3.3.3 ‘Unique’

On first sight, the criterion that an asset must be ‘unique’, may sound arbitrary. It has been submitted, for example, that – in terms of consequences for the buyer, if the seller goes bankrupt prior to delivery – the difference between shares in a public company (which are not considered ‘unique’) and private shares (which are ‘unique’) cannot be justified.1 However, it is submitted that it does in fact have a rational justification. As mentioned above, the VPCT provides purchasers a proprietary form of protection, mainly against creditors of the seller. It is in this particular context – a conflict between a purchaser and creditors – where the rationale of the ‘uniqueness’-criterion shines.

Assets are worth more to a buyer than to a creditor, because purchasers will in general cough up market value, whereas creditors are in general merely able to generate the forced sale-value out of an asset as collateral for their claim.2,3 As a matter of fact, it quite often occurs that the value that the buyer places on an asset is higher than its market value.4 The market value of an asset often exceeds the value in a forced sale, but this statement is more accurate if – and to the extent that – an asset is ‘unique’. This can be easily explained. If a generic asset (e.g. oil) is sold by creditors as collateral for their claim, everyone in the world interested in buying oil is a potential buyer, meaning that it would be unlikely that the price of that oil (forced sale value) is much lower compared to an ‘open-market’ transaction. However, if a specific asset (such as immovable property) is sold, the statement that everyone in the world is interested in buying that immovable property is false. The specific properties of that particular piece of real estate (such as its location, its vicinity, size and esthetics) bring about that, if immovable property in Groningen (an area in the Netherlands) is sold, not even everyone who lives in Groningen would be interested in buying that piece of property, let alone everyone in the world.5 The more unique an asset is, the more it will be worth extra to a buyer that has already chosen that specific property for its unique traits.

It is important to notice that also creditors benefit from a vacuum instrument in this context: after the buyer has paid the purchase price, the creditors can take recourse against a market value price, whereas the prior tempore outcome (see section 2) outcome would be that the creditors have to make do with dividing the forced sale value amongst themselves. We are starting to explore an additional, yet till now hidden potential of vacuum instruments: they can be used to maximize value of assets, which is naturally also a policy goal of private law. Vacuum instruments that provide a grantee protection against a different grantee cannot be justified on the basis of this benefit, however, they still boast the benefit of providing a solution for problems a and b (see section 2) and hence lower transaction costs.