CEU Electronic Theses and Dissertations, 2020
| Author | Usmanova, Ekaterina |
|---|---|
| Title | Secured Credit Versus Title Security: Should Their Competition Be Allowed In The Russian Federation |
| Summary | The thesis is a comparative analysis of the laws on title security (e.g., leasing, sale with retention of title clause and other contracts that rely on transferred– and retained-title as security) and secured credits (e.g., pledge, chattel mortgage) as two classes of security devices which use movables and intangible assets as collateral. The quintessential issue is whether laws used for secured credit should apply to title security in Russia given that functionally both secure credits? The question is legitimate for two main reasons. On one hand, all the leading common law jurisdictions have subjected title finance transactions to the same legal regime that applies also to secured credit. Moreover, some civil countries have taken steps in that direction, too. The prototype of this unitary model is enshrined into Article (chapter) 9 of the US Uniform Commercial Code. On the other hand, most of title security transactions in Russia today are concluded in the form of sale and lease agreements, and, consequently, the laws on ‘sales’ or conventional ‘lease’ contracts apply by analogy. These laws, however, often produce inequitable and results ill-suited to modern business needs as they were not formulated having title security in sight. At the same time, the laws on secured credit address all the necessary issues that could arise during its use more appropriately. Due to the absence of necessary uniform rules, court practice is forced to find suitable solutions and fill these gaps in legislature. The current situation has an adverse effect for parties of title security agreements the security nature of which is uncertain. Consequently, the main argument of the thesis is that the analogous application of sale and conventional lease regulation is inadequate and negatively affects access to credit. It rather vouches for such a more balanced regulation of these transactions which would take into account the interests of all stakeholders and is thus the model Russia should embrace as well. To support these arguments, the thesis juxtaposes the laws and experiences of jurisdictions exemplifying the two approaches. On one side, this includes the conventional dualistic approach of English law (as supplemented by UK law, if any) and the Romano-Germanic jurisdictions (to the latter group Russia belongs to as well), which continue to treat title finance separately from secured credit. As opposed to that, the analysis is based on international guidelines, particularly Book IX of the Draft Common Frame of Reference and the UNCITRAL Legislative Guide on Secured Transactions, both of which were heavily influenced by the unitary approach of US law. |
| Supervisor | Tibor Tajti |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2020/usmanova_ekaterina.pdf |
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