Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 14

The expression “purchase money security interest” has no particular meaning in English law. There are isolated cases where a notion of this sort has been recognised so as to upset the normal first-in-time priority rule. This has been done by treating two transactions as though they were one: first, the acquisition of assets by a debtor from a third party supplier and secondly, the charging or mortgaging of that asset in favour of the financier supplying the funds for the purchase. In this way, the rights of a prior financier with a charge over the debtor’s future assets are overreached since that prior charge takes the future asset in question in its already charged state.

In an unstated way, title-based financing transactions, defeating as they do prior charges over a debtor’s future assets, vindicate the purchase money interest of the later financier. This is because the prior charge attaches only to the debtor’s own assets and does not capture assets owned by a third party. So, besides being free from registration, the title-based financier takes priority over the earlier charge. Since the outcome of the priority contest is axiomatic –the debtor cannot charge an asset that it does not own– there is no need to justify the reversal of the normal time line in priority matters, in the way that is done for generic purchase money interests, by pointing to a need to avoid a debtor’s subjection to a single creditor enjoying a situational monopoly65, or to the avoidance of transaction costs that would be incurred if the two parties sat down together to enter into a priority agreement. Nor is there any need to assert that the assets introduced by the purchase money financier do not detract from the security previously made available to the earlier financier. The advance made to the debtor is matched by the additional asset brought into the debtor’s estate; the debtor is not using “the new loan to roll over old debt”66.