Where the destinies of art, science and law meet | November.16.2021
italiano: Blade Runner ed il 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 happy with.
The cinematic adaptation of his novel Do Androids Dream of Electric Sheep? reversed its logic - he claimed - conveying a “simulation of an authentic human, to someone who is literally superior to an authentic human”. Philip K. Dick had, in fact, imagined replicants as “defective personalities”, humans with emotional defects - implicitly echoing the horrors of World War II, especially the Nazis’, whom the brilliant Chicago-born author researched thoroughly, and whose horrors later inspired his genius dystopian novel “The Man in the High Castle”.
The writer of this article is particularly intrigued by what Dick calls the replicants: “nexus”, a Latin lemma which also signifies an ancient form of guarantee.
Ever since lending began, every creditor has been obsessed with being secured. In ancient Roman law, even free men could become slaves of their creditors in the event of non-fulfillment of their obligations. Debtors could secure repayment of the debt by voluntarily pledging themselves – i.e. their own work – through the institution of the nexum, thus becoming nexus: when the value of the work reached the same value of the debt, the nexus would become free again. This form of guarantee was later prohibited, and only assets could be employed to repay debts.
This writer has not found evidence that Philip Dick knew such nomenclature and named his androids accordingly, although the highly imaginative American author is very well known for his insatiable intellectual curiosity, including for ancient Greece and Rome.
The wish to safeguard the creditor has never waned, however, and is applied in all jurisdictions. Our lawmakers have recently proven this by finally completing the long process that has introduced the “non-possessory pledge” into our legal system.
This new institution is intended to balance the need to safeguard those who lend money and the debtors’ need to maintain the availability of the assets so to continue using them. A remarkable invention linked to contemporary capitalism, it would seem. But it’s not.
Roman law was way ahead of our modern times, as it articulated the pignus conventum (conventional pledge) with the exact same aim: to allow the debtor to continue using the assets. On the face of it, an off-hand intuition with no effects, but its historical fortune has been huge if we consider that the legal protection in this type of pledge did have a name, and it will sound incredibly familiar: hypothecaria (modern hypotheca means mortgage under Italian law).
Our lawmakers, though, are under no obligation to be original, but rather to provide order and certainty by establishing efficient institutions.
And this is exactly what the possessory pledge lacks.
The non-possessory pledge can concern any movable asset, even intangible ones, present or future. Only registered movable assets are excluded.
It was therefore established as a general institution, thus useful precisely because it is universal.
The non-possessory pledge, however, will coexist with other special pledges and liens already existing on non-registered movable assets, certainly sparking the interest of legal scholars, but also generating perplexity in those who apply it on a daily basis.
On an interesting food tour, our lawmakers approved a non-possessory pledge on ham and then, later, on cheese.
In between the two, they issued the Consolidated Law on Banking, which introduced another form of non-possessory guarantee: the special lien on movable assets, except for non-registered ones. True, the non-possessory pledge can be granted in favor of anyone, while the special lien of the Consolidated Law on Banking was created to only safeguard banks. However, it was then extended to bonds and debt securities, thus ending the list of subjects who can (lawfully) finance a company and then receive guarantees.
The Consolidated Law on Banking also contains another lien for credit in the agricultural and fishing sector. This is another non-possessory guarantee, though 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 it can be deduced by simply reading the following wording: ‘a debtor declaring that he does not know how to write and signs with an X [...], shall suffice for all legal purposes’.
The non-possessory pledge regulation also highlights an overlapping with the real guarantees on trademarks and other industrial property outlined in the specific code (then, what do we mean by “non-registered assets”?). Another overlapping is on company shares and quotas: yet they do have a well-known, efficient pledge regulation.
In the novel of non-possessory guarantees, too many characters are fighting for the leading role, it seems.
The non-possessory pledge also carries a deliberate, innate uncertainty: it can be applied to present and future assets, very generically (for example, product categories). Were it applied without exceptions, a single non-possessory pledge could cover all present and future assets of a company, thus preventing any other future credit from being secured. For this reason, with the non-possessory pledge any collateral – even those created at a later date – prevails, provided it is on specific assets.
Was the new institution necessary? The time between the decree-law that introduced it and the issuing of the implementing regulation was five years. Less than the average life of a Nexus 6 and – this writer fears – much more boring.