The Inevitability of the Decline of the Concept of Title in the American Law of Personal Property Security Rights

Although originating from principles of English contract and property law, the American law of personal property security rights, responding to the commercial needs and practices of eighteenth and nineteenth century America, developed in various jurisdictions to offer a set of security devices that met with mixed receptions.

In the 1940’s and 1950’s, the drafters of the American Uniform Commercial Code, with the goal of synthesising these various security devices into a simple unified system, created the “security interest”. To achieve this from among the jumble of methods that included a bit of the law of mortgages, the law of trusts, and quite a bit of manipulation of the law that governed title to goods, the drafters had to jettison much of the core legal concepts that underlay the existing security interests. This was particularly the case with the question of title of goods as it pertained to the creditor seller or financer. Simply put, the Uniform Commercial Code eliminated the possibility of a creditor retaining title for purposes of security.

This, I suggest, not only created the highly functional and successful system of personal property security rights that presently exists in the United States, but was also consistent with a broader general policy in the Uniform Commercial Code to eschew legal formalism for a more instrumentalist commercial law.