法学外文文献担保交易.doc

Secured Transaction Richard Colson I. Introduction In 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 The codification has superseded most prior legislation and the earlier com mom law of secured transaction.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 bank’s right to sell off a customer’s 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 mechanic’s lien, an innkeeper’s lien, or lawyer’s 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. Article