Международная лизинговая энциклопедия.

The International Leasing Encyclopedia by Steven Gilyeart.

Энциклопедии не было в интернет с 2000 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 2)

by Steven Gilyeart, J.D., Editor, The International Leasing Resource

Editor's Note: This is the second in a multi-part series.

Types of Commercial Creditors: Secured, Unsecured, Undersecured There are really only three types of commercial creditors: secured, unsecured, and undersecured. (Note: These terms are used generically and not specificially in reference to US bankruptcy law.) Tax authorities, employee claimants, persons providing services to the bankruptcy estate itself, such as accountants and lawyers, usually have special rights because of their peculiar relationship with the insolvent, and have their claims treated in a separate manner.

Secured Creditor A secured creditor is one who has collateral securing the obligation of the insolvent. This collateral may be a mortgage on an immovable, a pledge of a movable, an assignment of an account or a stock share certificate, or any other right to take control of and dispose of an asset that the insolvent has an interest in. Although a guarantee can certainly give a creditor more confidence about getting paid, it does not represent a collateral interest. It is simply a separate contract with a separate person. As to its claim against the insolvent, the creditor with a guarantee is an unsecured creditor.

Unsecured Creditor A creditor without collateral is an unsecured creditor. It has only the insolvent's raw and unsupported promise to pay or perform other obligations to the creditor. Suppliers, landlords, customers owed a credit or refund, and holders of promissory notes without collateral are all unsecured creditors.

Undersecured Creditor An undersecured creditor is one who has some collateral securing the insolvent's obligation--but not enough. For example, if the involvent's unpaid obligation to the creditor was 100, and the collateral was only worth 65, the creditor would be secured to the extent of that 65 and unsecured as to the remaining 35. Since the collateral is not worth enough to cover the whole obligation remaining, the creditor is undersecured. This may not have been the situation when the transaction first commenced. Maybe the obligation was 500 and the collateral was worth 575 at that time. The creditor was fully covered at the beginning. Yet, changes in value in the collateral usually do not occur at the same rate as an obligation is satisfied. At any given moment, the creditor could be undersecured, or even oversecured (which is not usually a cause for complaint by the creditor).

What About Lessors? To quote the typical lawyer's answer to almost any question: "Well, it depends." What it depends on is whether or not the jurisdiction uses a form approach or a substance approach in the legal arena. (Tax and accounting approaches may be different and should not be relevant for purposes of legal analysis.)

Form v. Substance. In some countries, it is enough that the transaction in question is documented as a "lease", has the "lease" word running rampant through the paperwork and in its form appears to be a lease. No further examination beyond the surface indices of the transaction is made. This approach is taken in almost all countries when leasing first appears, but can continue long after the leasing industry has become established in countries with a civil law tradition or countries transitioning from a socialist legal structure. Countries with civil law traditions exist in Continental Europe, Latin America and parts of Asia, such as Indonesia. Most of Eastern Europe, Russia, China and parts of south-east Asia are also resurrecting, at least in part, older civil and commercial codes that have their roots in the civil law legal traditions of western Europe, as they move from command-and-control economic systems to more market-oriented economies. Countries with common law legal traditions, however, tend to take more of a "substance" approach to examining leasing legal issues. Common law legal traditions dominate in those parts of the world where the British Empire once held sway: England, the United States, Canada, Australia and New Zealand.

Form If the legal tradition in the jurisdiction follows the "form" approach, as do most civil law countries, the lease will be considered a lease for legal purposes, including for purposes of the bankruptcy or insolvency proceeding. As a true lease, the lessor is an unsecured creditor. It is unsecured because its claim is simply for (1) the rent and (2) the return of property that the lessor owns--the leased assets. The lessor does not have a collateral interest in the leased asset--it has an ownership interest. The lessee has no ownership right in the asset, although it has a possessory right for the length of lease term. The local law may interpret this possessory right as a simple contract right (usually a personal right), or it may consider it real right on a par with the real right of ownership. Yet, while these considerations may go into the analysis as to whether the lessor can recover possession of the asset if the lessee is in an insolvency proceeding, they do not change the fact that the lessor owns the leased property and that the lessor's monetary claim against the lessee has no collateral support. After all, the leased property is the lessor's, not the lessee's.

Substance If the legal tradition in the jurisdiction follows the "substance" approach, as do most common law countries, the lease may or may not be considered a lease for legal purposes, including for purposes of the bankruptcy or insolvency proceeding. An analysis of the economic substance of the purported lease transaction will be made and if the economic aspects of the transaction indicate that it is simply a disguised loan or credit sale, it will be treated as such. The consequence of this re-characterization will almost always be an impairment of the length of the lessor's legal position relative to the position of the lessee and other creditors. This consequence arises because the lessee will be viewed as having become the true or equitable owner of the asset at the time of delivery.

Legal Owner and Equitable Owner In "substance" jurisdictions, there is a difference between the legal owner and the equitable owner. The legal owner is the one who holds the title to the asset. Yet, title does not equal ownership. The title may simply have been retained by the seller of an asset as means to insure that the buyer makes all of the required installment payments. When the last payment is made, the seller transfers the title to the asset to the buyer. These types of transactions are variably known as installment sales (because the payment for the asset is made in installments) or conditional sales (because the completion of the sale by transfer of title is conditioned upon the buyer making all of the payments). [Please note that while the most common usage treats installment sale and conditional sale as synonyms, in some countries they can be two different transactions with a differing legal treatment.]

Bankruptcy and Insolvency from an International Perspective (Part 1)

Bankruptcy and Insolvency from an International Perspective (Part 3)

Updated 28 April 1999

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