Security Rights in Movable Property in European Private Law (The Common Core of European Private Law)

Security Rights in Movable Property in

European Private Law

For every transnational lawyer, it is vital to know the differences

between national secured transactions laws. Since the applicable law

is determined by the place where the collateral is situated, it may

change when movables are brought from one state to another.

Introductory essays from comparative lawyers set the scene. The book

then presents a survey of the law relating to secured transactions in

the member states of the European Union. Following the Common

Core approach, the national reports are centred around fifteen

hypothetical cases dealing with the most important issues of secured

transactions law, such as the creation of security rights in different

business situations, the relationship between debtor and secured

creditor, the nature of the creditor’s rights and their enforcement as

against third parties. Each case is followed by a comparative summary.

A general report evaluates the possibilities of European

harmonisation in the field of secured transactions law.

eva-maria kieninger is Professor of German and European

Private Law and Private International Law at the University of

Würzburg, Germany.

contributors

Steven Bartels, Michael Bridge, Albina Candian, K. Christodoulou,

Fr´ed´erique Dahan, Eric Dirix, Georg Graf, Michele Graziadei, George L.

Gretton, Torgny Håstad, Jona Israël, Leena Kartio, Eva-Maria Kieninger,

Luís Menezes Leit˜ao, Gerard McCormack, Cornelius G. van der Merwe,

Hans Viggo Godsk Pedersen, Elisabeth Poulou, Josep Santdiumenge,

Harry C. Sigman, John Simpson, Jan Smits, Matthias E. Storme, Jarmo

Tuomisto, Willem Zwalve.

The Common Core of European Private Law

General Editors

Mauro Bussani, University of Trieste

Ugo Mattei, University of Turin and University of California, Hastings

College of Law

Honorary Editor

Rodolfo Sacco, University of Turin

Late Honorary Editor

Rudolf B. Schlesinger, Cornell University and University of California,

Hastings College of Law

Editorial Board

James Gordley, Cecil Turner Professor of Law, University of California,

Berkeley; Editor in Chief of the American Journal of Comparative Law

Antonio Gambaro, Professor of Law, University of Milano; President of

the Italian Society of Comparative Law

Franz Werro, University of Freiburg and Georgetown University Law

Center

Rodolfo Sacco, President of the International Association of Legal

Science (UNESCO)

For the transnational lawyer the present European situation is

equivalent to that of a traveller compelled to cross legal Europe using

a number of different local maps. To assist lawyers in the journey

beyond their own locality The Common Core of European Private Law

Project was launched in 1993 at the University of Trento under the

auspices of the late Professor Rudolf B. Schlesinger. This is its fourth

completed book.

The aim of this collective scholarly enterprise is to unearth what is

already common to the legal systems of European Union member

states. Case studies widely circulated and discussed between lawyers of

different traditions are employed to draw at least the main lines of a

reliable map of the law of Europe.

Books in the Series

Mistake, Fraud and Duties to Inform in European Contract Law

Edited by Ruth Sefton-Green

0 521 84423 1 Hardback

Security Rights in Movable Property in European Private Law

Edited by Eva-Maria Kieninger

0 521 83967 X Hardback

Pure Economic Loss in Europe

Edited by Mauro Bussani and Vernon Valentine Palmer

0 521 82464 8 Hardback

The Enforceability of Promises in European Contract Law

Edited by James Gordley

0 521 79021 2 Hardback

Good Faith in European Contract Law

Edited by Reinhard Zimmermann and Simon Whittaker

0 521 77190 0 Hardback

Security Rights in Movable Property

in European Private Law

Edited by

Eva-Maria Kieninger

With the assistance of

Michele Graziadei

George L. Gretton

Cornelius G. van der Merwe

Matthias E. Storme

cambridge university press

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press

The Edinburgh Building, Cambridge cb2 2ru, UK

First published in print format

isbn-13 978-0-521-83967-9

isbn-13 978-0-511-21679-4

© Cambridge University Press 2004

2004

Information on this title: www.cambridge.org/9780521839679

This publication is in copyright. Subject to statutory exception and to the provision of

relevant collective licensing agreements, no reproduction of any part may take place

without the written permission of Cambridge University Press.

isbn-10 0-511-21679-3

isbn-10 0-521-83967-x

Cambridge University Press has no responsibility for the persistence or accuracy of urls

for external or third-party internet websites referred to in this publication, and does not

guarantee that any content on such websites is, or will remain, accurate or appropriate.

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org

hardback

eBook (NetLibrary)

eBook (NetLibrary)

hardback

Contents

General editors’ preface page xi

Preface xiii

List of contributors xv

Table of cases cited by name xvii

Table of legislation xxii

Part I Introduction and context

List of abbreviations 3

1 Introduction: security rights in movable property within

the common market and the approach of the study 6

eva-maria kieninger

2 A labyrinth of creditors: a short introduction to the

history of security interests in goods 38

willem j. zwalve

3 Security in movables in the United States -- Uniform

Commercial Code Article 9: a basis for comparison 54

harry c. sigman

4 The English law of security: creditor-friendly but

unreformed 81

michael bridge

5 The European Bank for Reconstruction and Development’s

Secured Transactions Project: a model law and ten core

principles for a modern secured transactions law in

countries of Central and Eastern Europe (and elsewhere!) 98

frédérique dahan and john simpson

vii

viii contents

Part II The case studies

List of abbreviations 117

Bibliographies 128

Glossary 150

Case 1: Furniture for a new office 171

Transfer of ownership -- general effects of insolvency on

property -- statutory rights of unpaid seller -- resolutive

clause -- goods in transit

Discussions 171

Comparative observations 222

Case 2: The deceived seller 230

Transfer of property -- effect of fraud -- effects of execution

on property law questions

Discussions 230

Comparative observations 243

Case 3: Machinery supplied to be used by the buyer 246

Simple retention of title

Discussions 246

Comparative observations 282

Case 4: Jackets for resale 287

Simple retention of title -- entitlement to resell

Discussions 287

Comparative observations 298

Case 5: Motor cars supplied and resold (I) 301

Protection of bona fide purchaser -- retention of title and

resale -- consignment -- special legislation

Discussions 302

Comparative observations 343

Case 6: Motor cars supplied and resold (II) 351

Retention of title and resale -- claim arising out of sub-sale

still existing

Discussions 351

Comparative observations 362

Case 7: Supply of material to manufacturer (I) 365

Retention of title and products clause -- property effects of

manufacturing

contents ix

Discussions 366

Comparative observations 394

Case 8: Supply of material to manufacturer (II) 398

Retention of title -- sale of manufactured products --

combined products and proceeds clause

Discussions 398

Comparative observations 414

Case 9: Too many toasters 417

All-monies/sums clause -- effects of commingling on

retention of title

Discussions 418

Comparative observations 434

Case 10: Bank loan on the basis of a car fleet 438

Security ownership -- sale and lease-back -- other

non-possessory security rights in individualised movables

Discussions 438

Comparative observations 473

Case 11: Bank loan for a wholesaler 480

Security right in revolving stock-in-trade -- security

ownership -- enterprise charge -- actio Pauliana

Discussions 481

Comparative observations 525

Case 12: Bank loan on the basis of money claims (I) 531

Security assignment of claims in respect of an identified

debtor -- distinction between present and future claims --

dependence of the secured creditor’s rights on

communication of the security right to the debitor cessus

Discussions 532

Comparative observations 568

Case 13: Bank loan on the basis of money claims (II) 573

Security right to a claim against a debtor whose identity

is unknown at the time the security right is created --

rights of the secured party in execution

Discussions 574

Comparative observations 592

x contents

Case 14: Finance leasing of computers 595

Finance leasing -- lessor’s and lessee’s rights in insolvency

of the other partner -- effects of purchase option

Discussions 595

Comparative observations 619

Case 15: Indebted businessman sells business to brother 623

Liability of purchaser of a business for pre-existing

debts -- actio Pauliana

Discussions 623

Comparative observations 644

Evaluation: a common core? Convergences, subsisting

differences and possible ways for harmonisation 647

eva-maria kieninger

Index by country 674

Index by subject 738

General editors’ preface

This is the fourth book in the series The Common Core of European Private

Law. The Common Core of European Private Law Project was launched in 1993

at the University of Trento under the auspices of the late Professor Rudolf

B. Schlesinger. The methodology used in the Trento project is novel. By

making use of case studies it goes beyond mere description to detailed

inquiry into how most European Union legal systems resolve specific

legal questions in practice, and to thorough comparison between those

systems. It is our hope that these volumes will provide scholars with a

valuable tool for research in comparative law and in their own national

legal systems. The collection of materials that the Common Core Project

is offering to the scholarly community is already quite extensive and will

become even more so when more volumes are published. The availabil￾ity of materials attempting a genuine analysis of how things are is, in

our opinion, a prerequisite for an intelligent and critical discussion on

how they should be. Perhaps in the future European private law will be

authoritatively restated or even codified. The analytical work carried on

today by the almost 200 scholars involved in the Common Core Project is a

precious asset of knowledge and legitimization for any such normative

enterprise.

We must thank the editors and contributors to these first published

results. With a sense of deep gratitude we also wish to recall our late

Honorary Editor, Professor Rudolf B. Schlesinger. We are sad that we

have not been able to present him with the results of a project in which

he believed so firmly. No scholarly project can survive without com￾mitted sponsors. The Dipartimento di Scienze Giuridiche of the Uni￾versity of Trento, its past and present directors and its excellent staff

must be thanked. The European Commission has partially sponsored

some of our past general meetings, having included them in their High

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xii general editors’ preface

Level Conferences Program. The Italian Ministry of Scientific Research

is now also funding the project, having recognized it as a ‘research of

national interest’. The Istituto Subalpino per l’Analisi e l’Insegnamento

del Diritto delle Attività Transnazionali, the University of Torino, the

University of Trieste, the Fromm Chair in International and Compara￾tive Law at the University of California and the Hastings College of Law

have all contributed to the funding of this project. Last but not least,

we must thank all those involved in our ongoing Trento projects in

contract law, property, tort and other areas whose results will be the

subject of future published volumes. Our home page on the internet

is at http://www.jus.unitn.it/dsg/common-core. There you can follow our

progress in mapping the common core of European private law.

General Editors:

mauro bussani (University of Trieste)

ugo mattei (University of Turin and University of California, Hastings

College of Law)

Honorary Editor:

rudolfo sacco (University of Turin)

Late Honorary Editor:

rudolf b. schlesinger (Cornell University and University of Califor￾nia, Hastings)

Editorial Board

James Gordley, Cecil Turner Professor of Law, University of California,

Berkeley; Editor in Chief of the American Journal of Comparative Law

Antonio Gambaro, Professor of Law, University of Milano; President of

the Italian Society of Comparative Law

Franz Werro, University of Freiburg and Georgetown University Law

Center

Rodolfo Sacco, President of the International Association of Legal

Science (UNESCO)

Preface

The law relating to security rights in movable property is one of the

areas where the diversity of national laws is of special practical impor￾tance. As a consequence of the universally accepted rule of private inter￾national law, the lex rei sitae, two or more different laws have to be

applied consecutively to a single transaction, if collateral is moved across

borders. Because such movement is at the heart of the idea of a Common

Market it comes as no surprise that the first project which emerged from

the property law group of the Common Core was dedicated to security

rights in movables.

Like all volumes in this series, this book is truly a collective scholarly

enterprise. I am grateful to all contributors who prepared their reports

and essays and discussed them at various annual meetings in Trento.

Three of them, Michele Graziadei, George Gretton and Cornelius van der

Merwe, were of special assistance in compiling the reports, drafting the

comparative observations and finding a common terminology. Special

thanks are due to Matthias Storme, who drafted the first version of the

questionnaire and acted as editor in the beginning.

The editor and those contributors who are not native English speakers

owe a great debt of gratitude to Alec Brown of the English Bar, who

corrected the style of the texts. Without his dedication and diligence,

the book might not have seen the light of day. All remaining errors are,

however, the respective authors’ responsibility. We are also especially

grateful to Karin Linhart, Jenny Grimm and Olaf Beller, assistants at the

University of Würzburg, who corrected the footnotes and compiled the

bibliographies and lists of abbreviations.

Finally, I would like to thank the general editors of the series, Mauro

Bussani and Ugo Mattei, for initiating the Common Core project and

for providing excellent facilities and an amiable atmosphere at the

xiii

xiv preface

general meetings in Trento. Thanks are also due to the research network

‘Uniform Terminology for European Private Law’ co-ordinated by

Gianmaria Ajani at the University of Turin for financing part of the

research work for this book.

eva-maria kieninger

Würzburg, October 2003