478 s e c u r i t y r i g h t s i n m o va b l e p r o p e r t y

hand, offer the statutory framework to create registrable charges only in respect of specific kinds of movables, such as, for example, cars, trucks, aircraft, vessels, etc. France, Belgium, Portugal, Italy, Denmark, Sweden and Finland belong to this group, but also England and Germany which recognise, in respect of certain equipment of high value such as aircraft and vessels, a special registrable pledge.124 In France, the statutory possibility to establish a charge may even be confined to specific kinds of debts. The French report points out that, for instance, the gage sur véhicule can only be used by the seller to secure the payment of the purchase price of the vehicles in question.

Finally, the lack of publicity arising from the absence of actual delivery is most commonly (more than) compensated by a requirement of registration in publicly accessible registers. Such registration may be tied to the person giving the security or to the collateral. The first option is adopted by English, Irish and Scots law; the second is followed by most jurisdictions which provide charges only for specific kinds of assets: such as, for example, the French gage sur véhicule or the Italian privilegio sull’ autoveicolo.

However, there are also jurisdictions which require the observance of a certain form without rendering the security right public. The most prominent example is the Dutch ‘silent pledge’ which has been introduced to replace security ownership, on its invalidation. The pledge is in fact silent. Even if the parties opt for registration instead of setting up a notarised deed, third parties remain unable to inform themselves about the existence of such pledges because the register is not publicly accessible. If the reason for the prohibition of security ownership was the uncertainty that is created by hidden, non-possessory security interests, one may well ask what the advantage of such a ‘silent’ pledge may be. This tension might be one of the reasons why the Hoge Raad itself does not seem to take the prohibition of security ownership125 and security assignment126 too seriously.

Part (d)

B’s situation, in the unlikely event of A’s insolvency, depends on the nature of secured transaction entered into. As a general rule, B enjoys

124See, for German law, ibid., 26 note 38 with further references.

125See Dutch report, supra at note 77.

126See Hoge Raad 16 May 1997, Rechtspraak van de Week 126 (Brandsma q.q. v Hansa Chemie AG); Struycken, Lloyd’s Maritime and Commercial Law Quarterly 1998, 345 (352 f.).

a better position if the parties have agreed on a security right in the strict sense, including security ownership, than if they have utilised a sale and lease-back contract.

Those jurisdictions which recognise the charge (England, Ireland, Scotland, Portugal) or a non-possessory pledge (the Netherlands) draw the obvious conclusion that B has remained the owner of the cars and is therefore entitled to vindicate his unencumbered property provided he pays back the loan. The same solution applies under German and Greek law when B has transferred security ownership to A. This result, which is less obvious, is a consequence of the fiduciary character of the transaction.

If the parties have concluded a contract of sale and lease-back, the answers to part (d) are more diverse. They will be discussed in the comparative observations to case 14(d).