Security by way of title transfer under Maltese law : a critical analysis

Abstract

The extensive availability of security rights in movables has become of overwhelming economic importance. The advent of security by title transfer under Maltese law is a testament to such a fact. This thesis attempts to critically examine the mechanics behind this novel Civil law institute. Chapter One deals with the fundamental notions of security law. It begins with a discussion of the economic rationale of secured credit, and then proceeds to consider the various types of security rights. The Chapter then delves into different forms of real security available in Roman times, and the main divergences that followed on the European continent. Chapter Two initially explains how the Maltese law of real security in movables required reform. It then proceeds to examine the salient features of the institute of security by title transfer. This exercise is complemented by a comparative analysis with foreign law. Chapter Two concludes by contrasting the hallmarks of security by title transfer with those of traditional Maltese real security. Chapter Three clarifies that title to the collateral is not transferred with outright effect. It outlines the various fiduciary restraints imposed on the creditor that condition the exercise of his full ownership rights. The Chapter then questions whether Maltese law has accepted the Common law principle of split ownership. Chapter Four examines the remedies available in the event that the movable has been alienated in breach of the security agreement. It then concludes by revealing that the publicity and enforcement features of the institute are a notable departure from the traditional attitude of Maltese real security law.