Policies Underlying the Adjustment of Creditors' Security Rights in Fixtures

1950 The University of Chicago Law Review  
Conflicts over security rights in growing crops, railroad rolling stock, or consumer or industrial fixtures' of a debtor may arise between prior, long-term real estate mortgagees, whose claims are based upon local fixture law or afteracquired property clauses, and subsequent chattel mortgagees or conditional vendees.2 If this conflict is resolved in favor of the chattel mortgagee by granting this "new money" creditor the right to remove the particular asset, the possibility of damage to the
more » ... rity of the "old money" raises further problems. Policy considerations indicate that the "new money" interest should be favored. The need to provide for expansion of business enterprise and the modernization of plants seems more important to the economy than granting maximum protection for quantitatively larger long-term obligations.3 Furthermore, favoring the "new money" should make short-term credit relatively more available. This, in turn, may make it possible for the debtor to forestall impending bankruptcy.4 For instance, a new fixture in a plant might bring increased earnings, and in time re-establish the business on a profitable basis. This decision that "new money" should be favored, whether or not secured by the crop, fixture, or rolling stock which it financed, will be taken into account by subsequent long-term lenders.5 Inequity to the prior creditors would only result, therefore, if removal of the particular security caused either physical damage to the freehold or destroyed the going concern value of a business,
doi:10.2307/1597876 fatcat:yj5dtwyioreodoiu5z2yyqp4ve