Trinh, Hien and Milman, David and Macculloch, Angus (2019) The recognition and treatment of title retention in the legal systems of the United Kingdom, Vietnam and related jurisdictions : a comparative study. PhD thesis, Lancaster University.
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Abstract
Title retention functionally serves as a security device for ensuring the payment of the purchase price in a sales contract, but not all jurisdictions recognize it as a security interest. The research aims to compare the recognition and treatment of title retention in Vietnam, England, France, the United States and Australia. It examines the issues arising in Vietnam concerning the existing law of title retention and the prospect of a reform that possibly involves the importation of the Article 9 model. The research is conducted using the doctrinal and comparative analysis methods with the aid of a critical outlook and a discussion on the legal transplant. It is found that English law insists on the formalism approach that does not accept title retention to the original goods as a security interest. It raises the unexpected impact on the Sale of Goods Act after the FG Wilson (Engineering) Ltd v John Holt & Co (Liverpool) Ltd and PST Energy 7 Shipping LLC v OW Bunker Malta Ltd rulings. Vietnamese law adopts the French law approach that treats title retention as a security interest, but it is merely a seller-based security interest that excludes the participation of other. Article 9 of the American Uniform Commercial Code and the Australian Person Property Securities Act are an appealing and increasingly-accepted model of the law on secured transactions. It introduces the concept of purchase-money security interest that includes the title retention arrangement. The functionalism, unitary approach and the notice filing system under the Article 9 offer a comprehensive treatment of a purchase-money security interest as the exception of the general security interest. The findings suggest that even though Article 9 is currently a good model in this area, the import of this model may encounter some resistance from the angle of legal culture and legal practice. From the Vietnamese perspective, it is possible to build the law of purchase-money security interest running parallel with other devices in the scheme of a Civil Code before considering adopting a unitary functionalism law of secured transactions.