Making Commercial Law: Essays in Honour of Roy Goode

By Royston Miles Goode; Ross Cranston | Go to book overview

21
Changes to Personal Property Security Law in Italy: a Comparative and Functional Approach

GUIDO FERRARINI


A. Introduction

In this essay I intend to examine some aspects of Italian law in the field of personal property security, in particular with regard to the use of nonpossessory security in business financing. One of my purposes is to assess the internal consistency of the Italian legal system as to secured financing and the extent to which it meets the needs of a developed market economy. I will then move on to formulate some proposals as to possible reforms of our legal system which could enhance its economic efficiency and responsiveness to the interests of the business community. In order to make such assessments and proposals I shall look at the Italian legal system from different perspectives; primarily from that of comparative law and, to a lesser extent, from that of economics.

The path to the present analysis was marked by the work of some eminent scholars. I would like to mention here two in particular. One is the late Grant Gilmore, whose seminal work on securities interests led from a dispersed and confused American legislation to the text of Article 9 of the Uniform Commercial Code, of which he himself was a drafter.1 The fundamental principles of Article 9 are almost universally considered as a model for legislative reforms to be followed by other countries, save for adaptations suggested by the diversity of legal traditions and contexts.2 The other is Roy Goode, whose significant contribution to the study of

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1
See 1 Gilmore, Security Interests in Personal Property ( Boston, 1965), Part I, for a description of pre-code state law in North America. Interesting comments in this respect are made by another eminent scholar, who notices that such pre-code law was a complex interplay of common law and equitable doctrines, often varying between states, and a heavy overlay of statutory law which was not hospitable to secured transactions, and states: 'Curiously, Gilmore claims that despite these difficulties American law was moving, Hegelian-like one supposes, towards the sun-drenched plateau that was Article 9 and would have reached it even if there had been no Uniform Commercial Code project. Most contemporary American lawyers, I suspect, saw Article 9 as the brilliant inspiration of Gilmore himself and his fellow worker Allison Dunham rather than as an invincible legal force': Ziegel, 'Canadian Perspectives on Chattel Security Law Reform in the United Kingdom' ( 1995) 54 C.L.J. 433.
2
See e.g. Ziegel and Foster (eds.), Aspects of Comparative Commercial Law (Montreal New York, 1969), at p. 291 et seq. for papers by Abel, Goode and Gower, Sher, Drobnig, and Caron, answering the question 'Is Article 9 of the Uniform Commercial Code Exportable?'.

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