- •Contents
- •General editors’ preface
- •Preface
- •Contributors
- •Table of cases cited by name
- •England
- •Ireland
- •Netherlands
- •New Zealand
- •Scotland
- •South Africa
- •United States of America
- •Table of legislation
- •Austria
- •Belgium
- •Denmark
- •England
- •Finland
- •France
- •Germany
- •Greece
- •Ireland
- •Italy
- •Netherlands
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Sweden
- •Abbreviations
- •1 Introduction: security rights in movable property within the common market and the approach of the study
- •A. A short survey of the status quo
- •I. Economic reasons for the existence of security rights
- •II. Security rights in movable property: main divergencies
- •III. Private international law
- •1. Tangible movables: lex rei sitae and the limits of the doctrine of transposition
- •2. Claims: article 12 of the Rome Convention and its various interpretations
- •IV. The need for harmonisation within the EU
- •V. Attempts at harmonisation or unification: past and present
- •1. European Union
- •2. UNCITRAL
- •3. UNIDROIT
- •4. European Bank for Reconstruction and Development
- •B. The approach and purpose of the study
- •I. The ‘Common Core methodology’ as applied to secured transactions
- •II. Surveying the legal landscape against the background of a need for harmonisation
- •III. The genesis of the book
- •1. Narrowing down the topic
- •2. On terminology and the glossary
- •3. Order of the national reports
- •Bibliography
- •2 A labyrinth of creditors: a short introduction to the history of security interests in goods
- •1. Introduction
- •2. Justinian Roman law
- •3. Later developments in the European ius commune
- •4. Security interests in movables in the continental European codes
- •5. Common law and civil law
- •Bibliography
- •Brief description of key features of Article 9
- •History and context
- •Article 9 in depth
- •Creation, attachment and enforceability of a security interest
- •Scope of Article 9’s coverage
- •Perfection
- •How is perfection achieved?
- •Priority rules
- •Third-party rights
- •The filing system
- •Post-default rights and remedies
- •Conclusion
- •A. Article 9 through the eyes of an English lawyer
- •B. The values of English law
- •C. The future of English law
- •D. Summary
- •Postscript
- •Bibliography
- •5 The European Bank for Reconstruction and Development’s Secured Transactions Project: a model law and ten core principles for a modern secured transactions law in countries of Central and Eastern Europe (and elsewhere!)
- •Introduction
- •The EBRD Model Law on Secured Transactions: four objectives
- •The EBRD Ten Core Principles
- •How does the Model Law score? Answers to the questionnaire
- •Cases 1 and 2
- •Case 3
- •Case 4
- •Cases 5 and 6
- •Cases 7 and 8
- •Cases 9 and 11
- •Cases 10 and 14
- •Cases 12 and 13
- •Case 15 and a conclusion
- •Abbreviations
- •Germany
- •Austria
- •Greece
- •France
- •Belgium
- •Portugal
- •Spain
- •Italy
- •The Netherlands
- •England
- •Ireland
- •Scotland
- •South Africa
- •Denmark
- •Sweden
- •Finland
- •Evaluation/Comparative observations
- •Bibliographies
- •Germany
- •Austria
- •Greece
- •France
- •Belgium
- •Portugal
- •Spain
- •Italy
- •The Netherlands
- •England
- •Scotland
- •South Africa
- •Denmark
- •Sweden
- •Finland
- •Comparative observations
- •Glossary
- •I. Introduction
- •Questions
- •Discussions
- •Effects of bankruptcy
- •General remarks on transfer of ownership
- •Comparative observations
- •part (a)
- •Passing of ownership
- •part (b)
- •part (c)
- •Case 2: The deceived seller
- •Question
- •Discussions
- •Comparative observations
- •Abstract and causal systems
- •Protection of third parties
- •Case 3: Machinery supplied to be used by the buyer
- •Questions
- •Discussions
- •Comparative observations
- •Parts (a) and (e)
- •Part (b)
- •Part (c)
- •Part (d)
- •Case 4: Jackets for resale
- •Question
- •Discussions
- •Comparative observations
- •Case 5: Motor cars supplied and resold (I)
- •Questions
- •Discussions
- •Comparative observations
- •Part (a)
- •Part (b)
- •Part (c)
- •(i) Solutions which do not require additional clauses or transactions
- •(iii) Assignment of the proceeds
- •(v) Contracts other than sale under retention of title (consignment and commission)
- •(vi) Rights in the sold goods other than retention of title
- •(vii) Summary
- •Case 6: Motor cars supplied and resold (II)
- •Questions
- •Discussions
- •Comparative observations
- •Part (a)
- •Part (b)
- •Case 7: Supply of material to manufacturer (I)
- •Questions
- •Discussions
- •Comparative observations
- •Part (a)
- •Part (b)
- •Part (c)
- •Part (d)
- •Case 8: Supply of material to manufacturer (II)
- •Questions
- •Discussions
- •Comparative observations
- •Parts (a) and (b)
- •Part (c)
- •Part (d)
- •Case 9: Too many toasters
- •Questions
- •Discussions
- •Comparative observations
- •Part (a)
- •(i) Validity of all-sums clauses
- •(ii) Invalidity of all-sums clauses
- •(iii) All-sums clauses and commingling
- •(iv) Invalidity of simple retention of title
- •Part (b)
- •Part (c)
- •Questions
- •Discussions
- •(i) Principle of publicity
- •(iii) Unconscionability
- •Comparative observations
- •Parts (a)--(c)
- •(i) Use of ownership for security purposes
- •(ii) Security rights based on the idea of a pledge without dispossession
- •Part (d)
- •Case 11: Bank loan for a wholesaler
- •Questions
- •Variation
- •Discussions
- •Stock-in-trade containing goods sold under retention of title
- •Variation
- •Variation
- •Variation
- •Variation
- •Variation
- •Variation
- •Variation
- •Variation
- •Variation
- •Variation
- •Variation
- •Variation
- •Variation
- •Variation
- •Variation
- •Variation
- •Comparative observations
- •Parts (a)--(c)
- •Part (d)
- •Variation
- •Case 12: Bank loan on the basis of money claims (I)
- •Questions
- •Discussions
- •Comparative observations
- •(iii) Further requirements
- •Case 13: Bank loan on the basis of money claims (II)
- •Questions
- •Discussions
- •Comparative observations
- •Parts (a)--(c)
- •Part (d)
- •Case 14: Finance leasing of computers
- •Questions
- •Discussions
- •Comparative observations
- •Part (a)
- •Part (b)
- •Part (c)
- •Part (d)
- •Case 15: Indebted businessman sells business to brother
- •Questions
- •Discussions
- •Comparative observations
- •Part (a)
- •Parts (b) and (c)
- •A. General tendencies
- •I. Common developments
- •1. Evolution of secured transactions law outside the Civil Codes
- •2. No unitary, functional approach to security rights
- •3. Enlarging the range of security rights
- •4. Limiting the rights of secured creditors in insolvency
- •6. The rise of contractual devices coupled with title-based security rights
- •II. Persisting differences
- •1. General attitude towards security rights in movables
- •B. Convergences and divergences in relation to specific security rights
- •I. Security rights with strong convergence
- •1. Simple retention of title
- •2. Leasing
- •II. Security rights where some elements of convergence are present but where significant differences continue to subsist
- •1. Security rights in entities of property -- enterprise charge
- •2. Security assignment of claims or charge over claims (outside retention of title)
- •3. Extensions of retention of title
- •4. Non-possessory security rights in individualised property (other than retention of title and leasing)
- •C. Possible ways towards harmonisation
- •I. Simple retention of title
- •II. Harmonisation or unification beyond simple retention of title
- •1. Form, scope and context
- •2. Main policy choices concerning the substantive rules
- •(a) Uniform, functional approach
- •(b) Range of possible collateral
- •(c) Publicity
- •(d) Priority
- •(e) Special rules for purchase-money security interests
- •Bibliography
- •Index by country
- •Index by subject
52 |
w i l l e m j . z w a l v e |
of property with a stipulation for redemption54 -- was fundamentally changed in England. The legislative act which triggered this change was the introduction of Bills of Sale Acts (since 1878) and the requirement of registration. After then, ‘chattel mortgages’ were only allowed if the grantor had actually transferred possession to the grantee. Only then did the mortgagee enjoy preference over the general creditors upon his debtor’s bankruptcy. Creditors have naturally tried to by-pass these provisions by returning to the archetype of non-possessory security in chattels of the common law, the conditional sale (the sale and lease-back or a hire-purchase contract). Insufficient attention has been paid on the continent, especially in the Netherlands, to the way in which English courts enforce the Sale of Goods Act. ‘The court is to look through and behind the documents, and to get at the reality.’55 More often than not, the court finds a sham or simulated security transaction behind an apparently valid transaction and refuses to allow a creditor to avail himself of a proprietary security interest created in this way.56
Bibliography
G. J. Bell, Commentaries on the Law of Scotland II (7th edn, 1870). Cornelis van Bynkershoek, Observationes tumultuariae IV (1962). Fr. Calasso, Medio Aevo del Diritto (1954).
Introduzione al Diritto Commune (1970).
B. Carpzov, Jurisprudentia forensis Romano-Saxonicus (1650).
Helmut Coing, Europäisches Privatrecht I (Älteres Gemeines Recht) (1985).
J. Dalrymple of Stair, Institutions of the Law of Scotland, ed. Walker (1981). John Dawson, The Oracles of the Law (1968).
Hugo Grotius, Inleidinge tot de Hollandsche rechtsgeleerdheid (1895). Wolfgang Hromadka, Die Entwicklung des Faustpfandprinzips im 18. und 19.
Jahrhundert (1971).
M. Kaser, Das römische Privatrecht (RP) I (1971); II (1975).
‘Studien zum römischen Pfandrecht’, Tijdschrift voor Rechtsgeschiedenis 44 (1976) 283 ff.
‘Besitzpfand und ‘‘besitzloses” Pfand’, Studia et Documenta Historiae et Iuris 45 (1979) 1 ff.
Paul Koschaker, Europa und das römische Recht (1966).
54There is, however, a fundamental difference between a mortgage and a civil law transfer of title with a power (or duty) to redeem. English equity has transformed the common law right to redeem, a right in personam, into a proprietary interest sui generis, the ‘equity of redemption’.
55Maddel v Thomas & Co. [1891] QB 230, at 234 per Lord Esher.
56See Polsky v S & A Services [1951] 1 All ER 185.
a l a b y r i n t h o f c r e d i t o r s |
53 |
A.J. van der Lelij, Levering van roerende zaken door middel van een zakenrechtelijk waardepapier (1996).
J. van der Linden, Regtsgeleerd Practicaal en Koopmans Handboek (1806). C. G. van der Merwe, Sakereg (2nd edn, 1989).
G. Noordraven, ‘D. 13,7,6 pr: un caso di pignus’, Bullettino di Diritto Romano 83 (1980) 247 ff.
De ‘Fiducia’ in het Romeinse recht (1988).
Willem Pauw, Observationes tumultuariae novae I (1964). R. J. Pothier, Traité de l’Hypothèque (1818).
G. Schlichting, Die Verfügungsbeschränkung des Verpfänders im klassischen römischen Recht (1973).
S. Tondo, ‘‘‘Pignus” e ‘‘Precarium”’, Labeo 5 (1959) 157 ff.
Andreas Wacke, ‘Ein Verfügungsverbot des römischen Verpfänders?’, Rivista Internazionale di Diritto Romano e Antico 24 (1973) 184 ff.
D. Walker, Principles of Scottish Private Law II (1975). Fr. Wieacker, Privatrechtsgeschichte der Neuzeit (1967).
3Security in movables in the United States -- Uniform Commercial Code Article 9: a basis for comparison
h a r r y c . s i g m a n
The purpose of this chapter is to provide the reader with an opportunity to compare movables security law in Europe, particularly this volume’s discussion of its common core, with the corresponding body of law in the United States. This chapter will describe the approach taken in the US, an approach that has already had significant influence beyond the borders, ranging from a substantially complete adoption in virtually all of the provinces of Canada, to visible impact in the formulation of the EBRD Model Law on Secured Transactions (1994), the United Nations Convention on Assignment of Receivables in International Trade (approved by the General Assembly in 2001), the UNIDROIT Convention on International Interests in Mobile Equipment (recently approved at the diplomatic conference in Cape Town), and the OAS Model Inter-American Law on Secured Transactions (recently approved at the sixth Inter-American Specialized Conference on Private International Law) and to direct or indirect influence on contemporary reform legislation in New Zealand, Eastern Europe, Mexico and elsewhere.
Article 9, part of the Uniform Commercial Code (‘‘UCC”), is a substantial piece of legislation, first enacted in the early 1950s, that seeks to facilitate financing secured by ‘‘personal property” (i.e., movables, whether tangible or intangible, as distinct from ‘‘real property”, i.e., land and buildings) by making such financing more efficient, economical and widely available. Facilitative rather than regulatory, Article 9 seeks to
Harry C. Sigman was a member of the Drafting Committee that revised Article 9 UCC; the views in this chapter, however, are his own.
54
s e c u r i t y i n m o v a b l e s i n t h e u s -- u c c a r t . 9 |
55 |
attain this goal by providing as much certainty and predictability as possible, by providing a comprehensive set of flexible market-oriented rules for the creation and enforcement of security interests and for the determination of priority among competing claims to the collateral, minimizing the need for and likelihood of litigation. The legislation, of course, stands over a base of property and contract law, but the rules are based on practicality rather than theory, formulated with a view to the needs of the marketplace.
While the US is a common law jurisdiction, the movables security field is governed in comprehensive and detailed fashion by Article 9, with, quite deliberately, little left to judicial development. This approach is significantly different from movables security law in Europe, where the law is either almost entirely developed by the courts, based on very few Civil Code provisions, as for example in Germany; or where there is a combination of general Civil Code provisions supplemented by specific legislation dealing with particular transactions, such as the various nantissements and warrants, as in France, in instances where the legislator was persuaded by practical necessity to depart from either, or both, the rule or the logic of general Civil Code principles, but did so only on a limited basis; or, more recently, where there has been broad legislation directly modifying the otherwise applicable general rules, as illustrated by the Belgian Law of 6 July 1994 concerning transfer of claims (cession et mise en gage de créances).
In this chapter, terms defined in the UCC are shown in bold italics the first time they appear. Calling attention to the fact that a term is defined serves to stress the importance of the definitions in the methodology of Article 9, to assist the reader who desires to go further in depth into Article 9, and to warn the reader that a term may not have its simple vernacular meaning. In the UCC, many substantive elements are built into the definitions. Thus, the definitions are key to the understanding and application of the substantive rules, particularly those concerning perfection and priority. This chapter is not a comprehensive treatise and space does not allow quotation of the definitions. They are, however, easy to find in the statute. Although some definitions are found in section 1-201, most are found in section 9-102, in alphabetical order. When a term is defined elsewhere than in one of these two sections, the section providing the definition is identified. Concepts or terms that are significant but which are not defined in the statute are shown in single quotation marks the first time they appear.