法学外文文献翻译--担保交易.doc

Secured Transaction Richard ColsonI. IntroductionIn the business word, a promise to pay is rarely enough. The promise wants to be secured. This is the basis of the concept of the secured transaction. The best know security device is the mortgage on real (immovable) property. The mortgage secures the promise of real property owner to repay the loan of the financier. Personal (movable) property is used in a variety of methods to secure an indebtedness or a promise to pay in the future. Most of these methods are regulated by Article 9 of the Uniform Commercial Code (UCC),as amended in 1974, which has been adopted (with some modification) by all U.S. jurisdiction, except Louisiana. The codification has superseded most prior legislation and the earlier com mom law of secured transaction. Concept like conditional sale (in which the seller ownership) and chattel mortgage (in which personal property is mortgage) have become obsolete. This paper deals with security devices that, in accordance with UCC Article 9, are created by express agreement, so-called consensual liens. It does not deal with security devices that are created by law, such as a banks right to sell off a customers balance on deposit against claims that the bank may have against the customer, or the lien ,That a warehouseman has against a party who owes storage fees, or a mechanics lien, an innkeepers lien, or lawyers lien. These security rights are created by law, not by agreement between the parties. Practically speaking, they do not arise unless asserted. There is, however, one security device that arises automatically, namely a court judgment. A court judgment creates a lien against the property of the party against whom the judgment is rendered. In most jurisdictions, the lien attaches automatically to real property owned by a judgment debtor, while some further administrative procedures are required to attach the to personal property. Article9 of the UCC is a very complex and detailed piece of legislation. Legal scholar and courts have devoted a great deal of attention to it. Here is an outline of the topic in the most general terms. One who wishes to acquire a piece of a business must first inquire whether the property or business is encumbered with a statutory lien, or whether it is the subject of a secured transaction. This search, which must be conducted in various governmental offices, is generally entrusted by attorney for the buyer to one of a number of organizations in this filed. If a debtor becomes bankrupt, a secured creditor has a preferential position. This one of the principal reasons for securing a transaction. The property or property right that is used to secure a promise is called collateral property, or collateral, for short. Accounts receivable, chattel paper, and even growing crops may be collateral. The word chattel is an old English word that denotes personal (movable) property. The official comment to Sec.9-105 of the UCC illustrates the meaning of the term chattel paper. It is quoted here because it also illustrates other pertinent concept. “A dealer sells a tractor to farm on a conditional contract. The conditional sales contract is a security agreement, the farmer is debtor, the dealer is the secured party, and tractor is the collateral. But now dealer transfers the contract to his bank, either by outright sale or to secure a loan. Since the conditional sales contract is a security agreement relating to specific equipment, the conditional sales contract is now the type of collateral called chattel paper.” Any property having value may be used as collateral .If the purchase of a property is financed, the very property may be used as collateral. For instance, if the shares of a corporation are sold, the seller may retain ownership of shares until they are fully paid for (in which case he is said to a purchase money security interest):or, if the purchase is financed by a third party, the shares may be transferred as collateral to such third party. A security agreement must be in wringing in order to be binding between the parties. In order to be binding on third parties, it must be publicly disclosed by filing a financing statement (See Section 3, below) or by physical manifestation of delivery. The subject matter of secured transactions is of interest to foreigners doing business in the U.S. in two instance : (a) if they wish to finance a transaction with or in the U.S., and (b) if they are unsecured creditors and find themselves in conflict with creditors who claim to be secured.II.Guaranty The simplest security is a guaranty. It is not even mentioned in UCC Article 9. In many parts of the world, a creditor will ask for guaranty. American banks generally are not allowed to issue a guaranty. Instead, they will issue a standby letter of credit, which is even better than guaranty because it constitutes a primary obligation of the bank. The Federal Comptroller of the Currency, who forbids bank guaranties, has expressly approved the standby letter of credit. If the obligor is a subsidiary of a financially strong parent company, the guaranty of the parent company may also be used as a security device. U.S. parent companies do not readily issue such guaranties because they expect their subsidiaries to stand on their own financial feet. A corporate guaranty is generally not available, and might not be valid under applicable state law, unless the obligor is a subsidiary. A related security device, also not covered by UCC Article 9, is the performance bond. A performance bond is generally available form a type of insurer know as a surety company. The bond insures that the obligor will perform in accordance. It is generally coupled with a penalty provision in case of delay. The bond issuer is liable if the obligor defaults. Performance bonds are customary in the construction industry, but they can also be used in other fields of business. The rest of this paper refers to security transaction embraced by UCC Article 9.III.Perfection of the Security Interest In order to have a security interest that is good against third parties, the security interest must be perfected. This can be done in different ways, depending on the kind of collateral involved. A security interest may be perfected when it attaches, or it may require the transfer of possession form the debtor to the secured party. Transfer of possession is necessary if, for example, one pledges stock as security for a loan. The usual manner of perfecting a security interest is the filing of a financing statement (see Section, below). Sometimes, there are conflicting perfected security interests. In that case, the question of priority arises. The manner of the resolving that issue is addressed by the state. When either filing or the transfer of possession of collateral is necessary for perfection, that act may occur prior to the attachment of the security interest. The security interest is perfected when the last of the events necessary for attachment and perfection has occurred. As there is an advantage in securing priority by an early filing of the financing statement, the financier sometimes does not part with any value until after the filing has occurred. The statute provides that a security interest will attach only if three requirements are met: (a) there must be security agreement,(b) the financier must give value, and (c) the debtor must have rights in the collateral. This last requirement seems simple. But recently a British bank ran afoul of this provision. The case involved the purchase of a yacht in California. The yacht dealers inventory was financed by Chrysler Corporation, which held a security interest in the inventory. The dealer sold the yacht to an individual, who financed the transaction through the British bank. Actually, the individual had no assignable rights in the yacht as it was part of Chryslers collateral security. The court ruled that the British bank had acquired no security interest and, therefore, that no interest was capable of being perfected. This ruling contradicts the general rule in inventory financing, (stated below in Section 7), but it serves as a cautionary signal to interested parties.IV.Filing Where filling is required to perfect a security interest, the document filed is called a financing statement. Printed statutory forms are available and generally used. The financing statement is simple. It need contain only the names, addresses and signatures. If the secured party is entitled to the proceeds of any sale of the collateral, or of the products that are manufactured with the collateral, this also should be stated in the financing statement. The 1974 revision of the UCC has abolished the requirement that this be mentioned. It is now presumed that proceeds are always covered by the financing statement. However, not all states have accepted this change. The sufficiency of the description of the collateral has sometimes been challenged in litigation. It is therefore advisable to description as specific as possible. It is also advisable to avoid attaching separate documents to the financing statement. The statute says that minor errors in a financing statement will be overlooked if they are not seriously misleading. This has led to conflicting decisions in cases where an error occurred in the description of the name of the debtor. The description misleading of it impedes a searcher-if, for instance, a debtor corporation is listed under the name of its division. The rules for filing a financing statement vary in different states. Generally local filing in the county of the debtors residence or business and central filing in the state capital are required. A financing statement loses its effect five years after filing. However, a continuation statement may be filed, which extends the effectiveness for an additional five year period. There is no limit to the number of continuation statements that may be filed. Additional filings are made when collateral is released or the entire security agreement is terminated. An assignment of the security agreement may also be filed. If a debt is paid, a diligent debtor will see to it that the public records so indicate.V.Proceeds The term,“proceeds”, includes whatever is received when collateral is sold, exchanged, collected, or otherwise disposed of. Typical proceed are accounts receivable are collected. A secured creditor is entitled to a security interest in the proceeds, even if that is not expressly stated in the security agreement. That raises the question whether the debtor is automatically authorized to sell the collateral. An Illinois court concluded that such automatic authorization does not exist. Logic, as well as the realities of the market place, would seem to lead to the opposite conclusion. If the secured creditor does not wish the debtor to sell the collateral, it is best to so provide in the security agreement. Under the original version of UCC Article 9, it is doubtful whether the proceeds of insurance constitute proceeds of lost or damaged collateral. There are court rulings to the effect that insurance proceeds do not qualify. The 1974 version of Article 9 now provides that such insurance proceeds are covered by the security agreement. What is the situation if a dissatisfied customer returns the goods to the seller? Clearly, the returned goods are not proceeds. And yet, the financier has a legitimate interest in the goods. The rights of the financier in such a situation are regulated by statute (UCC Section 306.5).VI.Priority One of the primary purposes of UCC Article 9 was to insure certainty in the procedure for creating security interest, by clearly establishing priority among conflicting interests in the same collateral. The basic rule is that priority accorded to the creditor who files first. There are qualification of this basic rule, as , for example, in the case of purchase money security interest, which generally have priority even over prior secured creditors. VII.Inventory Financing This is one of the most important areas of secured transactions. But it is hardly of great interest to one who is doing business with the U.S. For that reason, it will be given only passing mention. The characteristic of inventory is that it changes frequently. The debtor must have freedom to dispose of the inventory, and to transfer unencumbered title to a bona fide purchaser. The secured creditor will be satisfied with having a security interest in the resulting accounts receivable (proceeds). He will allow the debtor to keep the accounts receivable, and to use the collected funds to buy or produce new inventory, to which the security interest will attach. That is the concept of the so-called “floating lien”. The security party obtains and retains a security interest in constantly changing collateral. A field warehouse is a device whereby a debtor fences off an area of his own premises in which he stores property that serves as collateral for a loan. An employee is installed as warehouseman. He is authorized to release collateral if adequate substitution is made. Floor planning manufacturer finances the dealers inventory, which is generally located on the floor of the dealers showroom. The dealer is allowed to sell the financed automobiles, and to substitute the proceeds as collateral.VIII.Trust ReceiptsTrust receipts were first used in connection with importing. Today, they are also used for other purpose, notably in the financing of automobile dealers. The lender entrust the collateral to the borrower in order to enable the lender to dispose of the collateral. To illustrate, Jones in New York has purchased a quantity of cocoa in Brazil and resold it to a customer in Chicago. A bank in New York has financed the purchase by establishing a letter of credit in a favor of the seller in Brazil. Consequently, the cocoa is consigned to the bank. The bank, however, allows Jones to take possession of the coca and to ship it to Chicago, against issuance of a trust receipt by Jones to the bank. Jones, as trustee, agrees to act for the (the bank) and to pay the bank out of the proceeds of sale, which Jones will collect form the customer in Chicago. The trust receipt may also be issued for the more limited purpose of enabling Jones to clear the merchandise through Customs and the necessary inspection by the Food and Drug Administration-activities with which the bank does not wish to be burdened. IX.LeasesA lease may constitute a secured transaction. For instance, a debtor induces a bank to purchase industrial equipment which the debtor need. The bank then leases the equipment to the debtor. The bank collects its finance charges, generally in the form of rent. At the end of rental period the debtor buys the equipment form the bank at the original cost price.Another illustration is the case of a manufacturer who sells equipment to a finance company and then leases it bank. This is called a sale and lease back. The finance company is the owner but its title is only intended to be a security interest. The rental charges may be so high that the debtor is allowed to purchase the property at the end of rental period for a relatively low price. In such a situation complex tax questions may arise. The distinction between a true lease of personal property (such as equipment) and a lease that is, in reality transaction, is frequently litigated.X.Enforcement How does a secured creditor enforce his in the collateral in case the debtor defaults? The statute (UCC, Section 9-504) allows a secured creditor wide latitude in disposing of the collateral, but whatever is done must be commercially reasonable. What this means is illustrated by a case in which a New York court found the enforcement action of the secured creditor commercially unreasonable. The finance company never inspected the significantly enhanced its value. The newspaper in which the finance company advertised the sale was not appropriate for reaching potential buyers. Further, the finance company ultimately received, and it made no pursue this higher offer. As a result, the finance company was liable to the debtor. The UCC also gives the secured party, in case of default, the right to take possession of the collateral by peaceful means (section 9-503). In light of recent pronouncements of self-help is constitutionally permissible. In any event, it is not advisable to rely on this provision of the statute.Richard Colson. Sales and secured transaction . West Pub. Co. 1993.担保交易理查德科尔森一、引言在企业界，光是一项付款的允诺，往往是不够的。被允诺人要求得到担保。这就是“担保交易”这一概念的基础。人们最熟悉的担保办法是不动产抵押。抵押所担保的，是不动产所有权人向垫款人归还垫款的允诺。动产则以各种不同的方法担保一笔债务或担保一项今后履行付款的允诺。这些方法大半在1974年修正的统一商法典第九条中设有规定。统一商法典已为没过出路易斯安娜州以外的各法域所采纳（但有所变通）；该法典之编纂取代了以前的大部分立法和担保交易的早期共同法诸如“附条件买卖”）（卖方保留所有权）和“动产抵押”即（以动产作抵）之类的概念，已经废弃。本文所讨论的，是那些根据统一商法典第9条之规定、通过明示的合意，即所谓“诺成留置”，以设定担保的办法；而不是由法律规定的那些担保办法，如银行有权处理客户存款结余以抵偿其对该客户的索赔请求或仓库保管员对积欠仓租者的留置权、技工的留置权、旅店店主的留置权或律师的留置权。这些担保权都有法律规定而不是由双方当事人约定而产生的。实际上，这些权利如不主张就不会产生。但是有一种担保办法却是当然发生的这就是法院的判决。法院的判决对之作出判决当事人的财产设定了一种留置权。在大多数法域中，对被判决的债务人所拥有的不动产，其留置权是自动设定的；而对动产，却必须进一步通过行政程序才设定留置权。统一商法典第9条是一项非常复杂而又详细的立法。法学家和法院对此非常重视。这一课题最一般的梗概如下：希望取得某项财产或某一企业者必先查清该财产或企业有无法定留置权之负担，是否担保交易的对象。上项调查（必须在一些不同的政府机关内进行）一般系有买方的代理律师委托一个专门从事这方面工作的单位进行。债务人一旦破产，拥有担保的债权人就享有优先地位。一笔交易之所以要予以担保，其主要理由之一即在于此。为允诺作担保的财产或财产权称担保财产。举凡应收未收账款、却特尔契据以及甚至未在成长中的作物，均可作担保之用。“却特尔”原系英语旧词，意指“动产”。统一商法典第9条105款的正式评释说明了“动产契据”一语的含义。因为这一评述也说明了其他一些有关的概念，故引述如下：“某经销商按附条件买卖合同把一台拖拉机出售给某农家。这附条件买卖合同是一项担保协议农家是债务人，经销商是被担保方，拖拉机即担保财产。却说经销商把合同转让（或彻底转卖或用以担保一笔债款）给了他的往来银行。由于该附条件买卖合同涉及特定设备的担保协议，所以附条件买卖合同现在就是一种叫做动产契据的担保品了。”任何具有价值的财产都可用作担保，如某财产是靠人垫款而购买的，则该财产就可用作担保品。例如，公司股票虽已出售，但出售人在股票价金全部得到清偿以前仍可保留其所有权（于此场合，一