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A comparison between Belgian, Dutch and South African law dealing with pledge and execution measures

Susan Scott
The Comparative and International Law Journal of Southern Africa
Vol. 43, No. 1 (MARCH 2010), pp. 93-117
Stable URL: http://www.jstor.org/stable/23253145
Page Count: 25
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Since scans are not currently available to screen readers, please contact JSTOR User Support for access. We'll provide a PDF copy for your screen reader.
A comparison between Belgian, Dutch and South African law dealing with pledge and execution measures
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Abstract

This article compares the Belgian, Dutch and South African legal position pertaining to execution measures in a pledge. A broad outline of the position in Belgian law is given, followed by a brief exposition of the concomitant position in the Netherlands. The South African legal position is discussed only in so far as it differs from the other two systems. The comparison shows that there are more similarities than dissimilarities. This can be ascribed to the shared tradition of the Roman law. The divergences are not substantial. In both the Belgian and Dutch systems there is a clear tendency to simplify the procedures whilst affording maximum protection to the debtor and the other creditors of the debtor. Judicial oversight in some or other form interestingly remains pivotal. South African law deviates substantially from this in the sense that summary execution is allowed without court intervention. It appears that summary execution resulting in a private sale is also possible. Furthermore, provision is made for an agreement between a pledgee and a pledgor that, after default, the pledgee may retain the pledged object at an agreed price, provided it is a fair price. The brief comparison of the three systems and a re-evaluation of the relevant South African judgments show that a comprehensive-re-think of the South African legal position on these issues is inevitable.

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