Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 8

Given the non-formalised, unstructured character of English law in general, it strikes an odd note to assert that there exists a numerus clausus of security interests7, an expression that appears to leave no room for innovation or addition within the category that it describes. Clearly recognised security interests of a consensual kind are pledge, mortgage and charge. Of these, pledge is a consensual and legal (as opposed to equitable) interest. It amounts to a possessory right over things in possession8 carved out of ownership, coupled with a power of sale on default with a duty to pay over any surplus realised over and above the secured debt and interest9. There are faint signs of attempts to recognise an equitable pledge10, but equity did not develop a notion of constructive possession and the welcoming approach of English law to non-possessory security has meant there is no driving practical need for such an entity.

Mortgages and charges are both types of consensual, non-possessory security. Whereas a mortgage may take either a legal or an equitable form, a charge gives rise only to an equitable interest11. Note now the interplay between common law and equity in the law of mortgages. At common law, a legal mortgage is an outright transfer of ownership12, subject to defeasance when the principal sum and interest are repaid. This defeasance gives rise to an automatic transfer of ownership back to the mortgagor, the entitlement of the mortgagor to put itself in this position being recognised in equity as the equity of redemption13. An equitable mortgage arises either when there is a transfer of equitable ownership only14 or where any formalities required for a legal mortgage have not been satisfied15. In the latter case, treating as done that which ought to be done, the contractual undertaking to transfer the legal interest is anticipatorily treated in equity as though it had been accomplished. The transfer of ownership in a mortgage at first sight suggests that ownership, as expressed in a conditional sale, and security are kindred creatures but the critical difference between them lies in the origin of ownership, lying with the debtor in a mortgage transaction but with the creditor in a conditional sale.

There is no such thing at common law, as opposed to statute16, as a legal charge. The common law has a quite strict requirement of identification and with the fixing of a property interest on a defined thing17. With the exception of joint interests such as tenancy in common, it is resistant to the idea of a shifting or partial encumbrance of assets that does not pinpoint the subject of the proprietary grant18. Equity, on the other hand, accepts the notion of a fluctuating charge that appropriates assets to the repayment of a debt to the extent of that debt for the time being, without going so far as to transfer even an equitable proprietary interest to the chargee19. Going even further than that, it permits charges to have a floating character so that the chargor may continue to deal with charged assets for its own beneficial interests, in the confident expectation that permissible dealings will generate substitute assets for the chargor, replacing those that have been alienated with the chargee’s permission20. The very breadth of a charge, together with the freedom given to the parties to provide for a wide array of remedies, absorbing the remedies of a mortgagee in the process21, means that any numerus clausus of security interests does not in practice tie the hands of creditor and debtor. For the sake of convenience, future references to a charge will include references to a mortgage unless there is a particular need to separate them.

Non-consensual security interests also exist, namely the possessory common law lien and its statutory analogues and the limited non-consensual equitable lien. The former is much the more important and exists in a defined number of instances. Essentially, a common law lien is a passive right of retention but it is often inflated by contract or statute22. A lien enhanced by contractual provision will go further and may give the lienee possessory security for all debts owed, past and present, as well as a power of sale.

That is an economical summary of the structure in English law of true security, which takes no account whatever of the way in which ownership is manipulated to enhance the rights of a creditor stretching beyond a personal right to sue to recover money owed (or the very much smaller sum that is conventionally recovered where the debtor has become insolvent).

In economic terms, ownership can be deployed so as to give a creditor the equivalent, or even better, than a true security without the law investing the transaction with the features that would attend upon the grant of true security. This can be done in various ways. If credit is granted by a seller, the seller may reserve the property in the goods until the price is paid. This can arise in a lump sum transaction, or it may occur under an instalment plan. An alternative to this conditional sale is the contract of hire purchase, whereby goods are delivered under the terms of an instalment plan so that the hirer, having paid the overall value of the goods together with interest, is then given an option to purchase the goods for a nominal sum23. Going further beyond the conditional sale and hire purchase is the finance lease24, which is akin to a hire purchase contract but lacks the option to purchase. It is often succeeded by a sale of the goods, by then heavily depreciated. And there are more possibilities for financing stock in trade based upon schemes involving sale and resale and agency. One ingenious example involved a financier purchasing inventory from a software manufacturer and then using the manufacturer as an undisclosed agent to generate overseas sales and accounts receivable owed to the financier, with payment being made into an account in the manufacturer’s name that was controlled by the financier25. The result was that a prior creditor’s charge could not attach to the accounts receivable since they were never the accounts of the manufacturer. Under block discounting schemes, the personal and proprietary rights of the supplier under instalment contracts of hire purchase and conditional sale can be assigned to a third party financier. Often, it is just the supplier’s personal rights in the form of accounts receivable that are sold under an invoice factoring agreement26. Goods may be sold to a financier and leased back or else repurchased, sometimes giving rise to a recharacterisation risk as the agreement gives rise to a charge with the consequences that follow from the failure to register as such27. Finally, venturing into the securities market, there are sale and repurchase transactions (so-called repos) where the identified subject matter of the agreement changes so that what is repurchased is the generic equivalent of what is sold but not the very thing that is sold28. This change of identity should make it difficult if not impossible for the agreement to be treated as giving rise to a security interest even under functionally-driven legislation.

Above all, English courts have committed themselves to a search for the so-called substance of the agreement. As similar as this may seem to a functional approach, given the use of the language of substance in modern personal property security legislation, it is far from being so. When a financing agreement is construed according to its substance, all that means is that the parties are allowed to characterise their agreement in the way that they wish as long as their actions under the agreement are consistent with that characterisation. The courts reserve to themselves a power to recharacterise the transaction if their actions are inconsistent with the language of the agreement29. Hence, artificial transactions are recognised for what they purport to be, but so-called shams, where the agreement is deceptively dressed up so as to be inconsistent with what the parties are in fact doing, are not30.