Proprietary rights and insolvency / Richard Calnan.
2010
KD2160 .C35 2010 (Map It)
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Details
Author
Title
Proprietary rights and insolvency / Richard Calnan.
Published
Oxford [England] ; New York : Oxford University Press, 2010.
Call Number
KD2160 .C35 2010
ISBN
9780199228584 (hardback)
0199228582 (hardback)
0199228582 (hardback)
Description
xxxvii, 436 pages : illustrations ; 26 cm
System Control No.
(OCoLC)298596251
Summary
"This topical title explains the circumstances in which a creditor of an insolvent debtor can take priority over other creditors by claiming a proprietary interest in assets held by the debtor. It focuses on the situation where the proprietary interests are created by operation of law or implied from the arrangements between the parties, rather than by express transfer or taking of security. The book clarifies the current state of the law in an important area of insolvency law (especially in times of economic crisis) where the law is not settled, taking into account the latest developments in case law, and suggesting how it might be simplified by going back to first principles, such as the way proprietary interests are transferred at common law and in equity. The book concerns both insolvency law and property law, being essentially concerned with the limits of the law of property, marking out its boundary with the law of obligations. It is of particular importance in common law systems because of the nature of equitable proprietary interests, and includes reference to Commonwealth authorities where relevant, including Australia, New Zealand and Canada. This work provides a structured and principled analysis of the topical and important area of creditors' proprietary rights in the event of insolvency of a debtor"--Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Gift
Purchased from the income of the Powell Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Powell Fund
Table of Contents
Preface
xxi
Table of Cases
xxv
Table of Statutes
xxxv
Table of Statutory Instruments
xxxvii
PART 1 INTRODUCTION
1. Pari Passu Sharing
3
A. The principle
3
A creditor's rights in an insolvency cannot be increased by contract
A debtor's assets cannot be removed on his insolvency by contract
An agreement by a creditor to take less on his debtor's insolvency
The part passu principle as a distribution principle of last resort
Summary
B. Exceptions to the principle
15
Real exceptions
False exceptions
C. Proprietary claims
18
The principle
An example of the principle
The history of the principle
Personal and proprietary rights: the importance of the distinction
The distinction
Examples of the distinction
Specific performance: a further example of the distinction
Remedial constructive trusts: the continued importance of the distinction
Enforcing personal rights in an insolvency: fudging the distinction
Limiting proprietary rights in an insolvency
D. Limits on proprietary claims in an insolvency
30
Claw-back
The period of vulnerability
Transactions at an undervalue
Preferences
Floating charges
Moratorium
E. Criticisms of the principle
38
2. The Nature of Proprietary Interests
43
A. Introduction
43
B. The distinction between personal and proprietary rights
44
The importance of the distinction
Drawing the distinction
Establishing a proprietary right
Leases of goods
Licences of land
Charterparties of ships
Conclusion
Limitation periods
C. Types of proprietary interest
56
Legal and equitable interests
Land, goods, and intangibles
Outright and secured transactions
Intended and imposed interests
Original, substitute, and unconnected assets
D. Remedies
64
Legal remedies
The importance of a claim in conversion
What rights does conversion protect?
Equitable remedies
Knowing receipt
Dishonest assistance
PART 2 RETAINING OR RECOVERING A PROPRIETARY INTEREST
3. Retaining a Proprietary Interest by Agreement
79
A. Introduction
79
The fundamental requirements of the retention of a proprietary interest
Certainty of intention
Certainty of subject matter
Certainty of objects
Distinguishing retention from creation
Registration of security
Priorities
B. Retaining an interest
84
Retention of title to goods
Reservation of title
Reservation of beneficial title
Identification
C. Losing the interest
89
Someone else obtains a better proprietary right over the asset
Goods: legal title
The nemo dat principle
The exceptions to the principle: generally
Authority
Possession with consent
Money
Goods: beneficial title
Bona fide purchaser of a legal interest
Fixtures, mixtures, and manufactures
Fixtures
Manufactures
Mixtures
The difference between manufactures and mixtures
4. Retaining or Recovering a Proprietary Interest by Operation of Law
109
A. Introduction
109
B. Payments of money
113
Coins and notes
Negotiable instruments
Bank transfers
C. Retention of title at common law
119
The importance of intention
Intention: whether title passes
Intention: when title passes
Intention: to whom title passes
D. Recovering tide
128
The nature of the transferor's interest
The interest after rescission
The interest before rescission
Bars to rescission
How to rescind
Rescission of payments of money
E. Retention of tide in equity
137
The principles[—]generally
The principles[—]money
Two categories of case
Cases where the payer's mistake has been induced by the recipient's wrongdoing
Cases of innocent mistake
Sinclair v Brougham
The Chase Manhattan case
The Westdeutsche case
The position at the end of the twentieth century
Twenty-first century cases
F. Unpaid vendor's lien
150
Contracts for the sale of land
Contracts for the sale of intangibles and goods
Why do we have unpaid vendors' liens?
G. Principles
154
PART 3 OBTAINING A PROPRIETARY INTEREST BY AGREEMENT
5. Obtaining a Proprietary Interest by Express Agreement
159
A. Introduction
159
B. The transfer of proprietary interests at common law
162
The principles
Goods
Land
Intangibles
C. The transfer of proprietary interests in equity
167
Holroyd v Marshall
Why does a beneficial interest pass?
In what circumstances does a beneficial interest pass?
The nature of the promise
The nature of the transaction and of the asset
Secured transactions
Outright transactions-generally
Outright transactions-land
Outright transactions-goods
Outright transactions-intangibles
Voluntary transactions
Formalities
D. Identifying the asset
181
The basic principle
Part of an asset: the problems
Part of an asset: the cases
Contracts for the sale of goods
Contracts for the sale and storage of goods
Gifts, and contracts for the sale, of shares
Part of an asset: summary
6. Obtaining a Proprietary Interest by Implied or Presumed Agreement
199
A. Introduction
199
Implied intention
Presumed intention
Outline of this Chapter
B. Sale of another person's asset
202
Illustrations of the principle
Reservation of title cases
Proceeds of sale
New asset
Security interests
C. Payment of money for investment
213
D. Payment of money to discharge a particular liability
215
Quistclose and its progenitors
Examples of the application of the principle
The nature of the trust
E. A debtor sets aside assets for his creditor
225
F. An insolvent person sets aside assets
228
G. The commercial cases: principles
232
What links the categories of case which have been discussed?
Indications of a trust
Separate account
Identity of recipient
H . Family homes
236
Presumptions and resulting trusts
Family homes: the earlier English approach
Family homes: Commonwealth comparisons
Family homes: the new English approach
Family homes: is the trust presumed or imposed?
PART 4 OBTAINING A PROPRIETARY INTEREST IN A SUBSTITUTE ASSET BY OPERATION OF LAW
7. Tracing at Law
255
A. What is tracing?
255
A description of tracing
Another description of tracing
The nature of tracing
The requirements of tracing
A divided law of tracing
Tracing and following
The importance of tracing
Structure of this Chapter
B. Tracing at law: the principles
261
Who is the legal owner of a substitute asset?
What is the conceptual basis of tracing at common law?
Arguments in favour of a broader concept of tracing at common law
Why is tracing at common law important?
Tracing into land and intangibles
C. Tracing at law: the cases
270
Tracing against the wrongdoer
Taylor v Plumer
The problem with Taylor v Plumer
Seen v Surman
Re J Leslie Engineers
Tracing against third parties
The importance of common law tracing
The cases
Banque Beige v Hambrouck
Littkwood v Williams and Marsh v Keating
Branwhite v Worcester Works Finance
Lipkin Gorman v Karnak
8. Tracing in Equity
295
A. Introduction
295
B. The requirements of equitable tracing: the principles
296
The justification for the principle
When is a disposition wrongful?
C. The requirements of equitable tracing: the cases
300
Re Hallett's Estate
Later cases
Re Diplock
Foskett v McKeown
D. Equitable tracing and fiduciary relationships
307
The nature of fiduciary relationships
The later cases
Theft
The nature of equitable tracing
E. Identifying the substitute asset
316
The development of the identification principles
Five principles
Principle 1
Overdrawn bank accounts
An example of the principle: Bishopsgate Investment Management v Homan
A possible exception to the principle: Boscawen v Bajwa
Principle 2
Roscoe v Winder
Payments intended to remedy the breach of trust
Principle 3
The exception
Principle 4
Clayton's case
The lowest intermediate balance rule
Pari passu sharing
Principle 5
PART 5 OBTAINING A PROPRIETARY INTEREST IN AN UNCONNECTED ASSET BY OPERATION OF LAW
9. Obtaining a Proprietary Interest in an Unconnected Asset by Operation of Law
343
A. Introduction
344
B. Breach of fiduciary duty
348
The cases: breach of fiduciary duty
The cases: the proprietary approach
The cases: the personal approach
Which approach is correct?
The problem with money
C. Use of another's property, information, or opportunity
365
Where there is a fiduciary relationship
Where there is no fiduciary relationship
Property
Information
Opportunity
D. Proprietary estoppel
369
Circumstances in which proprietary estoppel is available
Cases 1 and 2: Representation and non-disclosure
Case 3: Commercial undertaking
Case 4: Non-commercial undertaking
Case 5: Family homes
The remedy
E. Avoiding formalities
385
F. Fraud and unconscionable conduct
389
G. Remedial constructive trusts
393
The Canadian approach to family homes
The Canadian approach to commercial cases
The New Zealand approach
The English approach
A possible role for the remedial constructive trust
H. Legal security interests
403
Possessory liens
Particular liens
General liens
Why do we have possessory liens?
I. Equitable security interests
407
Subrogation
Contracts of sale and similar contracts
Contracts of sale
Other types of contract
Salvage
J. Principles
418
Substitute assets
Unconnected assets
Remedies
Index
423