A Comparative Study of Non Possessory Security Interests in Goods in Argentina, Brazil, France, Mexico and the United States of America
Kelly, Julio Alberto
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https://hdl.handle.net/2142/77325
Description
Title
A Comparative Study of Non Possessory Security Interests in Goods in Argentina, Brazil, France, Mexico and the United States of America
Author(s)
Kelly, Julio Alberto
Issue Date
1982
Department of Study
Law
Discipline
Law
Degree Granting Institution
University of Illinois at Urbana-Champaign
Degree Name
J.S.D.
Degree Level
Dissertation
Keyword(s)
Law
Language
eng
Abstract
The purpose of the thesis is to analyze the security interest laws of Argentina, France, Brazil and Mexico and to compare said laws with the provisions of Article 9 of the UCC. For such purposes in the first five chapters the security interest relation is divided into its different elements--the debtor, the creditor, the collateral and the secured obligation. Each such element is analyzed alone, pointing out the common traits which appear in the five countries analyzed in the work, as well as the differences or peculiarities arising in each law.
After the analysis of these elements, the study of the way in which a security interest can be created is addressed. In this part of the work the different approaches followed in each country clearly arise. In effect the several requisites which must be met under each law are a result, in the civil law countries, of the constructions which provide the theoretical grounds for the security interests. For instance in Mexico the registration requirement does not follow any publicity purpose, instead it replaces the delivery of the goods to the creditor, because in this country non possessory security interests are considered as a variation of possessory pledges where registration is considered as a constructive delivery of the goods.
The following chapters of the thesis deal with the rights of both the debtor and the creditor and on the foreclosure procedures. In the chapter of rights of the debtor the pleiad of regulations, of questionable usefulness, which is a constant in civil law countries is revised. Similarly in the chapter on rights of the creditor the excessive detail and regulation again appears as a peculiarity of civil law countries. The analysis of the foreclosure procedure demonstrates again the different concepts followed between civil law countries and the U.S. In this last country the UCC provides or gives creditors much more freedom of action. In effect none of the laws of France, Mexico, Argentina or Brazil authorizes the secured party to restore to self help, but instead forces creditors to resort to state action in order to exercise their rights.
Finally an analysis of conflicts among different secured parties and the effect of security interests in insolvency situations is made. In these two chapters the situations where a security interest can be challenged are analyzed, as well as the way in which each challenge is solved in the different countries.
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