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Report on Moveable Transactions Volume 1: Assignation of Claims

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Report on Moveable Transactions Volume 1: Assignation of Claims (SCOT LAW COM No 249) Report on Moveable Transactions Volume 1: Assignation of Claims report Report on Moveable Transactions Volume 1: Assignation of Claims This Report is published in three volumes Laid before the Scottish Parliament by the Scottish Ministers under section 3(2) of the Law Commissions Act 1965 December 2017 SCOT LAW COM No 249 SG/2017/264 The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1965 (as amended) for the purpose of promoting the reform of the law of Scotland. The Commissioners are: The Honourable Lord Pentland, Chairman Caroline Drummond David Johnston QC Professor Hector L MacQueen Dr Andrew J M Steven. The Chief Executive of the Commission is Malcolm McMillan. Its offices are at 140 Causewayside, Edinburgh EH9 1PR. Tel: 0131 668 2131 Email: [email protected] Or via our website at http://www.scotlawcom.gov.uk/contact-us NOTES 1. Please note that all hyperlinks in this document were checked for accuracy at the time of final draft. 2. If you have any difficulty in reading this document, please contact us and we will do our best to assist. You may wish to note that the pdf version of this document available on our website has been tagged for accessibility. 3. © Crown copyright 2017 You may re-use this publication (excluding logos and any photographs) free of charge in any format or medium, under the terms of the Open Government Licence v3.0. To view this licence visit http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3; or write to the Information Policy Team, The National Archives, Kew, Richmond, Surrey, TW9 4DU; or email [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available on our website at http://www.scotlawcom.gov.uk. Any enquiries regarding this publication should be sent to us at [email protected]. ISBN: 978-0-9935529-9-1 Produced for the Scottish Law Commission by APS Group Scotland, 21 Tennant Street, Edinburgh EH6 5NA. ii SCOTTISH LAW COMMISSION Item No 1 of our Ninth Programme of Law Reform Report on Moveable Transactions To: Michael Matheson MSP, Cabinet Secretary for Justice We have the honour to submit to the Scottish Ministers our Report on Moveable Transactions (Signed) PAUL B CULLEN, Chairman C S DRUMMOND D E L JOHNSTON HECTOR L MACQUEEN ANDREW J M STEVEN Malcolm McMillan, Chief Executive 29 November 2017 iii Contents Glossary and abbreviations ....................................................................................... xi Abbreviations of publications not mentioned in glossary ........................................ xxix Chapter 1 Introduction ...................................................................................................... 1 The importance of moveable transactions law ............................................................... 1 The three strands of the project ..................................................................................... 3 History of the project ..................................................................................................... 4 Scope of project ............................................................................................................ 5 (a) Outright assignation ......................................................................................... 5 (b) Security rights .................................................................................................. 5 (c) Quasi-security .................................................................................................. 6 (d) Floating charges .............................................................................................. 6 (e) International private law ................................................................................... 6 (f) Comprehensive or selective? ........................................................................... 6 (g) Insolvency law ................................................................................................. 7 Comparative work ......................................................................................................... 7 Two registers ................................................................................................................. 9 Structure and content of the Report ............................................................................. 10 Legislative competence ............................................................................................... 10 Introduction ............................................................................................................. 10 Consumer Credit Act 1974 ...................................................................................... 11 Business associations ............................................................................................. 11 Corporate insolvency law......................................................................................... 12 Registration of company charges ............................................................................ 12 Intellectual property ................................................................................................. 12 Shipping and aviation .............................................................................................. 12 Financial markets .................................................................................................... 13 Human rights ............................................................................................................... 13 EU law ......................................................................................................................... 13 Business and Regulatory Impact Assessment (BRIA) ................................................. 14 Acknowledgements ..................................................................................................... 14 Chapter 2 Outline of the scheme for reform of the law of assignation of claims .............. 16 Introduction ................................................................................................................. 16 The scheme in practice ............................................................................................... 16 iv Claims ......................................................................................................................... 16 Completion of title........................................................................................................ 16 Intimation .................................................................................................................... 17 Register of Assignations .............................................................................................. 17 Assignation of claims not yet in existence ................................................................... 18 Assignation subject to condition .................................................................................. 18 Anti-assignation clauses .............................................................................................. 18 Protecting the account debtor ...................................................................................... 18 Assignation in security ................................................................................................. 19 Some other issues about assignation .......................................................................... 19 Codification of the law of assignation........................................................................... 19 Chapter 3 The current law and the case for reform......................................................... 20 Introduction ................................................................................................................. 20 The current law ........................................................................................................... 20 The case for reform ..................................................................................................... 23 Previous attempts at reform ........................................................................................ 24 Consultation ................................................................................................................ 25 Chapter 4 Assignation: general ...................................................................................... 28 Introduction ................................................................................................................. 28 Assignor and assignee ................................................................................................ 28 Subject matter of assignation: claims .......................................................................... 29 Terminology............................................................................................................. 29 Definition of “claim” .................................................................................................. 30 Debtor ......................................................................................................................... 31 Writing ......................................................................................................................... 32 Identification of the claim ............................................................................................
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