Blade Runner and the Promise of No Possession | Orrick, Herrington & Sutcliffe LLP


italian: Blade Runner and he pegno non possessorio

Nexus 6 is an android. Smarter, stronger and faster than any human being.
At least in the film version, which Philip Dick was not entirely satisfied with.

The film adaptation of his novel Do androids dream of electric sheep? reversed its logic – he asserted – by conveying a “simulation of an authentic human, to someone who is literally superior to a genuine human”. Philip K. Dick had indeed imagined the replicants as “faulty personalities“, humans with emotional flaws – implicitly echoing the horrors of WWII, particularly the Nazis, whom the brilliant Chicago-born author studied extensively, and whose horrors later inspired his dystopian novel by genius “The man of the high castle”.

The author of this article is particularly intrigued by what Dick calls the replicants: “link», A Latin lemma which also means an ancient form of guarantee.

Since the beginning of loans, every creditor has been obsessed with security. In ancient Roman law, even free men could become slaves to their creditors if they failed to meet their obligations. Debtors could guarantee the repayment of the debt by pledging voluntarily themselvesthat is to say their own work – through the institution of nexum, thus becoming link: when the value of the work reaches the same value of the debt, the link would become free again. This form of collateral was later banned and only assets could be used to repay debts.

This writer did not find any evidence that Philip Dick knew of such a nomenclature and named his androids accordingly, although the highly imaginative American author is well known for his insatiable intellectual curiosity, including for ancient Greece and Rome.

However, the desire to protect the creditor has never wavered and applies in all jurisdictions. Our lawmakers recently proved this by finally completing the long process that introduced “pledge without dispossession” into our legal system.

This new institution aims to balance the need to protect those who lend money with the need of debtors to maintain the availability of assets in order to continue to use them. A remarkable invention linked to contemporary capitalism, it seems. But it’s not.

Roman law was well ahead of our modern times, as it articulated the pignus conventum (conventional collateral) with exactly the same objective: to allow the debtor to continue to use the goods. At first glance, a casual hunch to no avail, but its historical fortune was enormous when you consider that the legal protection in this type of pledge had a name, and it will sound incredibly familiar to you: mortgage (modern mortgage means mortgage in Italian law).

Our legislators, however, are not required to be original, but rather to ensure order and certainty by building effective institutions.

And that is exactly what the pledge with dispossession lacks.

The pledge without dispossession may relate to any movable property, even intangible, present or future. Only registered movable property is excluded.

It was therefore set up as a general institution, therefore useful precisely because it is universal.

The pledge without dispossession will however coexist with other pledges and special privileges already existing on unregistered movable property, certainly arousing the interest of lawyers, but also generating the perplexity of those who apply it on a daily basis.

On an interesting food tour, our lawmakers approved a no-dispossession pledge on ham, and then, later, on cheese.

In between, they enacted the Consolidated Banking Law, which introduced another form of guarantee without dispossession: the special lien on movable property, except unregistered ones. Certainly, the pledge without dispossession can be granted in favor of anyone, while the special privilege of the revised banking law was created to protect only the banks. But it was later extended to bonds and debt securities, thus closing the list of subjects that can (legally) finance a business and then receive guarantees.

The Consolidated Banking Law also contains another privilege for credit in the agriculture and fishing sector. This is another no-own warranty, but not as fresh as the products it applies to. The original was, in fact, in a royal decree, the date of which is not worth mentioning, as one can deduce from it by simply reading the following wording: “a debtor declaring that he cannot write and signs with an X […], will suffice for all legal purposes‘.

The settlement of the pledge without dispossession also highlights an overlap with the real guarantees on trademarks and other industrial property provided for in the specific code (what then do we mean by “unregistered goods”?). Another overlap concerns the shares and quotas of companies, yet they have well-known and effective collateral regulation.

In the novel of Guarantees Without Possession, too many characters are fighting for the lead role, it seems.

The pledge without dispossession also carries a deliberate, innate uncertainty: it can be applied to present and future assets, in a very generic way (for example, product categories). If applied without exception, a single pledge without dispossession could cover all the present and future assets of a company, thus preventing any other future credit from being guaranteed. For this reason, with collateral without dispossession, any collateral – even those created at a later date – prevails, provided they are specific assets.

Was the new institution necessary? The period between the decree-law which introduces it and the promulgation of the implementing regulations is five years. Less than the average lifespan of a Nexus 6 and – this writer fears – a lot more boring.


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