Les suretes mobilieres sur les biens incorporels Propositions pour une renovation du systeme des suretes mobilieres en France et au Quebec

Pledge has emerged as a model for creating a security in movable property for two reasons: for historical reasons on the one hand, because of the traditional prohibition against hypothecating movable property, and for technical reasons on the other hand, given the progressive enlargement of the notion of delivery, often involving a legal fiction. Pawning, however, is not well adapted to incorporeal property. Indeed, an analysis of various attempts at legislative reform in France and in Quebec shows that delivery, once conceived of as physical delivery, has always been envisaged as an essential condition for the validity and publicity of pawning. Legislation in France and in Quebec evolved towards a fictitious conception of delivery by admitting of exceptions or special regimes in which delivery did not fulfill its essential purpose: ensuring that third parties have sufficient notice of the existence of the pledge. Such peculiar forms of delivery have introduced inconsistencies and generated uncertainty in the law, with negative consequences for the entire legal regime of secured transactions. Therefore, it is proposed that the movable hypothec without delivery be extended in such a way as to include a security in incorporeal property; however, this requires that the notion of a value claim be recognised. The concept of property should be redefined as the appropriation of a thing with economic value, a thing that need not possess a physical or incorporeal envelope. As for the concept of a movable security, it might be given a unitary definition as a mechanism with a specific function and a specific purpose. Its function would consist in using the value of an item of movable property or a universality of such items for a specific purpose, namely the preferential or exclusive payment of a given creditor. Such purpose may be understood from the perspective of the essence of the operation. Every legal operation (transaction) might henceforth be characterised as a movable security if its essential purpose---without regard to the language used by the parties---is to secure payment of an obligation. A common definition for all forms of corporeal or incorporeal movable security and a single set of rules for their validity and opposability would insure the coherence and efficiency of French and Quebec movable security law. It would encompass ownership-based forms of security, trust-based forms of security and other forms of movable security such as the right of retention.;KEY WORDS: Pledge, movable hypothec, delivery, securated transactions, incorporeal properties, value, essence of operation, securities, trust, retention.