Floating Charge Essay

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An issue of distinguishing a fixed and a floating charge has considerable significance particularly for the parties involved in commercial relationships. It follows from the fact that under English law a fixed charge has a priority over a floating charge that means the former will prevail over the latter even though the company has granted a floating charge to the creditor prior to the creation of a fixed security. Another reason is that under the provisions of Insolvency Act 1986 holders of a floating charge are placed in a less favourable position than the holders of a fixed charge particularly due to sec. 176 of the Act which prevents the distribution of a certain portion of the company’s net property to the holder of a floating charge…show more content…
Lord Scott in Re Spectrum went further by saying that the first two criteria are not often material for every floating charge.
When providing the distinction between the above charges the two stage process of legal characterization developed in Agnew must be applied by the English courts. The object of the first stage of the process is to ascertain the nature of the rights and obligations which the parties intended to grant each other in respect of the charged assets. Once these have been ascertained, the Court can then embark on the second stage of the process, which is one of categorization and designed to attribute the correct legal label to the package of rights and obligations. Lord Millett’s reasoning has been approved by the House of Lords in Re Spectrum in which emphasis was given to the freedom of the company to deal with the assets in the ordinary course of business rather than the two first criteria focusing on the nature of the secured assets.
The breakthrough decision on the distinction of charges over book debts became the Siebe Gorman case where Slade J held that the restrictions placed on the company’s power to deal with the proceeds of the debts gave the bank a degree of control which was inconsistent with a floating charge and therefore the debenture given to Barclays was a fixed charge. The case caused a significant effect to commercial practice as it
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