| Popis: |
The legal history of security interests and insolvency on the Western European continent in the Early Modern period is of prime importance. Many present-day legal arrangements that for a long time have been considered as belonging to an acquisof settled doctrine and legislation are currently less self-evident than was the case in the past. For example, every country on the European continent has insolvency legislation in place that imposes the priority of negotiated securities over unsecured debts, and in most cases in combination with an Aussonderungsrecht for the former. The Aussonderungsrecht entails that the goods pledged are taken out from the insolvency estate by the pledgee, who does not have to contribute in the costs of the administering of the estate. Secured creditors are generally not held to cuts on their debts, because their pledge is not affected by the insolvency.However, a new legislative trend is to impose measures of protection, aimed at the preservation of firms, onto secured creditors as well. The older underlying philosophy of mercantile and corporate insolvency legislation, which referred to creditor-steered appraisals and to liquidation as the default outcome of proceedings, is being changed for a more continuity-orientated approach. Moreover, security interests have become highly abstracted. Over the course of the later nineteenth and the twentieth century, new arrangements of collateralisation (eg the enterprise charge) were created and it is often difficult to fit them into the categories that were established in the codifications of the 1800s. These codes generally did not favour non-possessory pledges and they prohibited security interests that were not listed in the law. As a result of the shifting of legal landscapes, legal historians have an important task in laying bare the assumptions that are still implicit in the persisting legal regimes relating to credit. The Early Modern period is particularly important in this regard. Between around 1500 and the end of the eighteenth century legal innovations in insolvency, pledge and commercial credit were vibrant. The main centre of legal change was North-West Europe. Building blocks were imported from the Italian peninsula, with which new arrangements and sets of rules were crafted. |
