Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 46

Where assets of third parties are in the possession or under the control of the debtor (e.g., goods subject to a seller’s retention of title), a number of questions arise with respect to their treatment in the debtor’s insolvency, including whether the debtor’s rights in those assets are part of the estate subject to stays, whether the relevant contract are subject to avoidance, and whether third-party owned assets may be used and disposed of by the insolvent debtor or the insolvency administrator.

As already mentioned, the Insolvency Guide recommends that insolvency law should provide that all assets of the debtor are part of the estate, including the debtor’s rights and interests in encumbered assets and third-party owned assets. In principle, the exact treatment of third-party owned assets and in particular whether the owner can separate them from the insolvency estate depends on the characterization of the rights of the third parties as security or title (e.g., the rights of a retention-of-title seller or a financial lessee), which is a matter of property and in particular secured transactions law. If secured transactions law characterizes them as security interests (as the Secured Transaction Guide does), the recommendations of the Insolvency Guide applicable to the treatment of security interests in insolvency apply also to title-based security interests.

However, even if secured transactions law characterizes those rights as title, the Insolvency Guide still recommends that in several respects insolvency law should treat third-party owned assets in the same way as encumbered assets (e.g., with respect to the avoidance of contracts, the inclusion in the estate of the debtor’s rights in those assets, the use and disposition of assets of the estate, treatment of contracts29.