Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 62

As regards the type of loan, a comparison of Member States’ approaches to enforcement of bank loans reveals the following tendencies. First, disparities between Member States’ treatment of unsecured and secured claims increase from corporate debtors over sole traders/partnerships to consumers. Differences between jurisdictions are particularly strong as regards the enforcement of secured and unsecured claims against consumers.

Second, the disparity between Member States is more pronounced for secured than for unsecured loans. In other words, banks in the European Union have to deal with larger deviations in enforcement support when enforcing secured claims. These differences are visible in the following charts (using the example of corporate debtors)26.

Chart 4: Average value of “Yes”/“No” answers by Member State – corporate debtor, secured loan:

Chart 5: Average value of “Yes”/“No” answers by Member State – corporate debtor, unsecured loan:

What is the relevance of such different treatment of secured and unsecured loans? As already mentioned, different support for different types of loans means that the law risks distorting the bargain between the parties. If a legal system prefers unsecured loans over secured loans in enforcement, then banks will decrease the price for unsecured loans and increase the price of secured loans (and vice versa).

It would be wrong, however, to conclude that this is ultimately a zero-sum-game. Different types of traders and consumers have unequal access to assets they can offer as security. In addition, their liquidity as a basis for unsecured borrowing differs. To give just one example, if a legal system prefers unsecured loans over secured loans in enforcement, then businesses, which can offer strong liquidity outlooks, will benefit by way of cheaper debt finance. However, those businesses without strong liquidity but valuable assets that could serve as security will expect higher costs of debt finance. Such influences would be suboptimal. Investment decisions and the cost of finance should be determined by the products and services that businesses create rather than the fact whether they can offer liquidity or assets27.