учебный год 2023 / Goode, Legal Problems of Credit and Security

Sale pro.,.ds--cont. enforcement, 1~62, 1~3 generally, 1~59

interest runs forward to proceeds and not back to asset, 1-6& meaning and identification, 1~61 one or two security-interests, 1-64

relationship with asset, I~7 sub-security, I~70

surpluses on realisation, 1~9 unauthorised dispositions, 1~60

directions as to application of security interests, 1~26

sub-participation loan assets, 1-24,

1~82

surplus, 1~9

Sale and repurchase (repo) investment securities

transfers and pledges compared, 621

receivables, 3-08 Searches

pre-completion, 5~31

priority of registrable interestsj 5-29, 5-31

Secured creditors priority

effect of enforcement, 5~34 floating charge, 5-37 non-consensual rights and

interests, :;-36 outright buyers, .:;-35

Securities

see Investment securities Security

impermissible objects, 1~55 permissible objects, 1-55 purposes, 1-01

Security interests

accretions to security, 1---56 agreements for security, 1~18 ascertaining the obligations of the

parties

, common funds, 1~38

~generally, 1-33 -lease-backs.and repurchases,,

1-37

,transfers to reduce existing indebtedness, 1-34, l ~35

transfers towards future indebted11ess, 1-36

attachment requirements, 2-04 avoidanee, 5-69

comparative study, 5~02 competition iu, 5-01 contractual conditions of

repayment distinguished, 1-21 contractual set-off, 1-19

current bank accounts, 1-20 derivative security, 1-57, 1~70 directions as to application of sale

proceeds, 1~26, 1-27 fixed charges

ebarge-backs and pledge-backs, 1-40

generally, 1-39

nature and scopej 1-17 floating charges, 4-03, 4-06 funds, 1-41

identification requirement, 2-05 modernisation of law, 5-02 nature and scope, 1-16 negative pledges, l-22, 1~74 permissible objects, I-55

purchase money providers, 5-{}2, 5-63

reservation of title

claims to proceeds, 1~31

no interest or power of disposal,

1~28

products of goods supplies, 1-32

reservation securing another indebtedness, 1-30

sale of goods, 1-29

sale of sub-participation~ 1~24

sub·fteight liens, l-25 subordination, 5--01 subordination agreements; 1-23,

l-79, 1-82 Segregated accounts

basis of novation, 3-03

form of investment security, 6-01 holding patterns for investment

securities, 6---03

lower-tier intermediaries, 6--15 Sell/buy hack

investment securities, 6--17, 6···18, 6-21

transfers and pledges compared,

~21

Set...,JI

see also Netting

abatement distinguished, 7-15, 7-74

availability, 7-0 l common features, 7--03 contractual

assignees, 7-26

bank deposits, J..J9, 1~20 charge-back, 3-12 freezing injunctions, 7~2& generally, 7-06

legal limits, 7-25, 7-31 quasi security device, 1-03 requirements, 7-21

third party claims, 7-27 unliquidated and contingent

claims, 7~22

counterclaims distinguished, 7~16 cross-border claims, 7-23 cross-currency claims, 7-24 current accounts

combinitig accounts. 7-32 cross~border combination, 7-33

cross-currency, 7···34 exclusion of rights, 7-35 generally, 7-07

BC control of collateral agreements,

&41' &42

equitable, 7-04, 7~36, 7-48 executory contracts, 7-98 history, 7-10 independent/statutory, 7-04

addition to or in lieu of substantive defence, 7-40

against assignee~ 7-64, 7-68 by assignees, 7~63 conditions for entitlement,

7~1 746,7-46 Crown claims, 7~71 exclusion agreements, 7~70

limitations, 7-37, 7-38, 7~39 no bar to self-help remedies,

7-37, 7~38, 7-39 pleadings, 7-·69 procedural shield, 7~36 signiftcance, 7·.47

insolvency

conditions for entitlement,

7..82-7-89

contingent claims. 7-91, 7-92,

7~93, 7-95

excluded debts, 7-90 executory contracts, 7-98 generally, 7·08

hindsight principle, 7-81 mandatory principle, 7-79 mutuality, 7-77, 7-84, 7-85 preferential debts, 7-··99 retroactivity principle, 7~80 termination of debts, 7-86 underlying principles, 7-78

insolvency of clearing houses statutory amelioration, 7-31

uncompleted multilateral arrangements, 7-30

meaning, 7~0l

omnibus accounts~ 6--13 payment, 7-12

priority of floating charges, 5-48 proceeds, l~9

receivables, 3-03

right to repayment distinguished,

7-13

running~accounts distinguished~

. 7~11

scope, 7~01

security over credit balances distinguished, 7-14

substantive or procedural defence. 7-02

suretyship guarantees, 8-02, 8-12 transaction/equitable

against assignees, 7-64, 7-68 by assignees, 7-63 . commercial credits and

performance bonds, 7-·59 conditions for entitlement,

7-49-7-56,7-56 Crown claims, 7-71 exclusion agreements, 7-70 freight and hire, 7·61 generally 7-05

meaning, 7-48

mode of exercise, 7~54, 7-55 negotiable instrum~nts1 7-58 overt assertion of Cross-claim,

7-54,7-55 pleading, 7~69 rent, 7~60

secured debt, 7-62 tn1stee, 7-53

types, 7-03 Settlement

BC Directive on Settlement Finality, 6-33

netting, 7~19 Sham transactions

ownership for the purpose of security, 1-04

Shares

pledges, l ~47

Ships

registration of security, 1-12

Social security benefits

not available as security, 1-55 Standby credit

suretyship guarantee distinguished, 8-02

transaction/equitable set-off, 7-59

Statutory assignments equitable and legal charges

distinguished, 1-12 Stock lending

floating charges, 4--02 investment securities, 6-17,6-19

Stock in trade

documents of title, 4--19

fixed or floating charges, 4--17 priority

fixed and floating charges, 5-82 receivables distinguished, 4--17

Sub-participation funded, 1-82 nature, 1~82

Sub-security

subordination of fiXed to floating charges, 5-60, 5-61

suretyship guarantees creditor's duty of care") 8-13 surety, 8--25, 8-26

Substitution

investment securities~ 6---33

Suretyship

see also Guarantees guarantees

accessory contracts, 8-02 bankruptcy of debtor, S--17,

8-29

bankruptcy of debtor and surety, 8-33, S--34

bankruptcy of surety, 8-30, 8-33 continuing security, 8-05, 8-06 creditor's duty of care, 8-13 debtor's request1 8-08 distinguished characteristics, S-il2: duration, 8-07 · · excluSion clausesJ 8·--15

grounds of discharge, 8-14 nature of undertaldng, S--09

,, revival of after preference. 8~29 ~.right against co-surety, 8-12

nghts against debtor, 8-11 ' unilateral and bilateral contracts,

8-04

writing requirement, 8-03 Surpluses

realisation of assets, 1-69 Systemic risk

reduction, 6-34, 7-31, 7-101

Tacking goods, 5-21 land

initial advances, 5-19 modification of rules, 5-17 registered land, $-20 unregistered land, 5-18

personalty, 5-21 priority, 5-77

priority of further advances, 5-lO receivables, 5-21

Tangible assels

identification of security interests for attachment, 2-05

possessory and non-possessory security distinguished, 1-07, 1-08

real security, 1-06 scope for security, 1-07

Third parties

consensual security, 1-15 Title documenls

stock in trade

fixed or floating charges, 4--19 Title transfer

distinguished from pledge, I-ll, 6-21,6-22

EC financial collateral directive)

6-38

·rraelng

floating charges, effect of crystallisation of, 4-06

mortgages assignment and novation compared, 3-03

receivables, 3-36 Thldlng

crystallisation of floating charge, 4--31,4--33

Trnll!laction/equitable set-off, 7-05 against assignees, 7-64, 7-68 · by assignees, 7-63

conditions for entitJement~ 7~9,

7-56

credits and performance bonds, 7-59

Crown claims, 7-71 determination by the tribunal,

7-57

exclusion agteements, 7-70 freight and hire, 7...6] generally 7-05

meaning, 7-48

negotiable instruments, 7-58 pleadings, 7-69

rent, 7-60

secured debts, 7-62

Transfers

ascertaining the obligations of the parties

c01runon funds, 1-38

existing indebtedness, I-34, 1-35 future indebtedness. 1-36 lease-backs and repurchases, 1-37

attachment requirements, 2--04 charges distinguished, 1-51, 1-52 mortgages, 1-11

pledges distinguished, 6-20 requirements, 6-21

Trust

basis of novation, 3-03

equitable assignments, 3-17, 3-19 form of equitable mortgages, 1-53 independent security device, not,

l-53

investment securities, 6-11 legal and equitable security

distinguished, 1-12 omnibus accounts, 6-12, 6-14 perfection of receivables by

attornment, 3-33

relationship between investor and issuer, 6-10

Undervalue transactions bona fide business, 8-38 guarantees, S--37 meaning, 8--36

setting aside, S--39 statutory provisions, S--35

UNIDROIT Convention investment securities. 6--13

Uniform Commercial Cnde article 8, 6-12

article 9, l-04 Unincorporated traders

floating charges, 4--01 perfection of receivables by

registration, 3-30 Unsecured debts

subordination agreements, 1~81 Use, righls of

EC control of collateral agreements, &.43

functional approach to security,

1-04

investment securities excess securities, 6-32 scope, 6-30 substitution, 6 ..J!, 6-33 withdrawal, 6..JJ, 6-32

Validity

EC control of collateral agreements, 6-39

Voidable preferences, 7-100 insolvency, 5--69, 7-100 revival of surety1S obligations.

8-29

Waiver

see also Subordination

binding transferee, whether, 5-56 certificates of non-crystallisation,

5-57 crystallisation, 4-57 duration, 5-55 effect, 5-54 enforceability, 5-54

floating charges, 5-83, 5-57 formalities of attachment, 5-53 permanent, 5--55 subordination distinguished,

5-53

subsequent encumbraneers, 5-56 temporary, 5-55

Winding-up

automatic crystallisation, 4--51 crystallisation of floating charge,

4--32 expenses, 5-68

priority of floating charges and preferential debts, 5·..(55, 5-66

suretyship guarantees and preference of surety, 8-22

Withdrawal

use of investment securities, 6··Jl, 6-32