Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 20

So what then are we to make of the argument that the retention of ownership rights and the grant of true security are in essence different? Goods have a limited lifespan. Their ephemeral character also makes them difficult to track over time and their value, typically declining over time, makes such an effort hardly worthwhile. Taking a closer look at the type of goods, the sentimental attraction of a classic automobile to a collector is not to be equated to a piece of construction equipment the ownership of which is acquired by a finance lessor from a dealer just in time to make it subject to a lease running for its predicted usable lifespan. Turning to intangible property, even with the common law’s extensive conception of property that accommodates items such as debts and contract rights, it would be hard to find a common lawyer able and willing to see anything special about a debt that has been discounted in favour of a factor. There is no such thing as a sentimental attachment to a debt. As much as we may be inclined to hug trees, the same does not apply to heavy machinery and accounts receivable. Overall, English law has not demonstrated a consistent and outright commitment to the notion that a fundamental difference exists between use and ownership in the field of personal property.

This observation prompts the question why true security and quasi-security are not assimilated for the purpose of registration. A critic of the English law of security and title-based transactions may step back from the picture of the whole and wonder why the courts (and inactive legislators) are so tolerant of devices that are designed as measures of legal avoidance. If registration of security interests is of such importance that it warrants a substantial legislative effort, why should it be so easy in practice to avoid with the aid of a quasi-security transaction like a finance lease or a sale of accounts receivable? There is an almost uncanny resemblance between the law of security and revenue law in the matter of avoidance. The history of revenue legislation in the United Kingdom is littered with artificial schemes devised to work round the latest legislation and with attempts to capture schemes that do not follow a straightforward path when reaching a transactional result favourable to the taxpayer.

There is nevertheless one critical matter that remains in the broad world of security, which is that of freedom of contract between debtor and creditor. What is at issue here is the respect that should be accorded to the essential bargain struck between creditor and debtor. Freedom of contract may be an attempted explanation for the tolerance of efforts to avoid registration, but, as stated above, any requirement that a transaction be registered does not purport to alter the basic bargain between parties to a quasi-security transaction. Freedom of contract does, however, come into play in the field of remedies. Contracting parties are not burdened by distributive considerations, apart from unusual instances such as bargaining in the shadow of insolvency101, which means that the parties are free from having to consider and take account of the interests of third parties. If for example I have the resources to purchase an apartment in order to rent it out, this subtraction from the available housing stock, impairing to a degree the chances of others to buy an apartment or that particular apartment, does not invalidate my contract with the seller. If I insist on security before making a loan, I need not consider the possible negative effect on other, unsecured creditors recovering less from an insolvent debtor. If a creditor and debtor conclude a contract on conditional sale terms, with any surplus going to the seller on default, then why should not this bargain be respected even if it does to a degree diminish the recovery of another creditor, whether that creditor is secured or unsecured?

As long as this respect for freedom of contract were retained as far as remedies are concerned, I should be quite content to see a codification of the English law of security, largely assimilating true security and quasi-security, in place of the existing piecemeal combination of statutory provisions and case law. It would render the law more accessible, which is a gain worth striving for here as in other areas of English commercial law. The density and dispersal of English law is a real barrier to understanding it. Finally, if the registration rules were extended to quasi-security (or at least some cases of it) and if a comprehensive statement of priority rules were to be laid down in the code, the outcomes in these areas, if not the language of the code, might not be so very different from the outcomes reached in the Article 9 systems102.

(1) A useful if somewhat vague expression that in section 1 defines the scope of the UK Consumer Credit Act 1974.

(2) The expression used in English law and practice is book debts but accounts receivable is a more widely understood expression and for that reason is used in this paper.

(3) See in particular UCC Article 9 and the legislation it has stimulated in other countries; the UNCITRAL Model Law on Secured Transactions; and the UNCITRAL Legislative Guide on Secured Transactions. On the last of these, see G McCormack, “The UNCITRAL Legislative Guide on Secured Transactions – Functionalism and Form” in B Foëx, L Thevenoz and S Bazinas (eds), Reforming Secured Transactions (2007); G. McCormack, Secured Credit and the Harmonisation of Law (2011) Ch 6.

(4) Companies Act 2006 sections 859A et seq.

(5) It is more or less accurate (the exception being cash and bank notes) to equate things in possession (a form of tangible property) with goods.

(6) M. Bridge, L. Gullifer, K. Low and G. McMeel, The Law of Personal Property (2nd edn 2018) Ch 15; H. Beale, M. Bridge, L. Gullifer and E. Lomnicka, The Law of Security and Title-Based Transactions (3rd edn 2018).

(7) See Re Cosslett (Contractors) Ltd [1998] Ch 495, 508.

(8) Land cannot be pledged. Nor can things in action (more or less to be equated with intangible movables): Your Response Ltd v Datateam Business Media Ltd [2015] Q.B. 41. English law rejects the notion of possession over intangible movables except to the limited extent that this idea is imposed upon it by EU-derived legislation: Financial Collateral Arrangements (No. 2) Regulations 2003, SI 2003/3226.

(9) Mathew v TM Sutton Ltd [1994] 1 WLR 1455.

(10) N. Palmer and A. Hudson, “Pledge”, in N. Palmer and E. McKendrick (eds), Interests in Goods (2nd edn 1998), pp. 645-46.

(11) In the Law of Property Act 1925, there exists a hybrid, namely a charge by way of legal mortgage which stands in lieu of the common law character of a mortgage.

(12) A feature that it shares with the Roman fiducia.

(13) Despite the traditional structure of the mortgage as an outright sale conditional upon defeasance, equity’s insistence that the transaction is set up to serve a security purpose is tantamount to the functionalism evident in UCC Article 9 and cognate systems.

(14) Hence, for example, the mortgage of a trust beneficiary’s interest would have to be an equitable mortgage.

(15) These formalities affect land (realty) but for personalty only a limited number of assets, such as company shares.

(16) I am sure that many civilians must be mystified by the way that statute and case law in common law systems need not intellectually be integrated. A statute sits as an excrescence on the common law. Hence, even though statute recognises a legal charge by way of mortgage, this has no effect on the way that charges are defined at common law. Another point, apt to confuse civilians, is the way that common law is an expression used in radically different senses to mean both that body of law not reduced to a statutory form, and that body of non-statutory law that excludes equitable principles and rules, apart from the meaning that it has when differentiated from civil law.

(17) Lunn v Thornton (1845) 1 CB 379.

(18) It is also inappropriate for reaching into future assets since it lacks the capacity of equity automatically to attach a security or transfer rights to those assets as and when they come into existence: Lunn v Thornton (1845) 1 CB 379.

(19) Re Bond Worth Ltd [1980] Ch 228.

(20) Tailby v Official Receiver (1888) 13 App Cas 523.

(21) See, eg, London County and Westminster Bank v Tompkins [1918] 1 KB 515.

(22) Sale of Goods Act 1979; Torts (Interference with Goods) Act 1977.

(23) Helby v Matthews [1895] AC 471. There were various practical reasons (eg, avoidance of regulation under moneylending legislation, protection of supplier’s ownership against competing third parties), most of which are not current today, for the evolution of this transaction distinct from conditional sale.

(24) This expression is not a term of art in English law.

(25) See, eg, Welsh Development Agency v Export Finance Co Ltd [1992] BCLC 148.

(26) See Re George Inglefield Ltd [1933] Ch 1; Lloyds and Scottish Finance Ltd v Cyril Lord Carpet Sales [1992] BCLC 609.

(27) An unregistered charge is void as against insolvency office holders and other secured creditors. See, eg, Re Curtain Dream Ltd [1990] BCLC 925. It should not be forgotten that a mortgage is in essence a sale and resale.

(28) Discussed further below.

(29) Agnew v Commissioner of Inland Revenue [2001] AC 710.

(30) For example, Snook v London and West Riding Investments Ltd [1967] 2 QB 786.

(31) A point that is not made in J. Gordley and U. Mattei, “Protecting Possession” (1996) 44 Am J Comp L 293.

(32) When the Consumer Rights Act 2015 was passed, a provision was inserted to the effect that the passing of property rules of the 1979 Act applied also to consumer sales. Inspired, it would seem, by the needs of a lay readership, the general property was explained in the 2015 Act section 4 as ownership, a word that is absent from the 1979 Act.

(33) Sale of Goods Act 1979 section 61(1).

(34) In England, the process of recording ownership of land in this way is protracted, as the old process of establishing ownership by showing deeds of grant establishing a root of title going back so many decades is superseded by a registration system on a case by case basis only as and when a particular parcel of land is conveyed.

(35) See, eg, Port Line Ltd v Ben Line Steamers Ltd [1958] 2 QB 146.

(36) An obvious exception is present in the art world where the process of establishing provenance also narrates the history of a work’s ownership.

(37) F. Pollock and R. Wright, An Essay on Possession in the Common Law (1888), p. 5.

(38) Costello v Chief Constable of Derbyshire [2001] 1 WLR 1437.

(39) Unfair Contract Terms Act 1977 section 8.

(40) Sale of Goods Act 1979 sections 49, 51.

(41) Rowland v Divall [1923] 2 KB 500.

(42) Unfair Contract Terms Act 1977 section 6(1).

(43) Butterworth v Kingsway Motors Ltd [1954] 1 WLR 1286.

(44) Under Sale of Goods Act 1979 section 35.

(45) PST Energy 7 Shipping LLC v OW Bunker Malta Ltd (The Res Cogitans) [2016] AC 1034.

(46) The Winkfield [1902] p. 42.

(47) Kuwait Airways Corp v Iraqi Airways Co [2002] 2 AC 883.

(48) There are various limited exceptions that afford protection to a good faith purchaser but none of them applies here.

(49) In trading in the car unlawfully, the hirer’s possessory title to the car is also eliminated.

(50) See, eg, Wickham Holdings Ltd v Brook House Motors Ltd [1967] 1 WLR 295.

(51) Widely defined in the UK because the regulations transposed an EU directive beyond its minimum limits to include credit claims. See the Financial Collateral Arrangements (No. 2) Regulations 2003, SI 2003/3226.

(52) The present law allows for the registration of the security agreement itself so that the costs of preparing documentation may not significantly differ as between, say, a charge over equipment and a finance lease.

(53) R. Calnan, “What Makes a Good Law of Security” in F. Dahan (ed.), Research Handbook on Secured Financing in Commercial Transactions (2015), Ch 17.

(54) Consider, eg, enhanced set-off rights granted by contract. According to G. Gilmore, Security Interests in Personal Property (1966), Vol. 1, 31 pp. 5-16: “Of course a right of set-off is not a security interest and has never been confused with one: the statute [Article 9] might as appropriately exclude fan dancing”. But the holder of set-off rights has an improved position, compared to other creditors, in the counterparty’s insolvency.

(55) English law is less accommodating than, say German law when it comes to reservation of title rights since attempts to extend the right to accounts receivable or new goods generated by the goods supplied will be recharacterised as charges.

(56) Companies Act 2006 sections 859A et seq.

(57) In the case of future advances, English law is less accommodating to the financier than Article 9 systems in that, subject to limited exceptions, priority for the future advance ranks behind another creditor’s intervening charge.

(58) See principally Insolvency Act 1986 sections 40, 175, 176A, 386 and Schedule B1 para. 65(2).

(59) Insolvency Act 1986 section 344.

(60) The Bills of Sale Acts 1878-91.

(61) Insolvency Acts 1985, 1986.

(62) Bills of Sale Act 1878 section 8.

(63) Clough Mill Ltd v Martin [1985] 1 WLR 111, 117-18.

(64) See, eg, Medforth v Blake [2000] Ch 86.

(65) T. Jackson and A. Kronman, “Secured Financing and Priorities among Creditors” (1979) 88 Yale LJ 1141, 1171-78.

(66) D. Baird and T. Jackson, “Security Interests in Personal Property” (2nd edn 1987), p. 401.

(67) Re Curtain Dream Ltd [1990] BCLC 925.

(68) Re Goldcorp Exchange Ltd [1995] 1 AC 74. For criticism of this concession to the seller’s subjective state of mind, as opposed to what the investors reasonably thought they were getting, see M. Bridge, “Certainty, Identification and Intention in Personal Property Law”, in P. Davies and J. Penner (eds), Equity, Trusts and Commerce (Hart, 2017), pp. 87-111.

(69) See further M. Bridge, “Security Financial Collateral Transfers and Prime Broker Insolvency” (2010) 4 Law and Financial Markets Review 189. The insolvency office holder may, if the market is a falling one, choose to perform the second leg. This adds nothing to the risk the original seller incurred in the first place since it would have had to repurchase the securities or instruments from a solvent contractual counterparty on a falling market.

(70) See M. Bridge, R. Macdonald, R. Simmonds and C. Walsh, “Formalism, Functionalism and Understanding the Law of Secured Transaction” (1999) 44 McGill LJ 567, 581: “[S]ale and security remain distinct transactions even in a functionalist world…”.

(71) Sale of Goods Act 1979 section 14.

(72) See R. Cuming, ‘Internationalizing Secured Financing Law’, in R. Cranston (ed.), Making Commercial Law (1997), 523.

(73) G. Gilmore, Security Interest in Personal Property (1965), Vol. 1, p. 67.

(74) I am reminded of an exchange I had at a seminar some years ago in Florence when Professor Basedow advanced the view that the extension of what a common lawyer would call specific performance, as a result of transposing the EU Sale Directive into English law, would result in the increased availability of specific performance in contract in general.

(75) See also UCC Article 1-201(35) (definition of “security interest”).

(76) UCC Article 9-203(b)(2) requires that the debtor have “rights in the collateral or the power to transfer rights in the collateral to a secured party”.

(77) Shipment, as distinguished from delivery, would capture Incoterms “D” terms, such as DAP (delivered at place), so that the property in the goods would pass as from the commencement of the transit and prior to delivery at the named place.

(78) Hence, this is consistent with the Official Comment to Article 9-203: “A debtor’s limited rights in collateral, short of full ownership, are sufficient for a security interest to attach. However, in accordance with basic personal property conveyancing principles, the baseline rule is that a security interest attaches only to whatever rights a debtor may have, broad or limited as those rights may be”. Note that this reasoning does not apply to finance leases: there is no provision prohibiting a purported reservation of ownership (See Art 1-203 [Lease Distinguished from Security Interest]).

(79) See, eg, Tailby v Official Receiver (1888) 13 App Cas 523.

(80) Section 3(1)(a). Very similar language is to be found in the New Zealand Personal Property Securities Act 1999, No. 126, s 17(1)(a) and in the Australian Personal Property Securities Act 2009, No. 130, s 12(1).

(81) This question, posed in respect of finance leases but the reasoning in which extends to the case of conditional sales, presented acute difficulties in a case where an unregistered finance lease was opposed, not against another secured creditor with an interest in the goods, but against a trustee-in-bankruptcy. The litigation in Re Giffen [1998] 1 SCR 91 arose under the British Columbia Act where an unregistered interest was stated to be “not effective” –the wording in the Saskatchewan Act is “subordinate”– against the trustee in bankruptcy. By tortuous reasoning, the Canadian Supreme Court held that the trustee prevailed. See M Bridge, “Secured Credit Legislation: Functionalism or Transactional Co-Existence” in S Bazinas and O Akseli (eds), International and Secured Transactions Law (2017).

(82) Likewise the UNCITRAL Legislative Guide on Secured Transactions, but see Recommendation 192 and the comment of G McCormack, Secured Credit and the Harmonisation of Law (2011) at pp. 145-46.

(83) See UNCITRAL Practical Guide to the Model Law on Secured Transactions, para. 54 (Examples 6A and 6D) and para. 162: “A contract under which goods are sold on retention-of-title terms and a financial lease agreement are just two examples of a security agreement…”.

(84) Consider the much more detailed provision made in Book IX, particularly articles IX. –1:103 and IX. –1:10.

(85) One point detracting from this is that a second-ranking creditor might have a claim to the surplus that the conditional seller regards as its own when the goods are repossessed. It is axiomatic, or almost so, that third party (or distributive) issues do not affect the bargain struck between debtor and creditor.

(86) M. Bridge, R. Macdonald, R. Simmonds and C. Walsh, “Formalism, Functionalism and Understanding the Law of Secured Transactions” (1999) 44 McGill LJ 567, 590.

(87) Section 2(1)(jj)(i).

(88) Section 2(1)(jj)(ii).

(89) The pre-Article 2 account of purchase money security interests given by Gilmore is wholly concerned with the priority battle between conditional sellers and creditors with a security interest in land in those cases where the goods are attached to the land so as to become fixtures or arguably fixtures: Security Interests in Personal Property (1965), Vol. 2, Ch 28.

(90) See R. Macdonald, “Article 9 Norm Entrepreneurship” (2006) 43 Cana Bus LJ 240, 283: “[T]he priority afforded to the vendor’s hypothec (or a ‘purchase money security interest’) merely replicates the logic of an instalment sale under a resolutory condition in regimes that continue ti distinguish between security and title devices”.

(91) Article 9-301(1).

(92) Article 9-324(a).

(93) Article 9-324(g)(1); Saskatchewan Act section 34(5).

(94) Clough Mill Ltd v Martin [1985] 1 WLR 111, 117-18

(95) Re Connolly Bros Ltd (No. 2) [1912] 2 Ch 25; Abbey National Building Society v Cann [1991] AC 56.

(96) Cape Town Convention article 8.

(97) Cape Town Convention article 9.

(98) Cape Town Convention article 10.

(99) Cape Town Convention article 12.

(100) See S. Saidova, Security Interests under the Cape Town Convention on International Interests in Mobile Equipment (2018), p. 150 (qualified by an example given at p. 151).

(101) Unlawful preferences and undervalue transactions, for example. See Insolvency Act 1986 sections 238-45.

(102) One outstanding difference, where the Article 9 systems are more protective of secured creditors, concerns future advances. Under English law, whereas a charge can be registered so that the Act of registration protects future advances even if the amount is unstated, the chargee’s priority in respect of discretionary future advances is postponed to the extent of an advance made by a competing intervening chargee: Law of Property Act 1925 section 94. That said, I was advised by a distinguished American academic at a conference in Toronto in 1995 that English law had no need of an Article 9 because “it aint broke”.