Юридические документы о лизинге.
Проект документов о лизинге учрежден 01-10-1999 ; редакция от 01-11-2001.
Международная лизинговая энциклопедия.
The International Leasing Encyclopedia by Steven Gilyeart.
Энциклопедии не было в интернет последние полтора года, но это не означает, что ее нет вообще. я взял на себя смелость разместить на этом сайте всю подборку статей (собственно энциклопедию), с указанием адресов электронных почт авторов материалов и редактора. Материал на английском языке.
Bankruptcy and Insolvency From An International Perspective (Part 3)
by Steven Gilyeart, J.D., Editor, The International Leasing Resource
Editor's Note: This is the third in a multi-part series.
Simple Finance Leases As Installment/Conditional Sale As you may have already surmised, a typical simple finance lease in which the lessee receives the title to the asset upon the conclusion of the lease term for no additional consideration, or only a nominal, token, or trivial consideration, has all of the same economic characteristics of an installment or conditional sale. (In a modestly more sophisticated analysis, the finance lease can also be validly described as the functional equivalent of a loan supported by a non-possessory pledge.) Just as with those transactions, the retention of the title by the lessor for the lease term simply made the lessor the legal owner, while the lessee become the true or equitable owner at the inception of the lease. The lease contract was really just a disguised installment or conditional sale with the creation of a security interest in the leased asset, the collateral, by the lessor having retained the title until the end of the lease term. In all of these types of transactions--installment sale, conditional sale, simple finance lease--the economic substance of the transaction involves a complete transfer of all of the lessor's economic interest in the asset to the lessee as of the inception of the lease. The lessor has not retained the sine qua non ("that without which it cannot be") or essential element of a true lease--a significant residual interest. The retention of the title is nothing more than the creation of a title-retention security device to insure that all payments are made. The lessee is the true owner of the asset, and the asset has become simply the collateral supporting the lessee's obligation to make all of the time payments to the lessor.
Complex Finance Leases When leasing is first introduced in a country, almost every lease is a simple finance lease, with the complete ownership/title to leased assets belonging to the lessee at the end of the lease after payment of no additional consideration or a nominal consideration. However, there will come a time in that leasing market's development when more complex finance leases will emerge. A complex finance lease is one where the lessor takes some residual risk. Purchase options, whether at a pre-set fixed price or fair market value, are no longer nominal, and the lessee may or may not exercise them. These leases should not be confused with operating leases, an accounting term, but often are. They remain a finance lease as the primarily purpose of the transaction is still financial: financing the use of the asset rather than financing the ownership of the asset. While the simple finance leases were essentially loans, complex finance leases are not. They are indeed "true lease." Article 2A of the Uniform Commercial Code in the United States provides a notable recognition of this fact. It treats finance leases (e.g., complex finance leases in our vernacular here) as simply a subset of rentals. By definition, a finance lease must be a true lease first. If it is simply a disguised loan, it will be covered by an entirely different section of the UCC--Article 9, which addresses secured transactions (e.g., installment loans, conditional sales, etc.) The very terminology "simple finance lease," "complex finance lease," or even just "finance lease" implies the existence of a substance analysis. However, confusion in the law arises because the law in most countries rarely makes any distinction between "simple finance leases" (a loan equivalent) and "complex finance leases" (a rental equivalent). They simply talk about leases, or, if they have enacted a finance lease law, "finance leases" and provide a definition.
Countries With Finance Lease Laws An increasing number of countries have enacted finance lease laws. The definition of "finance lease," by whether or not it includes purchase option matters and/or full-payout status, may or may not imply coverage of all types of finance leases or only simple finance leases. This means that there may be a form (all types of finance leases covered) or substance(simple finance leases within the definition--complex ones without)analysis within the finance lease law itself. Of course, the very existence of the finance lease law will create a substance distinction from traditional rentals and operating leases, which will retain their coverage elsewhere in the civil or commercial code of the country.
Bankruptcy and Finance Lease Laws Most financial leasing laws will provide that the leased property covered by the act is not part of the lessee's bankruptcy estate or otherwise subject to the claims of the lessee' other creditors. Thus, one faced with a lessee bankruptcy in a country with a finance lease law must look closely at the definition of finance lease in that law to see if it will be "entitled" to use of that provision. Nevertheless, if it is outside that definition, it will typically be treated as a traditional rental provider, and the leased property should still remain outside the bankruptcy estate. However, it may be that the definition of "finance lease" within the law creates a situation where a lessor may find itself treated as a lender, with consequences less favourable than those available to a true lessor.
Bankruptcy Consequences Disguised Credit Sale or Loan Undersecured Lessor Regardless of how the conclusion is reached, once the lessee is viewed as the true owner of the leased asset, the lessor's claim to repossession of the asset is severely impaired. For one thing, since the leased asset is truly owned by the lessee, it becomes a part of the bankruptcy estate, with the consequence that it can be sold, subleased, or otherwise managed or disposed of with the ease accorded much of the other property owned by the insolvent. At best, the lessor has a security interest in the leased asset and has a right to have its claims separately settled from the proceeds of that asset's sale, use or other disposition, and does not have to share them with other creditors. Of course, if the asset is worth more than the "lessor's" claim, the excess does not go to the lessor as a bonus as it was not the lessor's property that was being sold--it was the lessee's. Any excess amount would go to meeting the claims of the other creditors. However, the most typical circumstance by far is that the proceeds from the asset are not enough to fully satisfy the lessor's claim, even with the lessor having complete entitlement to them, and the lessor will find itself undersecured. Any remaining unpaid claim is then an unsecured claim that must receive its proportionate distribution along with the other unsecured and undersecured claimants.
Unsecured Lessor However, it may occur that the lessor is not just undersecured but is completely unsecured and has no entitlement whatsoever to separate settlement of its claim from the sale, use or other disposition of the leased asset. This circumstance can occur when some requirement for public filing, registration, or notarization has not been meet. In such circumstances, the lease contract may be valid only as between the parties themselves, i.e, the lessor and lessee, and not valid as against the rest of the world, including other creditors and the bankruptcy trustee or administrator. In the worst case scenario, the lease contract is completely void, in which case, the lessor would have no property and no claim. The Unidroit Convention on International Financial Leasing is in accord with these consequences, providing in Article 7.2: Where by the applicable law the lessor's real rights in the equipment are valid against a person referred to in the previous paragraph [e.g., lessee's trustee in bankruptcy and other creditors] only on compliance with rules as to public notice, those rights shall be valid against that person only if there has been compliance with such rules. Moreover, since the asset is viewed as belonging to the lessee, the bankruptcy estate may be able to use it during the tendency of the bankruptcy proceeding without interim compensation to the lessor. After all, the "lessee" is only using what it owns and the "lessor" at best has only the equivalent of a mortgage on it. A person is entitled to use what is his or hers even if it is not fully paid for yet. In contrast, if the property truly belongs to someone else, some form of compensation for its interim use is usually required. Since it is bankruptcy estate that is using the asset, the interim compensation obligation becomes part of the expense of administering the bankruptcy proceeding and is thus accorded a priority in payment.
True Lease If the lease is a true lease, then by definition the lessee has no ownership interest in the asset itself, it is not property of the lessee, and it never enters the bankruptcy estate as such. The leasehold interest of the lessee--the contractual right to use the asset for the term of the lease-- does become property of the bankruptcy estate, but the asset itself does not. The issue in this situation then becomes whether or not the bankruptcy estate wants to continue with the lease or terminate it. Most jurisdictions give fairly wide discretion to the bankruptcy trustee or administrator to either assume or reject unexpired leases. If the lease is terminated, the lessor should receive a return of its property, and its claim for unpaid rent and any other damages is treated as any other unsecured creditor's claim. If the lease is assumed by the bankruptcy estate, lease payments will usually (but not necessarily) continue as provided in the lease contract. Sometimes, the rentals will be re-negotiated by the parties themselves or modified by the court in deviation from the original contract rate.
Practical Aspects of the Bankruptcy Consequences If the lease is a true lease, the lessor is in the superior position of having an ownership right in the asset, a right which strengthens its entitlement to return of the asset, or at least a separate settlement from the proceeds of its sale use or other disposition. Usually, the lessor will prefer to have the asset returned because it will usually have a better remarketing capability and will be in a better position to maximize the proceeds of its disposition than will the bankruptcy trustee or administrator. The bankruptcy estate also will usually not want to bother with such disposal, unless the asset is part of a total package being sold to a buyer, as in the case of a sale of the lessee's business "as a going concern." If the lessor is able to obtain the return of the asset, whether because of its ownership right or because it is able to foreclose on its chattel mortgage, non-possessory pledge or other security interest, the ultimate consequence to the lessor remains the same: it obtains the asset and has an unsecured claim for any deficiency in what remains owning after the asset's disposition. If the lease is actually a disguised credit sale, the bankruptcy estate (and thus the lessee) may be allowed to continue using the asset without paying for such use. The bankruptcy estate will have a superior ability to avoid the lessor's demands for the property's return and may be able to control its further sale, use, or other disposition. The lessor may or may not be entitled to separate settlement of its claims from the proceeds of the asset and will usually be an undersecured creditor at best and, at worst, a completely unsecured creditor with no interest in the asset or its proceeds at all. Thus in summary, in a "substance" jurisdiction, the true lessor has a superior set of rights as a result of its ownership position arising from the "true lease" character of the transaction. However, if the substance of the transaction is that of a disguised credit transaction, the lessor could be at serious risk for losing all of its interests in the leased property and at best will be treated as a lender. In a "form" jurisdiction, the lessor will not face a possible recharacterization of its transaction and will have its ownership right protected without further investigation. However, if the form jurisdiction has a civil law tradition, the lessor may still find its efforts to recover the asset impaired by the strength of the lessee's possessory right. The strength of the lessee's possessory right will vary from one civil jurisdiction to another, depending in part upon whether that possessory right is determined to be a real right like the ownership right and thus on a parity with it, or just a personal right, an inferior position. Yet, apart from the possessory interest issue, the lessor in a form jurisdiction will usually have its right to settlement of its claims from the leased property recognized, provided there has been no failure to meet any filing, registration or notarization requirement for the contract or the type of asset involved. To be continued
Bankruptcy and Insolvency from an International Perspective (Part 1)
Bankruptcy and Insolvency from an International Perspective (Part 2)
Updated 28 April 1999
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