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Contents
- Preliminary Material
- Main Text
- 1 Introduction
- Preliminary Material
- A Overview of the Book
- B The Nature of Intangible Property—Part I
- C The Transfer of Choses in Action—Part II
- D Transfers in Particular Contexts—Part III
- E Intangible Property Incapable of Transfer—Part IV
- F The Effects of Assignment, the Persistence of Property Rights, and the Vindication of an Owner’s Rights—Part V
- G Special Regimes for Transfer—Part VI
- H Security over Intangibles—Part VII
- I Assignments and the Conflict of Laws—Part VIII
- Part I The Nature of Intangible Property
- Preliminary Material
- 2 Nature and Characteristics of Intangibles
- Preliminary Material
- A Overview of the Chapter
- B The Law of Property
- C The Place of Intangibles in English Law
- D The Nature and Characteristics of Choses in Action
- (1) Overview
- (2) Choses in Action are Interests in Intangibles
- (3) A Chose in Action is an Interest in a Thing Recognized by the Law as Property
- (4) Choses in Action are Private Law Rights
- (5) Choses Can be Either Legal or Equitable
- (6) Present and Future Choses
- E Co-ownership and the Fragmentation of Ownership
- 3 Rights or Causes of Action
- 4 Debts
- Preliminary Material
- A Overview of the Chapter
- B The Nature of a Debt
- (1) Definition
- (2) Present and Future Debts
- (3) Contingent Debts
- (4) Debt Actions and Actions for Damages
- (5) Debts, Money, and Payment
- C Types of Debt
- D Syndicated Loans
- E Nature of Debts as Property
- 5 Rights Under a Contract
- Preliminary Material
- A Overview of the Chapter
- B Nature of Contractual Rights
- C The Common Law Rule that a Promise for the Benefit of a Third Party Cannot be Enforced Directly by that Party
- D The Contracts (Rights of Third Parties) Act 1999
- E The Rule that a Promise for the Benefit of a Third Party Cannot be Indirectly Enforced and the Exceptions to that Rule
- (1) The General Rule
- (2) Exceptions to the General Rule
- 5.59
- Trustees
- Undisclosed principals
- The rule in The Albazero
- Protection of the ‘performance interest’
- Specific performance
- F Imposing Contractual Obligations on Third Parties
- G Contractual Rights as Property
- 6 Equity and Debt Securities
- Preliminary Material
- A Overview of the Chapter
- B The Nature of a ‘Security’
- C The Legal Incidents of Securities
- D An Overview of How Securities are First Issued and Held
- E Holding Paper Securities
- F Dematerialization
- (1) Overview
- (2) The Introduction of Securities into the Relevant System/CREST
- (3) The Introduction of Other Securities into the Relevant System/CREST
- (4) Implications of Dematerialization: The Rise of the Nominee
- G Immobilization
- (1) A General Description
- (2) Growth of Immobilization
- (3) Detailed Description of an Immobilized System
- Introduction
- The securities depository
- 6.127
- 6.128
- 6.129
- 6.130
- 6.131
- Responsibility for the safekeeping of physical securities
- Maintenance and operation of a computerized book entry security and cash delivery system to enable member to deal with securities
- The collection and distribution of dividends, interest and redemption monies, and the administration of other rights accruing as a consequence of the securities depository holding the securities
- The tiers below the securities depository
- Overview of the system
- Pooled or segregated accounts
- Effecting transfers of interests in securities
- (4) Law Reform and Review
- (5) The Nature of the Legal Interests in Intermediated Securities
- H The Process of Selling Securities: Allotments
- I Status as Choses in Action
- 7 Intellectual Property
- Preliminary Material
- A Overview of the Chapter
- B Patents
- C Copyright
- D Moral Rights
- E Industrial Design Rights
- F Trade Marks
- G Confidential Information
- 8 Leases
- Preliminary Material
- A Overview of the Chapter
- B Nature and Origins of Leases Over Land
- C Formalities in the Creation of Leases
- (1) The Importance of Formalities
- (2) Form for the Creation or Grant of a Legal Lease
- (3) Registration Under the Land Registration Act 2002
- 8.21
- 8.22
- Registrable dispositions
- ‘Registered estates’
- ‘Registrable estates’
- Voluntary first registration: s 3 of the 2002 Act
- Compulsory first registration: s 4 of the 2002 Act
- Compulsory first registration on the transfer of a ‘qualifying estate’
- Compulsory first registration on the grant of a lease for more than seven years
- First registration: classes of title
- Grant of a lease of more than seven years out of an estate already registered
- Notices on the register
- (4) Consequences of Registration
- (5) Summary
- (6) Consequences of a Failure to Comply with Formalities: Equitable Leases
- D Is a Lease a Legal or an Equitable Chose?
- 9 Documentary Intangibles and Negotiable Instruments
- Preliminary Material
- A Overview of the Chapter
- B The Distinction Between Intangibles and Documentary Intangibles
- C Classes of Documentary Intangible
- D Negotiable Instruments
- E The Implications of Dematerialization
- Part II The Transfer of Intangible Property
- Preliminary Material
- 10 Transfer of Choses in Action: Historical Overview
- 11 Conceptual Underpinnings
- Preliminary Material
- A Overview of the Chapter
- B Forms of Equitable Assignment
- (1) Initial Classification and Terminology
- (2) Equitable Assignments of Choses in Action
- 11.05
- Equitable assignment of equitable choses
- Equitable assignment of legal choses
- Equity cannot transfer legal title in a chose
- What does an assignment of a legal chose transfer?
- Nature of the trust arising
- Is the joinder of the assignor as a party to any action a substantive requirement?
- Joinder of the assignor: the authorities
- Non-joinder of the assignor: how can a person not the legal owner of a chose prosecute an action at common law?
- The suggested alternative: application of the Vandepitte procedure to assignments
- Joinder of the assignee
- A final consideration: the limits of an equitable assignee’s title
- (3) Transfers by Way of Trust
- (4) Promises to Assign or to Create a Trust
- C Interrelationship between the Various Different Forms of Equitable Assignment
- D Forms of Statutory Assignment and their Interrelationship
- E The Interrelationship between Statutory and Equitable Assignments
- (1) The Nature of the Problem
- (2) The Rule that the Assignor Must Have Done Everything Necessary to Transfer Title to the Assignee
- F Summary of the Core ‘Rules’ of Assignment
- 12 Negotiation and the Transfer of Money
- Preliminary Material
- A Overview of the Chapter
- B Negotiable Instruments
- C Bearer Shares
- D Bills of Lading and the Carriage of Goods by Sea Act 1992
- E Money
- 13 Equitable Assignment of Choses in Action
- Preliminary Material
- A Overview of the Chapter
- B Manifestation of an Intention to Transfer the Chose in Action
- C The Subject-matter of the Assignment
- D Certainty as Regards the Identity of the Assignee
- E Form and Formalities
- 14 Transfer of Choses in Action on Trust
- Preliminary Material
- A Overview of the Chapter
- B Declaration of Self as Trustee
- (1) The Settlor Must Have Manifested an Intention that the Chose be Held on Trust
- (2) The Subject-matter of the Trust: the Trust Property
- 14.15
- The trust property must be a chose in action
- The chose must be in present existence and owned by the settlor
- The chose that is the subject-matter of the trust must be identified or identifiable with reasonable certainty, and the beneficial interests in the chose delineated with sufficient certainty
- (3) Certainty as Regards the Beneficiaries or Objects of the Trust
- (4) Form and Formalities
- C Transfer on Trust
- 14.38
- 14.39
- (1) The Settlor Must Have Manifested an Intention to Transfer the Chose in Action
- (2) The Settlor Must Have Manifested an Intention that the Chose be Held on Trust
- (3) The Trust Fund Must be a Chose in Action, in Present Existence, Certain or Capable of Being Ascertained
- (4) Certainty as Regards the Beneficiaries or Objects of the Trust
- (5) Certainty as Regards the Identity of the Trustee
- (6) Form and Formalities
- D Variants on a Theme
- 15 Promises to Assign or Create a trust
- Preliminary Material
- A Overview of the Chapter
- B Aspects of the Doctrine of Conversion
- C Agreements to Assign
- D Promises to Create a Trust
- 16 Assignments under Section 136 of the Law of Property Act 1925
- Part III Transfers in Particular Contexts
- Preliminary Material
- 17 Transfer of Insurance Contracts
- Preliminary Material
- A Overview of the Chapter
- B Different Types of Insurance
- C Assignment of the Insured’s Rights: Indemnity Insurance
- 17.24
- 17.25
- (1) Assignment of a Presently Enforceable Claim
- (2) Assignment of a Future and Potential Claim
- (3) Assignment of the Policy Itself
- The general position: non-assignability
- The exception: property insurance
- 17.39
- 17.40
- The need for a contemporaneous transfer of policy and property
- The rule that property insurance lapses if it is assigned before the subject-matter of the insurance is transferred
- The rule that property insurance lapses if it is assigned after the subject-matter of the insurance is transferred
- Consent of the insurer
- Method of assignment
- D Assignment of the Insured’s Rights: Life Insurance
- E Assignment of the Insured’s Rights: Marine Insurance
- 17.69
- (1) Assignment of a Presently Enforceable Claim
- (2) Assignment of a Future and Potential Claim
- (3) Assignment of the Policy Itself
- Insurance policies are not an incident of property
- The need to assign marine policies
- The provisions of the Marine Insurance Act 1906
- 17.75
- 17.76
- Supplementary to s 136
- Need for the assignor to have an interest in the subject-matter insured at the time of the assignment
- Assignment must transfer the whole of the beneficial interest in the policy
- Consent of the insurer
- Form of the assignment
- The need for notice
- Assignee takes subject to equities
- F Assignment of the Reinsured’s Rights: Reinsurance
- G Effect of Assignment Where the Insured Assigns his Rights
- H Assignment of the Contract by the Insurer
- I The Third Parties (Rights Against Insurers) Acts
- (1) Rationale for the 1930 Act
- (2) Trigger for the Statutory Assignment under the 1930 Act
- (3) The Extent of the Statutory Assignment under the 1930 Act
- (4) Third Parties (Rights against Insurers) Act 2010
- (5) Effect of Assignment Under the 1930 and 2010 Acts
- (6) No Contracting Out
- (7) Priorities
- 18 Transfer of Leases
- Preliminary Material
- A Overview of the Chapter
- B Assignment of Leases
- (1) Assignment Distinguished from Sub-lease
- (2) Different Transfer Requirements for Different Types of Lease
- (3) Transfer of a Legal Lease
- (4) Transfer of an Equitable Lease
- (5) Virtual Assignments
- C Privity of Estate: The Transmission of Obligations Through Successive Landlords and Tenants
- (1) The Problem Stated
- (2) The Common Law Doctrine of Privity of Estate
- (3) The Landlord and Tenant (Covenants) Act 1995
- D Restrictions on Assignment: Non-assignment Provisions in Leases
- E Priorities
- 19 The Transfer of Equity and Debt Securities
- Preliminary Material
- A Overview of the Chapter
- B Exchanges and Clearing Houses
- (1) The Distinction Between On-Exchange Transactions and Over-The-Counter Transactions
- (2) Characteristics of Exchanges
- (3) Exchanges
- (4) Clearing Houses
- (5) Payment and Settlement Systems
- (6) The Principal Clearing Houses, Payment, and Settlement Systems
- C Transfer of Paper Securities
- D Transfer of Dematerialized Securities
- (1) The Uncertificated Securities Regulations 2001
- (2) Participants in and the Introduction of Securities into Dematerialized Systems
- (3) Transfers of Dematerialized Securities
- (4) Implications of the Dematerialized Securities Regime
- E The Transfer of Immobilized Securities, Intermediated Securities, and Global Custody
- (1) How Immobilization Works
- (2) Effecting Transfers of Interests in Securities
- (3) Proposals for Reform
- (4) Legal Analysis of Intermediation
- F Transfer of the Legal Estate in Bearer Securities
- G Failure to Transfer Legal Title
- H The Equitable Interest in Securities
- I The Right to be Registered as a Member: Restrictions on the Transfer of Shares
- J Priorities
- 20 Transfer of Intellectual Property
- Preliminary Material
- A Overview of the Chapter
- B Patents
- C Copyright
- (1) Transfer of Copyright
- (2) The Equitable Interest in Copyright
- (3) Mortgages and Charges
- (4) Priorities
- D Moral Rights
- E Industrial Design Rights
- 20.58
- (1) Registered Designs Under the Registered Designs Act 1949
- (2) Unregistered Design Rights Under the Copyright, Designs and Patents Act 1988
- Transfer of unregistered design rights
- Equitable interest in an unregistered design right
- Priorities
- (3) Community Designs (Registered and Unregistered)
- F Trade Marks
- Part IV Intangible Property that is Incapable of Transfer
- Preliminary Material
- 21 Assignment of Burdens
- Preliminary Material
- A Overview of the Chapter
- B The General Rule
- C Exceptions to the General Rule: Transfer of Obligations to Third Parties
- 21.06
- (1) The Unpaid Vendor’s Lien
- (2) Restrictive Covenants over Freehold Land
- (3) Transfer of Leasehold Obligations
- (4) The Assumption of Obligations by a New Shareholder on the Transfer of the Legal Title in the Shares to Him
- (5) Conditional Benefits: The Passing of Burdens under a Contract
- 22 Intangibles Not Transferable by Reason of Public Policy
- 23 The Assignment of Bare Rights to Litigate: Champerty and Maintenance
- Preliminary Material
- A Overview of the Chapter
- B Definitions
- C The Effect of Maintenance and Champerty
- D Maintenance and Champerty are Evolving Concepts
- E The Test for Assignments Savouring of Maintenance or Champerty
- F Application of the Doctrines of Maintenance and Champerty
- 23.39
- (1) Assignments of Causes of Action: The Distinction between ‘Bare’ Causes of Action and Assignable Causes of Action
- (2) Assignment of the Fruits of a Cause of Action
- (3) Assignments between Companies and Directors to Facilitate Litigation
- (4) Agreements to Assist in Litigation Savouring of Maintenance or Champerty
- G The Insolvency Exception
- 24 Personal Obligations
- 25 Prohibitions On Assignment
- Preliminary Material
- A Overview of the Chapter
- B Analysis of the Different Types of Prohibition on Assignment
- (1) A Personal Undertaking Not to Transfer a Chose
- (2) A Provision Rendering Any Purported Assignment by the Assignor Ineffective
- (3) A Provision Not Only Rendering any Purported Assignment by the Assignor Ineffective, but also Prohibiting an Assignment of the Benefit After this has been Received by the Assignor
- (4) A Provision Entitling the Debtor Not Merely to Claim Damages, but also Resulting in Termination of the Contract
- C Effects of the Different Types of Prohibition on Assignor and Assignee
- 25.15
- (1) A Personal Undertaking Not to Transfer a Chose
- (2) A Provision Rendering Any Purported Assignment by the Assignor Ineffective
- (3) A Provision Not Only Rendering Any Purported Assignment by the Assignor Ineffective, but also Prohibiting an Assignment of the Benefit After this has been Received by the Assignor
- (4) A Provision Entitling the Debtor Not Merely to Claim Damages, but also to Terminate the Contract
- D The Application of Prohibitions to Legal and Equitable Assignments
- E Circumventing Prohibitions on Assignment
- Part V The Effects of Assignment, The Persistence of Property Rights, and The Vindication of An Owner’s Rights
- Preliminary Material
- 26 Consequences and Effects of An Assignment
- Preliminary Material
- A Overview of the Chapter
- B Transfer of the Debtor’s Obligation to Perform from the Assignor to the Assignee
- C Damages Recoverable by the Assignee from the Debtor
- D The Rule that the Assignee Takes Subject to Equities
- (1) The Nature of an Equity
- (2) The Basis for the Rule that the Assignee Takes Subject to Equities
- (3) The Extent to which the Assignee Takes Subject to Equities
- (4) Vitiating Equities
- (5) Set-off Under the Statutes of Set-off
- The nature of the set-off
- Requirements for a set-off under the statutes
- Extent to which the assignee will be affected by the debtor’s cross-claim
- (6) Common Law Abatement
- (7) Equitable Set-off
- (8) Insolvency Set-off
- E Restrictions on the Ability of the Debtor and the Assignor to Vary the Contract Between Them
- F Effect on Limitation Issues
- 27 Priorities and The Loss of Title
- Preliminary Material
- A Overview of the Chapter
- B Relativity of Title
- C Priority Rules: The Rules Regarding the ‘Extinction’ of Title
- C(1) Rules 2 and 3: Competing Legal Interests and Competing Equitable Interests
- C(2) Rule 4: Competing Legal and Equitable Interests
- C(3) Rule 5: Conduct of the Parties Affecting the Operation of Rules 3 and 4
- C(4) Rule 6: Competing Interests Arising Out of Two Assignments and the Rule in Dearle v Hall
- (1) Introduction
- (2) The First Limb of the Rule in Dearle v Hall: Priority Determined by Notice
- (3) The Second Limb of the Rule in Dearle v Hall: When Notice Will Not Determine Priority
- (4) The Scope of the Rule’s Application
- C(5) Rule 7: Competing Interests in Relation to Money and Negotiable Instruments
- C(6) Rule 8: Consent of the Parties
- D Priorities and Non-Proprietary Interests
- 28 Extinction of Intangible Property
- Preliminary Material
- A Overview of the Chapter
- B The Destruction of Property
- C Abandonment
- D Combination
- (1) Introduction
- (2) Essential Differences Between Tangible and Intangible Property in the Context of Combinations
- (3) Specification (‘Specificatio’)
- (4) Accession (‘Accessio’)
- (5) Mixtures
- Definition
- Application of the rules relating to mixtures to intangibles
- Rules for determining ownership of mixtures
- Introduction
- Innocent mixtures: the rule on initial mixing
- Wrongful mixtures: the rule on initial mixing
- Subsequent additions to the mixture
- Contribution to an existing mixture
- Space Investments and the ‘swollen assets’ theory
- The problem of the insufficient mixture
- Insufficient mixtures: claims as between innocent contributors
- Insufficient mixtures: claims involving wrongdoers
- The problem of overdrawn bank accounts
- (6) Summary and Conclusions in Respect of Combinations
- 29 Vindication Of An Owner’s Rights
- Preliminary Material
- A Overview of the Chapter
- B Claims Protecting Ownership at Common Law
- C The Equitable Vindicatio
- D The Owner was Unlawfully Deprived of Property that He Owned: The Need for a ‘Proprietary Base’
- E Following
- F Tracing
- (1) Tracing Distinguished from Following
- (2) The Benefits of a Tracing Claim
- (3) ‘Clean’ and ‘Mixed’ Substitutions
- (4) A Tracing Claim is Determined by the Interplay of the Rules Relating to Priorities and the Extinction of Things
- 29.113
- Relevance of the rules relating to the extinction of property
- The relevance of the rules relating to priorities
- G Equitable Personal Claims
- H Multiple Claims and the Avoidance of Multiple Recovery
- I Matters of Evidence, Proof, and Procedure
- Part VI Special Regimes for Transfer
- Preliminary Material
- 30 Insolvency and Assignment
- Preliminary Material
- A Overview of the Chapter
- B Statutory Assignment on Bankruptcy
- C The Effect of Insolvency on the Rules of Assignment
- 30.25
- (1) Assignment of Future Earnings
- (2) General Assignments of Existing or Future Book Debts
- (3) Champerty and Maintenance: The Insolvency Exception
- (4) Set-off
- 31 Involuntary Transfers
- Part VII Security
- Preliminary Material
- 32 Security Over Intangibles
- Preliminary Material
- A Overview of the Chapter
- B Types of Security
- C Classification and Characterization
- D Security Over Intangibles and Future Assets
- E Security and the Need to Deal with Assets
- F The Problem of Charge-Backs
- G Presenting a ‘True and Fair View’: Registration
- Part VIII Conflict Of Laws
- Preliminary Material
- 33 Assignment and The Conflict of Laws
- Preliminary Material
- A Overview of the Chapter
- B Jurisdiction
- C Choice of Law
- (1) The General Approach to Choice of Law Questions
- (2) Choice of Law Rules Applicable to Choses in Action and Assignments
- (3) The Assignment Provisions of the Rome I Regulation: Article 14
- (4) Article 14(1): The Proper Law of the Assignment
- (5) Article 14(2): The Proper Law of the Chose
- (6) Assignments and Choses Outside the Rome Convention
- 1 Introduction
- Further Material