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Discussion Paper on Moveable Transactions (DISCUSSION PAPER No 151) Discussion Paper on Moveable Transactions discussion paper Discussion Paper on Moveable Transactions June 2011 DISCUSSION PAPER No 151 This Discussion Paper is published for comment and criticism and does not represent the final views of the Scottish Law Commission. EDINBURGH: The Stationery Office £37.00 NOTES 1. Please note that information about this Discussion Paper, including copies of responses, may be made available in terms of the Freedom of Information (Scotland) Act 2002. Any confidential response will be dealt with in accordance with the 2002 Act. We may attribute comments and publish a list of respondents’ names. 2. Where possible, we would prefer electronic submission of comments. A downloadable electronic response form for this paper as well as a general comments form are available on our website. Alternatively, our general email address is [email protected]. 3. The Discussion Paper is available on our website at www.scotlawcom.gov.uk or can be purchased from TSO (www.tsoshop.co.uk). 4. Please note that all hyperlinks in this document were checked for accuracy at the time of final draft. 5. 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 an accessible electronic version of this document is available on our website. 6. © Crown copyright 2011 You may re-use this information (excluding logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/ or email: [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. Any enquiries regarding this publication should be sent to us at [email protected]. ISBN 978-010-888260-9 ii The Scottish Law Commission was set up by section 2 of the Law Commissions Act 19651 for the purpose of promoting the reform of the law of Scotland. The Commissioners are: The Honourable Lord Drummond Young, Chairman Laura J Dunlop, QC Patrick Layden, QC TD Professor Hector L MacQueen. The Chief Executive of the Commission is Malcolm McMillan. Its offices are at 140 Causewayside, Edinburgh EH9 1PR. The Commission would be grateful if comments on this Discussion Paper were submitted by 30 September 2011. Please ensure that, prior to submitting your comments, you read notes 1 and 2 on the facing page. Comments may be made on all or any of the matters raised in the paper. All non-electronic correspondence should be addressed to: John M Dods Scottish Law Commission 140 Causewayside Edinburgh EH9 1PR Tel: 0131 668 2131 1 Amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (SI 1999/1820). iii Contents Paragraph Page Chapter 1 Introduction The project and its three strands 1.1 1 The need for review 1.4 2 Scope of project: (a) outright assignation 1.5 2 Scope of project: (b) security 1.7 2 Scope of project: (c) quasi-security 1.11 3 Scope of project: (d) the floating charge 1.14 4 Scope of project: (e) international private law 1.16 4 Scope of project: (f) comprehensive or selective? 1.17 5 Scope of project: (g) insolvency law 1.19 5 Extending the new register to diligence? 1.20 5 Previous reviews of these areas of law 1.21 6 The UK and EU economic unions 1.22 6 One step at a time 1.25 7 Economic significance 1.27 8 Legislative competence 1.29 8 Human rights 1.40 10 EU law 1.41 10 General question 1.42 10 Acknowledgements 1.43 11 Chapter 2 The EU dimension (including the Financial Collateral Directive) Introduction 2.1 13 Unfair Terms in Consumer Contracts Directive (93/13) 2.4 13 Late Payment Directive (2000/35) 2.5 13 Credit Agreements Directive (2008/48) 2.6 14 Rome I Regulation (593/2008) 2.8 14 Financial Collateral Directive (2002/47) 2.10 15 Chapter 3 A possible scheme in outline Introduction 3.1 19 Register of Moveable Transactions 3.2 19 Assignation: completion of title 3.9 20 Protecting the account party 3.10 20 Assignation in security 3.12 20 Anti-assignation clauses 3.13 20 Assignation of after-acquired rights 3.14 21 Codification of the law of assignation 3.15 21 Some other issues about assignation 3.16 21 iv Contents (cont'd) Paragraph Page Proper security, without notification, over incorporeal moveable property 3.21 21 Non-possessory registered security over corporeal moveable property 3.24 21 Asset types 3.26 22 The attachment/perfection distinction 3.27 22 Ranking 3.29 22 Ability to grant the new moveable security 3.30 22 Enforcement 3.31 22 Consumer protection 3.32 22 Codification of the law of security 3.34 22 Treatment in insolvency 3.35 23 Floating charges 3.37 23 Pledge 3.41 23 Recharacterisation 3.42 23 International private law 3.43 24 How near to the UCC/PPSAs? 3.44 24 General question 3.45 24 Chapter 4 The current law in outline: outright assignations Introduction 4.1 25 General 4.7 26 Some terminology 4.9 26 Account debtor's consent not required 4.10 27 Bars on assignation and delectus personae 4.11 27 Rights assignable, not obligations 4.15 28 Assignation of contracts 4.16 28 Assignation, tripartite novation, sub-participation and personal subrogation 4.17 29 Assignatus utitur jure auctoris 4.20 29 Waiver-of-defence clauses 4.21 29 Registration for execution 4.22 30 Negotiable instruments 4.23 30 Warrandice debitum subesse 4.25 30 The assignatus principle a shield, not a sword 4.27 31 Redfearn v Somervail 4.28 31 Writing? 4.29 31 Wording? 4.32 32 The three steps to completed title 4.34 32 Completing title: intimation 4.36 33 Effect of assignation on accessory rights 4.45 35 Mandates 4.46 35 The assignation of future and contingent rights 4.51 36 v Contents (cont'd) Paragraph Page Policies of Assurance Act 1867 4.67 39 Partial assignation 4.68 40 Chapter 5 The nature of security rights Introduction 5.1 41 "Security" 5.2 41 The purpose of security 5.3 41 Effect against third parties 5.5 41 External (overt) act needed to constitute security 5.9 42 Types of security 5.10 42 Proper and improper security 5.11 43 Improper security by grant and by reservation – retention of title in sale 5.18 45 The problem of demarcation 5.22 46 Arrestment and proper security 5.25 47 Multiple securities 5.26 47 Accessoriness 5.28 48 Transfer by debtor 5.30 48 Transfer by creditor and the issue of accessory rights 5.32 49 Fixed and floating 5.36 50 Possessory and non-possessory security 5.39 50 Notification and non-notification security 5.41 51 Express, tacit and judicial 5.42 51 Chapter 6 The current law in outline: security over corporeal moveable property Introduction 6.1 52 FIRST SECTION: PROPER SECURITY 6.4 52 Pledge 6.4 52 Pledge and the Consumer Credit Act 1974 6.14 54 Forfeiture (outwith the context of the Consumer Credit Act) 6.18 55 Power of sale 6.19 56 The agricultural charge 6.21 56 The floating charge 6.23 56 Maritime security rights 6.24 57 Aircraft mortgage 6.25 57 SECOND SECTION: QUASI-SECURITY DEVICES 6.26 57 Title finance 6.26 57 Retention of title in sale 6.28 58 Hire-purchase 6.32 59 Finance leasing 6.34 59 Transfer to creditor with retention of possession 6.37 60 vi Contents (cont'd) Paragraph Page Chapter 7 The current law in outline: security over incorporeal moveable property Introduction 7.1 62 Goodwill 7.4 62 FIRST SECTION: PERSONAL RIGHTS AS COLLATERAL 7.5 62 Improper security is the only competent form 7.5 62 Personal rights: general 7.7 63 Contractual rights 7.8 63 Cash collateral 7.9 63 Beneficial rights in trusts 7.11 63 Company shares and bonds 7.12 63 Intermediated securities 7.15 64 SECOND SECTION: INTELLECTUAL PROPERTY AS COLLATERAL 7.16 65 Intellectual property rights: introduction 7.16 65 Intellectual property rights: applicable law 7.19 65 Registered Designs Act 1949 7.22 66 Patents Act 1977 7.23 66 Trade Marks Act 1994 7.26 67 Registered IP: must security be registered? 7.27 67 Conclusions on intellectual property 7.28 68 Chapter 8 The company charges registration scheme Some English legal history 8.1 69 Scotland is added 8.2 69 Charges registration is an extra requirement 8.6 70 Changes effected by the Companies Act 2006 8.8 71 Debtor-based not situs-based 8.10 71 "Particulars" only 8.11 71 Relevant to validity but not ranking 8.12 71 The "invisibility" issue 8.13 72 Chapter 9 The current law in outline: floating charges Introduction 9.1 73 Can be granted only by companies etc 9.2 73 Can cover assets of any type 9.3 73 Extraterritorial effect 9.4 74 "Floating" nature 9.5 74 Registration 9.7 75 Attachment 9.9 75 vii Contents (cont'd) Paragraph Page The practical weaknesses of the floating charge 9.13 76 The conceptual weaknesses of the floating charge 9.14 77 The land issue 9.17 78 Chapter 10 Previous reviews of the law Introduction 10.1 79 Outright assignation 10.2 79 The Crowther Report 10.4 79 Government response to Crowther 10.9 80 The Halliday Report 10.10 81 Diamond Report 10.20 83 Murray Report: introduction 10.25 84 Murray Report: the "moveable security" 10.27 85 Murray Report: floating charges 10.32 86 Murray Report: comparison with the UCC/PPSA approach 10.33 87 International private law in Crowther/Halliday/Diamond 10.34 87 Nature of the security over incorporeal property in the Crowther, Halliday, Diamond and Murray Reports 10.35 87 Reviews focused on floating charges 10.36 88 Reviews focused on the company charges registration regime 10.40 88 The references to the two Law Commissions 10.44 90 The Law Commission project 10.45 90 The Business Finance Report 10.50
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