The Search for Someone to Save: A Defensive Case for the Priority of Secured Credit

Riz Mokal

University College London (UCL) - Faculty of Laws; South Square Chambers

Oxford Journal of Legal Studies, Vol. , pp. -,

The priority of secured credit has repeatedly and famously been attacked for allowing the exploitation of certain types of unsecured creditor. It has also been blamed for creating inefficiencies. This paper examines these arguments specifically as applied to this jurisdiction, and using both theoretical analysis and recent empirical data, suggests none of them can be sustained. It is argued that security is unlikely to lead to the exploitation of involuntary, 'uninformed', or 'unsophisticated' creditors, since the perverse incentives it allegedly creates for the debtor's management are likely to be outweighed by the managers' liquidation-related costs. It is then pointed out that both exploitation-based and inefficiency-based attacks on the priority of secured credit depend on the assumption that secured credit is generally cheaper than unsecured credit, and further, that this is why debtors prefer to borrow on a secured rather than unsecured basis. Recent evidence from this jurisdiction is used to challenge this assumption. This has dramatic implications for the attacks on security, which are discussed. The paper concludes with the demonstration that secured credit, by inducing creditors to lend when they would not do so without being offered priority, is mutually value-enhancing for all types of creditor, including unsecured ones.

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Date posted: February 29, 2008  

Suggested Citation

Mokal, Riz, The Search for Someone to Save: A Defensive Case for the Priority of Secured Credit. Oxford Journal of Legal Studies, Vol. 22, No. 4, pp. 687-728, 2002. Available at SSRN: https://ssrn.com/abstract=821662

Contact Information

Riz Mokal (Contact Author)
University College London (UCL) - Faculty of Laws ( email )
Gower St
London WC1E OEG, WC1E 6BT
United Kingdom
+44 - (0)20 - 7679 1406 (Phone)
+44 - (0)20 - 7679 1461 (Fax)
HOME PAGE: http://www.ucl.ac.uk/laws/
South Square Chambers ( email )
3/4 South Square
Gray's Inn
London, WC1R 5HP
United Kingdom
HOME PAGE: http://www.southsquare.com/
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