Charges Over Chattels - Issues in the Fixed/Floating Jurisprudence

17 Pages Posted: 28 Sep 2004

See all articles by Stephen Atherton

Stephen Atherton

Chambers of Michael Crystal QC

Riz Mokal

South Square; University College London - Faculty of Laws; University of Aberdeen - School of Law

Date Written: September 2004

Abstract

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 [2004] 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 [1995] 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) [1995] 1 AC 74, it highlights the importance of identifying with sufficient specificity assets intended to be subjected to a fixed charge.

Keywords: Agnew, Brumark

JEL Classification: K11, K22, G21, G33

Suggested Citation

Atherton, Stephen and Mokal, Riz, Charges Over Chattels - Issues in the Fixed/Floating Jurisprudence (September 2004). Available at SSRN: https://ssrn.com/abstract=593448 or http://dx.doi.org/10.2139/ssrn.593448

Stephen Atherton

Chambers of Michael Crystal QC ( email )

3/4 South Square
Gray's Inn
London WC1R 5HP
United Kingdom

Riz Mokal (Contact Author)

South Square ( email )

3-4 South Square
Gray's Inn
London, WC1R 5HP
United Kingdom

HOME PAGE: http://southsquare.com/barristers/riz-mokal/

University College London - Faculty of Laws

Bentham House
4-8 Endsleigh Gardens
London, WC1E OEG
United Kingdom

HOME PAGE: http://www.ucl.ac.uk/laws/

University of Aberdeen - School of Law ( email )

Taylor Building
King's College
Aberdeen, Scotland AB24 3UB
United Kingdom

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