The Protection of the Debtor’s Interests

While the creditor achieves its economic interest by exercising the remedies, the interest of the debtor also needs due consideration. The extent to which the debtor’s interest is protected, however, differs from one jurisdiction to another. The UCC Article 9 of the United States provides that every aspect of a disposition of collateral must be commercially reasonable.[1] Seemingly in contrast, under the English law, the mortgagee enjoys the “unfettered discretion” as to the timing of enforcement. However, English law also assumes that the mortgagee must act fairly towards the mortgagor, and that the mortgagee having determined to proceed to the sale of the asset owes the duty to take reasonable care about achieving a proper price.[2] As a result, both jurisdictions may not be different in reality.

Sometimes the legislator is more specific in preserving the interest of the debtor. In Italy, the Codice della navigazione provides that the court may order the continued use of the aircraft against provision of security and apply the proceeds from such continued use. It is different from the rules on the general mortgage under the Codice civile. With the high value that aircraft usually has, it is reasonable to enable avoiding the forced sale in this way.[3]

  • [1] See Chap. 11.
  • [2] See Chap. 4.
  • [3] See Chap. 16.
< Prev   CONTENTS   Source   Next >