1 Namely requirements additional to those for the creation of the security: see para 9.17.
9 The 1878 Act replaced the Bills of Sale Act 1854, which first introduced registration of bills of sale, and the Bills of Sale Act 1866, which first required renewal of registration every five years.
10 Together cited as the Bills of Sale Acts 1878 and 1882: see the 1882 Act, s 1. The Bills of Sale Act 1890 and the Bills of Sale Act 1891 add minor provisions to these Acts. (We refer to these various statutes collectively as the ‘Bills of Sale Acts’.)
12 Crowther, Report on Consumer Credit Cmnd 4596, para 4.2.11. See further para 23.62 et seq.
13 Law Commission, Registration of Security Interests: Company Charges and Property other than Land (Consultation Paper No 164, 2002), para 9.4. Compare the figures of 6,448 for 1965 and 9,179 for 1968, given in R Goode, Hire Purchase Law and Practice (2nd edn, 1970), 63.
14 Law Commission, Company Security Interests (Law Com No 296, 2005), para 1.52.
15 Law Commission, Replacing bills of sale: a new Goods Mortgages Bill - Consultation on draft clauses (July 2017), para 1.1.
16 With or without notice and either immediately or in the future.
17 1878 Act, s 3. Charges are within the Act, since the definition of bill of sale in s 4 refers to charges, even though the chargee does not have the right to seize the goods, only to appoint a receiver. See Halsbury’s Laws of England, Vol 50(7), ‘Bills of Sale’ (5th edn, 2008) (cited below as ‘Halsbury’), para 1633, n 7.
18 Reasons for granting an absolute bill are given in R Goode, Hire Purchase Law and Practice (2nd edn, 1970), 65.
19 Or sometimes ‘conditional bills’.
20 Thus a document that creates a mortgage or charge to secure a sum of money will be a security bill; and likewise one that gives the creditor the right to take possession of goods until money due has been paid, even though it may not amount to a charge (which point was not decided because the creditor has no power of sale: Online Catering Limited v Acton  EWCA Civ 58, where the Bills of Sale Acts did not apply because the grantor was a company, even though if the document did not create a charge it would not be registrable under the Companies Act.) See further para 11.09, n 32.
23 A similar purpose to the registration scheme introduced for company charges: see para 9.06.
24 See The Manchester, Sheffield, and Lincolnshire Railway v North Central Wagon Company (1888) 13 App Cas 554, 559–60. See also Thomas v Kelly and Baker (1888) 13 App Cas 506, 513 and Charlesworth v Mills  AC 231, 235–6. For a short explanation of why the earlier Bills of Sale legislation came about, see Cookson v Swire and Lees (1884) 9 App Cas 653, 664–6.
25 1882 Act, s 4. Protecting other creditors seems to have been a particular concern to the Select Committee of the House of Commons that discussed the 1882 Bill: see Halsbury, para 1635, n 8. There are certain exceptions. See further para 11.47 et seq.
26 See the 1882 Act, s 12.
29 In this context debenture means no more than a charge on the company’s property.
30 Companies Act 2006, s 860(7)(b), replacing Companies Act 1985, s 396(1)(c). See para 10.23.
31 Re Standard Manufacturing Co  1 Ch 627. See the argument at 644 and the judgment at 647.
32 NV Slavenburg’s Bank v Intercontinental Natural Resources Ltd  1 WLR 1076 (involving an overseas company: see para 10.47), not following dicta in GNR CO v Coal Co-operative Society  1 Ch 187, a case dealing with a society registered under the Industrial and Provident Societies Act 1876; Online Catering Limited v Acton  EWCA Civ 58, esp. at – and –: document not registrable even though if the document did not create a charge it would not be registrable under the Companies Act. The document gave the creditor the right to take possession of goods until money due had been paid, and it was said (but not decided) that it lacked the normal badge of a charge because the creditor had no power of sale: see at – and –.
33 See para 11.01 and para 11.73. However charges created by such societies before 14 September 1967 fall within the Bills of Sale Acts.
34 Agricultural Credits Act 1928, s 8(1).
35 Agricultural Marketing Act 1958, s 15(5); para 11.65.
36 ‘The expression “bill of sale” shall include bills of sale, assignments, transfers, declarations of trust without transfer, inventories of goods with receipt thereto attached, or receipts for purchase moneys of goods, and other assurances of personal chattels, and also powers of attorney, authorities, or licenses to take possession of personal chattels as security for any debt, and also any agreement, whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be conferred …’
37 Present or future: Stevens v Marston (1890) 60 LJQB 192, CA, at 195.
38 In Online Catering Limited v Acton  EWCA Civ 58 it was said that a document which gave the creditor the right to take possession of goods until money due had been paid fell within s 4 and also the 1882 Act even though (which was not decided) it was probably not a charge because the creditor had no power of sale: See  EWCA Civ 58 at  and –.
39 In Chapman v Wilson  EWHC 1746 (Ch) a solicitor had agreed to deliver up papers related to certain cases as and when required to do so by the creditor. It was held that this merely created a personal obligation to deliver them, not a right to the title or property in the papers and therefore did not amount to a licence to take possession as security for a debt within s 4 (at ). Nor did it grant a ‘power … to take possession’ within s 3 of the 1878 Act (at ).
40 Brantom v Griffits (1877) 2 CPD 212, CA. See Halsbury, paras 1635 and 1638.
41 Under the doctrine of Holroyd v Marshall (1862) 10 HLC 191. See para 6.13.
44 1878 Act, s 6. There is an exception where the mortgagee is in possession but grants a demise to the mortgagor at a fair and reasonable rent.
45 Ramsay v Magrett  2 QB 19, Lord Esher MR (at 23–4) applying a dictum of Lord Herschell in Charlesworth v Mills  AC 231, HL, 241.
46 Re Jeavons, ex p Mackay (1873) LR 8 Ch App 643.
47 Edwards v Edwards (1876) 2 Ch D 291.
48 Reeves v Barlow (1884) 12 QBD 436.
49 Re Hardwick, ex p Hubbard (1886) 17 QBD 690, CA; similarly documents that record similar transactions under which the creditor already has possession: Charlesworth v Mills  AC 231, HL.
50 Re Hall, ex p Close (1884) 14 QBD 386.
52 Dublin City Distillery Ltd v Doherty  AC 823, HL.
53 McEntire v Crossley Bros Ltd  AC 457, HL.
54 Section 4 continues: ‘[Bill of sale] shall not include the following documents; that is to say, assignments for the benefit of the creditors of the person making or giving the same, marriage settlements, transfers or assignments of any ship or vessel or any share thereof, transfers of goods in the ordinary course of business of any trade or calling, bills of sale of goods in foreign parts or at sea, bills of lading, India warrants, warehouse-keepers’ certificates, warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented.’
55 1878 Act, s 4. On security over ships see further para 14.34 et seq.
56 Which for these purposes includes Scotland and Northern Ireland: Coote v Jecks (1872) 13 LR Eq 597 (agreement between English debtor and English creditor for charge over goods in Scotland; held to be effective under English law though not registered); Brookes v Harrison (1880) 6 LR Ir 85, aff’d 6 LR Ir 332. It seems likely that the Acts would apply to a document that under English law amounts to a bill of sale over goods that are in England, even if the transaction purports to be governed by a foreign law. See para 22.74 and Halsbury, para 1636.
57 As substituted by the Bills of Sale Act 1891, s 1.
58 NV Slavenburg’s Bank v Intercontinental Natural Resources Ltd  1 WLR 1076, 1101.
59 Mortgaging of Aircraft Order 1972, SI 1972/1268 art 16(1) (for mortgages created after 1 October 1972). See further para 14.50 et seq.
60 International Interests in Aircraft Equipment (Cape Town Convention) Regulations 2015, SI 2015/912, Sch 5, paragraphs 6 and 7.
62 For what amounts to an assignment for the benefit of creditors within the meaning of s 4 see Halsbury, para 1657. In Halberstam v Gladstar Ltd  EWHC 179 (QB) Warby J said that ‘an “assignment for the benefit of creditors” is a term of art which covers the assignment by a person to one or more others for distribution to creditors [at ] … is in my judgment impossible to argue that a sale of goods by A to B ranks as an assignment for the benefit of A’s creditors merely because A has debts and A, or even A and B, intend at the time of the transaction that the proceeds will be used to discharge A’s liabilities. Still less, of course, could such a transaction fall within the exclusionary words merely because that is what occurred after the event’ [at ].
63 E.g. Stephenson v Thompson  2 KB 240, CA.
65 For a specimen see E McKendrick (ed), Goode on Commercial Law (5th edn, 2016), fig 35.8.
66 Re Hamilton Young & Co  2 KB 772, CA (Stirling LJ dubitante).
68 In Re David Allester Ltd  2 Ch 211, 216, Astbury J held that the trust receipts were not bills of sale at all: they merely recorded the terms on which the pledgors were authorized to realize the goods on the pledgees’ behalf, and the pledgees’ rights over the goods did not arise under them but under the original pledge.
69 Ibid., 219 (whether registrable under Companies Act as charge over book debt). The decision appears to owe more to commercial expediency than to logic.
72 1878 Act, s 4 includes: ‘goods, furniture, and other articles capable of complete transfer by delivery, and (when separately assigned or charged) fixtures and growing crops, but shall not include chattel interests in real estate, nor fixtures (except trade machinery as hereinafter defined), when assigned together with a freehold or leasehold interest in any land or building to which they are affixed, nor growing crops when assigned together with any interest in the land on which they grow, nor shares or interests in the stock, funds or securities of any government, or in the capital or property of incorporated or joint stock companies, nor choses in action, nor any stock or produce upon any farm or lands which by virtue of any covenant or agreement or of the custom of the country ought not to be removed from any farm where the same are at the time of making or giving of such bill of sale’. In Chapman v Wilson  EWHC 1746 (Ch) at  Vos J said that the papers in a solicitor’s file on a case are ‘personal chattels’ even if the paper itself has no value.
73 Fixtures and crops are not ‘separately assigned’ just because they are assigned by separate words or because the assignee is given the power to sever them: see s 7.
74 Provided ‘by virtue of any covenant or agreement or of the custom of the country’ it ‘ought not to be removed from any farm where the same are at the time of making or giving of such bill of sale’: s 4. For agricultural charges see para 11.64.
75 Brantom v Griffits (1877) 2 CPD 212, CA. See Halsbury, paras 1635 and 1638.
76 Thomas v Kelly (1888) 13 App Cas 506, 519.
78 Welsh Development Agency v Export Finance Co Ltd  BCLC 936 (Browne-Wilkinson V-C). In the Court of Appeal the point was left open  BCLC 148, 169. In Chapman v Wilson  EWHC 1746 (Ch), at , Vos J accepted the reasoning of the Vice Chancellor in the Welsh Development Agency case that Lord Halsbury had accepted Lord Macnaghten’s argument, and doubted Dillon LJ’s suggestion to the contrary. See also Re Reis, ex p Clough  2 KB 769, CA, 788; Halsbury, para 1635.
81 Section 5, which contains detailed provision excluding certain ‘fixed motive powers’ such as water-wheels and steam engines, shafts wheels and drums, and steam, gas and water pipes.
82 E.g. Meux v Jacobs (1875) LR 7 HL 481; Re Yates, Batchelor v Yates (1888) 38 Ch D 112, CA.
83 Johns v Ware  1 Ch 359. See also Re Eslick, ex p Alexander (1876) 4 Ch D 503 (where the land was only leasehold: see text to n 84). If there is a mortgage of the land plus a separate mortgage of the fixtures which is void as an unregistered bill of sale, the mortgagor cannot claim that it is entitled to the fixtures as part of the freehold: Johns v Ware  1 Ch 359, 364.
84 Re Wilde, ex p Daglish (1873) LR 8 Ch App 1072, and see further Halsbury, para 1669, n 9.
86 It should be noted that a bill that is registered may still be void if it has failed to comply with the formal requirements for validity.
87 In the case of security bills, where the affidavit of attestation (see para 11.43) describes the residence of the maker as being outside the London insolvency district, or where the chattels listed in the bill of sale are so described, the registrar is required, within three clear days after registration, to transmit an abstract of the contents of the bill of sale to the county court registrar where such places are situated: see the 1882 Act, s 11. Details on what must be sent to the County Court registrar and the filing requirements of that registrar can be found in the Bills of Sale (Local Registration) Rules, SI 1960/326. The abstract is to be filed by that registrar, and the registered abstract can be examined and copied in the same way as the main register.
88 1878 Act, s 10(1). For any defeasance or condition, or declaration of trust, see para 11.34.
89 Section 8. The section has been repealed so far as security bills are concerned by the 1882 Act, s 15.
90 According to the wording of the Act, ‘in like manner as a warrant of attorney in any personal action given by a trader is now by law required to be filed’. See also Rules of the Supreme Court, Ord 95.
91 When the time for registering would expire on a Sunday or other day on which the registrar’s office is closed, the time is extended to the end of the next day on which the office is open: 1878 Act, s 22.
92 Where the bill is made or given by any person under or in the execution of any process, then a description of the residence and occupation of the person against whom such process was issued must be given instead: 1878 Act, s 10(2).
93 It is the copy of the bill, rather than the original, and the affidavit that are filed.
95 See the 1878 Act, s 10(3).
96 1878 Act, s 9. This was aimed at the practice of issuing successive bills each within seven days of the last so that they did not need to be registered: Halsbury, para 1755.
97 1878 Act, s 10(3), last paragraph.
98 Renewal is effected by filing an affidavit in a form set out in sch A to the 1878 Act: see the 1878 Act, s 11. For a recent case in which the registration had not been renewed, see Halberstam v Gladstar Ltd  EWHC 179 (QB).
101 Consumer Credit Act 1974, s 65. In Bassano v Toft  EWHC 377 (QB) the Consumer Credit Act 1974 did not apply because the lender was not acting in the course of a consumer credit business [at ], but Popplewell J said that if that had been been the case, he would have exercised his discretion to allow the agreement to be enforced, as the borrower had suffered no real prejudice from the fact that there was no formal document complying with the requirements of the Act: at .
102 Consumer Credit Act 1974, s 105(9).
104 Consumer Credit Act 1974, ss 62 and 63.
106 Re Sarl, ex p Williams  2 QB 591.
107 Thomas v Searles  2 QB 408 (successive security bills).
108 Tuck v Southern Counties Deposit Bank (1889) 42 Ch D 471, CA. See para 11.51.
109 See para 11.49. Thus ‘an assignment of after-acquired property can be a bill of sale (whether as a licence to take possession of personal chattels or as an instrument creating a right in equity to any personal chattels) within the meaning of the Acts, but [it] may well be void for non-compliance with one or more of sections 4, 5, 8 or 9 of the 1882 Act’: Vos J in Chapman v Wilson  EWHC 1746 (Ch), at .
110 Even then the bill may be effective against property that is not within the Bills of Sale Acts: see para 11.46.
111 Chapman v Wilson  EWHC 1746 (Ch), at .
113 This part of s 7 does not apply to a default relating to a bill of sale given by way of security for the payment of money under a regulated agreement to which s 87 of Consumer Credit Act 1974, save in certain circumstances: 1882 Act, s 7A. See further para 18.48.
114 Under Tribunals, Courts and Enforcement Act 2007, Sch 12.
115 The effect of this section is considered at para 18.37.
117 See the 1882 Act, s 4. There are certain limited exceptions to this, including fixtures, plant and trade machinery substituted for like materials described in the schedule: see the 1882 Act, s 6.
118 And see further para 11.49. Conversely, if the property is described specifically, the bill may be effective against the grantor even though the grantor did not own the property at the time, though the bill will be void against other persons under s 5: see para 11.40; Chapman v Wilson  EWHC 1746 (Ch), at .
119 1882 Act, s 5. In Chapman v Wilson  EWHC 1746 (Ch), at , the fact that the witness attested that she had explained the nature and effect of the Bill to the grantor, when in fact he had told her that he did not require an explanation, was held not to vitiate the attestation.
120 1882 Act, s 10. The witness may be an agent of the grantee for other purposes; the agent’s action will not be attributed to an individual or partnership that is the grantee: Peace v Brooks  2 QB 452, nor to a grantee company: Log Book Loans Ltd v OFT  UKUT 280 (AAC).
121 Heseltine v Simmons  2 QB 547, CA, at 551 (covenant to pay).
125 The Schedule states: ‘This Indenture made the day of, between A.B. of the one part, and C.D. of the other part, witnesseth that in consideration of the sum of £now paid to A.B. by C.D., the receipt of which the said A.B. hereby acknowledges [or whatever else the consideration may be], he the said A.B. doth hereby assign unto C.D., his executors, administrators, and assigns, all and singular the several chattels and things specifically described in the schedule hereto annexed by way of security for the payment of the sum of £, and interest thereon at the rate of per cent. per annum [or whatever else may be the rate]. And the said A.B. doth further agree and declare that he will duly pay to the said C.D. the principal sum aforesaid, together with the interest then due, by equal payments of £on the day of [or whatever else may be the stipulated times or time of payment]. And the said A.B. doth also agree with the said C.D. that he will [here insert terms as to insurance, payment of rent, or otherwise, which the parties may agree to for the maintenance or defeasance of the security].
Provided always, that the chattels hereby assigned shall not be liable to seizure or to be taken possession of by the said C.D. for any cause other than those specified in section seven of the Bills of Sale Act (1878) Amendment Act, 1882.’
126 On the forms of name that may be used see Simmons v Woodward  AC 100 (trade name suffices if it enables party to be identified).
127 In addition to the requirement of s 8 that the bill must ‘truly set forth the consideration’ for which it was given: see para 11.43. The consideration must be at least £30 or the bill is void: see para 11.39.
128 Davies v Jenkins  1 QB 133.
129 This must be a fixed amount.
130 Although the form refers to ‘equal instalments’ it has been held that this is not required, since the whole sum may be payable on a single date, which could not be a payment in ‘equal instalments’: Re Cleaver, ex p Rawlings (1887) 18 QBD 489, CA.
131 These must be fixed dates or the date of an event that is bound to occur: Hetherington v Groome (1884) 13 QBD 789, 792, CA. It is permissible to include a clause making the principal sum payable immediately on default (an ‘acceleration clause’), but not to accelerate the payment of unearned interest: Re Johnstone, ex p Abrams (1884) 50 LT 184; Davis v Burton (1883) 11 QBD 537, CA.
132 E.g. to repair or replace damaged or worn out goods: Furber v Cobb (1887) 18 QBD 494. For further examples of what is and is not permitted, see Halsbury, paras 1738–9.
133 For example, if the grantor chooses to pay early.
134 The original requirement that the bill also be sealed was abolished by the Law of Property (Miscellaneous Provisions) Act 1989, s 1.
135 See Thomas v Kelly and Baker (1888) 13 App Cas 506, 516, per Lord Fitzgerald; Chapman v Wilson  EWHC 1746 (Ch), at .
136 Re Barber, ex p Stanford (1886) 17 QBD 259.
138 Thomas v Kelly and Baker (1888) 13 App Cas 506, 510. Cf the 1882 Act, ss 4 and 5. For an example of an unsuccessful challenge to the validity of a bill based on allegedly defective particulars, see Simmons, trading as the Discount Bank of London v Woodward and Heseltine  AC 100.
139 Smith v Whiteman  2 KB 437, CA.
140 North Central Wagon and Finance Co Ltd v Brailsford  1 WLR 1288, 1293; Bradford Advance Co Ltd v Ayers  WN 152. The claims were on the basis of money had and received. In Davies v Rees (1886) 17 QBD 408, 411, Lord Esher had explained the remedy in terms of an implied contract. Lord Esher’s dictum was applied in Bassano v Toft  EWHC 377 (QB) at .
143 Re Burdett, ex p Byrne (1880) 20 QBD 310, CA. See similarly Cochrane v Entwistle (1890) 25 QBD 116, CA (document included chattels real); Chapman v Wilson  EWHC 1746 (Ch), at –.
144 Re Burdett, ex p Byrne (1880) 20 QBD 310, CA. See similarly Re North Wales Produce and Supply Society Ltd  2 Ch 340 (valid charge on assets that were not ‘personal chattels’); Chapman v Wilson  EWHC 1746, (Ch) (assignment of ‘whole right, title, interest and benefit in and to’ a solicitor’s cases by way of security included both an assignment of the solicitor’s own papers in the file, which was within the Acts and was ineffective because the papers were not specifically mentioned (at ), and of the income stream from the cases, which was severable and not a bill of sale because the income was not ‘personal chattels’ (at )).
145 A bill without a schedule will thus be totally void.
146 See the speech of Lord Macnaghten in Thomas v Kelly (1888) 13 App Cas 506, 520.
147 See Thomas v Kelly (1888) 13 App Cas 506, 521.
148 Davidson v Carlton Bank  1 QB 82, CA (1800 books in a room of a house: the added words ‘as per catalogue’ were held to be merely additional description that did not prevent the general description being adequate); contrast Carpenter v Deen (1889) 23 QBD 566, CA (‘21 milch cows’ not sufficient) and Witt v Banner (1887) 20 QBD 114, CA (‘At 77, Mortimer Street, aforesaid: Four hundred and fifty oil-paintings in gilt frames, three hundred oil-paintings unframed, fifty water-colours in gilt frames, twenty water-colours unframed, and twenty gilt frames’ insufficient; the Court said that s 4 requires the schedule to contain an inventory, and this was not an inventory as is usual in inventories of stock-in-trade.) The distinction between the Davidson and Witt cases is not altogether obvious.
150 (1888) LR 20 QBD 569, at 574.
151 (1888) 13 App Cas 506 at 511, 517. The case was heard by only three Lords, the third member being Lord Macnaghten, who considered that a bill over after-acquired property was not within the Act at all: see para 11.27.
152 In Chapman v Wilson  EWHC 1746 (Ch) the documents that were the subject of an assignment that constituted a bill of sale were not adequately listed and therefore the bill was void: see  EWHC 1746 (Ch) at –.
153 Thomas v Kelly (1888) 13 App Cas 506, 521.
154 See, for example, Thomas v Kelly and Baker (1888) 13 App Cas 506, where a purported assignment of future-acquired chattels resulted in the bill being held to be void. Cf Tailby v The Official Receiver (1888) 13 App Cas 523, where an assignment of future book debts, being a chose in action and therefore not registrable as a bill of sale, was effective.
155 Note the special provisions for agricultural charges: para 11.64.
157 The Schedule provides: ‘This Indenture made … witnesseth that in consideration of the sum of £now paid to A.B. by C.D., the receipt of which the said A.B. hereby acknowledges [or whatever else the consideration may be] …’
158 Re Chapman, ex p Johnson (1884) 26 Ch D 338, CA; Re Rouard, ex p Trustee (1915) 85 LJKB 393. For further details on the statement required see Halsbury, paras 1705–6.
159 Re Rogers, ex p Challiner (1880) 16 Ch D 260.
161 Ibid., noting that the advances must be for more than £30, since a security bill for less than £30 is void.
162 See para 11.44. But note that only conditions that are for the maintenance of the property, or which would have been valid if inserted in the body of the bill, may be included or the bill will not comply with the statutory form: Halsbury, 1750.
163 Or, if it is executed outside England, within seven clear days after the time at which it would in the ordinary course of post arrive in England if posted immediately after execution of the bill.
165 See the 1882 Act, s 4 for the requirement to have a schedule containing an inventory of the personal chattels.
170 1878 Act, s 10(3), last paragraph.
171 Renewal is effected by filing an affidavit in a form set out in sch A to the 1878 Act: see the 1878 Act, s 11.
172 The 1878 Act, s 13 provides that the Masters of the Queen’s Bench Division of the High Court shall be the registrar, with any one Master performing all or any of the registrar’s duties. The register is kept at the Royal Courts of Justice in London.
177 See the 1878 Act, s 15.
180 Section 344 is in Part IX of the Act, which applies only to bankruptcy proceedings. The section derives from the Bankruptcy Act 1914, s 43.
181 Section 344(3)(a). Note, however, that it is the registration procedure for absolute bills under Bills of Sale Act 1878, not that for security bills under the 1882 Act, that applies: s 344(4). See para 11.32. The priority provisions of the Act are not applied and priority over assignments of book debts are governed by the common law. See para 14.09 et seq.
182 Thus if a debtor has made a general assignment that is void because not registered, subsequent assignments of specific debts may be effective: Hill v Alex Lawrie Factors Ltd (2000) The Times, 17 August.
184 On assignment of future debts see Tailby v Official Receiver (1888) 13 App Cas 523; above, para 6.13.
185 Although bills of sale in respect of crops and fixtures can be granted: see the 1882 Act, s 6.
186 ‘Farmer’ means any person (not being an incorporated company or society) who, as tenant or owner of an agricultural holding, cultivates the holding for profit; and ‘agriculture’ and ‘cultivation’ shall be deemed to include horticulture, and the use of land for any purpose of husbandry, inclusive of the keeping or breeding of live stock, poultry, or bees, and the growth of fruit, vegetables, and the like: 1928 Act, s 5.
187 ‘ “Bank” means (a) the Bank of England; (b) a person who has permission under Part 4 of the Financial Services and Markets Act 2000 to accept deposits; and (c) an EEA firm which… [under various provisions of that Act] has permission to accept deposits or other repayable funds from the public: see 1928 Act, s 5(7) and (7A).’
188 1928 Act, s 5(1). The definition of ‘farmer’ in the 1928 Act excludes incorporated companies or societies, and ‘farming stock’ is widely defined to include crops (whether growing or severed from the land), livestock (including its produce and progeny) and agricultural vehicles and machinery: see ibid., s 5(7).
190 1928 Act, s 14. The Industrial and Provident Societies Acts have been replaced by the Co-operative and Community Benefit Societies Act 2014, s 59(6) of which contemplates similar charges being created by ‘registered societies’ (i.e. those registered under the 2014 Act or the Industrial and Provident Societies Act 1965, see s 1; existing societies were deemed to be registered under the 1965 Act, see s 4); but s 14 of the 1928 Act refers only to industrial and provident societies registered under the Industrial and Provident Societies Acts 1893 to 1928. So it seems that floating charges over farm stock created by other societies will have to be registered with the Financial Conduct Authority if they are to escape the requirements of the Bills of Sale Acts, see para 11.73.
191 Agricultural Marketing Act 1958, s 15(5). For this purpose ‘bank’ and ‘farming stock’ have the same meanings as in Part II of the Agricultural Credits Act 1928. The only remaining board is the British Wool Marketing Board: see <www.defra.gov.uk/news/2010/10/14/public-bodies/> (last visited 13 August 2011).
192 1928 Act, s 9(1). The time can be extended by the High Court on proof that the omission to register was accidental or due to inadvertence.
197 National Westminster Bank plc v Jones  EWCA Civ 1541,  1 P&CR Dig 12.
198 1928 Act, s 7(1)(b). A farmer who, with intent to defraud the bank, fails to comply with the obligations for paying over the required money, or who removes from his or her holding any of the charged property commits a criminal offence: ibid., s 11(1).
204 1928 Act, s 8(6). On priorities see generally chs 12–17.
205 However, the sale can be by private treaty and earlier than five days where the charge provides for this.
207 See Co-operative and Community Benefit Societies Act 2014 (which replaces Industrial and Provident Societies Act 1967), s 1; provided the charge was executed before 14 September 1967, Sch 3, para 12.
208 Section 59(6); on such charges see above, para 11.65. It seems that only societies registered under the Industrial and Provident Societies Acts 1893 to 1928 can make use of this, see para 11.65, n 190.
209 Section 59. There are provisions for extension of time: s 60; and provisions may be made for giving the FCA notice of any release, discharge or other transaction relating to a charge, s 61.
210 Section 9B (restriction on creation of floating charges) of the Building Societies Act 1986 was repealed by paragraph 4 of Schedule 9 to the Financial Services (Banking Reform) Act 2013, as from 26 March 2015.
211 Building Societies Act 1986 s 104A(1).
212 See Banking Act 2009 s 84ZA(2)(a).
214 Bank Recovery and Resolution Order 2016, SI 2016/1239, art 28.