Charges over Chattels - Issues in the Fixed/Floating Jurisprudence
Chambers of Michael Crystal QC
University College London (UCL) - Faculty of Laws; World Bank Global Initiative on insolvency and Creditor/Debtor Regimes; 3-4 South Square Chambers
This practitioner-oriented paper provides a comprehensive synthesis of the factors identified in English case-law as relevant to the somewhat neglected question whether a charge over chattels is fixed or floating. The paper also conducts an exhaustive analysis of the situations in which a court might examine post-contractual conduct in order to answer this question. Further,
(a) it derives a test from the recent judgment in Ashborder BV v Green Gas Power Limited  EWHC 1517 to ascertain whether particular assets subject to a charge are capable, in their nature, of being disposed of in the ordinary course of the debtor's business,
(b) it examines and criticises the problematic decision in Re Cimex Tissues Limited  1 BCLC 409 in the light of Holroyd v Marshall (1862) 10 HL Cas 191 et al, and
(c) in the context set by the Privy Council's advice in Re Goldcorp Exchange Limited (in receivership)  1 AC 74, it highlights the importance of identifying with sufficient specificity assets intended to be subjected to a fixed charge.
Number of Pages in PDF File: 17
Keywords: Agnew, Brumark
JEL Classification: K11, K22, G21, G33
Date posted: September 28, 2004
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