учебный год 2023 / Ferran, Floating Charges. The Nature of the Security

232

The

Cambridge

Law

Journal

[1988]

was

that

the

purchaser

should

be

restrained

from

dealing

with

the

assets otherwise

than

in

the

ordinary

course

of

the

chargor's

business;

but

since

the

charge

had

crystallised,

all

transactions,

whether

in

the

ordinary

course

of

business

or

not,

could

have

been

restrained.

It has

been

suggested34

that

some

cases

dealing

with

the

competing

claims

of

execution

creditors

and

floating

chargees

also

appear

to

provide

support

for

the

argument

that

an

uncrystallised

floating

charge

creates

an

interest

binding

on

all third

parties

other

than

a

bona

fide

purchaser

for

value

without

notice

of

the

fact

that

the

company

has

entered

into

a

transaction

outside

its

trading

powers.

In

Davey

& Co.

v.

Williamson

& Sons,35

a floating

chargee

was

held

to

have

priority

to

an

execution

creditor.

One

of

the grounds

for

this

decision

appeared

to

be

that

execution,

far from

being

a

dealing

in

the

ordinary

course

of

business,

was

not

a

dealing

at

all;

further,

as

the

seizure

of

the

assets

in

execution

was

outside

the

trading

power,

the

assets

were

subject

to

the

debentureholder's

charge.

This

interpretation

was

followed

in

Cairney

v.

Back,36

where

Walton

J.

cited

Davey

v.

Williamson

as

authority

for

the proposition

that

"the

title

of

the

debentureholder

prevailed,

although

the

rights

of

the

debentureholder

had

not

crystallised".

However,

whilst

these

cases

may

be

justifiable

on

their

facts,

it

is

difficult

to

uphold

Walton

J.'s

interpretation,

quoted

above,

in

the

light

of

the

decision

of

the

Court

of Appeal

in

Evans

v. Rival

Granite

Quarries

Ltd.31

In

the

first

place,

the

Court

of

Appeal

expressly

rejected

the

argument

that

enforcement

of

legal

process

was

not

within

the

trading

power:

the

right

of

the

company

to

carry

on

its

business

as

it

wills

pending

the

enforcement

of

the

security

must

mean

that

it

may

carry

it

on

in

accordance

with

law

including

a

liability

to

the

processes

of

the

law

if

it

does

not pay

its

debts.38

Secondly,

the

argument

that

the

interest

created

by

a floating

charge

was

capable

of

binding

those

who

dealt

with

the

company

in

transactions

outside

its

ordinary

course

of

business

was

quashed:

A

floating

security

is

not

a specific

mortgage

of the

assets

plus

a

licence

to

the

mortgagor

to

dispose

of

them

in

the

course

of his

business,

but

is

a

floating

mortgage

applying

to

every

item

comprised

in the

security

but

not

specifically

affecting

any

item

until

some

event

occurs

or

some

act

on the part of the mortgagee

is

done

which

causes

it

to

crystallise

into

a fixed

security.39