Abstract
Self-help and debt collection are traced back to the beginning of trade in the history of mankind. Despite that self-help and debt collection receive more attention today, it would be a mistake to think they are new phenomena. In reality, they have been with us since the moment we started doing business—although in primitive form—and they will continue to be with us in the future. Throughout our existence as a species, we have created methods to recover debts, both by private and public means, according to the conditions at hand.
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Notes
- 1.
Black and Baumgartner (1987), p. 33. “Historically, for instance, the degree of self-help has been highest in primitive societies, in bands and tribes, and has declined progressively with social evolution and the growth of law.”
- 2.
Kronman (1985), pp. 24–25. The author emphasizes that although the existence of the state and its enforcement machinery would make reliance on self-help mechanisms unnecessary, in reality this is not the case, the reason being uncertainty of both parties: “The legal right to enforce a promise can reduce but never eliminate insecurity […].”
- 3.
Brownsword et al. (2011), p. 491.
- 4.
Brownsword et al. (2011), pp. 492–493.
- 5.
Brownsword et al. (2011), p. 493.
- 6.
Brownsword et al. (2011), p. 494.
- 7.
Brownsword et al. (2011), pp. 494–495.
- 8.
Taylor (1998), p. 847.
- 9.
Infra, footnote 23 in Chap. 7.
- 10.
Brownsword et al. (2011), pp. 495–499.
- 11.
Kronman (1985), p. 26: “However broadly we define the class of compensable harms, any court-administered damages remedy carries with it a risk of undercompensation. No refinement of doctrine can eliminate this risk.”
- 12.
- 13.
Taylor (1998), pp. 845–846.
- 14.
Brownsword et al. (2011), p. 488.
- 15.
- 16.
- 17.
Brandon et al. (1984), p. 850.
- 18.
- 19.
Taylor (1998), p. 844: “Prior to the existence of legal institutions to dictate rules of behavior and state authorities to enforce them, all social relations were a form of self-help.”
- 20.
Ben-Menahem and Hecht (1993), p. 638.
- 21.
McCall (1973), p. 63.
- 22.
McCall (1973), pp. 63–64.
- 23.
McRobert (2012), p. 572.
- 24.
- 25.
Street (2013), p. 17.
- 26.
Street (2013), p. 278.
- 27.
Del Granado (2011), p. 322.
- 28.
- 29.
Whittuck (1904), Commentary to § 77 (online source, page unavailable).
- 30.
Whittuck (1904), Commentary (1) to § 77 (online source, page unavailable).
- 31.
Whittuck (1904), Commentary (2) to § 77 (online source, page unavailable).
- 32.
Morey (1884), p. 402.
- 33.
Taylor (1998), p. 844.
- 34.
Morey (1884), p. 403. Also: Stein (1999), p. 4: “The Twelve Tables show, however, a determination to institutionalize such cases and keep them within strict limits” (emphasis added). For details on how pignoris capio switched from being an extrajudicial to a judicial method of enforcement: Street (2013), p. 281.
- 35.
Kieninger (2004), p 38.
- 36.
- 37.
Ben-Menahem and Hecht (1993), p. 648.
- 38.
Ben-Menahem and Hecht (1993), p. 648.
- 39.
Ben-Menahem and Hecht (1993), pp. 648–649.
- 40.
Bannon (2000), p. 72. These self-help methods were also allowed in ancient Rome.
- 41.
Pollock and Maitland (1898), pp. 31 and 471.
- 42.
The process was slow and took place in stages, not all of a sudden. For details: Street (2013), p. 289.
- 43.
- 44.
Brandon et al. (1984), p. 852.
- 45.
Brandon et al. (1984), pp. 852–853.
- 46.
Street (2013), pp. 286–287.
- 47.
Taylor (1998), p. 844.
- 48.
- 49.
Taylor (1998), pp. 844–845.
- 50.
Taylor (1998), p. 845; and Brandon et al. (1984), p. 853. “The inability of medieval courts to stop all forms of self-help and the judicial realization that some self-help was preferable to formal legal redress spurred the development of indistinct guidelines for permissible self-help. As early as 1768 Blackstone recited rules to govern self-help privileges of self-defense, recapture of property, and summary abatement of nuisance.”
- 51.
- 52.
On the Roman origin of distress in common law as self-help species intended as a speedy and effective means of getting security for the performance of a duty: Street (2013), p. 282.
- 53.
McCall (1973), p. 67.
- 54.
- 55.
- 56.
- 57.
Given that US law is the benchmark of this analysis, the book opted to use the common law terminology, which includes both tangible (choses in possession) and intangible (choses in action) property. However, due to the nature of the topic, in dealing with civilian systems references shall be made to their own concepts, namely movables and intangibles. For a detailed discussion on terminology caveats: McKendrick (2010), p. 32.
- 58.
On the differences between real property and personal property and the distinguishing characters of personal property: McKendrick (2010), pp. 32–34. Goode emphasizes that “the term personal property is used as the antithesis of real property” and explains the differences in applicable legal regimes. In the case of real property, for example, he notices that land is immovable and permanent, which makes it harder to transfer or use (via restrictions) but also allows multiple interests for longer periods of time. Additionally, its identity can be easily established for the title is likely to be registered.
- 59.
On the differences between English and US law and the underlying causes: Tajti (2002a), pp. 115–118.
- 60.
- 61.
It should be mentioned from the outset that Article 9 is not an applicable statute in itself. Secured transaction law is state law and not a federal law in the US. It was designed as a model law in order to bring a greater level of uniformity between the various state laws. Hence, despite the fact that now all states, including District Columbia, have adopted it, these adopted versions are not identical in all aspects. They do share though most of the features that characterize its general thrust of the codification. See: Rover (2007), pp. 54–55.
- 62.
Kieninger (2004), p. 57. The European theoretical approach was also described as “dogmatic (or systemic) thinking,” due to the fact that classes of assets are still defined by “their natural or ideal features, completely disregarding that such classification is insufficient for and causes problems in business life.” Tajti (2012b), p. 125.
- 63.
- 64.
For the first attempt to explain UCC Article 9 to non-Americans by reducing the system to its core elements, “building blocks,” see: Tajti (2002a), p. 141. The reason is that according to the mentioned author, these five elements will be sine qua non requirements of any nonrudimentary security system. However, Tajti uses a slightly different order than the one employed by this work. The reason for changing it has to do with the purposes of the book, which focus more on the issue on enforcement and not on explaining the system as a whole.
- 65.
- 66.
- 67.
Rover (2007), p. 55.
- 68.
White and Summers (2010), p. 1149.
- 69.
- 70.
Tibor Tajti—Security Rights in Central and Eastern Europe in Bussani and Werro (2009), p. 501.
- 71.
Tajti (2002a), p. 142.
- 72.
Kieninger (2004), p. 57.
- 73.
Kieninger (2004), p. 56.
- 74.
For details and terminological explanations concerning the interchangeably usage of receivable and accounts: Tajti (2002a), pp. 98–99 and footnote 289.
- 75.
- 76.
Section 9-203 of the UCC.
- 77.
Tajti (2002a), pp. 144–158.
- 78.
- 79.
White and Summers (2010), p. 1185.
- 80.
Rover (2007), p. 56.
- 81.
Section 9-322 of the UCC.
- 82.
Tajti (2002a), p. 165.
- 83.
Section 9-204 of the UCC referring to “after-acquired property.”
- 84.
In contrast, English security law is based on a number of nominated security devices, one of them being the floating charge.
- 85.
Tajti (2002a), p. 178.
- 86.
Tajti (2002a), pp. 178–179.
- 87.
There are two main differences between the English floating charge and the US floating lien. First, in the case of floating charge there is no priority until crystallization. Second, in the case of floating charge unfettered dominion is also common, which is important because English law defines the floating charge vis-à-vis the fixed charge, which is not the case with the US floating lien.
- 88.
Rover (2007), p. 56.
- 89.
Tajti (2012a), p. 117. Also: Tajti (2013), p. 126. The issue was discussed during the drafting of the UCC as well. However, the authors agreed that a reform of abusive practices in the field would be better attained by separate legislation rather by inserting protective rules in the UCC, which would be limited to transactions involving security interests. In the end, when Uniform Consumer Credit Code was adopted in 1968, it contained no provisions to regulate the right of a secured creditor to repossess upon default. Hence, repossession remained governed by the provisions of the UCC and it is also touched upon by the provisions of the FDCPA. See: McCall (1973), p. 78.
- 90.
Brownsword et al. (2011), p. 438.
- 91.
Brownsword et al. (2011), pp. 438–439.
- 92.
“Article 9’s non-judicial enforcement scheme contrasts sharply with that typically found in Europe.” Kieninger (2004), p. 79.
- 93.
Quirk (2008), p. 219.
- 94.
Goode (1988), p. 139.
- 95.
- 96.
There are also authors who consider that there are only three: pledge, charge and mortgage. Kieninger (2004), p. 87.
- 97.
It must be stressed that the concept of lien used here is different from the concept of lien used in the US. In the US, the term lien is broader than security interest because it comprises all claims, encumbrances or charges on property for the payment of any debt, obligation or duty, irrespective of the way they came into existence. For a detailed explanation of the US concept of lien: Tajti (2002a), pp. 40–41.
- 98.
Rover (2007), p. 50.
- 99.
Rover (2007), p. 50.
- 100.
Rover (2007), p. 50.
- 101.
Goode (1988), p. 146.
- 102.
Goode (1988), p. 147.
- 103.
An administrative receiver over the debtor’s property may be privately appointed by creditors who took security over the debtor’s property and stipulated in their contract of loan the power to appoint a receiver for the purpose of enforcing their security. McCormack (2008), p. 47. Given the purpose of this remedy and the fact that the appointment did not involve the judiciary, for the purposes of this work private administrative receivership is deemed a form of self-help. Hence, unless otherwise stated, hereinafter the term “receiver” shall refer to privately appointed receivers. For details, infra Chap. 4, Sect. 4.6.
- 104.
McKendrick (2010), p. 723. “The leading case is […] in Re Spectrum Plus Ltd […]. [T]he critical question to be asked relates to the control that is exercised over the assets that fall within the scope of the charge. While the courts were once willing to recognize that a charge could be fixed notwithstanding the fact that the charger retained an ability to remove the asset from the scope of the charge, it is now clear from Spectrum that the test to be applied is more restrictive one and that the ability to remove an asset from the scope of the charge will result in the conclusion that the charge is floating and not fixed.” Also: Kieninger (2004), pp. 88–89.
- 105.
- 106.
Rover (2007), pp. 51–52.
- 107.
- 108.
Beale et al. (2012), pp. 574–578.
- 109.
Beale et al. (2012), pp. 578–584.
- 110.
Beale et al. (2012), p. 560.
- 111.
Although available, foreclosure is rarely pursued. See: Beale et al. (2012), pp. 568–570.
- 112.
There are several advantages in doing so, the most important one being the fact that the appointment of a receiver will insulate the secured creditor from any liability towards the debtor. For details: Beale et al. (2012), pp. 585–590.
- 113.
Beale et al. (2012), p. 568.
- 114.
Beale et al. (2012), p. 574.
- 115.
Beale et al. (2012), p. 575.
- 116.
Beale et al. (2012), pp. 576–577.
- 117.
Beale et al. (2012), pp. 578–582.
- 118.
Beale et al. (2012), pp. 582–583.
- 119.
Rover (2007), p. 53.
- 120.
Rover (2007), p. 54.
- 121.
Tajti (2002a), p. 240.
- 122.
For more details concerning the differences between equitable and legal securities under English law: Tajti (2002a), pp. 238–240. The author emphasizes that equitable interests are more informal and somewhat a weaker kind of securities, otherwise said, “imperfect” securities, as opposed to legal securities, which imply that the registration requirements and formalities have been met and hence the security is a “perfect” one.
- 123.
Aluminium Industrie Vaasen BV v. Romalpa Aluminium Ltd [1976] 1 WLR 676.
- 124.
Rover (2007), p. 53.
- 125.
This extension has not passed the test of time in English courts, which later held that such an extension is in fact a charge. See Rover (2007), p. 53.
- 126.
Rover (2007), p. 53.
- 127.
Beale et al. (2012), pp. 592–593.
- 128.
Beale et al. (2012), p. 607.
- 129.
McKendrick (2010), p. 767.
- 130.
- 131.
Beale et al. (2012), p. 591.
- 132.
- 133.
Starting with 1st of April 2014, most of the CCA’s provisions were included in the Consumer Credit sourcebook (CONC), available online at: http://media.fshandbook.info/content/full/CONC.pdf, last visited 12.12.2014.
- 134.
Beale et al. (2012), pp. 600–601.
- 135.
Beale et al. (2012), p. 601.
- 136.
Beale et al. (2012), p. 603.
- 137.
Beale et al. (2012), p. 612.
- 138.
Beale et al. (2012), p. 611.
- 139.
Beale et al. (2012), pp. 609 and 612.
- 140.
Goode (1988), pp. 151–152.
- 141.
The most recent change took place in 2014, starting with 1st of April, when the OFT was shut down and its attributions were partly given to the Financial Conduct Authority (FCA).
- 142.
http://www.fca.org.uk/about/what/enforcement, last visited 12.12.2014.
- 143.
Section 2.2 of The Enforcement Guide, into force from 1st of April 2014, available at: http://media.fshandbook.info/Handbook/EG_FCA_20140401.pdf, last visited 12.12.2014.
- 144.
Chapter 7 of the Consumer Credit sourcebook, available at: http://media.fshandbook.info/content/full/CONC.pdf, last visited 12.12.2014.
- 145.
Brownsword et al. (2011), p. 451.
- 146.
Most transitional provisions of Consumer Credit Handbook (CONC) applied until 30th of September 2014, i.e., Art. 7.17–7.19 of CONC related to Notice of sums in arrears or notice of default concerning sums under P2P agreements, available at: http://media.fshandbook.info/content/full/CONC.pdf, last visited 12.12.2014.
- 147.
Brownsword et al. (2011), p. 415.
- 148.
Brownsword et al. (2011), p. 416.
- 149.
Brownsword et al. (2011), p. 437.
- 150.
Brownsword et al. (2011), p. 439. For details concerning the debate on whether to introduce collective redress, see also page 440.
- 151.
Commission of the European Communities (2005).
- 152.
Brownsword et al. (2011), p. 507.
- 153.
Brownsword et al. (2011), p. 489.
- 154.
Taylor (1998), p. 845.
- 155.
Tibor Tajti—Security Interests in Central and Eastern Europe in Bussani and Werro (2009), pp. 497–498.
- 156.
Bussani and Werro (2009), p. 476. Tajti mentions two diverging policy concerns that collided at the time: on the one hand, the dogmatic requirements (such as finding an appropriate place in the system of the code) and, on the other hand, the need for new, efficient and pragmatic solutions.
- 157.
Brownsword et al. (2011), p. 441.
- 158.
Tibor Tajti—Security Rights in Central and Eastern Europe in Bussani and Werro (2009), p. 472.
- 159.
Stanescu and Timofti (2013), p. 176.
- 160.
For a detailed description of the origins of divergences between European jurisdictions themselves but also between the European jurisdictions and the US: Kieninger (2004), pp. 9–16. The author explains that historically, the industrial revolution brought a demand for credit in trade and industry, which could not be matched solely by security rights in personam and rights in immovable property, a challenge to which European jurisdictions answered differently. Some legislatures created special registered security rights based on the idea of pledge, where registration replaced actual possession of collateral (France, Romania). Others decided not to introduce any nonpossessory security rights, but for special registrable charges on ships, airplanes, agricultural inventory and overseas cables; hence, the courts had to compensate for the lack of innovation by validating contractual securities (Germany). Lastly, some went for innovations, such as the floating charge, which could be established over all or a part of a company’s assets, hence providing a single security device where lenders in other jurisdictions had to resort to different kinds of rights for different kinds of assets (the UK). Another dividing line relates to the principle of publicity, which, although common to most jurisdictions, is enforced to different degrees.
- 161.
Tajti (2013), p. 8.
- 162.
- 163.
Bussani and Werro (2009), p. 494.
- 164.
- 165.
Dahan and Simpson (2008), p. 259. The French secured transaction law was reformed by Ordinance of 23 March 2006, which has created a Book IV dedicated to security rights and guarantees in the Civil Code.
- 166.
Basically, the principle of multiplicity assumes that there are different types of security rights for each type of asset. The principle is still present in German law. See: Röver (2004), p. 46. It is generally assumed that shifting from the principle of multiplicity to a single method of creating security rights (as is the case now in the US) increases simplicity and efficiency in obtaining security rights. See: International Trade Center (2010), p. 14. Hence, it is a main point of discussion concerning reforms of secured transaction laws. See: Calnan et al. (2012), pp. 8–9.
- 167.
Dahan and Simpson (2008), pp. 261.
- 168.
Dahan and Simpson (2008), p. 262.
- 169.
According to French law, for an assignment to be effective against third parties a notice of the assignment is to be served to the said third party. However, Loi Dailly tried to loosen the strictness of the notification rule by not requiring notification on the creation of the assignment, although as a matter of practice, notification via registered mail is still common. Tajti (2002a), p. 101.
- 170.
Dahan and Simpson (2008), p. 262.
- 171.
The reformation was successful only partially due to political interventions and policy issues. For a detailed description, Dahan and Simpson (2008), pp. 262–263.
- 172.
Dahan and Simpson (2008), pp. 264–265.
- 173.
Dahan and Simpson (2008), p. 266.
- 174.
French Civil Code, Art. 2348 and 2365.
- 175.
French Civil Code, Art. 2348.
- 176.
Dahan and Simpson (2008), p. 268.
- 177.
Dahan and Simpson (2008), p. 268.
- 178.
Allan and Drobnig (1980), p. 632.
- 179.
Huissiers are in fact judicial officers empowered with the monopoly of servicing writs and enforcing judgments and writs of executions, similar to the bailiffs/sheriffs in the common law jurisdictions. However, in France they are also entitled to mediate, formulate legal findings, collect debts and perform public auction sales of movable goods. The most peculiar and significant (since it amounts to almost 20 % of their operations) aspect of their activity is that they can perform both judicial and nonjudicial debt collection. See: http://www.uihj.com/ressources/10148/54/france-en.pdf, last visited 22.01.2015. However, debt collection operations do not fall into the category of operations over which the huissiers enjoy monopoly. See: http://www.huissier-justice.fr/qui-est-il-127.aspx, last visited 22.01.2015.
- 180.
French Civil Code, Art. 2346.
- 181.
Hubert (2010), pp. 7–8.
- 182.
Rover (2007), p. 58.
- 183.
Rover (2007), p. 114.
- 184.
Tajti (2002b), p. 106.
- 185.
Serick (1990), p. 2.
- 186.
Serick (1990), pp. 1–2 and 26.
- 187.
- 188.
Tajti (2002b), pp. 106–107.
- 189.
German Civil Code (English Translation) (1896), Art 1204–1258. This has become obsolete in commercial practice. See: Rover (2007), p. 58.
- 190.
BGB, Art 1273, 1279–1290.
- 191.
BGB, Art 1291–1296.
- 192.
BGB, Art 455.
- 193.
BGB, Art 158 (1).
- 194.
- 195.
For details: Rover (2007), p. 59.
- 196.
This expectancy right is not to be found in the BGB, being a development of customary law. See: Rover (2007), p. 59.
- 197.
According to Tajti, these devices developed by businessmen and recognized by courts could be seen as proof that the numerus clausus principle employed by the German Civil Code does not suffice. See: Tibor Tajti—Security Rights in Central and Eastern Europe in Bussani and Werro (2009), pp. 472–473, footnote 18.
- 198.
Rover (2007), pp. 59–60.
- 199.
Rover (2007), p. 60.
- 200.
- 201.
- 202.
Tajti (2013), pp. 132–133, specifically footnotes 325 and 327, pp. 135–136, footnote 332. Also: http://de.eos-solutions.com/leistungen/forderungsmanagement/inkasso/, last visited 10.12.2014.
- 203.
- 204.
On the issue of socialist legacy in all CEE area: Tibor Tajti—Security Rights in Central and Eastern Europe in Bussani and Werro (2009), pp. 479–481 and 490.
- 205.
de la Pena and Fleisig (2004), pp. 135–136.
- 206.
Rover (2007), p. 4.
- 207.
Tibor Tajti—Security Rights in Central and Eastern Europe in Bussani and Werro (2009), p. 472.
- 208.
In 1999, the Romanian secured transaction law knew only two “big” institutions, contained in the Civil Code and the Commercial Code, both more than 100 years old: the hypothec (ipotecă) (used for real property) and the possessory pledge (gajul) (used for personal property). These two instruments were deemed insufficient and inadequate for the development of commercial credit, especially for those debtors who did not have any real property. Given that the possessory pledge meant that the personal property had to be taken from the debtor’s possession and could not be used in his activity, it meant that the debtor’s activity was brought to a halt as long as any merchandise acquired on credit had to go into the creditor’s possession. More difficulties arose from the fact that the Commercial Code was not applied during communism to national contracts. Additionally, after the 1989 Revolution, the Supreme Court had to extend the interpretation of the provision governing exceptions to the possessory pledge in order to validate several nonpossessory pledges taken by several commercial banks. See: Rizoiu (2011), pp. 20–21.
- 209.
For an extensive discussion on how Romania chose its model law: de la Pena and Fleisig (2004), pp. 163–165.
- 210.
Office of the General Counsel (2012), p. 2. This approach, especially when it came to private enforcement, was not easily received by everyone. Rizoiu mentions two scholars: C. Rosu and G. Udrea, who not only feared the new secured transaction system, but actually supported the maintenance of the old one, or at least its intertwining with the general provisions requiring public enforcement through the norms established by the Civil Procedure Code. See: Rizoiu (2011), p. 567, footnotes 3 and 4.
- 211.
Romania opted for a formal approach but provided for certain common provisions for security rights and defined quasi-security transactions. This retained the formal classification of each transaction but specifically required their registration in the security register, which also led to harmonization of enforcement and other rules. Therefore, although the law applies to the outright creation of security rights, and it includes, in particular, assignment of receivables, conditional sales, leasing and rental contracts, it did not go as far as recharacterizing security devices as security rights. See Rover (2007), pp. 102 and 122.
- 212.
Rover (2007), p. 5.
- 213.
- 214.
de la Pena and Fleisig (2004), pp. 153–155.
- 215.
Office of the General Counsel (2012), p. 16.
- 216.
de la Pena and Fleisig (2004), pp. 165 and 202–212.
- 217.
A empirical survey of EBRD conducted 10 years ago showed that despite the presence of sound legal framework for secured transaction there were still issues with having and efficient enforcement mechanism in place in Romania. However, a recovery of at least 60 % of the market value of the collateralized asset was to be expected in 9 months or less. For details: Dahan et al. (2004), pp. 8 and 15.
- 218.
Office of the General Counsel (2012), p. 17.
- 219.
Office of the General Counsel (2012), p. 17.
- 220.
Thus, Romania seemed to have resolved, at least on paper, one of the fundamental issues affecting the countries in CEE region and not only the fact that many of the fields related to secured transactions are still scattered and subject to differing laws. See: Tibor Tajti—Security Rights in Central and Eastern Europe in Bussani and Werro (2009), p. 499.
- 221.
This was meant to provide some additional protection to mortgagees since in case of movable property, secured creditors had to act promptly in case of default; otherwise, they would have faced the risk of the collateral being out of sight or unreachable. However, this protection remains more theoretical than practical.
- 222.
Vasilescu (2012), p. 175.
- 223.
Vasilescu (2012), p. 176.
- 224.
RNCC, Art 2391.
- 225.
RNCC, Art 2368.
- 226.
RNCC, Art 2408.
- 227.
RNCC, Art 2373.
- 228.
Such a provision is legal and will produce effects with respect to the triggering of the default, but it may not invalidate a potential transfer of the collateral to a third party. See: RNCC Art 2376.
- 229.
- 230.
RNCC, Art 2440, Para 1.
- 231.
RNCC, Art 2442, Para 1.
- 232.
RNCC, Art 2480–2494.
- 233.
RNCC, Art 2495–2499.
- 234.
von Bar and Clive (2010), p. 1.
- 235.
von Bar and Clive (2010), pp. 3–4.
- 236.
von Bar and Clive (2010), p. 5614.
- 237.
von Bar and Clive (2010), p. 5614.
- 238.
Art IX-7.201 and the following commentary C—Scope of Article and issue at stake. “The dilemma for the secured creditor arises if, as happens frequently, the security provider who is in possession of the encumbered assets and who may need them urgently for the continuation of its production or sales or other commercial activity, refuses or attempts to delay the transfer of possession. The Article is designed to solve this dilemma. Without saying so expressly, self-help by the secured creditor is clearly excluded (emphasis added).” von Bar and Clive (2010), pp. 5630–5632.
- 239.
- 240.
Art IX-4.203 and the following commentaries. von Bar and Clive (2010), p. 5634.
- 241.
von Bar and Clive (2010), p. 5614.
- 242.
- 243.
von Bar and Clive (2010), p. 5392.
- 244.
For a critical opinion on the a priori ban of agreements that allow the creditor to foreclose the collateral upon debtor’s default: Veneziano (2008), pp. 94–95.
- 245.
Art IX-7.105 and the following comments. von Bar and Clive (2010), pp. 5621–5623.
- 246.
Art IX-7.201 (2) and the following comments. von Bar and Clive (2010), pp. 5631–5632.
- 247.
Art IX-7.104 and the following comments. von Bar and Clive (2010), pp. 5620–5621.
- 248.
“[T]he fact that the secured creditor may enforce its security right extra-judicially does not deprive the secured creditor of the possibility of invoking the assistance of the court or other competent authority […].” See von Bar and Clive (2010), p. 5619.
- 249.
von Bar and Clive (2010), p. 5619. Unfortunately, this view corresponding to the same requirement found, for example, in US’s FDCPA is not doubled of similar sanctions or defenses. The harassed security provider may only apply to the court against any such treatment and ask an injunction to stop it, together with damages, under the provisions of Art IX-7.104.
- 250.
Tajti (2013), p. 126.
- 251.
Art IX-7.207 and the following comments. von Bar and Clive (2010), pp. 5637–5641.
- 252.
Art IX-7.211 and the following comments. von Bar and Clive (2010), pp. 5645–5648.
- 253.
Art IX-7.212 and the following comments. von Bar and Clive (2010), pp. 5649–5650.
- 254.
Art IX-7.207 (3) and the comment B. Sale by public or private auction. von Bar and Clive (2010), p. 5637, respectively 5646.
- 255.
Art IX-7.302. von Bar and Clive (2010), p. 5667.
- 256.
Art IX-7.301 and the following comments. von Bar and Clive (2010), pp. 5663–5666.
- 257.
von Bar and Clive (2010), p. 5664.
- 258.
von Bar and Clive (2010), p. 5665.
- 259.
It must be mentioned though that under the functional approach, the result would probably be different and the debtor’s right to receive any difference between the value of the assets and the outstanding debt.
- 260.
Veneziano (2008), p. 95.
- 261.
Veneziano (2008), pp. 89–90.
- 262.
Veneziano (2008), p. 90.
- 263.
According to Anna Veneziano’s interpretation, the recent French reform of secured transactions law has integrated the clause de reserve de la propriete, thereby openly recognizing its character as a security. See: Veneziano (2008), p. 91.
- 264.
Veneziano (2008), p. 91.
- 265.
Calnan et al. (2012), p. 8, point 3.6.
- 266.
On the advantages and underlying reasons for self-help, see: Taylor (1998), pp. 847–850.
- 267.
Veneziano (2008), p. 92.
- 268.
Veneziano (2008), p. 94.
- 269.
For a detailed discussion on the policy choices and efforts for harmonization in the field of civil justice: Brownsword et al. (2011), pp. 448–450.
- 270.
Allan and Drobnig (1980), p. 642.
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Stӑnescu, C.G. (2015). General Background and History of Self-Help and Private Enforcement. In: Self-Help, Private Debt Collection and the Concomitant Risks. Springer, Cham. https://doi.org/10.1007/978-3-319-21503-7_2
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