Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 17

On the first question, a functional definition of security overriding the difference between title-based transactions and true security cuts across common law notions of property72. Comparing conditional sales to chattel mortgages, both assimilated as security interests by UCC Article 9, Gilmore observed of the antecedent law:

“[T]he unpaid seller’s rights against the goods…was not even remotely analogous to the right of a lender of money against his security; conditional sale and chattel mortgage were members of quite different families73”.

This process of assimilation within a particular statute instead of throughout the general law, together with the effacement of any distinction between law and equity –a distinction rather more accentuated in England than in the United States then and now– presents an outcome that may be rather less disturbing to a common law mind than to that of a civil lawyer. Common lawyers are bred to understand that statute sits on the surface of the common law, modifies that law to the extent of its provision, but does not otherwise alter the culture of the underlying common law. The civil law mode of thinking, as I understand it, would regard such an “odd couple” partnership as incoherent and in need of rationalisation74.

Now, Article 9 states its application, with express exceptions, in the following terms: “[T]his Article applies to…a transaction, regardless of its form, that creates a security interest in personal property or fixtures by contract”. This provision should be read alongside UCC Article 2-401(1): “Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest75”. The interesting question is why the recharacterisation of the conditional sale was divided between the two articles of the UCC in this way. At this point, we turn to the proposition that a security interest under Article 9 can bite only on the debtor’s “rights in the collateral76”. Consequently, for example, if I hold only a share in a racehorse or a ship, I cannot encumber the whole with a security interest, only my share. Since Article 2, the sales provision of the UCC, does not allow a seller to reserve title to the goods after shipment or delivery77 –though it otherwise gives the parties freedom to decide when the property does pass– it follows that the buyer becomes the owner under Article 2-401(1) and therefore has rights in the collateral amounting to ownership that can be attached by a security interest in favour of the unpaid seller78. This is regardless of whether payment is to be made in a lump sum or on an instalment plan. The seller would then have to protect its interests against third parties by perfecting that interest by filing. A simple assertion in Article 9 that a conditional sale is a security interest would pose the awkward question: What rights in the collateral does a conditional buyer have when the seller remains the owner? The answer would appear to be such rights as Article 9 deems by implication the buyer to have to make the inclusion of conditional sales workable if only in part. Otherwise, Article 9 would not work in the case of conditional sales unless a security interest were regarded as developing incrementally and rateably as payments under the transaction are made from time to time.

Almost incidentally, one may remark that, whereas under the English law of sale the parties can as a matter of contract determine when and whether property passes, this contractual freedom is denied to the contracting parties by Article 2. The characterisation of the transaction is not a matter of contract at all, so presumably the parties could not by contract modify the application of Article 2-401(1) so as take the transaction out of the reach of Article 9. It is worth making a point here about the English law of security that is apposite at a number of points in this paper. The English law of security is an emanation of the law of contract and attracts the same commitment to freedom of contract that exists outside the world of secured transactions. This is due at least in part to the extensive intervention of equity and its insistence that a contract to give security is as good as security79.

Consider now the Saskatchewan Personal Property Security Act, which does not build upon a provision in Saskatchewan’s Sale of Goods Act restricting the freedom of the contracting parties in the same way. If anything, the functional approach to security in the Saskatchewan Act is even more pronounced than it is in Article 9 since it applies to “every transaction that in substance creates a security interest, without regard to its form and without regard to the person who has title to the collateral; and…to a conditional sale…”80. Notice the difference. The Saskatchewan Act accepts the characterisation of the contract as one of sale and does not expressly deny that the property in goods has been reserved under the terms of a conditional sale. But consider now what the architect of the Saskatchewan Act has to say:

“Since a title retention sales contract or a lease falls within a secured financing regime because it functions as security device, it follows that the seller or the lessor is not the owner of the goods sold or leased. What the seller or lessor has is a security interest; the owner of the goods is the buyer or lessee…”.

If this is correct, the interesting question is whether the conditional seller never was a seller or, as a result of falling within the Act, is no longer a seller. Article 2 of the Uniform Commercial Code seems to recognise that the conditional seller remains the owner prior to shipment or delivery but there is no equivalent provision in the Saskatchewan Sale of Goods Act. So how and when is the conditional seller expropriated in favour of the buyer?81. As interesting as the question is, the Saskatchewan Act goes on to say that a security interest attaches as and when “the debtor has rights in the collateral or power to transfer rights in the collateral to a secured party”. The latter part of the formula, which should principally capture the case of an agent with authority or power to encumber collateral, may also be thought to deal with the case of a conditional sale. The buyer’s power to encumber the collateral may be thought to flow from the characterisation of the contract as one of security. Nevertheless, this analysis begs the question and does appear to be uncomfortably circular. The buyer has rights in the collateral because this is a conditional sale governed by the Act, and, because it is a conditional sale governed by the Act, the buyer has rights in the collateral.

The conundrum of a conditional buyer’s rights in the collateral is even more accentuated in the UNCITRAL Model Law on Secured Transactions. In considering the Model Law and its commitment to functionality82, the first thing to note is the absence of clarifying or explanatory language concerning the application of the Model Law to title-based transactions. There is no mention in the Model Law of conditional sales. There are numerous references to leases, dealing with matters such as the secured creditor’s remedies and the source of secured receivables, but nothing on the coverage of finance leases themselves as secured transactions. Nevertheless, it is plain that there is an intention to embrace such transactions83. So this is what Article 6(1) has to say: “A security right is created by a security agreement, provided that the grantor has rights in the asset to be encumbered or the power to encumber it”. We have to assume our conclusion that the conditional buyer or finance lessee has rights in the collateral in order to apply the Model Law to the transaction. Moreover, there is another odd feature of the Model Law to consider. How can we possibly say that the reserved ownership of the conditional seller or the finance lessor is a right “created” by the security agreement when it pre-existed the security agreement? I believe that we are entitled to expect more from our legislators than this84.

A further point –which concerns Article 9, the Saskatchewan Act and the Model Law– is why is it necessary to assimilate true security and quasi-security so as to make them conceptually identical when all that had to be done was to ensure that notice requirements and priority rules applied evenly to both? At this point, I do not refer to remedies if only because the question of remedies between creditor and debtor, unlike notice and priority, is a bilateral matter that can be settled as a matter of contract between the two of them85. It does not seem to me that assimilation, as between commercial parties at least, should be forced on the parties at the point of remedies. To do so, amounts to “a profound interference with the contractual bargain between the parties”86. I would have no objection to reforming legislation in England that adopted something like a functional definition of security for the purpose of registration and priority rules. This would be preferable to a list of existing devices with an incentive to drafters to invent new forms in the future falling outside the statutory list alongside a long-standing judicial tolerance of attempts to avoid, rather than evade, the impact of regulatory legislation.