The Reluctance of Civil Law Countries in Adopting “the Without Breach of Peace” Standard of UCC Article 9: Evidence from National and International Legal Instruments Governing Secured Transactions
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The Reluctance of Civil Law Countries in Adopting “the Without Breach of Peace” Standard of UCC Article 9: Evidence from National and International Legal Instruments Governing Secured Transactions. / Gikay, Asress Adimi; Stanescu, Catalin Gabriel.
I: Journal of Civil Law Studies, Bind 10, Nr. 1, 2017, s. 101-120.Publikation: Bidrag til tidsskrift › Tidsskriftartikel › Forskning › fagfællebedømt
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TY - JOUR
T1 - The Reluctance of Civil Law Countries in Adopting “the Without Breach of Peace” Standard of UCC Article 9: Evidence from National and International Legal Instruments Governing Secured Transactions
AU - Gikay, Asress Adimi
AU - Stanescu, Catalin Gabriel
PY - 2017
Y1 - 2017
N2 - One of the defining features of the Uniform Commercial Code Article 9 is the secured creditor’s ability to take possession of the collateral upon the debtor’s default “without breach of peace.” This standard is meant to protect the debtor from abusive secured creditors, the meaning of which has been shaped by courts on a case-by-case basis.In reforming their secured transactions laws and to enhance access to credit, continental legal systems have shown great reception to Article 9 by adopting the unitary concept and functional approach to security interests, introducing private enforcement mechanisms, including various forms of self-help repossession. However, the “without breach of peace” standard seems to be rejected by most national laws and international legal instruments acceded to by civil law countries, to accommodate the supposedly alien idea of self-help repossession with civil law tradition.Based on comparative analysis of secured transactions laws of the US, the UK, Romania, and Hungary (representing national laws), and the Cape Town Convention on International Interests in Mobile Equipment along with the Aircraft Protocol and the Draft Common Frame of Reference (representing international legal instruments), this article demonstrates that continental European legal systems are generally apprehensive with the “without breach of peace” standard.Thus, they are reluctant to transplant it to their legislation and try to either modify it or replace it with different legal requirements. This article concludes that the alternatives of the “without breach of peace” standard prevailing in continental legal systems undermine the privilege of the secured creditor, pose enforcement problems (such as uncertainty of creditors’ rights and possible abuses against consumer debtors), and restrain out-of-court enforcement.
AB - One of the defining features of the Uniform Commercial Code Article 9 is the secured creditor’s ability to take possession of the collateral upon the debtor’s default “without breach of peace.” This standard is meant to protect the debtor from abusive secured creditors, the meaning of which has been shaped by courts on a case-by-case basis.In reforming their secured transactions laws and to enhance access to credit, continental legal systems have shown great reception to Article 9 by adopting the unitary concept and functional approach to security interests, introducing private enforcement mechanisms, including various forms of self-help repossession. However, the “without breach of peace” standard seems to be rejected by most national laws and international legal instruments acceded to by civil law countries, to accommodate the supposedly alien idea of self-help repossession with civil law tradition.Based on comparative analysis of secured transactions laws of the US, the UK, Romania, and Hungary (representing national laws), and the Cape Town Convention on International Interests in Mobile Equipment along with the Aircraft Protocol and the Draft Common Frame of Reference (representing international legal instruments), this article demonstrates that continental European legal systems are generally apprehensive with the “without breach of peace” standard.Thus, they are reluctant to transplant it to their legislation and try to either modify it or replace it with different legal requirements. This article concludes that the alternatives of the “without breach of peace” standard prevailing in continental legal systems undermine the privilege of the secured creditor, pose enforcement problems (such as uncertainty of creditors’ rights and possible abuses against consumer debtors), and restrain out-of-court enforcement.
KW - Faculty of Law
KW - enforcement
KW - security rights
KW - Self-help (Law)
KW - repossession
KW - without breach of peace
KW - UCC Article 9
KW - Louisiana
KW - access to credit
KW - secured creditor
KW - consumer-debtor
KW - civil law
M3 - Journal article
VL - 10
SP - 101
EP - 120
JO - Journal of Civil Law Studies
JF - Journal of Civil Law Studies
SN - 1944-3749
IS - 1
ER -
ID: 188480332