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Summary: The Insignificance of the Legal Family

As overviewed in this chapter, the laws of security and title-based security are more than diverse among jurisdictions. It is worth noting that the diversity does not correspond to the difference between the common law and Civil law. On the one hand there are issues such as the functional approach, over which the English and American law differ significantly. While both English and American law admit the private enforcement to a large extent, South Africa, which is a mixed jurisdiction of common law and Roman Dutch law, viewed it as infringing on the Constitutional principle.[1] On the other hand, unlike the secured transactions law in general, the law on aircraft finance has historically responded to the practice in the specific sector, as shown in the fact that most jurisdictions have a special register for mortgages in aircraft. Further, recent reforms on secured transactions law, as the 2006 law of France or 1996 law of Poland, have diminished the differences between the common law and Civil law.

As regards the remaining divergences, the Cape Town Convention has achieved unification, but rather modestly. It has ensured the registrability of title-based securities as well as lease (even non-financial leases), which in many jurisdictions are not regarded as security interests. It also has validated the agreement on the meaning of “default” and on a variety of remedies available to the creditor in case of default of the debtor. However, the Cape Town Convention has not gone beyond there and has reserved the room for a choice by Contracting States on such issues as the admissibility of private enforcement. Furthermore, some important issues are left to the court, as with characterisation of the transaction or interpretation of the requirement of “commercially reasonable” manner in the enforcement.

  • [1] See Chap. 9.
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