The Reluctance of Civil Law Systems in Adopting the UCC Article 9 'Without Breach of Peace' StandarddEvidence from National and International Legal Instruments Governing Secured Transactions

Abstract

One of the defining features of the Uniform Commercial Code Article 9 is the secured creditor's ability to take possession of the collateral upon the debtor's default "without breach of peace." This standard is meant to protect the debtor from abusive secured creditors, the meaning of which has been shaped by courts on a case-by-case basis. In reforming their secured transactions laws to enhance access to credit, continental legal systems have shown great reception to Article 9 by adopting the unitary concept and functional approach to security interests, introducing private enforcement mechanisms, including various forms of self-help repossession. However, the "without breach of peace" standard seems to be rejected by most national laws and international legal instruments acceded to by civil law countries, to accommodate the supposedly alien idea of self-help repossession with civil law tradition. Based on comparative analysis of secured transactions laws of the US, the UK, Romania, and Hungary (representing national laws), and the Cape Town Convention on International Interests in Mobile Equipment 2017] CIVIL LAW SYSTEMS & UCC ARTICLE 9 101 along with the Aircraft Protocol and the Draft Common Frame of Reference (representing international legal instruments), this article demonstrates that continental European legal systems are generally apprehensive with the "without breach of peace" standard. Thus, they are reluctant to transplant it to their legislation and try to either modify it or replace it with different legal requirements. This article concludes that the alternatives of the "without breach of peace" standard prevailing in continental legal systems undermine the privilege of the secured creditor, pose enforcement problems (such as uncertainty of creditors' rights and possible abuses against consumer-debtors), and restrain out-of-court enforcement.