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- Preliminary Material
- Main Text
- Part I Introduction
- 1 Introduction
- Preliminary Material
- A Scope of book
- B Reasons for security
- C The contribution of equity
- D Categories of security interests in English law
- E Quasi-security: reservation of title
- F Form and substance and recharacterization risk
- G Statutory interventions on behalf of unsecured creditors
- H Creditors’ preferences
- 2 Use of security and quasi-security interests in debt financing
- 3 Financial Collateral
- Preliminary Material
- A The Directive on Financial Collateral Arrangements
- Introduction
- ‘Financial collateral’
- Directive on Financial Collateral Arrangements
- Security financial collateral arrangements
- Any financial obligation
- Not limited to two-party arrangements
- Special treatment of security financial collateral arrangements
- Special treatment of perfection
- Registration in case of doubt
- Formal requirements
- Special treatment of ‘use’ of collateral
- Special right of appropriation
- Special treatment in insolvency
- ‘Title transfer financial collateral arrangements’
- Special treatment of title transfer arrangements
- Meaning of ‘title transfer’
- B Forms of financial collateral
- C Key concepts of the FCARs
- Introduction
- ‘Evidenced in writing’
- ‘Possession or control’
- ‘Possession or control’
- The Gray case
- The Lehman case
- The Swedbank case
- Autonomous meaning of ‘possession or control’
- ‘Dispossession’
- Recital 10 of the Directive
- The right to substitute or withdraw excess collateral
- ‘Negative control’ required
- Difference from fixed charge test
- ‘Legal’ and ‘practical’ control
- Legal right to control required
- ‘Possession’ or ‘control’: different concepts?
- Will physical control ever suffice?
- A presumption of a legal right?
- Practical control also required
- Account controlled by collateral taker
- Agreement with third party is required
- Control must be maintained
- Positive control
- Positive control not required under FCARs
- Positive control without negative control insufficient
- Positive and negative control
- Rights of substitution and withdrawal
- Right of substitution
- Right of withdrawal
- Uncertainties over the right of withdrawal
- Practical effect of rights to substitute or withdraw excess collateral
- Relevance of other rights under the FCARs
- Right to take part in valuation
- Right to withdraw collateral if collateral taker in default
- Return of collateral after obligation discharged
- Relevance of other rights under the FCD
- D Charges over financial instruments
- Possession or control over securities
- Possession or control of securities in practice
- Certificated securities
- Dematerialized securities
- Intermediated investments held with a third party
- Dematerialized or intermediated securities transferred into an account in the name of the collateral taker
- Where the collateral taker is the relevant intermediary
- Floating charges over investment property
- Introduction
- Floating charges within FCARs
- When a floating charge is within the FCARs
- Floating charges taken by settlement banks
- No ‘possession or control’ while debtor retains right to deal
- Effect on floating charge where no possession or control
- Uncrystallized floating charges
- Not ‘operated as a blocked account’
- Possession or control over securities
- E Charges over ‘cash’
- F Charges over ‘credit claims’
- Credit claims and the FCARs
- The ‘restrictive’ and the ‘liberal’ views
- Legal control of credit claims
- Rights to substitute or withdraw collateral or collect proceeds until further notice
- Practical control over credit claims
- Practical control of the claim
- Practical control of the proceeds
- Limited legal and no practical control required for credit claims?
- G Evaluation of the FCARs
- 1 Introduction
- Part II Description of Interests
- 4 Types of interest
- Preliminary Material
- A Security interests and absolute interests
- Introduction
- Analysis of distribution of rights in security and quasi-security transactions
- Security interest created by grant of right in rem
- Distribution of rights between creditor and debtor when security interest created
- Distribution of rights between creditor and debtor in a quasi-security transaction created by reservation or transfer of title
- Transactions where full ownership rights are transferred
- The approach of the law to the balance of rights and liabilities between the parties
- Contractual structures
- B Characterization of interests as security interests or absolute interests
- Characterization generally
- The process of characterization
- Reasons for structuring a transaction as creating absolute or security interest
- Consequences of recharacterization
- The method of characterization
- Characterization of an interest as absolute or by way of security compared with characterization of a charge as fixed or floating
- The courts’ approach to characterization of an interest as absolute or security
- Factors taken into account when characterizing transactions as creating absolute or security interests
- The courts’ approach to characterization in relation to different structures
- Does the courts’ approach to characterization in other areas indicate a change of approach in this area?
- Characterization generally
- 5 Possessory Security
- Preliminary Material
- A Pledge
- Nature of pledge
- Nature of pledgee’s interest
- Special property of pledgee
- Possession as a proprietary right
- Does the pledgee’s right derive from possession or from ownership?
- Pledgee’s right to sue third parties in conversion
- Pledgee’s insurable interest
- Right by pledgee to use pledged assets
- Pledgee’s right to sell pledged assets
- Pledgee’s right to the proceeds of sale
- Pledgee’s right to sue on the underlying obligation
- Pledgee’s right to sub-pledge the pledged assets
- Pledgee’s rights as against the pledgor
- Duties of pledgee
- Nature of pledgor’s interest
- Requirements for a valid pledge
- Pledge created by attornment
- Redelivery of pledged assets to pledgor
- Pledge created by delivery of means of control
- Pledge created by transfer of document of title
- Determination of the pledge
- What can be pledged
- Tangible property
- Identification of pledged assets
- Constructive possession of goods in bulk by attornment
- Attornment giving rise to estoppel
- Buyers of goods as owners in common
- Shared constructive possession
- Effect of section 20A of the Sale of Goods Act
- Attornment in relation to an undivided share
- Purported pledge of goods in bulk creates a charge
- Mixture of pledged goods with other goods
- Measurement of security interest in mixture
- Shared constructive possession
- Pledges of bearer bonds and negotiable instruments
- Pledges of shares
- Equitable pledge
- Distinction between pledge and possessory lien
- B Possessory lien
- Introduction
- Nature of lien
- Requirements for a possessory lien
- Characteristics of common law lien
- Termination of lien
- Contractual lien
- Characterization of interest
- Effect of contractual lien on third parties
- Statutory lien
- 6 Non-Possessory Security
- Preliminary Material
- A Consensual
- Mortgage
- Charge
- Discussion of matters relating to mortgage and charge
- Controls on contractual provisions for postponement of redemption
- Controls on terms making redemption subject to onerous conditions
- Controls on terms restricting the recovery of the original mortgaged assets (‘collateral advantages’)
- Types of collateral advantages
- Historical background
- Inconsistency with the nature of a mortgage
- Application of the doctrine
- Change in nature of mortgaged property
- Advantage conferred by separate agreement
- Characterization of separate agreement
- Characterization of whole agreement
- Criticism of the doctrine
- Should the doctrine be abolished?
- Rights of use of financial collateral
- Rights of use of financial collateral
- The Financial Collateral Arrangements (No 2) Regulations
- Issues arising from the right of use
- Analysis of the interests created by a prime brokerage agreement
- Effect of the right of use on arrangement between the parties
- Does the charge lose its character as a security interest?
- Effect of the insolvency of the collateral taker
- The distinction between a mortgage and a charge
- When is the distinction between a mortgage and a charge relevant?
- Possible significance of distinction
- When a debtor can assert a right of set-off against a security holder
- Does a mere charge break the mutuality required for set-off?
- Is a charge an assignment?
- Proprietary nature of chargee’s interest
- Effect of a mere charge on set-off
- Execution and other creditors
- Charge over chargee’s own indebtedness
- Significance of the distinction between a charge and a mortgage
- Fixed and floating charges
- The concepts of a fixed and a floating charge
- Crystallization
- Effect of crystallization
- Assets within the scope of the charge at crystallization
- Crystallizing events: cessation of business
- Crystallizing events: intervention by the chargeholder
- Crystallization of another floating charge over the same assets
- Crystallization of first charge by appointment of receiver
- Crystallization of first charge by other means
- Crystallization under the Agricultural Credits Act 1928
- Automatic and semi-automatic crystallization
- Attempts at reform
- Drafting of automatic crystallization clauses
- Stipulating effect of crystallization?
- Decrystallization by waiver
- Contractual provisions for decrystallization
- The effect of decrystallization
- Consequences if a new charge is created on decrystallization
- Decrystallization of fixed charge
- Partial crystallization without express power
- Partial crystallization pursuant to express provision
- Reasons for characterization of a charge as fixed or floating
- Factors relevant to characterization of a charge as fixed or floating
- Interpretation of the charge document
- Characterization of the charge
- Touchstone of a fixed charge
- Freedom to dispose of charged assets
- Is practical control required for a fixed charge?
- Fixed charge over a bank account
- Meaning of ‘consent’
- Consent in advance
- Restrictions on the withholding of consent by the chargee
- Two account structure
- Post-contractual agreement or conduct
- Sham or pretence
- No permanent appropriation of assets
- Variation or waiver
- Subsequent payment into blocked account
- Substitution of the secured assets
- Freedom to use income
- What counts as ‘the charged assets’
- Disposal of charged assets
- Income-generating asset
- Charge over land or chattels
- Charge over land: Rhodes v Allied Dunbar
- Charge over lease of chattels: Re Atlantic Computers plc
- Re Atlantic Medical Ltd
- Charge over lease of chattels: arguments of principle
- Charge over shares
- Charge over debt securities
- Charge over long-term contracts
- Waterfall clauses
- B Non-consensual
- Equitable lien
- Definition and nature of equitable lien
- Requirements for imposition of lien arising out of contractual relationship
- Unconscionability
- Property which can be subject to an equitable lien
- Contracts for the sale of goods
- Contracts for the sale of goods which are part of a bulk
- When property is identified and appropriated
- Appropriation of property to the contract
- Requirement that contract is specifically enforceable
- Specific enforceability not a rigid requirement in relation to purchaser’s lien
- Relevance of specific performance to vendor’s lien
- Inconsistency with contractual arrangements
- Situations in which equitable lien arises
- A wider role for the equitable lien?
- Maritime lien
- Equitable lien
- 7 Financing Devices Involving the Transfer or Retention of Title
- Preliminary Material
- A General
- B Goods
- Retention of title clauses in supply agreements
- Conditional sale
- Hire purchase
- Finance lease
- Sale and lease-back/sale and buy-back
- C Title transfer financial collateral arrangements
- Introduction
- ‘Repos’
- Title transfer arrangements to provide margin
- D Receivables
- General principles
- Introduction
- Defences and cross-claims
- Assignability and non-assignment clauses
- Notice of assignment
- Receivables financing
- Factoring
- Block discounting
- Asset securitization
- General principles
- 8 Rights Not Including the Transfer or Retention of Title
- Preliminary Material
- A Non-consensual
- Set-off: introduction
- Legal set-off
- Equitable set-off
- Mutuality
- Abatement
- Banker’s right to combine accounts
- Insolvency set-off
- Introduction
- Bankruptcy
- Companies
- Mutuality of claim and cross-claim
- Mutuality and tort claims
- Set-off and provable claims
- Provable claims and contributories
- Commensurability and proprietary security
- Commensurability and special purposes
- Commensurability and claims for goods
- Contingent and future claims: introduction
- Date of account in winding-up and administration
- Date of account in bankruptcy
- Assignment of claims during insolvency proceedings
- Future debts
- Contingent claims and cross-claims
- Further example
- Contingent claims by the insolvent party
- Contingent claims and suretyship
- Other contingent claim cases
- Guarantees and mutuality of parties
- Personal guarantee
- Suretyship: first variation
- Suretyship: second variation
- Suretyship: third variation
- Excluding insolvency set-off
- Head landlords’ rights under the Tribunals, Courts and Enforcement Act 2007
- B Consensual
- Contractual set-off
- Netting
- Negative pledges
- Flawed assets
- Introduction
- The ‘triple cocktail’
- Construction of flawed asset clause
- Charging conditional debts
- Present and future assets
- Assignments of future property
- Conditional debts and insolvency principles
- Anti-deprivation and insolvency proceedings
- Direct payment clauses
- Current status of direct payment clauses
- Contrary decision
- Scope of anti-deprivation rule
- Assets and further performance
- Subordination agreements
- Introduction
- Priority agreements
- Unsecured creditors
- Giving effect to contractual subordination
- Financial character of subordinated debt
- Issues presented by subordinated debt
- Subordination and pari passu
- British Eagle
- Australian decision
- Netting schemes
- Complying with insolvency rules
- Incidental recognition of subordination agreements
- Limitations of the decision
- Affirmation of subordination
- Compliance with binding authority
- Conditional debt
- Identity of parties to subordination
- Commercial practice
- Turnover trusts and charges
- Third-party enforcement
- Agreeing not to submit a proof
- Locking in statutory rights
- Enforcement
- Quistclose trust
- 8.128
- Three-party cases
- Two-party cases
- Releasing money from the trust
- Unlawful preference
- Types of three-party case
- Trusts issues
- Existence of trust
- Constructive trust
- Segregation
- Early authorities
- Modern cases
- The Quistclose case
- Primary and secondary trust
- Further points
- A registrable charge?
- Trusts originating with the payer
- An unusual transaction
- Trusts originating with the payee
- A positive declaration of trust
- A contrary outcome
- Trust or charge?
- Registrable charges again
- Limitations of Carreras Rothmans
- Lien on sub-freights
- 4 Types of interest
- Part III Registration and Other Perfection Requirements
- 9 Registration and Other Perfection Requirements
- Preliminary Material
- A Meaning of perfection
- B Purpose and significance of perfection requirements
- Danger of apparent ownership
- Reputed ownership
- Registration
- Consequences of non-registration
- Protection of other creditors
- ‘Perfection’
- No registration or other perfection requirement
- Publicity other than registration: pledges
- Charges over debts created by unincorporated debtors
- Charges over financial collateral
- Non-possessory charges over certain goods
- Meaning of ‘perfection’
- Separate steps not necessarily required
- Two meanings
- Effect of non-perfection varies
- Perfection, creation and priority
- Perfection distinguished from creation
- Perfection and priority distinguished
- Perfection does not necessarily secure priority
- C Specialist registers
- D Registration of hire purchase agreements
- 10 Interests Created by Companies
- Preliminary Material
- A Overview
- B Registration under the Companies Act 2006
- The Register of Company Charges
- The Register
- Statement of particulars
- The charge document
- No charge document
- Registering a charge
- Registration ‘a commercial decision’
- ‘Voluntary’ registration and constructive notice
- Process of registration
- Certificate of registration
- Certificate incorrectly given
- Effect of mistake in the particulars
- Negative pledge clause in loan agreement only
- Time for registration of charge to individual chargee
- Series of debentures
- Registrable charges
- The effects of failing to register
- Late registration and rectification of particulars
- Territorial application
- Other provisions on registration of company charges
- The Register of Company Charges
- 11 Interests Created By Debtors Who Are Not companies
- Preliminary Material
- A Introduction
- B The Bills of Sale Acts
- Introduction
- Scope of the Bills of Sale Acts
- Formal requirements and registration
- 11.30
- Absolute bills
- Security bills
- Restrictions on substance
- Formal requirements
- Summary of form requirements for security bills
- The statutory form
- Substantial compliance
- Effect of failure to comply with statutory form
- Property listed in schedule to bill
- Property need not be itemized
- Property not described specifically
- No floating charges
- Effect of previous unregistered absolute bill
- Consideration
- Other terms
- Registration
- The register
- Priority and enforcement
- C General assignments of book debts
- D Agricultural charges
- Agricultural charges by unincorporated farmers
- Agricultural charges by industrial and provident societies and agricultural marketing boards
- Registration
- Crystallization of floating agricultural charge
- Power of sale under fixed charge
- Priority
- Further advances
- Priority as against mortgage of the land
- Remedies
- E Charges created by cooperative, community benefit, and building societies
- 9 Registration and Other Perfection Requirements
- Part IV Priorities
- 12 Introduction to Priorities
- Preliminary Material
- A Introduction
- B Registration as constructive notice
- Effect of registration as notice
- To whom is registration constructive notice?
- The view that registration is constructive notice to all the world
- Discussion of the cases relied upon by Gough
- Siebe Gorman
- Fire Nymph Products Ltd v Heating Centre Pty Ltd
- Wilson v Kelland
- Companies Act 1989
- Authority against Gough’s view
- Discussion of view that registration is constructive notice to those who might reasonably be expected to search the register
- Who might reasonably be expected to search the register
- Of what is registration constructive notice? Pre-2013 position
- Of what is registration constructive notice? Post-2013 position
- Inconsistency between registered particulars and charge instrument
- 13 General Priority Rule: Nemo Dat (First in Time to be Created Wins)
- Preliminary Material
- A The nemo dat principle
- B Priority between possessory security interests and non-possessory security interests
- C Priority between the holder of possessory security interests and buyers
- D Priority between non-possessory security interests
- Where both are registered
- Basic rule: first in time
- When basic rule applies
- Qualification of the basic rule: purchase money security interest
- Rejection of scintilla temporis doctrine
- Wilson v Kelland and Re Connolly
- Security Trust and Abbey National v Cann
- Southern Pacific Mortgages Ltd v Scott
- The doctrinal basis of Abbey National v Cann
- Whale v Viasystems Technograph Ltd
- Other outstanding questions
- Where one is registered
- Where neither is registered
- Where both are registered
- E Priority between the holder of non-possessory security interests and buyers
- F Priority between financing devices involving the transfer or retention of title and other security interests
- 14 Exceptions to the Nemo Dat Rule
- Preliminary Material
- A Purchaser of legal interest
- A person who acquires a legal interest in good faith and without notice takes priority over the holder of an equitable interest
- Priority between a chargee or equitable mortgagee and a subsequent buyer
- Priority between a chargee or equitable mortgagee and a subsequent pledgee or lienholder
- Priority between a chargee or equitable mortgagee and a subsequent legal mortgagee
- B The rule in Dearle v Hall
- Introduction
- Priority between charges and mortgages over debts
- Priority between a charge or mortgage over debts and a subsequent absolute assignment
- Priority between a charge or mortgage over debts and a prior absolute assignment
- Priority between a claim to proceeds of sale by a seller on retention of title terms and an absolute assignment
- C Statutory exceptions to the nemo dat rule
- Introduction
- Sale of Goods Act 1979, s 24
- Sale of Goods Act 1979, s 25, Factors Act 1889, s 9, and Hire Purchase Act 1964, s 27
- D Priority normally established by date of registration
- Introduction
- Bills of Sale Acts
- Charges over registered ships
- Registered ships and the ‘private law provisions’
- Transfers and registered mortgages
- Termination of registration of ship
- Unregistered mortgages
- Nature of registered mortgage
- Nineteenth-century authority
- Legal and equitable mortgages or statutory legal charges?
- Registration at Companies House
- Mortgages created by unincorporated owners
- Competing mortgages or charges over registered ships
- Priority notices
- Charges over registered ships created by companies
- Earlier unregistered mortgage
- Prior mortgage over then unregistered ship
- Further advances
- Mortgages and subsequent buyers
- Charges over aircraft and aircraft objects
- Priority position of interests created under national law
- Charge created by company
- Charge created by unincorporated owner
- Priority by date of registration: Register of Aircraft Mortgages
- Priority notices
- Priority of fixed charges over registered aircraft
- Priority of floating charges over registered aircraft
- Priority of registered aircraft mortgage against title retention seller or lessor
- Priority of registered aircraft mortgage against buyer
- Priority position of international interests
- Priority rules of the Cape Town Regulations: two or more charges or mortgages
- Priority rules of the Cape Town Regulations: where one or both interests are title retention interests or interests under a lease agreement
- Priority between international interest and non-consensual interest
- Priority between an international interest and a buyer of the aircraft object
- Charges over patents
- Charges over registered trade marks
- Charges over registered designs
- Agricultural charges
- E Future advances and priority
- The rule against tacking
- Introduction
- The problem
- Tacking
- Reasons against tacking
- Reasons for tacking
- Dealing with the equity of redemption
- Mortgage and contract
- Notice of the second mortgage
- Invisibility on the register
- Constructive notice and further advances
- Statute
- Both creditors making further advances
- Application of statute to personalty
- Obligations to make further advances
- The tabula in naufragio
- Banks and tacking
- The rule against tacking
- F Priority agreements
- 15 Authorized Dispositions
- Preliminary Material
- A Introduction
- B Authority to make absolute disposition
- Floating charges
- The floating charge
- Effect of authorized absolute disposition
- Effect of unauthorized absolute disposition outside the ordinary course of business
- Effect of unauthorized absolute disposition where permission expressly limited
- Effect of unauthorized absolute disposition after automatic crystallization clause triggered
- Fixed charges
- Absolute disposition of assets subject to a quasi-security interest with the apparent or actual authority of the owner
- Floating charges
- C Authority to create prior ranking security interest
- 16 Priority Between Consensual and Non-Consensual Security Interests
- 17 Other Priority Issues
- 12 Introduction to Priorities
- Part V Enforcement
- 18 Enforcement of True Security Interests
- Preliminary Material
- A General issues in relation to true security interests
- B Pledge
- C Lien
- D Non-possessory security
- Consensual
- Foreclosure
- Right of appropriation for holder of financial collateral
- Possession
- Sale
- Right of sale
- Power of sale implied by law
- Power of sale implied by statute
- Bill of sale
- Consumer Credit Act
- Merchant Shipping Act
- Power of sale under the Cape Town Regulations
- Express right of sale
- Mortgagee’s decision whether to sell
- Mortgagee’s decision when and where to sell
- Mortgagee’s duty on sale
- Express terms of the contract
- Mortgagee must not sell to itself
- Effect of sale
- Duty to account for surplus
- Right to sue for deficit
- Appointment of receiver
- Appointment of receiver
- Power to appoint receiver
- Company in liquidation or administration
- Duty in appointing a receiver
- Receiver as agent of the mortgagor
- Powers of a receiver
- Receiver’s duties
- Receiver’s duty on sale
- To whom a receiver’s duties are owed
- Critique of the extent of receivers’ duties
- Express terms in the mortgage agreement
- Duty to account for a surplus
- Right to sue for deficit
- Other remedies available in relation to aircraft and aircraft objects
- Non-consensual
- 19 Enforcement of Financial Devices Involving The Transfer or Retention of Title
- Preliminary Material
- A Introduction
- B Goods
- Retention of title clauses in supply agreements
- Conditional sale
- Hire purchase
- Finance lease
- General
- Right to possession
- Relief from forfeiture: finance lease
- Relief from forfeiture: operating lease
- Relief from forfeiture: Consumer Credit Act 1974
- Payment clauses
- Effectiveness of payment clause
- Principles applicable
- Forfeiture of sums already paid
- Consumer Credit Act 1974
- Special provisions for regulated hire agreements
- Financial relief for hirer
- Sale and lease-back/sale and buy-back
- C Title transfer financial collateral arrangements
- D Receivables
- 20 Enforcement of Security in Insolvency
- Preliminary Material
- A General
- B Liquidation and bankruptcy
- Security in insolvency proceedings
- Dispositions of property
- Vulnerable transactions
- Preferential creditors
- Section 176A and the prescribed part
- Freedom of contract
- Protection of unsecured creditors
- The prescribed part
- Net property
- Crown preference compared
- Evaluation
- Size of prescribed part
- Participation in prescribed part
- Spectrum
- Priority of prescribed part in liquidation
- Effect of section 176ZA
- Priority of prescribed part in administration and receivership
- Expenses of the liquidation
- Priority position
- C Administration
- D Receivership
- E Other insolvency procedures
- 21 Enforcement of Rights not including the Transfer of Title
- 18 Enforcement of True Security Interests
- Part VI Conflict of Laws
- 22 Conflict of Laws
- Preliminary Material
- A The applicable law
- General
- Contract and the applicable law
- Tangible property and the applicable law
- Intangible property and the applicable law
- Assignment and the applicable law
- Rome Convention
- Contract and property
- Article 14 of the Rome I Regulation
- ‘Property’ in Article 14(1)
- Raiffeisen case
- Other aspects of assignment
- Assignability
- Set-off
- Set-off as defence
- Financial collateral
- Other intangible property cases
- Shares
- Cases prior to Macmillan
- Registered shares
- Share transfers and third parties
- The situs rule
- Intellectual property
- Insurance
- Negotiable instruments
- Section 72 of the Bills of Exchange Act 1882
- ‘Interpretation’
- Other issues
- B Security and the applicable law
- General
- Capacity to give security
- Formal requirements of grant of security
- Creation of security
- Perfection of security
- Meaning of perfection
- Perfection by possession
- Perfection by registration
- Financial collateral
- English companies and foreign assets
- Charges and property outside the United Kingdom
- Overseas companies and English assets
- Location of property when charge granted
- Cessation of business before winding-up
- Subsequent developments
- Recharacterization issues
- Section 859A and recharacterization
- Book debts and resale
- Enforcement of security
- Various issues
- Role of applicable contract law
- Real remedies
- Enforcing security in insolvency
- Recast Insolvency Regulation
- A preliminary question
- Validity of the debtor’s security
- Challenging the security
- Cross-Border Insolvency Regulations and choice of law
- Discretionary scope of statutory rules
- Cross-Border Insolvency Regulations
- Enforcement of orders within the United Kingdom
- Security and other creditors
- Limits on foreign security
- English ancillary proceedings
- Enforcement of security
- Enforcement and EU Insolvency Regulation
- Non-collective proceedings
- Receivers and law of incorporation
- Priority among secured creditors
- Multi-tiered holdings
- Hague Convention 2006
- Reservation of title
- Conditional sale, hire purchase, and finance leasing
- Set-off
- C International uniform security interests
- 22 Conflict of Laws
- Part VII Criticism and Law Reform Proposals
- 23 Criticism and Reform Proposals
- Preliminary Material
- A Introduction
- B Reports recommending reform and reforms elsewhere
- The Jenkins Report
- The Crowther Report
- The Halliday Report
- The Cork Report
- The Diamond Report
- Companies Act 1989
- The DTI’s 1994 consultation
- The Company Law Review
- The Law Commission’s Report on Company Security Interests
- The Scottish Law Commission’s Report
- The DTI’s Regulatory Impact Assessment
- United States
- Canada
- New Zealand
- Australia
- Other common law jurisdictions
- European Bank for Reconstruction and Development
- UNCITRAL
- Mobile Equipment Convention
- C Proposed amendments to the registration and priority of company charges
- Alternatives to radical reform
- Registration
- Registrable charges: all charges or only those listed?
- Particulars to be supplied
- Submission of charge document, task of registrar, conclusive certificate, and responsibility for mistakes
- Period for registration and late registration
- Sanctions for non-registration
- Alterations and satisfaction of charge
- Assignment of charges
- Constructive notice
- Priorities
- Scope of scheme
- Miscellaneous
- D Reform of the Bills of Sale legislation
- Criticism of the Bills of Sale Acts and reform proposals
- The Goods Mortgages Bill
- Aims and outline
- Who can create a goods mortgage
- Traders and high net worth individuals
- Other ‘exempt goods mortgages’
- Property that may be subject to a goods mortgage
- Obligations that may be secured
- Other non-possessory security
- Effect on pledges created by individuals
- Formal requirements
- Registration: original proposals
- Registration: revised proposals
- Effects of non-registration
- Priority: competing goods mortgages
- Priority: tacking and further advances
- Duty to disclose mortgage
- Buyers of mortgaged goods
- Grounds for taking possession
- Procedure for possession without notice
- Possession notice required
- Consumer credit agreements
- Power of sale
- Right of redemption
- Mortgagor’s right to terminate
- Contracting out
- After-acquired property and floating charges
- E Radical reform
- Broader criticisms
- ‘Notice-filing’
- A new approach
- Introduction to ‘notice-filing’ schemes
- Registration (‘filing’)
- Other methods of perfection
- Sanctions for non-perfection
- Scope of the schemes: ‘security interests’
- Creation and attachment
- Priority as between secured parties
- Priority against other purchasers
- Purchasers other than secured parties: unperfected security interests
- Knowledge
- Perfected security interests
- Goods sold or leased in the ordinary course of business
- Goods acquired by consumers
- Goods subject to temporarily perfected security interest
- Transferees of negotiable collateral
- Payments to creditors
- Powers and licence to dispose of assets free of security interest
- Motor vehicles
- Consumer security interests
- Rights and obligations before default
- Provisions on enforcement and remedies on default
- Security interests and ‘deemed’ security interests
- Collection rights of secured party
- Taking possession
- Power of sale or other disposition
- Notice to debtor before sale
- ‘Commercially reasonable manner’
- Effect of sale
- Surplus or deficiency
- Retention of collateral by secured party
- Redemption
- Reinstatement of security agreement
- Mandatory nature of rules
- Private international law provisions
- F Current prospects for radical reform in England and Wales
- The Law Commission’s Consultative Report
- The Law Commission Report
- The DTI’s Regulatory Impact Assessment
- Companies Act 2006
- General amending power
- The ‘Slavenburg’ problem
- Charges registered in ‘special registers’
- Government intentions on radical reform
- Secured Transactions Law Reform Project
- City of London Law Society Financial Law Committee draft code
- Override of ‘ban on assignment clauses’
- Reform of Scottish law
- 23 Criticism and Reform Proposals
- Part I Introduction
- Further Material