DISHARMONY AMONG NATIONAL SECURED TRANSACTIONS LAWS
It will be demonstrated below that there are many different legal approaches to regulating securities.
The civil law was codified when the most common security on movables was the
possessory pledge
It has therefore become the legal guideline and basis for most civil law countries thus not providing for a non-possessory lien on movables. During the middle of the last
century however, civil law countries have discovered the need for giving lenders securities with respect to movables as well
Switzerland, for example, introduced the aircraft record providing for securities in aircraft in 1958 in the aftermath of its ratification of the Geneva Convention.
This was normally achieved by allowing special categories of movables to become eligible to non-possessory securities
For example French Civil law, which introduced statutory devices for every possible movable. See: C.
Walsh, Secured Credit: A Topical Review and Analysis of the (English-Language) Foreign and Comparative Literature (University of New Brunswick, Canada: 1999) at 39.
In English common law on the other hand, inspired by the laissez-fair utilitarianism, almost all security devices in use today in England received the official sanction by the courts at the end of the nineteenth century.
This approach led to the development of Uniform Commercial Code Article 9 in the United States, which has become the basis for nearly all international harmonisation initiatives
The principle resulting differences between Civil and Common law are (i) the absence of real publicity for third parties in the form of public registration of non-possessory security devices, (ii) a less market-oriented approach to the modalities of enforcements and (iii) the greater use of other transactional forms to fulfill the task of security, especially in the case of Germany, where the courts had to resort to the concept of a fiduciary or conditional sale.