Secretarial practice

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Monograph

Identifikator:: 1828236004

URN:: urn:nbn:de:zbw-retromon-249926

Document type:: Monograph

Title:: Secretarial practice

Edition:: fourth edition

Place of publication:: Cambridge

Publisher:: W. Heffer & Sons Ltd

Year of publication:: 1930

Scope:: viii, 987 Seiten

Digitisation:: 2022

Collection:: Economics Books

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Document type:: Monograph

Structure type:: Chapter

Title:: Chapter XXIV. Scottish companies

Collection:: Economics Books

310 SECRETARIAL PRACTICE According to the common law of Scotland no security can be effectively created over moveables or personal property vetentd possesstone. This general rule has been to some extent modified by statute, but broadly speaking the law remains as stated. In order, therefore, to create an effective charge or security of such property, delivery, either express or constructive, must have been given to the creditor and retained by him. In the case of moveables, such as stock- in-trade, etc., actual delivery or transfer to the creditor—an operation, however, which, consistently with the proper carrying on of business, is usually found to be more or less impracticable—leaves no room for doubt, but the same result may be achieved constructively, e.g. by the transfer of goods in store from the name of the owner and borrower into that of the lender. Similarly, if obligations are assigned, the assignment must be intimated to the obligant; e.g. the assignment of uncalled capital by intimation to the share- holders who are liable. One result of the rule referred to is to render the existence of the floating charge known to English law impossible in the case of a company registered in Scotland over Scottish assets [see Clark v. West Calder Oil Company (1882), 9 R. 1017; Ballachulish Slate Quarries v. Menzies (1908), 45 S.L.R. 667]. Accordingly, in Scotland, debentures issued under the Companies Acts are confined to three classes: (1) naked debentures, which are no more than a personal obligation by the company for repayment of money advanced on loan; (2) debentures secured over moveable or personal rights or property by actual or constructive delivery or transfer to the lenders or trustees for lenders; and (3) mortgage debentures secured over heritable or real property. Naked As to (1), naked debentures, the lender is, subject to the Debentures. variation in procedure in the matter of enforcing recovery, practically in the same position as a lender under a naked debenture of an English company. The rights of debentures of this class are now not infrequently regulated by the terms of a separate deed of trust, under which trustees are appointed, instead of being expressed in the debenture itself. =~ The advantages of such an arrangement in case of default lie chiefly in the convenience by which the claims of the debenture holders in case of liquidation are advanced and controlled by the trustees in the general interest in terms of the provisions of the trust deed. But the existence of such trusts, of which there are now many, does not carry the actual richts of the debenture holders as regards security Floating Charge.

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