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Copertina The Economic Foundation of Debtor-Creditor Relations


prezzo di copertina € 19,00
a stampa € 18,05
collana "Percorsi"
pp. 216, 978-88-15-27469-4
anno di pubblicazione 2018


The Economic Foundation of Debtor-Creditor Relations

The purpose of this study is to shed light, from a general legal theory’s perspective, on the essential role of three different fields of law regulating debtors and creditors relations: business organization law, secured transactions and bankruptcy law. In particular, the analysis offered in this volume – using both comparative law (through a constant dialogue between the common law and the civil law traditions) and economic analysis of law methodologies – allows to reach two main conclusions: (i) What truly characterizes organizational law, secured transactions law and bankruptcy law, their essential contribution to legal systems, is that they provide special rules of law (identified as “property laws”) – rules that are “good against the world” – that allow to achieve legal effects which cannot be practically established by contract alone. Among these effects, the segregation between: (a) owners’ personal creditors and firms’ creditors; (b) unsecured creditors and secured creditors; (c) first-in-time and later-in-time secured creditors; (d) prepetition and postpetition creditors. (ii) Once these three fields of law are observed through the lens of a common property-based paradigm, it is possible to shed light on a logical, communal continuum along which organizational law, secured transactions law and bankruptcy law can be disposed and analyzed. The realm of debtor-creditor relations offers interesting examples in which financial transactions are becoming the primary motivating force in breaching the long-established divergences of common law and civil law traditions and dictating uniform global solutions.

Giacomo Rojas Elgueta is Associate Professor of Private Law at Roma Tre University, where he also teaches Economic Analysis of Law. In addition, he is licensed to hold the position of Associate Professor in Comparative Law.

I. The Essential Role of Organizational Law and the Economic Efficiency of Asset Partitioning
I. The Corporate Theory Debate on Asset Partitioning in the U.S.
II. Enhancing the U.S. Debate on Asset Partitioning in Light of the Civil Law Tradition
III. The Historical Evolution of the Asset Partitioning Doctrine
A. The Historical Evolution of the Asset Independence Doctrine in the Civil Law Tradition
1. The Unity and Indivisibility of the Patrimony Doctrine in the Eighteenth and Nineteenth Centuries
2. The Estate as an Entity Doctrine and the Commitment of Assets to a Specific Purpose
3. The Substitution of the Indivisibility of the Patrimony Doctrine with the «Numerus Clausus» of Asset Independence Principle
B. The Historical Evolution of Affirmative Asset Partitioning in the United States
IV. Affirmative Asset Partitioning and Asset Independence: A Functional Analysis
A. The “Funds Committed to a Specific Purpose” of the Italian Civil Code v. a Corporate Subsidiary
1. Preliminary Considerations
2. The Italian “Committed Funds”
3. Lower Monitoring Costs
4. Matching Capital Structure and Asset Type
5. Agency Costs
6. Value of Switching Options and Hold-Up Problem
7. Tracking of Value
8. The Asset Partitioning Effect
9. Specialized Creditors' Protection
10. Informational Economies
11. Other Advantages
B. Asset Securitization
1. Overview of Asset Securitization
2. Asset Securitization in Italy
3. Asset Securitization in the U.S.
4. The Case of Multiple Transactions
5. Cost and Benefit Comparison of the Two Systems
C. Mutual Funds
1. Overview of Mutual Funds
2. Mutual Series Funds in Italy
3. Mutual Series Funds in the U.K. and the U.S.
4. The Delaware Series Regulation
V. Conclusions: Convergences between Civil Law and Common Law Traditions
A. Broadening Horizons of the Common Law Tradition
B. Broadening Horizons of the Civil Law Tradition
1. The Civil Law «Fiducia»
2. The French «Entreprise Individuelle à Responsabilité Limitée»
II. The Essential Role of Secured Transactions Law and the Economic Efficiency of Later-In-Time Financing
I. The Natural Tension between First-in-Time and Later-in-Time Financing: A Descriptive Analysis
A. Incentives to Resort to First-in-Time Secured Financing and Blanket Security Interests
B. Incentives to Resort to Later-in-Time Secured Financing
C. Expanding the Descriptive Analysis
II. Coordinating the Interests of Dominant Creditors and Specialized Creditors: A Comparative Analysis
A. Priority Rules under Secured Transactions Law: The Common Law Tradition
1. The Floating Lien under U.C.C. Article 9
2. The PMSI under U.C.C. Article 9
3. From Generic to Specific: The Opposite Nature of Floating Lien and PMSI Collaterals
4. Other Exceptions to the First-in-Time, First-in-Right Principle under U.C.C. Article 9
5. The Floating and Fixed Charge under English Law
6. Reservation of Title and the Carve-Out under English Law
B. Priority Rules between Secured Transactions Law and Ownership: The Civil Law Tradition
1. From Roman Law to Nineteenth Century’s European Civil Codes
2. The Contemporary Trend: Back to a Blanket, Non-Possessory Security Interest?
3. Later-in-Time Creditors and the Principle of Title-Retention
C. The Convergence Toward Allowing Later Secured Financing
III. Foundation of Dominant and Specialized Secured Financing: A Normative Analysis
A. The Proprietary Foundation of Secured Transactions Law
1. Reducing Transaction and Monitoring Costs
2. The Continuum of Property Law: From Organizational Law to Later Secured Financing
3. Later-in-Time Secured Financing as the Equivalent of "Transaction Costs Free" Default Clauses
B. The Economic Rationale of Later-in-Time Secured Financing
1. The Inherent Trade-Off Posed by First-in-Time Secured Financing
2. Later-in-Time Secured Financing as a Remedy to the Trade-Off
III . The Essential Role of Bankruptcy Law and the Economic Efficiency of Postpetition Financing
I. The Proprietary Foundation of Bankruptcy Law
A. Bankruptcy Law as an Answer to a Collective Action Problem
B. Bankruptcy Law as a Strategy of Risk Sharing
II. The Treatment of General Unsecured Creditors in Bankruptcy
A. The Equality of Creditors or «Par Condicio Creditorum» Principle
1. The Origins of the Equality of Creditors Principle
2. The Rationales Justifying the Equality of Creditors Principle
3. The Gradual Vanishing of the Equality of Creditors Principle
B. The Numerous Departures From the Equality of Creditors Principle
1. The Preference Action and its Exceptions
2. The "Executory Contracts" Rules
3. The "Critical Vendor" Doctrine
4. The Classification of Unsecured Creditors in Separate Classes
C. The Convergence Toward a Horizontal Differentiation of Unsecured Creditors
III. The Interaction between Secured and Unsecured Creditors in Bankruptcy
A. The Treatment of Secured Creditors in Bankruptcy According to Traditional
Law-and-Economics Scholarship
B. Criticisms to the Traditional View
C. The “Carve-Out” Rule
IV. The Interaction between Prepetition and Postpetition Secured Creditors
A. Bankruptcy’s Liquidity-Providing Rules
1. The Automatic Stay
2. The Administrative Expenses
3. The Postpetition Financing “Super Priority”
4. The After-Acquired Property Clause
5. The Use of Collaterals in Bankruptcy
B. The Proprietary Foundation of Postpetition Financing
List of Works Cited

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