- •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
Security Rights in Movable Property in
European Private Law
For every transnational lawyer, it is vital to know the differences between national secured transactions laws. Since the applicable law is determined by the place where the collateral is situated, it may change when movables are brought from one state to another. Introductory essays from comparative lawyers set the scene. The book then presents a survey of the law relating to secured transactions in the member states of the European Union. Following the Common Core approach, the national reports are centred around fifteen hypothetical cases dealing with the most important issues of secured transactions law, such as the creation of security rights in different business situations, the relationship between debtor and secured creditor, the nature of the creditor’s rights and their enforcement as against third parties. Each case is followed by a comparative summary. A general report evaluates the possibilities of European harmonisation in the field of secured transactions law.
e v a - m a r i a k i e n i n g e r is Professor of German and European Private Law and Private International Law at the University of Würzburg, Germany.
c o n t r i b u t o r s
Steven Bartels, Michael Bridge, Albina Candian, K. Christodoulou, Fr´ed´erique Dahan, Eric Dirix, Georg Graf, Michele Graziadei, George L. Gretton, Torgny Håstad, Jona Israël, Leena Kartio, Eva-Maria Kieninger, Luís Menezes Leit˜ao, Gerard McCormack, Cornelius G. van der Merwe, Hans Viggo Godsk Pedersen, Elisabeth Poulou, Josep Santdiumenge, Harry C. Sigman, John Simpson, Jan Smits, Matthias E. Storme, Jarmo Tuomisto, Willem Zwalve.
The Common Core of European Private Law
General Editors
Mauro Bussani, University of Trieste
Ugo Mattei, University of Turin and University of California, Hastings
College of Law
Honorary Editor
Rodolfo Sacco, University of Turin
Late Honorary Editor
Rudolf B. Schlesinger, Cornell University and University of California, Hastings College of Law
Editorial Board
James Gordley, Cecil Turner Professor of Law, University of California, Berkeley; Editor in Chief of the American Journal of Comparative Law Antonio Gambaro, Professor of Law, University of Milano; President of the Italian Society of Comparative Law
Franz Werro, University of Freiburg and Georgetown University Law Center
Rodolfo Sacco, President of the International Association of Legal Science (UNESCO)
For the transnational lawyer the present European situation is equivalent to that of a traveller compelled to cross legal Europe using a number of different local maps. To assist lawyers in the journey beyond their own locality The Common Core of European Private Law Project was launched in 1993 at the University of Trento under the auspices of the late Professor Rudolf B. Schlesinger. This is its fourth completed book.
The aim of this collective scholarly enterprise is to unearth what is already common to the legal systems of European Union member states. Case studies widely circulated and discussed between lawyers of different traditions are employed to draw at least the main lines of a reliable map of the law of Europe.
Books in the Series
Mistake, Fraud and Duties to Inform in European Contract Law
Edited by Ruth Sefton-Green 0 521 84423 1 Hardback
Security Rights in Movable Property in European Private Law
Edited by Eva-Maria Kieninger 0 521 83967 X Hardback
Pure Economic Loss in Europe
Edited by Mauro Bussani and Vernon Valentine Palmer 0 521 82464 8 Hardback
The Enforceability of Promises in European Contract Law
Edited by James Gordley 0 521 79021 2 Hardback
Good Faith in European Contract Law
Edited by Reinhard Zimmermann and Simon Whittaker 0 521 77190 0 Hardback
Security Rights in Movable Property
in European Private Law
Edited by
Eva-Maria Kieninger
With the assistance of
Michele Graziadei
George L. Gretton
Cornelius G. van der Merwe
Matthias E. Storme
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Published in the United States of America by Cambridge University Press, New York
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Information on this title: www.cambridge.org/9780521839679
© Cambridge University Press 2004
This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.
First published in print format 2004
isbn-13 978-0-511-21679-4 eBook (NetLibrary) isbn-10 0-511-21679-3 eBook (NetLibrary)
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Contents
General editors’ preface |
page xi |
Preface |
xiii |
List of contributors |
xv |
Table of cases cited by name |
xvii |
Table of legislation |
xxii |
Part I Introduction and context |
|
List of abbreviations |
3 |
1 Introduction: security rights in movable property within |
|
the common market and the approach of the study |
6 |
e v a - m a r i a k i e n i n g e r
2 |
A labyrinth of creditors: a short introduction to the |
|
|
history of security interests in goods |
38 |
|
w i l l e m j . z w a l v e |
|
3 |
Security in movables in the United States -- Uniform |
|
|
Commercial Code Article 9: a basis for comparison |
54 |
|
h a r r y c . s i g m a n |
|
4 |
The English law of security: creditor-friendly but |
|
|
unreformed |
81 |
m i c h a e l b r i d g e
5The 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!) 98 f r é d é r i q u e d a h a n a n d j o h n s i m p s o n
vii
viii |
c o n t e n t s |
|
Part II The case studies |
|
|
|
List of abbreviations |
117 |
|
Bibliographies |
128 |
|
Glossary |
150 |
|
Case 1: Furniture for a new office |
171 |
|
Transfer of ownership -- general effects of insolvency on |
|
|
property -- statutory rights of unpaid seller -- resolutive |
|
|
clause -- goods in transit |
|
|
Discussions |
171 |
|
Comparative observations |
222 |
|
Case 2: The deceived seller |
230 |
|
Transfer of property -- effect of fraud -- effects of execution |
|
|
on property law questions |
|
|
Discussions |
230 |
|
Comparative observations |
243 |
|
Case 3: Machinery supplied to be used by the buyer |
246 |
|
Simple retention of title |
|
|
Discussions |
246 |
|
Comparative observations |
282 |
|
Case 4: Jackets for resale |
287 |
|
Simple retention of title -- entitlement to resell |
|
|
Discussions |
287 |
|
Comparative observations |
298 |
|
Case 5: Motor cars supplied and resold (I) |
301 |
|
Protection of bona fide purchaser -- retention of title and |
|
|
resale -- consignment -- special legislation |
|
|
Discussions |
302 |
|
Comparative observations |
343 |
|
Case 6: Motor cars supplied and resold (II) |
351 |
|
Retention of title and resale -- claim arising out of sub-sale |
|
|
still existing |
|
|
Discussions |
351 |
|
Comparative observations |
362 |
|
Case 7: Supply of material to manufacturer (I) |
365 |
|
Retention of title and products clause -- property effects of |
|
|
manufacturing |
|
c o n t e n t s |
ix |
Discussions |
366 |
Comparative observations |
394 |
Case 8: Supply of material to manufacturer (II) |
398 |
Retention of title -- sale of manufactured products -- |
|
combined products and proceeds clause |
|
Discussions |
398 |
Comparative observations |
414 |
Case 9: Too many toasters |
417 |
All-monies/sums clause -- effects of commingling on |
|
retention of title |
|
Discussions |
418 |
Comparative observations |
434 |
Case 10: Bank loan on the basis of a car fleet |
438 |
Security ownership -- sale and lease-back -- other |
|
non-possessory security rights in individualised movables |
|
Discussions |
438 |
Comparative observations |
473 |
Case 11: Bank loan for a wholesaler |
480 |
Security right in revolving stock-in-trade -- security |
|
ownership -- enterprise charge -- actio Pauliana |
|
Discussions |
481 |
Comparative observations |
525 |
Case 12: Bank loan on the basis of money claims (I) |
531 |
Security assignment of claims in respect of an identified |
|
debtor -- distinction between present and future claims -- |
|
dependence of the secured creditor’s rights on |
|
communication of the security right to the debitor cessus |
|
Discussions |
532 |
Comparative observations |
568 |
Case 13: Bank loan on the basis of money claims (II) |
573 |
Security right to a claim against a debtor whose identity |
|
is unknown at the time the security right is created -- |
|
rights of the secured party in execution |
|
Discussions |
574 |
Comparative observations |
592 |
x |
c o n t e n t s |
|
|
Case 14: Finance leasing of computers |
595 |
|
Finance leasing -- lessor’s and lessee’s rights in insolvency |
|
|
of the other partner -- effects of purchase option |
|
|
Discussions |
595 |
|
Comparative observations |
619 |
|
Case 15: Indebted businessman sells business to brother |
623 |
|
Liability of purchaser of a business for pre-existing |
|
|
debts -- actio Pauliana |
|
|
Discussions |
623 |
|
Comparative observations |
644 |
|
Evaluation: a common core? Convergences, subsisting |
|
|
differences and possible ways for harmonisation |
647 |
|
e v a - m a r i a k i e n i n g e r |
|
|
Index by country |
674 |
|
Index by subject |
738 |