market value of the leased item at the time the lease is entered into is irrelevant to classification for secured transactions purposes; this relationship suggests only that one of the parties may have made an economically unwise deal. Finally, also independent of the secured transactions treatment of the lease in situations where it is the lessee that specifies the item and selects the supplier and the third-party lessor is not the manufacturer or supplier of the item, are issues such as whether the lessor makes warranties or is otherwise liable for non-performance or nonconformity of the item and whether the lessee’s obligations are independent and irrevocable. These matters are unrelated to whether the lease is a financial lease for secured transactions purposes.18

Financial leasing, typically provided by an affiliate of either the vendor (often the manufacturer) of the goods or of a financial institution, has become a very common form of asset-acquisition finance during the past 40-50 years, stimulated by a desire for tax benefits (which, in principle, reduces the rent) or for a form of off-balance sheet financing, or, in some countries, because of the unavailability of a powerful and efficient title retention device or a powerful and efficient non-possessory security device.

17Indeed, accounting rules in the United States recognize a “synthetic lease”, which is treated as a secured transaction (i.e., a UCC Article 9 security interest) for commercial law purposes, as a “finance lease” for tax purposes but as an operating lease for accounting purposes.

18See, in this regard, the current UNIDROIT Model Law project relating to equipment leasing, which uses the term “financial” lease in connection with such three-party transactions, at least when they are full payout leases (as do some of the tax provisions of various countries). It is anticipated that the UNIDROIT Model Law will defer to the Secured Transactions Legislative Guide (currently being prepared by UNCITRAL, see footnote 32) for the secured transactions effects of such “financial” leases. Also, see UCC sec. 2A-103(1)(l), which defines “finance lease” (in the context of “true” leases) in order to establish appropriate rules concerning warranty obligations, “hell or high water” consequences, etc. in the context of such three-party transactions.

It can be seen from the national reports that in countries where financial leases are neither re-characterized as purchase-money security rights nor produce the same legal results as purchase-money security rights, often no attention is paid, for secured transactions purposes, to the special character of financial leases as acquisition credit devices (in effect, they are treated no differently from ordinary, i.e., “true”, leases). Thus, treatment of financial leases is, even within a particular country, not necessarily coordinated with treatment of either title retention or thirdparty purchase-money secured financing. This produces the simultaneous availability, for the same function, of different devices subject to different rules – different form requirements, different registration requirements, different rules in the event of default or in the event of insolvency

– even though they are economically identical arrangements. This can have the effect of undermining the policies that underlie the rules applicable to security rights and distorting the economic playing field as between different providers of asset-acquisition finance.

Three: a non-possessory security right in collateral that differs from other such rights in that it secures repayment of credit provided to enable the debtor to acquire the rights in or the use of the collateral, provided the credit was in fact so used (sometimes referred to as third-party pur- chase-money credit).

In general, all three categories of transactions are available in the countries studied, subject to the following caveat – the rules governing the three categories and their legal effects are far from identical within the countries studied and are far from uniform across the countries studied.19 It is a common feature that in countries where the third category (security right, not title-based) is available, it is typically not given special treatment, i.e., the fact that the security right secures a purchasemoney credit does not differentiate it from ordinary non-acquisition security rights and it is not “elevated” to enjoy the same position as the first two categories of asset-acquisition credit.20 An exception is Belgium where only the title-based options are available.

19UCC sec. 9-103 defines “purchase-money security interest”. The most important features of UCC Article 9 in this respect are that, by virtue of the functional approach: it treats all three asset-acquisition financing devices the same; it provides them, through the special provisions relating to purchase-money security interests, with special privileges that, balanced with debtor-protection elements, are no less than those bestowed in the countries studied on title-retaining vendors; and it extends this status to third-party purchase-money credit-providers.

20Under UCC Article 9, the “purchase-money security interest” is not a separate species of security right. It enjoys the flexible and efficient nature of the UCC Article 9 regime applicable to all security interests generally (e.g., simple private contract, easy notice filing that perfects with respect to multiple (future) transactions,

In Italy and Spain, financial leasing is the most widely used option of the three categories.

Although all countries studied recognize title retention to the extent of allowing ownership of the goods sold, while in their original state and while still in the buyer’s hands, to be kept until payment of the price of the goods, there are significant differences among them, e.g., whether the debt secured is restricted to the purchase price of the sold goods or can be extended beyond that and, if so, how far; whether there must be a writing, a data certa or a registration; whether loss of the ownership occurs upon processing (sometimes depending on the nature of the processing, e.g., loss of identity) or upon attachment/incorporation into another asset (sometimes depending on manner or reversibility of attachment/incorporation) or perhaps, effectively, upon the mere opening of the package (see Case Study 9, infra); whether the ownership can be extended into the claim resulting from subsale or any other form of proceeds; whether the “owner” is more or less likely to lose the goods to a bona fide purchaser (and whether marking the item makes a difference); and remedies for default by the obligor – is there forfeiture of amounts previously paid? For what elements of damage may the defaulting obligor be liable and how are they calculated? Is the value of the goods at time of revindication relevant and, if so, what role, if any, does it play in determining liability for a deficiency or obligation on the part of the owner to pay over any excess over the amount owed at the time of default?

France has recognized title retention to be a security device and has codified the rule that the seller may not profit from the buyer’s default. In contrast, in England, the title-retaining seller and the financial lessor may keep any excess value after reclaiming the goods (although contractual provisions to the contrary are commonly found in “quasi-security” lease transactions). In Germany, the title-retaining seller and the financial lessor may terminate the contract, thus obtaining different rights from the third-party fiduciary title-holder. In France and the Netherlands, the title-retaining seller and crédit-bailleur may revindicate (in France limited to 3 months and provided the asset is unaltered, and in case of crédit-bail, the insolvency administrator has the right to continue the

automatic coverage of proceeds and products, etc.) but has two very important additional features, of particular significance in asset-acquisition finance: (i) under specified conditions, it may enjoy a super-priority vis-à-vis an earlier perfected security interest (sec. 9-324), and (ii) it may have the benefit of a grace period of twenty days after delivery within which to achieve perfection (which will normally be by filing) (sec. 9-317(e)). Thus, it provides suppliers of asset-acquisition secured credit (of all types, equally) with a very strong tool.

lease). In Belgium, all creditors in all three categories may seize the goods, but none may keep any surplus. In Italy, the insolvency administrator may elect to continue or terminate the transaction in both title retention and financial lease cases, but the lessor will have to return any surplus while seller may keep all monies theretofore paid. In Spain, the question whether a title-retaining seller and a financial lessor enjoy a proprietary claim entitling them to separate the asset out of the insolvency estate or whether they have “merely” the position of a holder of an non-possessory security right, is not yet settled.

Some differences exist as to formalities, although it is universal practice to have some type of writing (often including the creditor’s standard terms and conditions). France and Belgium require a writing, and the title retention must be agreed prior to delivery. In Italy, the title retention must have a data certa (to be effective against subsequent purchasers) and registration is required in some instances in order to enjoy effectiveness against subsequent purchasers. In Spain, the title retention and third-party financing must be notarized and registered. In the Netherlands, there are no formalities for title retention, but if, because of its terms, it falls within the category of a hire-purchase (huurkoop), strict formalities requirements apply.

In sum, it would appear that financial lessors, absent re-charac- terization, are in the best position in all the countries studied in that (i) they are treated as owners rather than secured creditors (which often makes the difference between getting much or getting nothing in the case of insolvency), (ii) their remedies are based on the lease provisions rather than on rules of law applicable to secured creditors (as noted above, this is true also in Quebec, despite the extension of the hypothecary enforcement regime to title-retention transactions) – except in Belgium with respect to the rule precluding forfeiture of any surplus – and (iii) leases need not be registered (except in France).

Case Study 5

Case Study 5 is the matter of bona fide acquisition. All of the countries studied have some degree of protection for certain bona fide subsequent acquirers with respect to goods subject to a security right, and in all of them delivery to the acquirer is essential to gain such protection. Nevertheless, the protection is far from identical in all the countries. In analyzing this issue, there may be distinctions both as to whether the bona fide purchaser is a buyer or a subsequent pledgee who takes possession or a seizing creditor and as to whether the goods in question were subject to a security interest, a retention of title in favor of the seller’s supplier or a financial lease in favor of the seller’s lessor. And, of course, there may be

differences based on the nature of the goods, the “professional” status of the buyer, the extent of inquiry the buyer is obliged to make, the effect of the existence of a registration of the right being asserted and the effect of the buyer’s actual knowledge of the existence of the right being asserted. In addition, there are differences in the role of the courts in developing and applying the bona fide purchase doctrine.

This Case Study is divided into two parts, the first dealing with inventory and the second with equipment. The distinction is made because in the inventory context, (i) there is usually express authorization to sell in the ordinary course of business (and, in England, where the security right would be a floating charge, “license to deal” is inherent in that device), and, even in the absence of express authorization to sell, (ii) both the secured party and the debtor expect (indeed, desire) the sale of the inventory, generally relying (at least in the economic sense) on the sale proceeds for repayment of the financing. Sale of inventory in the ordinary course comports with everyone’s expectations. In all the countries studied, the buyer of encumbered inventory that buys in an ordinary course of business transaction would likely be protected. However, because the rule is formulated as a general bona fide purchaser rule, to be applied by courts on a case-by-case basis, there might nevertheless be some differences in outcomes based on the content of “bona fides” in the particular country – which might vary, for example, based on whether the buyer had knowledge of the existence of the perfected security right, whether a registry exists and whether constructive notice is held to be imparted by a registration of the security right, or whether the buyer, if it is a professional buyer as in the Case Study, has a duty to search a registry or make other inquiries to discover the right.21

21Under UCC Article 9, the rules are articulated as follows: sec. 9-315(a) provides that, except as otherwise provided elsewhere in Article 9, a security interest continues in collateral notwithstanding disposition unless “the secured party authorized the disposition free of the security interest” (droit de suite); and sec. 9-320(a) provides that “a buyer in ordinary course of business takes free of a security interest created by the buyer’s seller, even if the security interest is perfected and the buyer knows of its existence.” This latter rule must be read with sec. 1-201(b)(9), which defines “buyer in ordinary course of business” as “a person that buys goods in good faith, without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person … in the business of selling goods of that kind. A person buys goods in the ordinary course if the sale comports with the usual or customary practices in the kind of business in which the seller is engaged or with the seller’s own usual or customary practices ... A person that acquires goods in a transfer in bulk or as security for or in total or partial satisfaction of a money debt is not a buyer in ordinary course.” The key difference, therefore, between the countries studied and UCC Article 9 derives from the fact that, under

In the context of the sale of encumbered equipment (i.e., inventory), however, the content and applicability of the bona fide acquisition rule differs among the countries studied. In this context, there is rarely an authorization to sell, and it is not the expectation of the secured party that the equipment will be sold by the debtor, who holds it for use. Even if it might be normal to sell the equipment after it has begun to wear out or is becoming obsolete, the secured party expects the debtor to inform it of the sale and obtain its consent, which will typically involve payment of all or part of the sale price to the secured party or the assumption of the debt by the buyer. In some countries, bona fide acquisition is nevertheless possible, although it is likely to receive much more intense judicial scrutiny. In the equipment context, the buyer is more likely to be a professional and a higher standard of care, possibly a duty to inquire, might well preclude the buyer’s taking free of the security right. Even if there is not a duty of inquiry, would actual knowledge of the existence of the security right preclude bona fide acquisition? Would it be reasonable in all cases, or even in any case, for the buyer with knowledge of the existence of a security right to assume that its seller will pay the proceeds to the secured party?

In France, both a gage sur fonds de commerce and the gage sans dépossession require registration for effectiveness of the right against third parties. For these devices, under an express statutory provision, registration precludes bona fide acquisition; for a nantissement d’outillage, a plate must be affixed to the machine in order to preclude bona fide acquisition (although such affixation is not, unlike registration, a requirement for effectiveness). In Italy, the general rule on bona fide acquisition is displaced in some instances when registration is required, e.g., mortgages on registrable assets and registrable title retention (though, in the latter case, if the collateral has moved from the jurisdiction of the Tribunale in which the registration was made, the registration will not have this effect). Registration of other security rights does not displace the bona fide purchase rule; this is notably true with respect to the Art. 46 Bank Charge. Since application of the bona fide acquisition rule takes into account of all the circumstances (type of assets, commercial nature of the parties, etc.), the financial lessor is less likely to lose to a subsequent purchaser. In England, the general rule is nemo dat quod non habet, in principle leaving the subsequent buyer unprotected, but this rule is impinged on by way of several specific statutory provisions. In the finan-

UCC Article 9, only a buyer meeting the statutory standard in the prescribed situation would be protected, while in the countries studied, there is no such precise limitation and, consequently, less certainty, as the courts have wider space within which they might allow loss of the collateral. This is of greater significance in the context of non-inventory collateral.

cial lease context, there is no statutory provision and, thus, of the three categories of earlier right, the financial lessor is the least likely to lose to a bona fide purchaser.22

Case Study 6

Case Study 6 confirms that none of the countries studied allows a possessory pledge to be accomplished by the mere declaration that the pledgor holds the goods for the benefit of the pledgee. All require true, not fictitious, dispossession, i.e., that the pledgor be deprived of the unilateral ability to deliver possession to a third person. Of course, the secured party may have possession itself (directly) or through a designated third party subject to the sole control of pledgee or to the joint control of the pledgee and the pledgor (sometimes referred to as indirect possession). Of course, indirect possession is not fictitious, as the pledgor does not have exclusive control over the third party. Also, the matter of fictitious possession should be distinguished from the circumstance where goods are covered by a negotiable document of title, in which case one typically may perfect a security right in the goods either by taking possession of them directly or by taking possession of the document – this reflects not fictitious possession by the pledgee of the goods but rather actual possession of an item that constitutes legal control over the goods. Even in those countries that expressly permit, without loss of perfection, a temporary delivery of the document to the debtor under specified limited conditions for a specified short time, this is better understood as a temporary and limited exception to the requirement of possession rather than as a fictitious possession by the pledgee.23

22In the context of equipment, UCC Article 9 does not have the buyer in ordinary course rule applicable to inventory set forth above. Thus, under sec. 9-315(a), quoted in footnote 21, supra, a perfected security interest continues in equipment unless a sale free of the security interest was authorized. The other relevant provision, which pertains to security interests that are not perfected, is sec. 9-317, which provides that a buyer and a lessee of goods “takes free of a security interest if the buyer [or lessee] gives value and receives delivery of the collateral without knowledge of the security interest and before it is perfected.”

23See, e.g., UCC sec. 9-312(c), (e) and (f), the latter two provisions permitting temporary perfection without filing or possession limited to a short list of categories of collateral, limited to twenty days and limited to specific conditions.

Case Study 7

Case Study 7 relates to the doctrine of over-security. This doctrine, designed to protect a debtor from the loss of its ability to offer as collateral property in which it has some interest and that has some value but of which it is not the owner, exists essentially in only one country, Germany. Even there, its significance has been substantially diminished, having been reduced from a basis for avoiding a transaction in its entirety to an implied term that the debtor can demand the release of part of the collateral if it exceeds the amount of the secured obligation by 150%. Over-security, however, continues to be a ground for avoiding the transaction when the impermissible excessiveness exists at the outset. A 2005 amendment to the French insolvency law provides for liability of a secured party that takes “excessive” security. This has not yet been applied by the courts. Ring-fencing in England of a portion of the value of collateral subject to a floating charge, applies only in insolvency and is not based on the ratio of secured debt to collateral; this seems to reflect a rather different policy.

Case Study 8

Case Study 8 exposes the relatively low degree of protection provided in all the countries studied to sellers that deliver goods without having provided themselves with some form of security (by means of a security right or title retention). Although it is not a very practical or effective device, the privilegio del venditore di macchine provided in Art. 2762 C.c. is unique in that it benefits not only a seller but also a third-party provider of acquisition credit.

Case Study 9

Case Study 9 illustrates the limited categories of assets that are, in the various countries studied, subjected to special registries, and the relationship of such registries to the use of those assets as collateral.

Case Study 10

Case Study 10 presents issues that arise when collateral consists of materials that: (i) are later combined, without losing their character (i.e., not resulting in a different “thing”) but no longer separable, with like materials that are not collateral of the same secured party (e.g., oil encumbered

in favor of SP-A put in a storage tank together with oil encumbered in favor of SP-B, with the additional possibility that the contents of the tank (as they exist from time to time) might be encumbered in favor of SP-C; sometimes called confusio); or (ii) are later combined, without losing their character, remaining physically separable but no longer identifiable by individual source, with identical materials that are not collateral of the same secured party (e.g., a pile of bricks encumbered in favor of SP-A added to a pile of identical bricks encumbered in favor of SP-B, with the additional possibility that the enlarged pile might be encumbered in favor of SP-C; sometimes called commixtio); or (iii) are later combined with other materials that are not collateral of the same secured party, losing their separate character (i.e., processing such as to result in a different “thing”) and no longer separable (e.g., flour encumbered in favor of SP-A and eggs encumbered in favor of SP-B are baked into cakes, with the additional possibility that the cakes might be encumbered in favor of SP-C; sometimes called specificatio); or (iv) are later attached to other assets (movables, in the context of this volume) that are not the collateral of the same secured party, without losing their character (e.g., an engine encumbered in favor of SP-A is installed in a tractor encumbered in favor of SP-B; sometimes called accessio).24

Instances (i) and (ii) take on special difficulty when, after the combination, oil has been removed from the tank or bricks have been removed from the enlarged pile, as there is no way to identify whose oil or bricks were removed. Instance (iii) takes on special difficulty when the value of the cake is different from the sum of the values of the ingredients (if it is less, how is the decrease allocated; if it is more, does it go to otherwise undersecured secured parties (and, if so, in what proportion) or to general creditors?).

The reports do not attempt to present a comprehensive and detailed description of solutions responsive to all these issues, which are presented here to give the reader an appreciation of the complexities presented for secured financing and to suggest the need for rules that further the goals of a modern secured transactions regime. The reports do indicate that the outcomes are determined not by rules designed with the needs of secured financing in mind but rather by historical rules of property law having to do with loss/transfer of ownership. The reports also indicate that there is some variation as to the degree to which contractual provisions can affect outcomes.

24Compare UCC sec. 9-336 (re “commingled goods”, defined as “goods that are physically united with other goods in such a manner that their identity is lost in a product or mass”; and sec. 9-335 (re “accessions”, defined as “goods that are physically united with other goods in such a manner that the identity of the original goods is not lost.”).

Case Study 11

Case Study 11 presents the private international law aspects of secured transactions – a problem of special importance in Europe as the single market becomes ever more of a reality. The Case Study involves a typical situation: a tangible asset located in State A that is subject to a security right created under the law of State A is subsequently brought to State B, where a competing interest of any type is created under the law of State B and, thus, a priority conflict arises, litigated in State B. There are three basic questions in such situations: (i) Does the law of state B require that acts taken while the asset was in State A be sufficient to effectively create the security interest under the law of state A (and is the sufficiency of those acts under the law of State B to create a right in any way relevant)? (ii) What conditions (e.g., perfection under the law of State A, similarity/equivalence of the right) must be met under the law of State B in order for State B to recognize the previously created security right? (iii) What steps, if any, can or must the secured party take after the asset has arrived in State B in order to win the priority contest?

Among countries whose secured transactions law is harmonized or even substantially uniform (as, for example, among the states of the United States), it is easier to design private international law rules that can, at least implicitly, assume similarity or substantial equivalence of the type of security right and, thus, there would most likely be the possibility to recognize the security right created abroad. To the extent that under the law of State B registration or any other further act in State B is necessary for perfection, a grace period can be introduced into State B’s substantive law that provides, for a security right perfected under the law of State A, a time period within which perfection under the law of State B (the new situs of the tangible, or, if relevant, the debtor’s location within State B) must be completed in order to enjoy continuous perfection.25 It is, however, far more difficult, if not impossible, to reach results that conform to the needs of international business if the secured transactions laws of the countries involved are as diverse as is the case in Europe. Therefore, it comes as no surprise that some reporters (Spain, Italy) would discourage clients from relying on security rights over tangibles in cross-border transactions and would advise them to use personal securities instead. It is for the same reason that there is not a great deal of case law on these issues. It seems that international practice in fact does not rely on security over tangibles.

All the countries studied start from the lex rei sitae rule. This means that, for recognition in State B of a right asserted to have been created by acts taken while the asset was in State A, those acts will be consid-

25 See UCC sec. 9-316.

ered, as to their sufficiency to create the right, under the law of State A, not that of State B. It should be noted that Germany, perhaps uniquely, seems to accept also a variant of the lex rei sitae rule. Based on a finding that the parties anticipated the move of the goods from a different country to Germany, Germany will enforce the right, as a right created under German law, even if it is based on acts taken while the asset was still in the other country, as long as those acts would have sufficed to create the right under German law had the asset been in Germany when the acts were taken.

If the right is found to have been effectively created under the law of State A, the next question is whether the right will be recognized in State B. Recognition of that right seems to be conditioned on the substantive law of State B knowing an “equivalent” security right. Given the great diversity among European jurisdictions, this condition to recognition proves to be a serious hurdle, especially in those legal systems whose general attitude towards secured transactions is relatively restrictive (Spain, Italy, Belgium, France). In contrast, those jurisdictions that are more creditor-friendly on a substantive level are also more easily prepared to accommodate foreign security rights (Germany, England, the Netherlands).

Even if applicable conditions for recognition of the right are satisfied, the issue then to be considered is what priority that right will enjoy in State B. Typically, the right must also satisfy whatever is required under the law of the new situs in order to enjoy priority over the local competing claimant. In countries such as Germany, which have no requirement of a further act (beyond agreement) in order to enjoy priority, this presents no problem. In countries that require a further act in order to enjoy priority, e.g., registration, a local registration will probably be required (as noted above, this requirement could be softened by a grace period). In most of the countries studied, such a local further act in and under the law of the new situs would be required (Spain and Italy, and also, at least if the debtor is a domestic entity, France, England). By way of contrast, compliance with domestic registration rules (not truly registration) is not required under Dutch law. In the priority analysis, a court in State B might in addition consider whether it is also necessary that all acts necessary under the law of State A for the right to enjoy to priority over the competing claimant (e.g., registration or otherwise) were taken while the asset was still in State A. This might be an additional condition, under the conflicts rule of State B, to the enjoyment of priority in State B of the right created under the law of State A.

Annex

The German report has a very helpful Annex that discusses two matters that are important to lawyers handling secured transactions. The first presents issues that may arise in the course of a secured transaction but they arise under corporate law – issues relating to upstream security and financial assistance. The second relates to the increasingly common situation when secured credit is extended by more than one lender, and, particularly, when the syndicate of lenders is a changing group. The problem discussed, a doctrinal one, is the consequence of the accessory nature of a pledges (and suretyships and mortgages). The nature of some transactions, and a problem generated by a recent case, make difficult complete avoidance of the issue by use of non-accessory rights. It should be noted that the 2007 French legislation on fiducie included an unrelated provision that gives explicit recognition to the use of collateral agent in a syndicated financing. Both the parallel debt notion (mentioned in the Annex to the German report) and an alternative theory based on a joint and several relationship among the lenders including the collateral agent had been discussed in France, but neither had been tested in French courts. New Art. 2328-1 C. civ. provides that “any security interest may be inscribed, administered and enforced on behalf of creditors of the secured obligation by a person whom they appoint for such purpose in the deed which sets out such obligation”. This does not appear to give all the flexibility that might have been desired, and, at the least, requires each participant to be or become a party to the deed, but it does definitively authorize the utilization of a collateral agent.

III. Harmonisation

The reports in this book and the foregoing summaries show once more,26 that some measure of harmonisation or coordination among the Member States of the European Union is urgently needed. The present diversity hinders the effective use of tangibles as collateral if there is the possibility that the assets will be moved across borders. This is especially detrimental to the financing of cross-border sales transactions which are – after all – at the heart of the idea of a Common Market.

Despite agreement on the necessity of harmonisation, little has hitherto been achieved in practice. The EC made some attempts in the 1970’s

26To the same effect see von Bar/Drobnig, The Interaction of Contract Law and Tort and Property Law in Europe (2004), para. 733; cf. also Kieninger, Introduction, in id. (ed.), Security Rights in Movable Property in European Private Law (2004), p. 6, at p. 20 et seq.

to enact a directive on the recognition of security without dispossession but terminated work in this area in 1980.27 In the context of the Late Payment Directive of 2000,28 the European Commission tried to solve at least the problems associated with the third-party effectiveness of simple retention of title, but failed due to the opposition of a majority in the Council. The content of the final text of Art. 4 para. 1 of Directive 2000/35/EC is reduced to meaninglessness by its reference to the applicable national law as designated by private international law. This has recently been confirmed by the ECJ.29 The only area where the EU has achieved harmonisation is the area of financial collateral arrangements (generally, outside the scope of this volume).30 The extent of the impact, if any, of those implementing legislations on secured transactions law in general is at present far from clear.

On an international, worldwide level, both UNIDROIT and UNCITRAL have been active. Under the auspices of UNIDROIT, the Cape Town Convention on International Interests in Mobile Equipment was concluded in 2001,31 and UNCITRAL is currently preparing a Legislative Guide on secured transactions, which is planned to be finalized and approved in 2007.32 The EU has only recently taken some interest in the second project, but has not yet turned into an active participant, although the draft

27See Kieninger, Introduction, id. (ed.), Security Rights in Movable Property in European Private Law (2004), p. 6, at p. 22.

28OJ 8 August 2000, L 200/35 et seq.

29ECJ 26 October 2006, Case C-302/05 Commission v. Italy.

30 Directive 2002/47/EC of 6 June 2002 on financial collateral arrangements, OJ 27 June 2002 L 168/43 et seq.

31 Cape Town Convention on International Interests in Mobile Equipment (2001), Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Aircraft Equipment (2001) and Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Railway Rolling Stock (2007). The texts of the convention and the protocols are available at UNIDROIT’s website at http://www.unidroit.org (1 August 2007). See also Goode, Official Commentary on the Convention on International Interests in Mobile Equipment and the Protocol thereto on Matters Specific to Aircraft Equipment (2002);

Kreuzer, Internationale Mobiliarsicherungsrechte an Luftfahrzeugausrüstung, in Hager/Schwenzer (eds.), Festschrift für Peter Schlechtriem zum 70. Geburtstag (2003), p. 869 et seq.

32The most recent available text is A/CN.9/631, to be found at http://www.uncitral. org (1 August 2007). See for background on the project Bazinas, The UNCITRAL Draft Legislative Guide on Secured Transactions, Unif. Law Rev./Rev. dr. unif. 2005, 141 at 141; also see Kieninger, Nationale, europäische und weltweite Reformen des Mobiliarsicherungsrechts – Teil II, WM 2005, 2353 et seq.

Legislative Guide could certainly serve as a model or at least as a starting point for European countries.

Suggestions as to possible means of harmonisation or coordination have been made in scholarly writing as well. There is agreement that a solution purely on the level of private international law is fruitless, because it is not the diversity of conflicts rules that creates the difficulties; in fact, as seen in Case Study 11, private international law in this area, at least in the countries studied, is already fairly similar. Rather, it is the diversity on the level of substantive law that hinders effective crossborder secured transactions. The most radical measure would be a European Regulation on secured transactions law, which would replace national law. This is not likely to find support among the Member States, especially given the fact that secured transactions law is closely interlinked with insolvency and execution law. Solutions that interfere less with domestic law would seem to have a better chance to be realized. Two options are discussed primarily. One is the introduction of a European Security Right (based on a regulation issued pursuant to Art. 308 ECT), which would be added to the existing national regimes and would allow parties to cross-border transactions to opt for a supranational model, recognized in all Member States.33 The other option would be to formulate a European Model Law to be presented as a recommendation to the national legislators.

Both possible instruments have their advantages and disadvantages. The advantage of a truly European Security Right (ESR) would be its uniform character and its binding force. Yet, because of these two features, the scope of application and the relationship with co-existing national law must be given close scrutiny. We suggest that the ESR should be a device that is available for all secured transactions irrespective of their domestic or international character, for the simple reason that, since goods and grantors can easily and swiftly move across borders, no-one can know with certainty at the outset of a transaction, whether and when an international element might come into the picture. Because of this wide range of possible applicability, the relationship with conflicting national security interests is of utmost importance. In Member States where some kind of registration or notice-filing system is in place, the ESR and the national systems must be interlinked so that a single point for establishing priority may be found. In countries where no such system exists, e.g. Germany, possibly the only solution is to give priority to a registered ESR as against all unregistered national security interests,

33This suggestion was first made by Kreuzer, Europäisches Mobiliarsicherungsrecht oder: Von den Grenzen des Internationalen Privatrechts, in Stoffel/Volken (eds.), Conflits et harmonisation: mélanges en l'honneur d'Alfred E. von Overbeck à l'occasion de son 65ème anniversaire (1990), p. 613 et seq.

irrespective of their time of creation. Another issue is the treatment of the security right in the debtor’s insolvency. A pragmatic (in the sense of likely acceptability by the Member States) but perhaps not wholly satisfactory solution is simply to provide for the ESR’s effectiveness, but leave it to the national laws of the Member States to define the secured creditor’s rank in relation to privileged creditors, the mechanisms of enforcement, the possibilities of avoidance and the possibilities of the administrator to put a stay on enforcement in the interest of reorganisation; inclusion of a “most-favored-device” provision might mitigate some of the defects of this approach. Thus, a European Security Right would in fact be far from uniform. Its value for the parties would to a considerable extent depend on the underlying national laws. However, its introduction could still be an important contribution to the creation of a single market with respect to secured transactions, because, at the least, it would provide a single device the effectiveness of which would be recognized in and out of insolvency in all Member States.

In contrast to a European Security Right based on a Regulation, a model law would be a mere recommendation, leaving to the respective legislators the question whether and to what extent to reform each country’s national law (this could be based on Art. 249 ECT). The American experience shows that uniformity can nevertheless be achieved, but it would remain to be seen what level of harmony Europe can reach given the differences between the European Member States with respect to the overall legal, political and social framework.

The model law concept has the advantage that it does not add yet another security right to the already existing number of available security devices; instead it would invite reform within each national system, thereby (we hope) rationalising and simplifying the existing law. As more and more Member States would reform their national law according to the recommendations of such a model, the solution of cross border cases would become easier. As noted in the context of Case Study 11, private international law can solve the problem of “conflit mobile” through recognition and the introduction of grace periods far more easily when the law at the old and the new situs are relatively harmonious. The prospect that the recognition of security rights in other European jurisdictions will depend on following the model law could serve as an incentive to national legislators.

Apart from the form, the substance of either a Regulation on a European Security Right or a model law must be considered. This Introduction can, of course, not discuss the topic in detail. At UNCITRAL, experts and working groups have worked intensively over several years seeking to develop a Legislative Guide for a modern secured transactions law. Yet, considering the national reports in this volume, several points come to the fore. A key issue is registration. Of the seven jurisdictions studied,

only Germany and the Netherlands completely lack publicity for security rights by means of registration. The other five do have registration requirements in place, at least for security rights in the strict sense, although it appears that the majority do not function in a sufficiently effective manner. Recent reforms and reform proposals in Europe, however, indicate that a UCC Article 9-style notice filing system may well serve as the model for the future.34 Another key issue is the lack of a clear, comprehensive and coherent priority regime, coordinated with the insolvency law and designed to effectively encourage secured credit and support efficient business practices. In addition, form requirements and postdefault remedies should be reconsidered in order to ascertain that they too effectively encourage secured credit.

IV. Perfection and Priority under UCC Article 9 (with special focus on notice filing)

This portion of the Introduction deals with two concepts that are important in any discussion of security rights: what is required to make a security right effective against third parties, erga omnes (sometimes herein, “perfection”), and the rules that determine the outcome (herein, “priority”) of a contest between a security right and any other competing claim to the collateral (i.e., whether the secured party will enjoy the economic benefit of its right in the collateral in preference to the right of a competing claimant). The focus will be, for comparative purposes, on the notice filing system and the priorities regime under UCC Article 9.

1.Meaning of the term “perfection”

Some preliminary comments about “perfection.” This term is used in UCC Article 9. It is also used in international instruments35 and in numerous scholarly writings.36 The term is somewhat misleading to the extent that it suggests that a perfected security right always wins and that an unper-

34See in greater detail Kieninger, Nationale, europäische und weltweite Reformen des Mobiliarsicherungsrechts – Teil I, WM 2005, 2305 et seq.

35See, e.g., Art. 1(1)(i) of the Hague Securities Convention (Hague Convention on the law applicable to certain rights in respect of securities held with an intermediary (2006), available at http://www.hcch.net (1 August 2007)): “completion of any steps necessary to render a disposition effective against persons who are not parties to that disposition.”

36See, e.g., Goode, Commercial Law (3rd. edn. 2004), p. 624; Beale/Bridge/Gullifer/ Lomnicka, The Law of Personal Property Security (2007), para. 7.01 et seq.

fected security right always loses. It is the priorities regime that determines whether in a particular contest, a security right (perfected or not) will prevail over or lose to a particular competing claimant.

Perfection can mean whatever the particular legal system chooses to have it mean. It is not an essential term having a single inherent meaning from which results are derived by reasoning. In UCC Article 9, it is simply a tool of the priority regime. It is completely irrelevant as between the debtor and the secured party. The term perfection plays a very useful shorthand role in the drafting of UCC Article 9, as it permits the statement of many priority rules to be made more concisely by a simple reference to the status of the security interest as perfected or not and, in some cases, to the date of the perfection.

In the UNCITRAL Legislative Guide, the term is avoided, and instead a stark dichotomy is presented – a security right either does have third party effects or it has none whatsoever (in which case, there is no priority contest at all). This is presented terminologically as whether or not a security right has achieved “third-party effectiveness.”37 That term as used in the UNCITRAL Legislative Guide is, thus, not synonymous with perfection under UCC Article 9.

Under UCC Article 9 (and the UNCITRAL Legislative Guide as well), even a security right that is “unperfected”, or is not “effective against third parties”, has value. A security right not effective against third parties nevertheless constitutes a proprietary right in the collateral, which the secured party may enforce against the debtor pursuant to the rules of the secured transactions regime governing post-default rights and remedies. These remedies are not enjoyed by an unsecured creditor, who has no rights in any particular asset until after obtaining seizure by a judicial officer (usually preceded by obtaining a judgment). Moreover, under UCC Article 9, an unperfected security interest has even greater value, enjoying priority over certain competing claimants.

Perfection is not defined in UCC Article 9 by a description of what perfection is. Instead, we are told when and how it may be achieved. Most importantly, its contours are delineated by its consequences for questions of priority – by a series of rules that prescribe a particular priority status (this really is multiple different statuses depending on the nature of the competitor), inter alia, by listing the competing rights that defeat (either subordinate or cut off completely) an unperfected security interest (e.g., certain buyers of the collateral and certain “lien creditors”; see UCC sec. 9-317)).

Further, and this is true not only under UCC Article 9 and under the UNCITRAL Guide but also under most legal systems, being perfected does not mean being invulnerable – it is a relative not an absolute position.

37 See UNCITRAL Legislative Guide (footnote 32), Ch. V.

For example. even a perfected security interest will be cut off by a “buyer in ordinary course” of inventory from a seller in the business of selling goods of that kind (similar but not identical to a “bona fide purchaser”) and will be subordinated to a subsequent purchase-money security interest. Likewise, a security right that is opposable aux tiers will in most legal systems be defeated by a bona fide purchaser (however defined) and will be subordinated in many systems to specified privileges, most importantly, in insolvency.

Before describing how and when perfection is achieved, it is useful to jump ahead briefly to the topic of priority, since the key role of perfection is in the priority scheme.

2.Meaning and importance of “priority”

The general point is that a clear and certain priorities regime is essential to achieving the goal of a modern secured transactions law. A creditprovider must know where it stands in the ranking scheme in order to evaluate its legal risk, to properly price credit and to determine whether and how much credit to extend. Although a priorities regime might be produced in other ways, providing, by legislation, a detailed comprehensive list of outcomes provides the maximum ex ante certainty, and does so at the earliest possible time, and, if these rules are carefully tailored to support sound business practices, does so in the most efficient manner – and thus is the approach most consistent with the goal of the secured transactions law to promote the availability of credit secured by movables. If development of priority rules is left to the courts, decades of uncertainty may ensue. Further, judges are not well-equipped to ascertain market practices and market needs so as to derive the most efficient rules and are not institutionally capable of drawing arbitrary lines.

UCC Article 9 provides an elaborate array of very specific carefully nuanced rules that determine a definitive outcome for each contest. This minimizes the need for ex post fact-sensitive judicial determinations, minimizes litigation and provides the greatest possible ex ante certainty to the actors. Examination of particular priority rules under UCC Article 9 will illustrate these points.

As noted above, a priority contest in the secured transactions field is not limited to merely a matter of ranking between two secured parties, and the first in time/first in right rule surely does not answer all questions. The term priority is used in this volume in the broad sense of any competition between any two persons both of which claim a proprietary right in the same asset.

It is not limited to the contest between secured party A and secured party B. It must be observed that even under the unitary system of UCC

Article 9, in which there is only one “type” of security interest, and thus only one type of secured party, there are nevertheless important distinctions to be made, and a far more sophisticated analysis is required. Either or both secured party A and B may or may not have perfected its security interest; either, both or neither may have filed in the public record a financing statement covering the collateral; either or neither may have possession of the collateral; either, neither or both may have provided acquisition financing that enabled the debtor to acquire rights in the collateral; one may base its right in the asset as its initial collateral while the other may base its right in the asset as its initial collateral or as proceeds of its initial collateral; and either may be claiming that its security interest secures an initial advance or a subsequent advance. Thus, it is clear that even this competition is far more complex than appears at first blush.

In UCC Article 9, the concept of priority includes also the contests between each category of secured party and (i) the insolvency administrator of the debtor; (ii) a seizing creditor – one that has obtained a right in a specific asset by virtue of some judicial act (referred to in UCC Article 9 as a “lien creditor”); (iii) a buyer or other transferee from the debtor (the acquirer may or may not qualify to take free of the security interest); (iv) a secured party that was granted its security interest by a transferee from the debtor; (v) a person that repairs or stores the collateral; (vi) a donee from the debtor, etc.

An unperfected security interest is subordinate to the trustee in bankruptcy.38 We mention the insolvency administrator first because the insolvency risk is generally the key risk that concerns secured parties. Most debtors are honest and do not, at least not knowingly, engage in inappropriate double financing. Even honest debtors, however, may become insolvent. Also, it is in insolvency, at least in many countries, that many of the supervening privileges come into the picture – in some countries making even the “perfected” security rights worthless.

On the other hand, under UCC Article 9, a donee does not take free of an unperfected security interest, nor does a buyer that took delivery with knowledge39 of the unperfected security interest (UCC sec. 9-317).

38Indeed, under U.S. bankruptcy law, an unperfected security interest is subject to avoidance by the trustee, reducing the holder of the unperfected security interest to the status of an unsecured (general) creditor.

39UCC sec. 1-202 defines “knowledge” as “actual knowledge” and explains that a person has “notice” of a fact if the person “has received a notice or notification of it; or from all the facts and circumstances known to the person at the time in question, has reason to know that it exists.” The same section elaborates on how a person “gives” a notice and when a person “receives” a notice and on how these concepts are applied in the case of an organization.

3.How perfection is achieved

Returning to the topic of perfection, the most common method of achieving perfection is by “filing” a “financing statement” under the UCC notice filing regime.

Before presenting a description of the filing system under UCC Article 9, however, it is necessary first to provide some context. We begin with a discussion of the concept of publicity and the role that the filing system plays in the secured transactions regime. Then we discuss how perfection is achieved under UCC Article 9, after which we focus in detail on the UCC Article 9 filing system, highlighting the contrast between it and land or other registration systems.

Secured transactions law has always recognized the possessory pledge, and it is traditionally explained that possession of the collateral by the pledgee provides “publicity”. But publicity is, of course, not an end in itself. And, it is important to consider what one learns from the publicity provided by dispossession of the pledgor – in fact, very little. From the fact that the purported owner of a tangible is no longer in possession of it, one is merely warned to inquire why the prospective borrower, claiming ownership, does not have possession. The fact of possession in a person other than the owner does not confirm that the possessor holds the asset as pledgee – it might instead hold the asset as a temporary user that has leased it, or borrowed it gratis, or hold it for safekeeping or to repair or improve it, etc. Even once it is learned that the asset is held in pledge, we learn nothing from the pledgee’s possession about the nature or amount of the secured obligation or other terms of the credit agreement. These points are important because they should inform the design of a registration system (which is, at least historically, explained as a substitute for dispossession of the pledgor).

In addition to the very limited nature of the publicity provided by possession, it is also important to keep in mind that, as noted above, publicity is not an end in itself. Rather, it is simply a tool, and not an exclusive or overriding tool, in the structure of an efficient secured transactions regime. It provides an inexpensive and efficient method of reducing risk. It has historically played a role in attributing third party effectiveness to a security right , and, properly used, that role is extended into the matter of priorities (although, as we shall observe below, neither third-party effectiveness nor the quantum of information provided by publicity is necessarily a determinant in all priority contests).

Under UCC Article 9, perfection is achieved, with respect to the security interest in a particular item of collateral, only when, in any sequence, (i) the security interest has attached to that item of collateral (see UCC sec. 9-203), and (ii) the perfection step (filing or other perfection method) has been accomplished. Attachment occurs with respect to a

particular item of collateral when all of the following have occurred (a) a security agreement describing the collateral has been authenticated by the debtor; (b) the debtor has rights (which need not be full ownership) in the collateral or the legal power to transfer rights in the collateral; and

(c) value has been given.40

Perfection can be achieved under UCC Article 9, depending on the nature of the collateral and other specified conditions, by one or more of the following:

(i) possession. This must be actual, not constructive or fictive. It may be

(a) directly by the secured party or its agent; or (b) indirectly through the possession of a third party that has agreed to hold for the benefit of the secured party (any person not subject to the exclusive control of the debtor, even a person that is acting for both the secured party and the debtor) – the key being dispossession of the debtor so that it is no longer in exclusive control of the asset able freely to deliver it to a third person; or (c) through possession of a negotiable document, or being the issuee of a non-negotiable document, issued by a bailee (e.g., a warehouseman or a carrier) and covering the goods. (See UCC secs. 9-313 and 9-312.)

(ii)filing. discussed in detail below. (See, generally, Part 5 of UCC Article 9.)

(iii)“control”. This is a defined term describing a mechanism for achieving perfection (UCC sec. 9-314) when the collateral is a deposit account,41 investment property (most importantly, a securities account),42 letter-of- credit-rights,43 or electronic chattel paper.44 The key innovation is that the secured party’s control need not be exclusive, i.e., the debtor may have continued access to and the right to dispose of the collateral, e.g., spend the money in the deposit account or trade the securities in the securities account. Thus, this method of achieving perfection provides

flexibility needed to support commercial practice. Control is usually

40Note that this does not mean “new value”, a term used in only two very narrow contexts. See UCC sec. 9-102(a)(57) and the related Official Comment. “Value”, defined in UCC sec. 1-204, includes, inter alia, taking as security for a preexisting claim and any consideration sufficient to support a simple contract.

41UCC sec. 9-104. Control is the exclusive method of perfection for a deposit account as initial collateral.

42UCC secs. 9-106 and 8-106. Control is an alternative method of perfection, depending on nature of the investment property.

43UCC sec. 9-107. Control is the exclusive method of perfection except when the letter-of-credit-right is a supporting obligation.

44UCC sec. 9-105.

achieved by a private agreement (e.g., with the depositary bank or the securities intermediary). This provides a date certain but not publicity in its normal understanding, and it provides a highly effective enforcement mechanism in event of default (e.g., because the depositary bank has agreed to comply with instructions originated by the secured party directing disposition of the funds in the account without further consent by the debtor, speedy inexpensive enforcement by the secured party is enabled).

(iv)automatic perfection, i.e., perfection is achieved without any of the foregoing methods, in specified instances with respect to particular types of collateral or particular types of transactions (UCC sec. 9-308–9-310). These exceptions reflect policy determinations that any benefit that might be derived from performance of one of the other methods of perfection is outweighed by the burden on particular desirable commercial practices or the taking of security interests in particular types of collateral.

(v)temporary perfection, i.e., without any of the foregoing methods but for only a specified short period of time and only in specified instances under specified conditions (UCC sec. 9-312(e)-(h)). These temporary exceptions reflect the policy determination that accepting a short period in which the security interest may be undiscoverable due to absence of filing or possession is necessary to facilitate legitimate and sound commercial practices.

Although this part of the Introduction focuses primarily on filing, the preceding discussion of other methods of perfection is presented to make the point that filing is simply one method of achieving perfection, and the further point that perfection can be achieved in certain instances with even less “publicity” than is provided by filing.

4.Filing/registration

Let us now turn to filing. The UCC Article 9 filing system’s primary purpose is to provide a simple, inexpensive, easy-to-use and speedy perfection mechanism, compatible with efficient commercial practices, that plays a key role in the priority regime.

It also performs two other important functions.

First, it supports due diligence on the part of a prospective supplier of credit, as it serves efficiently to assist in the discovery of potentially competing security interests. It must be understood, however, that the filing system is not the exclusive or even primary source of such infor-

mation. The primary sources of information for a prospective extender of commercial credit are the debtor’s loan application and the debtor’s books and records (including the loan documents of existing creditors); this is supplemented, as appropriate, by information obtained directly from other creditors and other public or private sources of credit information. Thus, in this respect, the secured transactions filing system serves mainly to confirm that the debtor has made full disclosure. It exists to provide warning of the need for further investigation, rather than as the source of data.

Second, the filing system also provides a data certa to prevent backdating, without the need for notaries or other expensive formalities.

It is equally essential to understand what filing is not. It does not create a security interest – that is done by a security agreement (no prescribed form or terminology or even necessarily all in a single document). Filing does not evidence the existence of a security interest – indeed, filing of the financing statement may occur even before a security agreement has been entered into. Filing, by itself, does not perfect a security interest. Filing can occur before or after the security interest is created, before or after there is a security agreement, before or after the debtor has any rights in the collateral, even before any collateral comes into existence. Filing does not establish the existence of (or provide any information about) a secured claim – a security interest may secure future obligations of any nature or amount. Filing does not establish the existence of the described collateral or that the debtor has or ever will have any rights with respect to it – a security interest may cover future as well as existing collateral. A filed financing statement is not connected to any particular transaction or any particular security agreement, but rather serves to perfect security interests in all collateral that falls within the financing statement’s description whenever and however the security interests arise. In sum, filing does not constitute the registration of an existing security right but rather is essentially a warning (much like the dispossession of the debtor), a form of advertisement; it indicates only that a security interest may then or thereafter exist in assets that fall within the description provided, in which the debtor then or thereafter may have an interest.

The UCC Article 9 filing system does not result in “constructive notice” of the existence or contents of a filed financing statement. The priority regime is based on specific rules that determine outcomes. The rules may be expressed in terms of a perfected or unperfected security interest, but do not turn on the actual knowledge or presumed notice of the existence vel non of the filed statement on the part of competitors. Indeed, knowledge of the existence of the security interest is rarely relevant in the UCC Article 9 priority regime. It makes no difference whether the competing claimant did or did not search the public record, and courts are not in-

vited to formulate rules based on whether the competing claimant should have a duty to search; it is the simple objective fact of filing that determines the outcome.

5.Content of the filed financing statement

Whether filing achieves all of the purposes described above, and does so in the desired speedy, inexpensive and simple fashion, depends on the design of the system. The UCC Article 9 filing system (and likewise the systems in New Zealand and Canada) achieves those purposes in that fashion primarily because it is a notice filing system. It does not entail the presentation of either original documents or summaries, particulars or bordereaux. And, consequently, not only is electronic data entry facilitated, but, more importantly, it involves no vetting or examination by registry personnel – there is no need for a gatekeeper. Nothing “signed” by the debtor need be presented – the filing officials would have no way of determining the authenticity of the signature in any event. Such a requirement would only add cost and delay to the process, with no corresponding benefit.

Instead, notice filing requires only the presentation, usually by electronic means, of only three items of data – name and/or other reliable identifier of the debtor and the secured party (or the latter’s representative) and a general description of the collateral. By confining the content of the filed financing statement to these three elements, the system serves the purposes described above at the lowest possible cost, the least likelihood of error by the filing person, no intervention by registry personnel and with minimal disclosure of what might be perceived as confidential information.

Since the secured party identified in the financing statement may be a representative of the person that actually extends the credit, the identity of the credit-extender need not be put on the public record. This not only serves business needs for confidentiality that may exist in particular circumstances, but also avoids problems presented when syndicated loans (the common occurrence of financing being provided by a group of creditors, which may well involve subsequent changes in the composition of the syndicate) are secured by “accessory” security rights. The ability to use an agent or security trustee, both operationally and as the recipient of the security right (and, concomitantly, the person indicated as secured party on the filed financing statement) is very convenient for syndicated loans. As mentioned above and more fully discussed in the Annex to the German Report, this problem is currently dealt with in German and other Continental practice by the so-called “parallel debt” structure, in which the debtor agrees to owe the borrowed amount not only to the actual

syndicate lenders but also (rather fictionally) to the security trustee. The use of a collateral agent has recently been the subject of a “fix” in the French 2007 fiducie legislation.45 This is not an issue at all under UCC Article 9. UCC sec. 9-102(a)(72)(E) defines “secured party” to include “a trustee, indenture trustee, agent, collateral agent, or other representative in whose favor a security interest…is created or provided for”, and UCC sec. 9-502, which specifies the required content of a financing statement, states that it is sufficient if it “provides the name of the secured party or a representative of the secured party.”

Description of collateral seems to be a more difficult issue under many European legal systems than it is under UCC Article 9. Indeed, the matter of adequately describing the collateral seems to be the only significant issue in the use of the otherwise extremely flexible German Sicherungsübereignung. Under UCC Article 9, neither the security agreement nor the filed financing statement must identify collateral specifically. Collateral can be “described” (see UCC sec. 9-108) in any of various levels of generality (e.g., brown leather upholstered swivel chair of X cm height, Y cm width and Z cm depth/chair/office furniture/furniture). Even the most specific of these alternative descriptions would not necessarily enable a stranger to distinguish between two chairs that meet that description from among the hundreds or thousands that meet it, any number of which might at any time or from time to time be in the debtor’s possession). The description may also use legal categories used in UCC Article 9 (e.g., “equipment” or “inventory”) and, in the filed financing statement, the collateral may be indicated still more broadly by language such as “all present and future assets” or “all personal property.”46 It is not feasible specifically to identify most movables (excluding, of course, registered, and thus uniquely identifiable, assets such as ships and aircraft and, in many countries, motor vehicles) and the requirement of an effort to do so is likely to lead to under-inclusion or other types of error, to the assertion of need for a gatekeeper at the registry or to litigation. It is important to keep in mind that the indication of the collateral covered in the filed financing statement, however phrased, does not have the effect of creating a security interest in an asset not covered by the description in the security agreement, and that, in the event of a dispute, it will be the secured party that has the burden of proof to establish that a particular asset is covered by the security agreement (and, if the issue is perfection, also by the filed financing statement).

45Art. 2328-1 C.civ. states that “any security interest may be inscribed, administered and enforced on behalf of creditors of the guaranteed obligation by a person whom they appoint for such purpose in the deed which sets out such obligation.” This issue is discussed in Leavy, In France We Trust, IFLR, April 2007, at p. 67.

46See UCC sec. 9-504.

The land registry – typically slow, rigid and expensive – is not an appropriate model for the movables registry. Unfortunately, many of the existing movables registries in Europe are in many ways replications of the land registries. Land registries are ownership registries and in many countries are entitled to good faith – i.e., it is the registration that establishes ownership, notwithstanding external facts that might indicate ownership in someone else. Moreover, the need for absolute certainty with respect to land ownership requires that the registry be guarded by sturdy walls and vigilant gatekeepers. Mortgages were simply added to the existing ownership registries. With movables, however, there is no registry of ownership, and thus registration of security interests in movables entails a registration independent of ownership. Also, unlike the case of land, it is often difficult to provide a unique identification for movables. Further, land finance is usually longer term credit than that secured by movables and usually does not involve collateral of changing content. These essential differences explain the absence of a need for sturdy walls and vigilant gatekeepers at the movables registry, features that are inconsistent with the needs for low cost and speed, as to both filing and searching, that are essential to a modern movables secured transactions regime.

It should also be noted that UCC Article 9 does not require that any information whatsoever about the nature or amount of the secured obligation be publicized, not even a maximum amount. Several reasons militate against imposing a requirement that a maximum amount be stated in the filed financing statement. First, it is likely to lead to inefficiency; when the debtor seeks more credit from the secured party, such a requirement would force the secured party to conduct a new search to determine whether there have been any financing statements filed by others subsequent to the initial filing and to amend the initial filing to raise the stated maximum. Second, such a requirement would likely often be satisfied by the insertion of an inflated amount (thereby defeating the asserted objective of the requirement). Third, such a requirement might tempt the enacting state to base the amount of the fee on the amount stated in response to the requirement. While requiring the statement of a maximum amount is routine in land mortgage registration, the shorterterm nature of financing secured by movables and the indefiniteness and volatility of valuation of movables collateral both make it a relatively rare case that subordinate financing will be extended in reliance on the stated maximum amount without subsequent financiers making some arrangement with the earlier-filed secured party.

It is asserted that the requirement of a maximum amount will induce greater extension of credit by lenders that are willing to be subordinate to a fixed amount and are not willing to enter into an inter-creditor agreement with the earlier-filed secured party. While this may indeed be

the case in unusual circumstances, such instances (where the junior creditor is sophisticated or is advised by sophisticated counsel, and the valuation of the collateral is so definite and so stable that the junior lender is prepared to rely on that stated maximum) are sufficiently rare that the burden of such a requirement outweighs the asserted benefit. Further, requiring the statement of a maximum amount would force the parties to discuss and agree on a maximum monetary amount – an issue that might not otherwise have been raised in the negotiation. Confronted with the need to state a maximum amount, the secured party will likely prefer to insert an amount greater than actually contemplated to be advanced in order to cover unforeseen events. Also, requiring the statement of a maximum amount would generate an additional required element on the financing statement the absence or lack of clarity of which might then be the basis for rejection of the filing by a gatekeeper.

Although it is asserted that the first-to-file rule unaccompanied by a maximum amount requirement gives the earlier-filed secured party an unacceptable monopoly position, this has in fact not proved to be the case, at least not when there is active competition among sources of credit (the first-filed secured party can be paid off by a willing new lender). In fact, it will often be the case that the first-filed secured party may be the better source for additional credit, as it is already familiar with the debtor (avoiding investigation costs that would be incurred by a new lender) and likely to be eager to extend additional credit to a good customer. Also, stating a maximum amount in the public record may reveal information that the debtor would prefer to keep confidential.

Given the rarity of the situation where movables collateral will have a definite and stable value substantially in excess of the stated maximum amount (valuation of movables, in contrast to land, is far less definitive, far less stable, and usually decreases rather than increases) and where negotiating an inter-creditor agreement will be unacceptably burdensome, requiring a maximum amount to be stated in the filed financing statement will rarely encourage junior lending. Thus, although there will certainly be some instances when having a maximum amount stated in the public record might benefit a debtor (and, of course, a debtor can always seek such inclusion if it believes that to be in its interest), a requirement that this be provided in all cases seems quite unjustified. Keeping the public notice simple and with minimum required items seems far more desirable.

Indeed, UCC Article 9 also does not require that the security agreement specify a maximum amount secured. In fact, the obligation secured need not be a monetary sum – it may be performance of an obligation (and this obligation need not be capped by an agreed maximum liability).47 In

47 Many civil law systems are similarly permissive on this point.

any event, this issue is taken care of by the basic requirement that the secured party has the burden of proving not only what constitutes its collateral but also what obligation is secured by the security interest. The desire to avoid dispute will normally be sufficient motivation for the parties to identify the secured obligation in the security agreement with some care, although this does not necessarily suggest the specification of a monetary amount; it is not uncommon that a security agreement will refer to “all monies owed” or “all present and future obligations of any nature owed by the debtor to the secured party.” Imposing a formal requirement beyond this seems inflexible and unjustified. The fact of granting a proprietary right in its assets (and, in the case of UCC Article 9, the requirement that the debtor authenticate a record providing for the security interest) is sufficient to apprise the debtor of the seriousness of its act.

Notice filing and the minimal nature of the required data facilitates electronic filing and searching, allows the registry to be operated with virtually no personnel and at virtually no cost, and allows filing and searching to be accomplished on a virtually real-time basis; minimum human intervention also serves to minimize the risk of human error.

As noted above, most of the countries studied (France, England, Belgium, Spain, Italy) have some sort of public registration for at least some types of security rights, although, regrettably, none of these has a modern electronic notice filing system; only Germany and the Netherlands have essentially totally secret rights.

Opponents of filing often refer (usually without quantification) to costs that would be entailed to establish a registry. Experience in the United States (states are in the process of moving from paper to electronic systems), Canada and New Zealand has demonstrated repeatedly that the costs of creation and installation of an electronic notice filing system are low and quickly recouped, that costs of current operation of such a system are low and are covered by minimal filing fees, and that the business world adapts to the system easily and without great cost or dislocation, the internal costs incurred in performing searches and filings being typically only a small fraction of the due diligence and documentation costs routinely incurred in secured credit transactions. Indeed, if a country believes that the economic and social gains derived from facilitation of secured credit justify such measures, it might well consider subsidizing not only capital costs but even ongoing operating costs. The matter of costs, like all other matters concerning the legal and functional design of the system, should be determined based on its impact on the achievement of the ultimate goal of the secured transactions regime. In the United States, the filing fees generally run between $10 and $30 (keep in mind that a single filed financing statement may support millions in credit over an extended period of time), and search fees are also quite low (in-

deed, in many states, electronic access to the index is offered free of charge).

In addition to assertions about costs, opponents of filing also claim that such publicity is unnecessary because “everyone knows” that buyers buy under title retention and that businesses encumber their assets to obtain credit. This argument has the perverse effect of producing the opposite of the “false wealth” effect sought to be negated by publicity when possession is separated from ownership – it produces in effect “false poverty”, i.e., everyone is told to assume that the assets in the debtor’s possession are not held free of encumbrances. It is difficult to see how this approach would maximize efficiency and reduce the cost of credit. In a “secret lien” regime, no creditor can ever be absolutely certain that it was the first to receive the security right. Uncertainty and the extra diligence performed to reduce uncertainty can only serve to increase the cost of credit.

A final point about filing – should it be national or local? Because the United States is a federal nation and secured transactions law is, generally speaking, a matter of state rather than federal law, the UCC filing systems are necessarily creations of each state rather than a single national filing system. Regrettably, many of the other countries that have registries operate them on a local rather than a nationwide level, even though they are not compelled to do so by reason of federalism. This generates issues concerning submission and searching in the right place and the effect of movement of the collateral (or the debtor, if that is relevant connecting factor) after the initial registration – all of which would be avoided by a single national index. Modern technology negates any argument for local filing based on convenience. In the virtual world created by an electronic system, there is in effect a single registry located everywhere (location of the server being irrelevant and input being possible from everywhere).

6.The UCC Article 9 priorities regime

It should be kept in mind that priority is not simply a matter of determining how the proceeds of post-default liquidation of the collateral are distributed. To properly assess risk (and properly price credit), the secured party must be able to determine at the outset the priority that its security right will enjoy. A well-designed regime will enable it to do so efficiently and with certainty. Furthermore, a well-designed regime provides two additional benefits. It better enables the debtor to maximize the collateral value of its assets by facilitating credit secured by subordinate security rights, and it facilitates good commercial practice by taking efficiency into account in the design of the priority rules. A well-designed regime

should be comprehensive, covering a broad range of existing and future assets, existing and future secured obligations, and should provide predictable outcomes for priority contests between secured parties and a broad range of competing claimants.

A brief digression for an important point – the impact of insolvency law on the priority of security rights. Because insolvency of the debtor is one of the primary concerns of the secured party, failure to recognize, or to give priority to, security rights in insolvency can have the effect of undermining even what might otherwise have been the best of secured transactions regimes. Thus, a key element of an effective secured transactions regime is the absence, or at least minimization, of privileges that in insolvency enjoy superiority over perfected security rights. It should be recognized that the existence of such privileges, especially when they are not capped by a determinable maximum amount, negates the collateral value of the debtor’s assets. While each country has to determine its own hierarchy of values, and, of course, the encouragement of more plentiful lower-cost credit is only one social goal, the legislator should do so transparently and rationally, with awareness and careful evaluation of the impact on that goal of decisions that are expressed as legal rules. In many countries, for example, the presence of overriding privileges has the effect of increasing the cost and decreasing the availability of credit, to the detriment especially of small and medium enterprises, because lenders know that in insolvency their security rights will be subordinated to various privileges, or, at the least, has the effect of distorting the marketplace by permitting title-based devices (e.g., financial leases and titleretention sales) to escape subordination to privileges in insolvency while not making it possible for lenders that provide identical acquisition credit to escape such subordination.

UCC Article 9 provides a very elaborate list of specific priority rules. A review of secs. 9-317 – 9-339 will bring to the reader’s attention the great number of priority contests that can arise in the context of a comprehensive secured transactions regime that covers all kinds of collateral and all kinds of obligations and must take into account the full range of commercial activity and of types of potential competing claimants.

All of these matters must be addressed in a modern secured transactions system. The key questions are whether they will be addressed by the legislator or the judiciary and whether they will be addressed in a coherent balanced manner and with a view to supporting the overall goal of the secured transactions law.

While this Introduction is not intended to be a treatise on the UCC Article 9 priorities regime, a discussion of selected rules will be useful to emphasize the sophistication and nuance of the rules, their focus on sound commercial practice and the level of detail developed in order to provide maximum possible ex ante certainty.

The UCC Article 9 priority rules take advantage of the fact that there exists an effective and reliable filing system. Nevertheless, because there are multiple methods to achieve perfection, the rules also take into account that not all competing secured parties will file. And because security rights may cover future collateral (but perfection is not achieved until the debtor has rights in the collateral), the rules also take into account that filing may occur before perfection is achieved. In addition, the rules are designed to balance competing interests and to support sound and efficient commercial practices.

The basic rule as between two conflicting security interests in the same collateral is that the first to file or perfect prevails. This encourages filing at the earliest possible moment and allows a secured party that perfects by possession to discover the existence of an earlier in time filer by conducting a search. Nevertheless, there are numerous exceptions, based on type of the collateral, whether the collateral is claimed as initial collateral or as proceeds, method of achieving perfection, etc.48

An example of a special rule is the twenty-day grace period that protects purchase-money security interests against lien creditors of and subbuyers from the buyer whose rights arise between the time the seller’s security right attaches and the time of filing. This rule allows a seller to deliver goods to a new customer49 immediately without having to delay for filing in order to be protected against those competing claimants.

Another very important exception to the first-to-file-or-perfect rule is the purchase-money super-priority. This rule not only reflects commercial needs but also demonstrates the ability of the legislator to carefully tailor rules and specify appropriate conditions. This rule enables a later in time acquisition financier to gain priority over an earlier filed secured party without the need to enter into an inter-creditor agreement. It reflects the arrangement that would have been made anyway – as the earlier-filed secured party would normally have expected the debtor to acquire new assets and would not have expected priority over the party

48For example, there are special rules that give priority to a secured party that takes control over a secured party that files. This is in line with expectations of the parties dealing with those types of collateral as to which control is an available method of perfection and with commercial practice that would normally involve taking control (and when a requirement to file or search would be unjustified); at the same time, it allows a secured party to achieve perfection, and thus priority over a trustee in bankruptcy, by a simple and inexpensive filing if that satisfies its needs under the circumstances.

49We mention “new” customer because, since a single filed financing statement can cover multiple transactions with the same customer, for sales to repeat customers there will be no additional filing required (and thus no need for a grace period).

that enabled the debtor to do so by providing the purchase-money credit. The condition to enjoyment of such super-priority is that, in the case of goods other than inventory, the purchase-money security interest be perfected at the time the debtor receives possession or within twenty days thereafter. In the case of inventory, however, the conditions to superpriority differ. For inventory, the purchase-money security interest must be perfected when the debtor receives possession (no twenty-day grace period) and, in addition, the purchase-money secured party must have sent a notification to the earlier-filed secured party stating that it has or expects to have a purchase-money security interest in the inventory (a single search will suffice to discover all earlier filings and a single notification is effective for five years, so these conditions are not burdensome for sellers). These additional requirements are imposed in order to comport with efficient business practice; in the case of inventory financing, the first-filed lender will typically make ongoing advances against receipt of invoices reflecting newly-acquired inventory and does so without conducting a new search before each advance, in reliance on its priority based on its first-filed position. Thus, notification is the source of warning that the first-filer cannot so rely. This rule supports efficient inventory finance practice.

A similar observation can be made about the special rule that the inventory super-priority does not carry forward into the receivables generated by the debtor’s sale of the inventory. This rule enables an earlierfiled receivables financier to rely on the priority based on its first-filed position and safely make advances against receivables without having to be concerned that it might be subordinated with respect to receivables generated by sales of inventory subject to inventory purchase-money super-priority claimants (this rule also avoids any need to allocate payments between those attributable to sales of goods that had been subject to a super-priority and those arising from sales of other goods). The absence of this rule would have a significant negative effect on the availability and cost of receivables financing. This rule maximizes efficiency and best supports sound commercial practices, since the advance rate (ratio of loan to collateral value) for receivables is usually higher than that for inventory, the amount of the receivables will be higher than the cost to the debtor of the inventory and, perhaps most important, it will usually be the advance by the receivables financier that enables the debtor to pay its inventory supplier.

Another example of a carefully tailored rule that balances the expectations of the parties and supports sound commercial practices is the buyer in ordinary course rule. This rule enables a buyer that buys goods in the ordinary course (customary practices of the business in which the seller is engaged or that particular seller’s customary practices), and takes possession of the goods, from a person in the business of selling goods of that

kind, takes free of a security interest created by his seller, even if the security interest is perfected and even if the buyer knows of its existence. Thus, the buyer in these specified circumstances will be protected unless it acted in bad faith in that it had knowledge that the sale violated the rights of the secured party. The buyer in these specified circumstances has no duty to search the record and no duty to inquire into the scope of his seller’s right to sell, and the existence of a filed financing statement would be irrelevant. This rule is in accord with the expectations of the secured party that finances inventory – it wants the debtor to sell. Efficiency militates against a rule that would burden the buyer with discovering, and dealing with (obtaining consent or paying off), a secured party. Note, however, that this rule applies only to a purchase from a person in the business of selling goods of that kind. Thus, a person that buys a used printing press not from a used machinery dealer but from a printer (who is in the business of doing printing and not in the business of selling presses) will not be protected under this rule (even if it is not unusual for such a business to sell off used machinery). The secured party that is financing a printer not a dealer (so it is financing its debtor’s equipment, not inventory) expects its security right to continue in the collateral until it is paid and society’s interest in facilitating the speedy sale of inventory is not applicable in the case of used equipment. Further, the buyer from the printer is either another printer or is a dealer in used machinery – in either case, it is quite appropriate to oblige such a buyer to search the public record.

It should also be noted that virtually never do UCC Article 9 priority rules turn on a subjective element. Subjective elements introduce uncertainty and make fact-sensitive litigation more likely. Thus, even a secured party with knowledge of a prior unperfected security interest may gain priority by filing before its competitor does. Clear definitive rules preclude the introduction of uncertainty by judicial insertion of exceptions based on knowledge or notice. An objective pure race system eliminates downstream inquiry into who knew what and allows the first filer (having confirmed his position) to act knowing that it is not vulnerable to subsequent inquiry into knowledge or notice issues. More, generally, the consistent application of clear known specific rules reduces transaction costs.

V. Some Guiding Principles for Reform

Considering the national reports in this volume and taking into account common trends on the national and international level, especially the recent reforms and reform proposals in France and England, the extensive experiences in North America50 (and the recent reform in New Zealand51), the recommendations of the UNCITRAL Legislative Guide and the EBRD core principles for a secured transactions law,52 we suggest that national reform efforts and a European Model Law on Secured Transactions or a European Security Right should be guided by the following principles:

•In formulating secured transactions legislation, the goal of producing an efficient and effective secured transactions regime that enhances the availability and reduces the cost of credit should be kept in mind. Every rule, as it is developed and as it is considered in light of other interests and policies, should be evaluated in terms of whether and to what extent it furthers or detracts from that goal. A single comprehensive law, rather than diffusion among various codes and freestanding laws, would minimize risks of incoherence and incompleteness.

•Subject to consumer protection laws, parties should, as a matter of principle, be able to use all kinds of tangible and intangible property, present and future, as collateral, including aggregations of property and an enterprise as a whole. Particular care should be taken with respect to types of property for which a special (international or domestic) regime already exists or is being concurrently developed (e.g., aircraft, ships, railway rolling stock, certain types of financial collateral) – in some cases the special regimes may be totally pre-emptive while in others they may simply be supplementary; national special regimes should be reviewed to determine whether they can be modified to better facilitate secured transactions in such property.

50The first Official Text of the Uniform Commercial Code was promulgated in 1952; UCC Article 9 is in effect in all fifty states. The Personal Property Security Acts are in force in all the Canadian common law provinces and territories and Quebec’s Code Civil was substantially revised effective nearly fifteen years ago.

51In 2002, New Zealand enacted a Personal Property Security Act, largely modeled on the PPSA of Saskatchewan, Canada; cf. Gedye, A Distant Report: The New Zealand Experience with a North American Style Personal Property Security Regime, CanBusLJ 43 (2006), 208 et seq.

52See http://www.ebrd.com/country/sector/law/st/about/prin/index.htm (1 August 2007).

•The collateral should be available to secure all obligations of any nature, present or future, fixed or contingent, monetary or nonmonetary.

•The reach of the regime should be defined functionally, embracing all transactions that serve a security purpose. This is most simply achieved by a unitary security right that encompasses all such transactions, regardless of form, and is subject to a single body of rules. Any deviation from this approach (e.g., treating retention of ownership for security purposes as a different type of right from a security right) should be carefully modeled to produce outcomes that are functionally equivalent to those produced with respect to security rights, notwithstanding formal distinctions. Thus, creation formalities, methods of achieving effectiveness against third parties (including registration requirements), priority rankings and enforcement rules need not be identical in process but must be sufficiently similar and produce sufficiently equivalent outcomes that no technique is substantially favored over any other.

•Taking into account the need for differing rules depending on the type of collateral and the special needs of providers of acquisition finance, all secured creditors should be treated equally (in and out of insolvency), so that, for the benefit of debtors, they compete in providing credit on the basis of the price; and all persons granting security rights should, subject to consumer protection laws, be given access to secured credit on the same legal basis.

•The security right should be created pursuant to the agreement of the parties, subject to minimum formal requirements, permitting simple, speedy and inexpensive creation and without depriving the grantor of the use and possession of its assets.

•The security right should be based on the concept of a charge, not on the transfer of ownership.

•While filing should be the most commonly used method of perfection, it should be supplemented by additional and alternative methods based on the nature of the collateral, in order to support efficient business practices and the needs and expectations of the actors.

•The filing system should be a notice filing system, requiring no formalities and only minimal information, rather than original documents or summaries. The system should utilise electronic access for both filing and searching.

•Special needs, e.g., those of asset acquisition financiers (providers of purchase-money credit), should be met by specially designed perfection and priority rules, not by special types of rights (e.g., retention of title).

•A detailed, carefully nuanced priority scheme based on efficiency (both in creating credit availability and in ease of administration) and

support for sound business practices should be included in the legislation to maximize ex ante certainty.

•Post-default remedies should as far as possible be determined by the parties, subject only to rules necessary to protect legitimate interests of each of the transacting parties and of interested third parties. Court intervention should be kept to a minimum, and, when invoked, should be expeditious. Procedures should be designed to seek realization of value under existing market conditions.

•The insolvency regime should be reviewed with the purpose of minimizing the extent to which it is inconsistent with the goals of the secured transactions law. The security right must be effective in the debtor’s insolvency, subordinated in rank to no or only a very few privileges (or an aggregate maximum amount of such privileges), enabling the creditor to take into consideration the extent of the needed margin of security. The insolvency process should be expeditious and should be designed to protect the value of the collateral from being diminished during the course of the proceedings without payment or other compensation being provided for such diminishment. The security right should be subject to such rules as are generally applicable (e.g., avoidance of preferential transfers) and, so long as the value of the collateral is protected from diminishment, such rules as are required in the interests of reorganization (e.g., temporary stay of enforcement).

VI. Conclusion

In the absence of the development of a supranational European Security Right or a European Model Secured Transactions Law accompanied by substantially uniform enactment in the Member States, neither of which appears very likely to occur in the near future, European businesses will continue to struggle with the great divergences that currently exist, as shown in the national reports. We hope that this volume will help practice, and the courts, to cope with the challenges presented by these divergences and will assist academia in instruction of national and comparative law, and that its analysis might serve in the modernisation and reform of secured transactions law generally and in the initiation of steps towards harmonisation.