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Rehypothecation: Difference between revisions
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The English law “[[right of use]]” is quite straightforward. Under it, contractually, a custodian may transfer a custody asset into its own name absolutely, against a concurrent liability to redeliver and equivalent assets into custody on demand. This converts a trust relationship over the assets into one of outright indebtedness. Once the reuse transfer has happened, the custodian — Who is now no longer a custodian, of course — is free to deal with the asset as it sees fit, and ''whether or not it sells it into the market'', the client is exposed to custodian credit risk Until the custodian has returned and equivalent asset, whereupon the custody and security relationship resume. | The English law “[[right of use]]” is quite straightforward. Under it, contractually, a custodian may transfer a custody asset into its own name absolutely, against a concurrent liability to redeliver and equivalent assets into custody on demand. This converts a trust relationship over the assets into one of outright indebtedness. Once the reuse transfer has happened, the custodian — Who is now no longer a custodian, of course — is free to deal with the asset as it sees fit, and ''whether or not it sells it into the market'', the client is exposed to custodian credit risk Until the custodian has returned and equivalent asset, whereupon the custody and security relationship resume. | ||
So far so good. But now we board our liner at Southampton and head for the New World. Here things are never easy. There is a strain of American jurisprudence that admits of [[paradox]] — that revels in it — and rehypothecation is its high water mark. To “[[rehypothecate]]” an asset is to take it and sell it outright ''without depriving its owner of legal title to the asset''. Now of course that doesn't make literal sense | So far so good. But now we board our liner at Southampton and head for the New World. Here things are never easy. There is a strain of American jurisprudence that admits of [[paradox]] — that revels in it — and rehypothecation is its high water mark. To “[[rehypothecate]]” an asset is to take it and sell it outright ''without depriving its owner of legal title to the asset''. Now of course, to someone brought up munching pithy [[Latin]] aphorisms like ''[[nemo dat quod non habet]]'' for breakfast, as all English lawyers were, that doesn't make literal sense. U.S. attorneys, I fancy, know it. They will regard you beadily should you ask them to explain it, and will decline to do so. It just is. The best I can do is point to a section on the ICMA website which itself sounds rather baffled: | ||
{{quote| | {{quote| | ||
''... the collateral-giver remains the owner but only until the collateral-taker exercises his right of rehypothecation. When this right is exercised, there is a material change in the legal relationship between the parties. The pledge is extinguished and the collateral-giver loses his title to the collateral, which is transferred to the third party to whom the collateral has been rehypothecated. In exchange, the collateral-giver is given a contractual right to the return of the same or similar collateral but this claim is intrinsically unsecured.}} | ''... the collateral-giver remains the owner but only until the collateral-taker exercises his right of rehypothecation. When this right is exercised, there is a material change in the legal relationship between the parties. The pledge is extinguished and the collateral-giver loses his title to the collateral, which is transferred to the third party to whom the collateral has been rehypothecated. In exchange, the collateral-giver is given a contractual right to the return of the same or similar collateral but this claim is intrinsically unsecured.}} | ||