Extract
[...] However, such a difference in approaches ultimately has an important consequence in the application of the law, in legal security and in the autonomy of the parties51. In fact, this could play a major role in the choice of a national law applicable, in particular in a commercial dispute. If the problem does not arise in the context of a national contract52, from the moment when we apply internal law, the existence of a system so different, more or less favorable to the autonomy of the parties, may push the parties to an international contract to opt for a foreign law that accepts the commissary pact53. [...]
[...] What application of the commissary pact is provided for by the 2006 ordinance? « The economic growth of the second half of the twentieth century has conferred a particular volume and dynamism on the relations of commerce and transactions in general, favoring the number and variety of transfers of all kinds.»1. It is therefore in this context that, due to the specific needs of the economy, financing needs, legal security, flexibility, elasticity, as well as contractual freedom and autonomy of wills, numerous legal innovations have occurred, allowing for the development of new conventional arrangements. [...]
[...] However, regardless of the time of conclusion of the pact, the latter can only be executed on condition of the debtor's default, that is to say in the case where the latter does not respect its contractual obligations and, in particular, its guarantee obligation. It is only in this case that the commissoire clause can produce its effects automatically. However, if the efficiency sought by the 2006 reform has thus gained positive law with regard to movable securities, it remains that this system, from the day after the 2006 ordinance, has been affected by a fragmentation of movable securities which still makes the application of this law complex23, and which moves it further and further away from Anglo-Saxon law. [...]
[...] This article provides thatis null any clause that would allow the creditor to appropriate the pledge in case of non-payment». As a result, the creditor wishing to put into effect his guarantee will be obliged to realize the pledge by selling the movable property in question at auction. This confirms the fact that in Swiss law all real rights must be exhaustively listed by the legislator39, with a kind of numerus clausus, the parties cannot create other forms of real securities other than those provided in this limited way by the law. [...]
[...] Another aspect to be taken into consideration in the practical application of the pactum commissorium is the jurisprudential issue. We have already had the opportunity to specify that despite the prohibition of the pactum commissorium in French positive law for a very long time, the case law has always been more favorable to its acceptance in practice, with often innovative interpretations. By a judgment of May the Paris Court of Appeal, for example, had admitted the possibility of a pactum commissorium in the matter of pledge-species, specifying thatthe prohibition of the pactum commissorium has the purpose of preventing the debtor from being stripped of his property, which he has assigned as security for his debt, a pledge of a pecuniary value greater than that of the debt, and it takes on its full meaning when the problem of evaluating the pledge arises; Since, by its nature, the pledge constituted in Spanishin such cases, there is no difficulty in fixing the just price and therefore the two classical modes of realization of the pledge become unnecessary». [...]
