Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 38

In principle, the Insolvency Guide recommends that insolvency law should recognize the effectiveness and enforceability of a security interest that is effective and enforceable under law other than insolvency law upon commencement of insolvency proceedings17.

However, while a security interest may be effective and enforceable under other law, it may be subject to avoidance if the security agreement took place in the “suspect period” (i.e., a period before commencement of insolvency) and is a “preferential’ or “fraudulent” transfer (e.g., the creation of a security interest shortly before insolvency without fair consideration)18.

In addition, the Insolvency Guide recommends that, to bring more value into the estate, insolvency law should allow an insolvency administrator to essentially re-negotiate and decide to continue or reject contracts (including loan and security agreements) that have not been fully performed both by the insolvent debtor and its counter-parties19. This, however, does not mean that a security interest is extinguished before full payment of the secured obligation20. Otherwise, secured credit would be very risky and either not available or very expensive.