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Security interests in intangible assets: how you seek what you cannot see

Summary/Abstract: Since there are certain special provisions dealing with the security interest in (certain) intangible assets, problems occurred as to the separation of the security interest regulation upon the type (tangible or intangible) of the collateral. More specifically, the security interest in accounts receivable raised difficult problems in practice and the case law developed on this subject was not at all uniform. Based on an earlier idea of the author, namely that the collateral is not the asset itself as an (in)tangible item, but rather the value encapsulated in the asset, this paper pleas for an unitary legal status of the hypothec (i.e. security interest without dispossession) which goes beyond the different classes of assets. To argument on this thesis, the article analyzes the new regulation of the concept of “asset” as well as its interactions with the similar notions of “thing” and “right”. This analysis evidences an interesting evolution of the traditions concepts towards an unifying system that is extremely useful in wiping out those grey areas of property law. Once clarified the fact that any monetary value is treated as an asset, including the value (debitum) incorporated in a claim (obligatio), it is easy to accept a unified theory of the security interest (hypothec). The existence of a common body of rules governing the hypothec does not exclude the coexistence of special norms dealing with punctual regulation of certain effects of the security interest in the case of certain types of assets. The final part of the study reflects these particular rules and explains their application by making reference to the general legal status of security interests. In this regard, the rules governing the security interests in intangible assets are extremely useful tools in regulation the status of security in insolvency proceedings.

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