5 rules of accessoriness principle in Scots law
- Existence of security requires existence of a debt.
- The debt must be specific.
- If the debt is transferred the security follows it.
- If the debt is extinguished, so is the security.
- The security can only be enforced if there’s actual indebtedness
Who does accessoriness protect?
Accessoriness protects debtors, by extinguishing securities when the debts are repaid. We see this in Scots law extinguishing a restricted security on payment, even without registration, while assignation requires registration
Advantages and disadvantages of accessoriness?
Accessoriness allows for legal simplicity as the fate of the security matches the fate of the debt.
Pure accessoriness is unworkable as it doesn’t allow us to secure future or fluctuating sums.
Accessoriness, unless its flexible, leads to an increase in transaction costs as security must be renegotiated when the amount of the debt changes.
Arguably, accessoriness also has a disadvantage in relation to ranking.
What is the principle of accessoriness?
It refers to a connection between the secured claim and the security right - the existence of an accessory security right is dependent on the existence of a valid and enforceable claim
Basis for “cautionary wives” cases in England?
English cases have been been based on “constructive notice” which holds creditor to have known and been participant in wrong committed by debtor against surety in certain circumstances. In England, under the doctrine of constructive notice, the wrongful act by the debtor is central. Without the debtor’s wrongful act, there is nothing of which the creditor can be deemed to have notice and nothing to give the surety her release. In Braithwaite, proof by the pursuer of an actionable wrong by the debtor was regarded as a prerequisite of the cautioner’s release.
Basis for “cautionary wives” cases in Scotland?
In Scotland, the doctrine of good faith imposes duties towards the cautioner on the creditor. In Scotland, where release of cautioner depends on good faith so it’s not clear why the debtor’s actions should be relevant. Breach of the duty of good faith by the creditor on its own does not release the cautioner: there must also be a lack of consent caused by the wrongful act of another.
When is a creditor under a duty of care?
The creditor is under a duty of care when the circumstances would lead a reasonable man to believe that the relationship between the debtor and cautioner means the consent may not be fully informed or freely given.
How can a bank meet a duty of care in Scotland?
In Scotland, it appears that the bank’s duty of care will be met by a pre-printed warning to take independent legal advice.
(a lot less onerous than the test in Ettridge)
How can a bank meet a duty of care in England?
The lender : (i) ask the surety to nominate a solicitor; (ii) with the consent of the debtor, provide the solicitor with sufficient financial information to enable proper advice to be given; and (iii) receive confirmation from the solicitor that he or she has so advised the surety.
Even these steps will not protect the bank if it knows or has reason to suspect that the solicitor has not given the surety a proper explanation.
(Test is from Ettridge)
Are Scots law and English law in agreement on banks duty of care?
No, the Scottish requirement are a lot less onerous than the test in Ettridge. There’s been a divergence of Scot’s law and English law, but Lord Sutherland has stated that harmonisation is only desirable where it involves no departure from Scot’s law.
s64 SOGA
Sale of Goods act doesn’t apply when transaction is intended to operate by way of security
What is security?
According to Gloag and Irvine its “any right which a credit may hold for ensuring payment or satisfaction of his debt”
What does assignation of a security require?
For assignation to be effective, there must be intimation to the debtor- the potential cost of delivering each of the assignations for small loans would make it impractical to use assignation.
Bankruptcy and Diligence Act 2007 on floating charge?
This part of the Act hasn’t yet been enacted, and so there’s doubts that if it will ever be enforced. If the legislation is introduced, the new register of floating charges would be created.
When does a floating charge become a real right?
The floating charge becomes a real right when a company is liquidated- when company is liquidated, the charge attaches. In some instances, the charge will attach when administrators are appointed- (i) if there’s insufficient assets to pay creditors and the administrator serves notice (ii) if a court condrnts to a distribution by the administrator to a party that isn’t a secured creditor, preferential creditor or towards the prescribed part
Sale of Goods act doesn’t apply when transaction is intended to operate by way of security
s64 SOGA
What are moveable securities?
Pledge, lien
What is a pledge?
Pledge- express security over corporeal moveables. An express security means that it’s a voluntary security and arises through agreement. It’s done by choice. Delivery- actual (giving it over) or constructive (keeper instructed by debtor to hold goods on behalf on creditor- not enough to assign unless it’s intimated to the keeper) or symbolic (giving keys to car).
A consumer pledge is pawn-broking.
What is a Lien?
Lien- a tacit security meaning that it arises through the operation of law and no agreement is necessary. Lien can be general or special. It’s a real right to retain the property until the discharge of an obligation. Special liens traditionally arise when a person holds property and has carried out work on it (ie shoe repairmen). A solicitor has a lien over all a client’s papers and funds, even those that don’t concern the issue that they haven’t received payment for. A banker is in the same position. The lawyer and bankers lien is a general lien.
Can you sell assets that fall under a floating charge?
Yes, prior to attachment, the corporation is in charge of all assets and can sell them without requiring juridical act by the creditor. A floating charge isn’t a real right before attachment but instead hovers over the assets of the company until it attaches.
What can a floating charge be granted over?
A floating charge can be granted of the whole property and undertaking of a company, but can be limited i.e only over heritable property/corporeal moveables. What’s crucial is that it can be granted over all the assets.
Why do corporations use floating charges?
It allows them to retain the possession of all goods.
Registering floating charges?
A floating charge must be registered within 21 days of creation in the Charges Register to be valid. A floating charge can affect heritable property without the need to register it in the Land Register. A security can be granted over heritable property without requiring registration.
What is a hypothec?
A hypothec is a right established by law over a debtor’s property that remains in the debtor’s possession. It can be tacit (ie Landlord’s hypothec) or express (i.e Ship Mortgage)
