Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 12

Taking registration first, the resistance of the English legal community to registration has been intense and hard to justify at first glance. After all, if registration performs a valuable publicity function for charges –a point that is apparently accepted without serious dissent– why should this not also be the case for title-reservation transactions? A current initiative, run out of the City of London Law Society, is considering ways of revising the current law of security but, so far, resistance to registration for title reservation remains entrenched. This is despite the fact that the process of registering a charge, though not the costs associated with preparing the transaction documents, is modest52, A leading member of the City of London Law Society has defended the exemption of title registration on two principal grounds53. The first is that, taking finance leases as an example, if we were to require registration of title-based schemes, where would we draw the line between them and other transactions such as intellectual property licences. One response to this argument is that lines always have to be drawn somewhere and each type of transaction should be considered on its own merits. Admittedly, a functional definition of security has a reductionist appearance, thereby capable of catching transactions that its original drafters never intended to be captured so that the picture can never be regarded as completely settled54. The second ground is that, in the event of non-registration, the lessee is given an unencumbered asset and a property right that the parties never intended the lessee to have. The answer to this takes the form of a rebuttal. The lessor retains its ownership rights as against the lessee. It is only as against competing secured creditors and insolvency holders that the lessor is subordinated. The lessee does not acquire a proprietary windfall and the essential nature of the bargain between lessor and lessee remains unimpaired.

When it comes to title-based transactions, such as, say, a five-year finance lease, any burden that were to be imposed by registration appears to be a minor one. It is hard to resist the conclusion that the resistance to registration in cases of this sort is tied in to a degree of abhorrence of the expropriatory effect of legislation if registration is not effected. But since the financier acquires the ownership of the equipment from a dealer for the purpose of effecting the lease, and may never have set its corporate eyes on the machinery, the sentimental attraction of ownership is absent. The transaction should therefore be treated for publicity purposes as if the goods had been sold by the dealer to the user and then immediately charged by the user in favour of the financier. The case of recurring small scale transactions involving sellers on reservation of title terms is a different one. A single act of registration for all possible future transactions may not be feasible. How large is the current transaction and how likely is it to be repeated in the future? Yet, given the way that registration accommodates future property and future advances in English law, any need for multiple registrations can be avoided since, in effect, the act of registration can amount to the registration of a continuing relationship. If the burden of registration on suppliers under small-scale transactions is thought to be oppressive, because for example a transaction is a one-off, a type of exemption from the registration requirement might be allowed in the form of a grace period given to sellers reserving title in a particular transaction. By the time the period will have expired, it is highly likely that the goods will have lost their identity and the clause its utility55. In this way, legislation distinguishing the two types of title reservation, the ephemeral and the long-term, is feasible.

Before we turn later to priority in more general terms, the relationship between registration and priority repays examination. The registration system in England may be described as negative in effect, in that registration does not create a priority position; it is the failure of the chargee to register that deprives it of the priority position it would otherwise have56. The priority right dates from the grant of security and not from the act of registration. There is no need to describe future property other than in general terms. Consequently, a supplier of goods on reservation of title terms could, if the incentive to do so were strong enough, register on a single occasion. Is there in such a case a risk of subordination to prior charges capturing future assets? At first sight, the risk to the small-scale supplier is not high. Consider the prior chargee providing medium or long-term finance. Its charge can reach into the future and capture both future property in a single security document and act of registration57, but a price of sorts needs to be paid. This is because the security of that prior chargee will many instances amount to a floating charge, subject in priority terms to a later fixed charge and, increasingly, substantially downgraded by subordination to the expenses of the insolvency process, preference creditors and unsecured creditors (subject to a financial cap)58. The problem for the small-scale supplier is that, if its reserved title were recharacterised as a charge, the necessary freedom the supplier gives to the buyer to dispose of the goods supplied in the ordinary course of business would in effect require the charge to be classed as a floating charge too. Consequently, legislation requiring the registration of reservation of title clauses would either have to continue recognising them as ownership devices or, if treating them as charges, accord them the special status of a purchase money security interest.

It should be noted that there is to a degree title registration of personal property in England. It applies in the case of ships, aircraft and certain intellectual property rights. (Heavy machinery is capable of being uniquely identified in the same way as aircraft and ships but no such system of registration applies here.) Registration also applies in the case of a “general assignments of book debts” by individuals (but not companies)59 and there is also archaic legislation still in forces concerning bills of sale60. Reputed ownership, as a doctrine designed to protect those dealing with others and misled by their apparent wealth, has probably had less of an impact in English law than in American law. Conditional sales and hire purchase, for example, have never had to be registered in England. Reputed ownership used to play a significant role in the law of individual bankruptcy (but not corporate insolvency) until it was swept away by statute in the mid-1980s61. A relic of the doctrine, if it can be called that, still exists in the case of bills of sale, though I am not aware of any activity on this front in many decades. The relevant legislation, the Bills of Sale Act 1878, aimed at the evil of secret transactions, requires registration of documents embodying sales or gifts. A failure to register the bill of sale within seven days of its execution means that the bill of sale is “fraudulent and void” against trustees in bankruptcy and execution creditors if the goods remain in the possession or apparent possession of the maker of the bill of sale after the seven days62. The documents in question are absolute bills of sale, as opposed to security bills of sale such as charges. A large number of documentary types common in trade are excluded from the legislation, which leaves the reader asking questions about the purpose and continuing relevance of this absurd legislation.