Historical analysis of the security in movable property

Straipsnyje, pradedant senovės Romos teise, analizuojami konceptualūs principai ir doktrinos, kuriais remiantis galima išskirti du pagrindinius istorinius įkeitimo teisės modelius - klasikinį ir tradicinį. Straipsnyje siekiama parodyti, kada ir dėl kokių priežasčių liberalus klasikinis įkeitimo modelis transformavosi į nelanksčią, posesoriškumo ir specifiškumo doktrinomis grindžiamą, tradicinę įkeitimo teisę, kuri iki šiol galioja daugelyje pasaulio valstybių. Straipsnio tikslas - atskleisti abiejų minėtų įkeitimo koncepcijų pranašumus ir trūkumus bei pagrįsti XX amžiaus antrojoje pusėje kai kuriose valstybėse, iš jų ir Lietuvoje, pradėtos įkeitimo teisės reformos būtinumą.Article deals with the conceptual problems revealed by the comparative study of the evolution of security in movable property. Despite a long passage of history, dating back to the times of ancient Rome, only two major models of security over personalty should be distinguished. These are the classical and the traditional pledge. The author submits that the analysis of the major historical concepts should be deemed important, since the latter historical models have recently been the only legal forms of chattel security in many jurisdictions worldwide, and, therefore, the results of this study could be directly implemented in shaping the concepts of the modern security law. Classical system was created in ancient Rome. This model, especially in the form of hypotheca, could be characterized as the creditor oriented one. The Roman law recognized the non - possessory security devices by which the debtor could give a general hypothecation of his assets, both present and future. However, the classical model was defective in a way it did not prescribe the non - possessory security to be made public. It was not acknowledged that the factual possession of the encumbered assets by debtor might raise the false impression of his creditability, and, therefore, impair the rights of the potential creditors or the bona fide acquirers of the pledged property. This problem, known as the "false wealth" doctrine, was perceived in the continental Europe only in the late eighteenth century. That is why the continental legal tradition modified the reception of the Roman law and set the mandatory requirement the existence of chattel security rights might fall within the reach of the eyes of the public. However, the only method to assure publicity of the pledge, available in the nineteenth century, was deemed to be the transfer of possession of the pledged asset from the debtor to the creditor. Together with the requirement that the pledge must be possessory instrument, other related doctrines were created, the most remarkable of these being the one of specificity. Therefore, traditional continental model recognizes only non-possessory and specific security devices. Although Anglo-American legal family historically based security law on quite different principles if compared with the European continent, due to the doctrine of fraudulent conveyance American chattel security law in the nineteenth century became remarkably similar to the traditional continental model. Yet English courts took more liberal view towards the non -possessory and non - specific charges, and therefore, English model of the commercial security could be regarded as a classical one. Traditional model of security law docs not meet the needs of the contemporary market economy. It should be urgently reformed. The modern system of security over personalty, if understood stricto sensu, should be created combining the best features of the classical and traditional models. The efficient reform is to be based on the conceptual framework of the classical security, yet the requirement of publicity should be taken from the model of traditional pledge. However, the publicity ought to be solved not by the transfer of possession, but by the public registration or equivalent system designed for the publication of rights. The article is concluded pointing out the fact that Lithuanian model of the security law, stemming from the old Civil code, should be regarded as the classical one. That is why Lithuania was in the urgent need of reform. Had the legislator followed the trends of the reform suggested in the article, Lithuania should not have any relicts of the traditional model of pledge left in its recent statutory enactments