Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 72

When searching for an answer to the question of what constitutes a “credit relationship” it is helpful to clarify which relationship is surely one and which one is not. To begin with the latter, that what German dogmatic calls a “Zug-um-Zug-Geschäft” –classical example is a barter in which the exchange of both sides’ performances takes place at one and the same moment– is definitely not a credit relationship. Be it mentioned here as an aside that the legal consequence of such a simultaneity is that no insolvency law of law of secured credit is necessary.

In contrast, an obvious example of a credit relationship is a loan agreement of which the borrower is obliged to repay the principal in a year from today. It is now the interesting (in the most literal meaning of the Latin word “inter-esse”: i.e. to be in-between) question from which time span between the exchange of the mutual performances on we are allowed to speak about a credit relationship? In other words, after how many hours, days, months7 switches a contemporaneous performance into a credit relationship? The answer can probably not be given on a general level, it is dependent on the particular circumstances and differs most likely from business to business and from jurisdiction to jurisdiction. It is important, though, in, for instance, German law with regard to the actio Pauliana of an insolvency administrator. Pursuant to sec. 142 InsO (Insolvenzordnung) certain legal transactions are in-avoidable when and if done on such contemporaneous basis. The Federal Supreme Court is of the opinion that, as a rule of thumb, exchange of performances within 3 weeks are to be seen as contemporaneous and constitute, thus, no credit relationship.

The answer to this question is particularly important with regard to the law of secured transactions. Since securitization is necessary (almost) only in sight of what German scholarship calls “insolvency risk”, i.e. the risk to suffer losses due to the debtor’s insolvency8. When and if there is no risk, no securitization is necessary. Accordingly, securitization corresponds and correlates with the passage of time; the longer that is the more important is the security in the credit relationship.