there is an urgent need for harmonisation in the field of security rights, since the present regime cannot be reconciled with the concept of a common market. Various attempts have failed. The last one which was launched in the context of the late payment directive failed mainly because of a lack of comparative information.118 Therefore to us it seems necessary not only to emphasise the desirability of harmonisation but also -- in the evaluation part -- to point to elements of convergence (and of course divergence) and to make tentative suggestions for the next steps to be taken by the European Union should it wish to respond to the needs stated. We are especially interested in the question whether the arguments that are usually put forward against the feasibility of harmonisation prove valid if the divergencies are examined through the specific Common Core methodology. This second step, which extends beyond the goals of the Common Core project in general, has, nevertheless, not blinded us in our survey on the first level. In fact, the cases and questions have been selected to bring out precisely those issues where, judging from our preconceptions, the differences should prevail. Thus, the cases and discussions, including the comparative observations, remain at the level of agnostic legal cartography in the sense of Bussani and Mattei, but in the evaluation the present editor, with the support of the contributors, has taken the liberty to analyse the drafted map through the eyes of a ‘city planner’.

III. The genesis of the book

1. Narrowing down the topic

The present sub-project was started by Matthias E. Storme as one of the first topics of the Common Core project. The original questionnaire which was presented at the General Meeting in 1995 carried the title ‘Movable assets and general creditors. Enforcement of claims by recourse on movable assets actually or formerly detained by a debtor, but on which third persons claim property rights (including the use of trusts)’. It included twenty-two cases, most of them with various sub-cases and questions. The majority of these cases involved secured transactions, including trusts, but the chosen context was broader. The setting was influenced by the Belgian notion of ‘concursus creditorum’ (concours, samenloop), which can be defined as a situation in which conflicting rights

118See Kieninger, WM 1998, 2213 (2219 f.); Kieninger, in: Basedow et al., Aufbruch nach Europa--75 Jahre Max-Planck-Institut (2001) 151 ff.

of creditors exist with respect to one or more assets of a debtor which the latter has lost his unlimited ability to dispose of. This situation can be created either upon the initiative of a creditor or by operation of law.119 This special notion of concours/samenloop is central to Belgian secured transactions law,120 yet it does not have an exact counterpart in the other European jurisdictions. Therefore, and because the questionnaire proved to be too large to be manageable, the topic had to be narrowed down. After the 1999 General Meeting, when the present editor stepped in, nearly all cases that were not directly concerned with secured transactions had to be cut out as did the cases on trusts, since that topic had by then been taken up by a separate group.121 This move reflected not only the relative weight which the national reporters who had already answered the first questionnaire had given to the cases on secured transactions, but also the earlier deliberations of a group consisting of Cornelius van der Merwe, George L. Gretton and Matthias E. Storme that met in Stellenbosch in 1997. At that meeting it must have finally become apparent that the original approach had been too wide. Nevertheless, the present editor could, in respect of those cases that were retained, build upon the comparative observations drafted by that group.

This background explains why the cases concentrate on the relationship between a single secured creditor and general unsecured creditors either in an execution or in an insolvency situation and leave out priority conflicts between different types of secured creditors. The present editor was grateful to the national reporters for their willingness virtually to rewrite their original reports so as to adapt them to the new questionnaire. They were not expected to have to deal with completely new cases. The revised reports and the editor’s comparative observations were discussed in detail at the seventh General Meeting in 2000. Amendments in light of these discussions, the linguistic revision of the reports which were written by non-native speakers and the preparation of the present introduction and the evaluation were roughly finished by the time of the eighth General Meeting in July 2001. Unfortunately, the final

119As to the notion of concours/samenloop, see Dirix, Zekerheidsrechten 31 ff.; Stranart-Thilly/Hainz, Recht der Kreditsicherheiten in europäischen Ländern, Teil 3: Belgien

(Walther Hadding, Uwe Schneider, eds., 1979) 207; Renauld/Coppens, Revue critique de jurisprudence belge 1965, 101 (105).

120For example, before the insolvency law reform of 1998, retention of title was no longer enforceable, once the right of the secured seller ‘concurred’ with rights of other creditors: see Kieninger/Storme, RIW 1999, 94 (95 f.).

121See Graziadei/Mattei/Smith, Commercial Trusts (forthcoming in this series).

version of the Spanish report reached the editor only after the eighth General Meeting, so that its language could only be revised superficially. For the same reason, its information could only partly be taken into consideration in the comparative parts.

2. On terminology and the glossary

When the present project was first launched, the question of what terminology the contributors should use was not considered to be a particular problem assuming that everyone was more or less familiar with the relevant terms in English. However, it soon became apparent that the standard English law terminology which most reporters, and indeed the first questionnaire, had relied on would be unsuitable, especially in the field of property law. Examples like ‘chattel mortgage’, ‘floating charge’ or the distinction between ‘personal property’ and ‘real property’ illustrate the point sufficiently. At a meeting held in Turin in 1997 it was decided that George L. Gretton and the present editor should prepare a list of standardised terms in English, the use of which would be recommended to the contributors. Although not originally intended to be published, the authors finally decided to print the ‘glossary’, as it was then christened, consisting of the chosen standard terms, selected notes and translations of each term into the contributors’ national languages.122 A short introduction explains the approach and the organisation of the glossary so that no further information seems necessary at this point.

3. Order of the national reports

After a prolonged discussion, our group followed the example of Zimmermann and Whittaker who in the first volume within the present series123 organised the national answers by legal families instead of alphabetically. The inclusion of South Africa, which is neither a member of the EU nor one of the likely candidates for a future enlargement, rests on two grounds. First, South African law represents a most interesting mixture of Roman--Dutch law and common law and could therefore prove instructive to Europeans seeking to bridge the gap between the continental civil law systems and the common law.124 Secondly, without

124On possible lessons of mixed jurisdictions for private law harmonisation in Europe, see Smits, Europees Privaatrecht in wording. Naar een Ius Commune Europaeum als gemengd rechtsstelsel.