what good will to secure the transfer of title (if it is registered pledge)? Transfer of title to the security gained popularity in the '90s as a practical way of security on movable property. His popularity was in response to ordinary pledge impractical regulations that require release of goods to the creditor. Thanks possible to secure an assignment to happen simultaneously: the establishment of security and further use of it by the same person.
However, the transfer of title to the security problems related to the creditor, not visible at first glance. These include:
a) in bankruptcy proceedings: the need to request an exemption from the weight and things are just assuming a contract with a certified date (Article 70 in conjunction with. 101.2 Pr. Up. And Reorganization Law),
b) in enforcement proceedings: virtually the same requirement as to form an agreement (not apparent from no specific provision but the courts are increasingly treating the transfer of ownership agreement contained a standard written form as insufficient evidence of a transfer of ownership at the date of seizure of goods), which is the basis for a claim for exemption of goods from the execution (the creditor does not participate in the plan of division and can only request to issue him with things) ,
c) the possibility of acquiring przewłaszczonej things through a third party acting in good faith (thus negating the effects of alienation, Art. 169 § 1 Kc.)
d) the need to resolve at the time of submission of claim by the claimant seeks payment or if there is issue of things.
The latter feature is described in the above Supreme Court of 21.1.1999, I CKN 955/97, OSNC 1999/10/169. Supreme Court there, that:
a) the claimant waives payment arriving to demand the things
b) a creditor reaching the issue of things waives payment.
omit here a theoretical inaccuracy of such a settlement and pay attention only on its practical effects (this effect is often cited by courts, especially bankruptcy courts). The effect of such reasoning is as follows:
a) either come to pay the claim without collateral,
b) or the surrender of things come and you bring an action when I'm losing a claim for payment.
The fact that the first option is unattractive (well could not provide for transfer of ownership) does not need convincing.
The other possibility is even worse than the first possibility, because an action for delivery of goods (based on Article. 222 § 1 Kc.) Filed not against the debtor, which we know as against the person "who owns the actual" thing. This may be our debtor but - not necessarily the case. About this person we do not even know at the time of claim. Such a person may enter the place of the defendant debtor only with his consent (Article 194 § 2 CCP).. In the absence of such consent must be dismissed as the action brought against the wrong person and the plaintiff (creditor) to bear the costs. It is not difficult to imagine how a creditor dochodzącemu disrupt the issue of things.
notification of the insolvency proceedings shall be treated as debt recovery (justification for Supreme Court resolution of 03.02.2005, III CZP 98/04, OSNC 2006/2/21). Therefore, in the bankruptcy proceedings the creditor's dilemma is the same:
- or claim a cash register (and cancel the transfer of ownership)?
- whether to apply for exemption of goods from the bankruptcy estate (and cancel the debts of money)?
effect the request for exemption from the bankruptcy estate is always highly uncertain: it is not known whether the business has not been disposed of, eg, lost or merged with another thing. If the exemption request is rejected (which happens often), the creditor is not a consolation even the introduction of claims in bankruptcy.
reasons mentioned above, this is not a transfer of title to secure a registered pledge is the most transparent, convenient and secure way to protect the creditor claims on movable property. A dozen years after the "release", registered pledge can (only due to registration):
a) meet up in bankruptcy with the money obtained by selling things in priority to other creditors (article 345 Pr. Up. And Reorganization Law) ,
b) inclusion in the plan of division of the amount obtained from enforcement of an administrative document (Rule 1034 the CPC.)
c) defense against a third party may not invoke good faith in the acquisition of things, because it can not rely on the ignorance of the entries in the register of pledges (Article 38.1 of the Act to replace. IRD IRD and replaced.)
d) the possibility of pecuniary claims, and at the same time enjoy the priority in addressing the things loaded.
to this directory there is another possibility, which constitutes a complete novelty in the Polish legal system: the possibility for the creditor secured by a lien on the registry things, which was connected with immovable property (eg, batch of bricks), a compulsory mortgage on that property (Article 9.2 of the Act on replacement. IRD and the IRD replaced.).
Transfer of title to the security gained popularity when a registered pledge has not yet existed and later was at the 'experimental'. Currently there is no rationale to use assignment instead of a registered pledge; vice versa - the courts are increasingly treating the assignment of the contract as an attempt to secure an unfair (based on the backdated agreement) to thwart the execution. More and more voices are heard, that the transfer of ownership of movable property of the registered pledge is practically only one advantage over registered pledge: can antedate.
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