Il pegno «anomalo» (riflessioni intorno alla ristampa della monografia di enrico gabrielli)

Abstract

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This paper is an introduction to an orientated reading of the book Il pegno «anomalo», published in 1990 by Enrico Gabrielli and recently reprinted by the University of Camerino (ESI, Naples, 2022). Reading highlights the fondamental importance that the ideas contained in the book have had for the construction of a new theory of securities over movables and of the pledge in particular. The mechanism of transferring possession, in traditional security law, has characterised the institution of pledge, and this has in its turn ended up characterising – in one of those peculiar events that have marked the history of institutions – the security on goods system, as well as in a wider context the security over corporal movables. In Enrico Gabrielli’s ideas and theory, the rigidly formal mechanism of security, and particularly the delivery of possession with pledge, has been devalued and, at the same time, the autor shows that the transfer of possession from the debtor, that is, the transfer of the object or of the document, to the creditor does not appear to be an essential aspect for the creation of a security interest. He argues that the rigidly formal mechanism of security, and particularly the delivery of possession with pledge, provided for the needs of a pre-capitalistic economy, where the first, if not sole, index of the existence of security was linked to the mechanism of the traditio rei and of the possession of goods. That system in 1990 turns out to be anachronistic and removed from the modern reality of commercial contracts and of their economic and functional needs, as it is shown by the growing use of techniques and forms alternative to the classic ones of pledge and mortgage. The author shows as in the Italian experience on securities over movables is possible, already at that time, to overcome the problem of the extension of security to the products that derive from the transformation of goods performed by the contractor and on the credits of which he becomes owner after they are sold. He develops the theory of pledge (and more generally of security interest on movables) without delivery of possession and the theory of ‘pegno rotativo’, which disregarded the need for material delivery of possession of assets with pledge and allowed the rotation of the security interest on the assets in question of the loan. Ideas and perspectives of investigation which, after a short time from the publication of the volume, have been implemented both by the jurisprudence of the italian Supreme Court, both by the national legislator and by the European one for the creation of a new legislative system of securities interest over movables.