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

Research output: Contribution to journalJournal articleResearchpeer-review

Standard

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.

In: Journal of Civil Law Studies, Vol. 10, No. 1, 2017, p. 101-120.

Research output: Contribution to journalJournal articleResearchpeer-review

Harvard

Gikay, AA & Stanescu, CG 2017, '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', Journal of Civil Law Studies, vol. 10, no. 1, pp. 101-120.

APA

Gikay, A. A., & Stanescu, C. G. (2017). 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. Journal of Civil Law Studies, 10(1), 101-120.

Vancouver

Gikay AA, Stanescu CG. 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. Journal of Civil Law Studies. 2017;10(1):101-120.

Author

Gikay, Asress Adimi ; Stanescu, Catalin Gabriel. / 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. In: Journal of Civil Law Studies. 2017 ; Vol. 10, No. 1. pp. 101-120.

Bibtex

@article{05c6551cf6764b0289a84c27a123b4fc,
title = "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",
abstract = "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.",
keywords = "The Faculty of Law, enforcement, security rights, Self-help (Law), repossession, without breach of peace, UCC Article 9, Louisiana, access to credit, secured creditor, consumer-debtor, civil law",
author = "Gikay, {Asress Adimi} and Stanescu, {Catalin Gabriel}",
year = "2017",
language = "English",
volume = "10",
pages = "101--120",
journal = "Journal of Civil Law Studies",
issn = "1944-3749",
number = "1",

}

RIS

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 - The 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