This essay examines the Italian law of real security. The Introduction, §§ 1-2.1, focuses on the general features of the peninsular model, i.e.: legislative continuity with the past, passiveness of judges and (most) scholars to the letter of the code and statute provisions. Then the author highlights the main issues that are now raised by the needs of an increasingly large community of lenders and borrowers. The article therefore takes into consideration, first, the challenges to the 'traditional', or code-centered, institutions providing security. In this context particular attention is paid to the demand for non-possessory securities over movables, §§ 3-3.3; the functioning of a conventional floating lien, § 4; and the still limited (and inefficient) autonomy vested in the mortgagee by the code provisions, mainly as far as the transfer of the title is concerned, §§ 5-5.2. Moving to the real security devices which are not regulated by the code and/or other statutory provisions, the essay examines how far ownership by the lessor, in a financial lease agreement, can currently be relied on as a form of security, § 6; and the efforts of Italian judges and scholars to ban any transfer of ownership when this is to be construed as a security device, § 7 - an approach that the author also examines from the context of the problems arising from the Italian ratification of The Hague Convention on Trusts, § 7.1. The final paragraph is devoted to the analysis of the exploitation of 'new properties' as possible objects of real security.
European Review of Private Law