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Part V Enforcement, 19 Enforcement of Financial Devices Involving The Transfer or Retention of Title

From: The Law of Security and Title-Based Financing (3rd Edition)

Hugh Beale, Michael Bridge, Louise Gullifer, Eva Lomnicka

Content type:
Book content
Product:
Financial Law [FBL]
Published in print:
08 March 2018
ISBN:
9780198795568

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 01 December 2023

Subject(s):
Credit — Guarantees and security — Debt

This chapter demonstrates how financing devices that involve either the retention or the transfer of title, although performing an equivalent function to security interests, are generally not considered ‘security’ under English law. Hence, the general characteristics that security interests display when they are enforced, in particular the obligation of the secured creditor to account for any surplus and the obligation of the debtor to make good any deficit, do not rise. The financing devices, being straightforward commercial contracts, are enforced according to their terms, without the application of any of those ‘security’ principles. However, in so far as these devices perform a security function, their express terms often reflect these ‘security’ characteristics, with the contract often providing for a financial adjustment so as to preclude the ‘secured creditor’ receiving a ‘windfall’ or suffering a ‘shortfall’.

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