A Guide to the Personal Property Security Act: The Case of Malawi

Abstract

This book examines the Personal Property Security Act 8 of 2013 (PPSA) assented to on 15 July 2013 by the President of Malawi. The PPSA represents the most fundamental change to Malawian commercial law and signals a departure from the English law that Malawi inherited in 1964. Instead of looking to English law for inspiration of reform, the PPSA is based on the conceptual foundations of the United States Uniform Commercial Code Article 9 (UCC Article 9) that also underpin current secured transactions legislation in Australia and Canadian Provinces, and New Zealand, in addition to jurisdictions that have very little in common with Malawi, such as Colombia and Mexico. The drafters of the PPSA were also inspired by the United Nations Commission on International Trade Law (UNCITRAL), UNCITRAL Legislative Guide on Secured Transactions (Guide) that provides a model for the reform of secured transactions legislation and is currently being adapted into statutory text in the form of a model law. Due to the proximity of the legal systems and the complementary changes that the PPSA introduces to related legislation, the drafters chose the New Zealand Personal Property Security Act 126 of 1999 as a model for the legislative reform.

The PPSA is revolutionary not only as a stand-alone statute. It is one piece of a mosaic of Acts drafted concurrently that completely overhaul Malawian commercial law, including the Companies Act and the Insolvency Bill that as of March 2015 is pending adoption. These three major pieces of legislation have been designed and drafted to apply together to a number of important transactions, such as when a corporation that borrowed money secured against its personal property such as inventory and accounts receivable files for insolvency protection.

One of the authors of this book participated in the drafting of all three pieces of legislation and the other had a major responsibility in the drafting of the PPSA and its coordination with the relevant provisions of the Insolvency Bill undertaken by the International Finance Corporation (IFC). Due to the close involvement of both authors in the drafting of the PPSA, this book examines not only the individual provisions but also provides insight into some of the policy considerations behind the provisions. Although the PPSA examined in this book is unique to Malawi, a number of countries in Africa with a common legal heritage have already undertaken similar reforms. In fact, one of the authors is currently tasked with similar reform projects in Ghana, Nigeria, Sierra Leone and Zambia. Thus, this book should be equally instructive and provide guidance to the drafters of the laws in these countries and ultimately their users.

Keywords: PPSA, secured transactions, security interest, collateral registry, UNCITRAL, IFC, Malawi