The chief end of any creditor when the loan out any sum off money is ever to be repaid. Regardless of the sum of money that is loaned by the creditor be they a bank or a private investor they are in the concern to acquire that money back with a spot of involvement on top. Thus it is a cardinal regulation in any fiscal legislative system that a creditor will hold a grade of security provided by such statute law to protect him from losing these investings. The most common signifier of security provided when a loan is given by a creditor is the understanding with the debitor that they will hold direct entree to the debitors assets in the event that the debitor will default on refund of the loan. Thus the inquiry rises about when and how the creditor will derive entree to such assets, as it is impractical for the creditor to take immediate ownership as that would certainly be damaging to the concern of the debitor. The solution is merely to give the creditor certain belongings rights over the debtor’s assets in the event of the debitor defaulting on the loan. Such belongings rights would hold the debitor ;
( I ) prohibited from disposing of the plus without the debitors permission
( two ) guarantee the value of the plus is maintained
( three ) enable the bank to hold resort to the plus in the event of the debitors default
( four ) enable the debitor to maintain ownership of the secured plus in order to run their concern.
Ultimately what is created is a ‘fixed charge’ . As Millett L.J. stated in Agnew V IRC ( 1998 ) [ 1 ] “ a peculiar plus or category of plus is assets is appropriated to the satisfaction of a debt or other duty of the courser or a 3rd party, so that the chargee is entitled to look to the plus and its returns for the discharge of the liability” [ 2 ]
Before we analyse farther the different types of charges that may be upon an plus we must first expression at how such a security involvement is made. In order for a consensual security involvement to be established between the creditor and the debitor and attached to an plus there are a figure of conditions that must be satisfied.
( I ) First there must be an understanding between the creditor and the debitor that the plus will in fact stand as security for the moneys borrowed by the debitor. In order for this to take topographic point there are two conditions that have to be met ( a ) the understanding must be valid and enforceable as a contract ( i.e consideration present etc ) and ( B ) the pre-requisites for acknowledgment of such an involvement by a tribunal of equity must themselves be satisfied.
( two ) The individuality of the plus, the topic of the security involvement must be expressed as a specific plus, a category of assets or as most common all the debitors assets both present and future. These are capable to the security involvement in the event of the debitors default on refund.
( three ) Third is the ability of the debitor to really send on the plus for a security involvement. In order for this to go on the plus must be capable of being security, in the sense that it is an plus whether touchable or intangible that does non because of public policy or contractual prohibition be rendered unable for transportation. Basically talking in order for an plus to be security the debitor must hold an involvement in the plus or the legal power to dispose of it.
( four ) Next is the subsistence of the duty, what this merely means that until the creditor has forwarded some kind of progress upon the loan to the debitor, making an duty of refund, so no security involvement can be said to be attached to the plus, even if all the other demands for fond regard have already been meet.
( V ) The fulfillment of contractual duties as portion of the security involvement must be wholly fulfilled before the involvement can be attached to an plus.
Now that we have addressed the stairss that need to be taken in order to make a security involvement and do it enforceable against a debitor. However, in order for that security involvement to hone in order to do it effectual against 3rd parties so the jurisprudence requires that the creditor performs a certain act in order to do 3rd parties aware of the involvement. Such Acts of the Apostless fall into two classs, ( a ) those designed to give notice to the universe and ( B ) those designed simply to enable an intending purchaser/incumbrancer of the plus to detect the security involvement. There are two chief ways in which such an involvement can be perfected, either through constructive or existent ownership and enrollment or filing.
Goode describes ownership of the security involvement as being “the oldest and safest method” [ 3 ] of honing the involvement. This is true, there are assorted signifiers nevertheless of ownership instead than merely physical ownership. For illustration there is attornment. This means that a 3rd party who antecedently had ownership of identified assets will do it clear to the creditor that such identified assets are now being held on his order. The most clear illustration of attornment was in the instance ofMartin V Reid ( 1862 )[ 4 ] a opinion that was later reinforced in the determination ofIrish capitalCityDistillery V Doherty ( 1914[ 5 ]) .This is non to state that the construct of ownership re a security involvement is non without it pitfalls. For illustration when covering with an attornment there must be a clear and precise understanding between the two parties that there exists a proper security involvement over the plus and non merely a pledge. If this is non met it would intend that the debitor would hold the right degree Fahrenheit ownership over the plus and do with the plus as they deem fit.
The 2nd method of flawlessness is registration/filing. Goode believes “ the present place with regard to registration/filing as a method of flawlessness is deeply unsatisfactory on the history of the multiplicity of registers” [ 6 ] this in tandem with fact that most attach their ain precedence regulations and the fact that a security involvement can be registered in more than one registry office. So what kind of impact would this hold on the system of flawlessness? Well there are soon eleven different registries for different types of security involvements, each of which may be overlapping but will necessitate single enrollment on each one. A complex system one would hold to hold, fit this with Goode’s unfavorable judgment of one of these registries, viz. the companies register which he believes adds to the confusion of the multiple registries saying “in order to continue the cogency of his security vis a vis a 3rd parties the creditor is required is required to register in the Companies registry even where it is a possessory security or is registerable in some other specialist registry.” [ 7 ] Such regulations are outlined in the Companies Act 1985. The importance of enrollment nevertheless seems to be waning, for illustration it is simply a flawlessness demand and does non formalize an uneffective security nor does it vouch precedence. So some would reason what is the benefit of traveling through some a complex system of flawlessness when it provides really small protection? This is non wholly true, as if enrollment is non completed so under the footings of S395 of the Companies Act so the creditor would non be able to claim the secured plus from the debitor if they have entered disposal or settlement. So there is a certain grade of protection afforded by honing the involvement through enrollment.
Another manner of flawlessness that comes under terrible examination from Goode is that of giving notice to the debitor as established in the instance of Dearle v Hall ( 1828 ) [ 8 ] . Goode forwards the statement that such a regulation plays no portion in the modern commercial universe, he suggests that it is all right when covering with a individual debt has been assigned, yet in the modern twenty-four hours a creditor will normally hold a changeless flow of traffics with a figure of different debitors. This is a valid point as like most of the regulations affecting security involvements are slightly outdated in the face of modern commercial activity.
So now that we are cognizant of the procedure of making security involvement we can analyze the most controversial type, the Floating Charge. The best definition of a drifting charge was provided by Romer L.J. when he stated ;
“if a charge has the three features that I am about to advert it is a drifting charge. ( 1 ) If it is a charge on a category of asssets of a company nowadays and hereafter, ( 2 ) if that category is one which, in the ordinary class of the concern of the company, would be altering from clip to clip, and ( 3 ) if you find that by the charge it is contemplated that, until some future measure is taken by or on behalf of those interested in the charge, the company may transport on its concern in the ordinary manner every bit far as concerns the peculiar category of assets I am covering with.” [ 9 ]
A floating charge is created by any instrument which expresses the three features stated above between the creditor and the debitor. The drifting charge will crystallise in a figure of state of affairss. First, in the event of a de facto surcease of concern as highlighted in National Westminster Bank Plc V Jones ( 2002 ) [ 10 ] , this could be for a figure of grounds, this could be a voluntary surcease ( Re Woodroffe’s Musical Instruments Ltd [ 1986 ] [ 11 ] ) or be the consequence of a voluntary air current up order ( Re Victoria’s Steamboats Ltd. [ 1897 ] [ 12 ] )
Second, there is the expiration of direction powers. This merely means that although the concern may still be running, the charge will crystallise if the direction powers are removed from the managers of the concern. The managers direction powers come to stop merely sing the assets that form portion of the drifting charge. Linked to this and the 3rd method of crystallisation is the chargee’s exercising of power of intercession. This means that the creditor has been given the power under the charge to step in in the direction of the debitor company’s assets, this was one of the points of jurisprudence which the Agnew V Commissioner for the Inland Revenue was based upon, a determination that will be addressed in more item subsequently.
There are two other methods of crystallisation, they are automatic crystallisation and partial crystallisation, nevertheless these are non of import when covering with this inquiry as we have come to the point where the Agnew opinion holds most importance. Yeo believes that the determination taking in Agnew, in the sense that a drifting charge was found, was done to guarantee that the instance would come under ‘preferred creditors’ statute law. Yeo believes that the inquiries rests on whether or non the company was freely able to cover with it book debts or whether these were withdrawn from the charge. Yeo believes that this can be done in a figure of ways saying “One can ‘deal in’ or command the usage of book debts in several ways, by delegating them, making farther security involvements over them or allowing them to be extinguished either by accepting payment, let go ofing the debitor or holding to put off. The freedom to ‘deal in’ or ‘control’ should hence be interpreted in the visible radiation of the intent of the preferable creditors provisons. ” [ 13 ] Yeo believes that in making xo the tribunal has created a case in point that badly limits the usage of fixed charges over book debts. Yeo suggests that “The determination inAgnewwould, without uncertainty, be recognised as a taking instance associating to charges. Lord Millet’s ‘two-stage process’ is likely to be an frequently quoted dictum of the attack to be taken in classifying charges. It is respectfully suggested, nevertheless, that the attack be adopted merely in instances where legislative commissariats necessitate categorization of charges as ‘floating’ and non as a generic attack applicable to all differences associating to corporate charges” [ 14 ] . So with the Agnew determination in head what does the hereafter clasp for this differentiation between charges? Outside of the arising legal power of the instance in New Zealand, the construct of the ‘two phase process’ for separating the two types of charges have caused great trouble in other common jurisprudence systems. The sum of instance jurisprudence that has built up around the subject in England entirely, shows merely how hard a construct it is to accommodate with modern English personal belongings jurisprudence every bit good as commercial jurisprudence. The tribunals have seemed to rock in favor of the preferable creditors and will seek an interpret the charge upon an plus in the most good manner possible to these groups. As such with a trial that seems to favor one group of creditor over another the system can be classed as unjust and the instance jurisprudence will go on to turn around it until a more elaborate model is forwarded in order to cover with such charges.
Cranston, R “Principles of Banking Law ( 2neodymiumEdition ) ” Oxford University Press, Oxford
Goode, R “Commercial Law ( 3rdEdition ) ” Penguin Publishing, London
Hill, C.A‘Is Secured Debt Efficient’80 Texas Law Review ( 2002 )
Westbrook, J.L ‘The Control of Wealth in Bankruptcy’82 Texas Law Review 795 ( 2004 )
Yeo, VCS ‘Fixed Charges Over Book Debts: An Analysis of Agnew v Commissioner of Inland Revenue’( 2001 ) full text available at www.ssrn.com/id304421.pdf