Part V Enforcement, 18 Enforcement of True Security Interests

2018 ◽  
Author(s):  
Beale Hugh ◽  
Bridge Michael ◽  
Gullifer Louise ◽  
Lomnicka Eva
Keyword(s):  
Property Rights ◽  
Residual Property ◽  
English Law ◽  
Judicial Treatment

This chapter explains how a number of general issues arise in connection with the enforcement of true security interests that will be taken before particular enforcement issues are dealt with under the relevant head. True security interests consist of the four nominate types of security recognized in English law, namely, the three consensual securities of pledge, mortgage, and charge, together with the non-consensual lien. The obligation of a secured party to account for any surplus obtained is implicit in the nature of security. In the case of a pledge, this is consistent with the pledgor’s residual property rights. This obligation is also consistent in the case of mortgages. Charges and mortgages may be taken together, given that they are assimilated in drafting practice and in judicial treatment as alike in recognizing the borrower’s equity of redemption.

1. Introduction to Property and Land

2019 ◽  
pp. 1-27
Author(s):  
Martin George ◽  
Antonia Layard
Keyword(s):  
Property Rights ◽  
Residential Area ◽  
Third Party ◽  
Real Property ◽  
Personal Property ◽  
The Third ◽  
English Law ◽  
The Third Party ◽  
The Right ◽  
Ownership Rights

Land is an important commodity in society that it is both permanent and indestructible, two features which distinguish it from other forms of property. More than one person can have a relationship with the land and share the right to possess it. The right to possess a land is known as ownership right, but it is also common for people to have enforceable rights in other people’s land. This is the third party right, an example of which is where the owner of a house in a residential area agrees with neighbours that the house will only be used as a residence. This chapter discusses land and property rights, ownership rights, third party rights, and conveyancing. It also examines the distinction in English law between real property and personal property, the meaning of land, items attached to the land, fixtures and fittings, and incorporeal hereditaments.

The reason for treating personal injury claims separately is that they raise problems not encountered in actions for other types of loss. In an action for financial loss, monetary compensation is adequate. Similarly, physical damage to property can be compensated by a monetary payment equivalent to the market value of the property damaged. But, where a person loses a leg or suffers pain, money is the only compensation available, but the market value of a leg or pain is impossible to ascertain. The concentration of English law on property rights appears to be to blame for this. As far as possible, the courts have treated personal injuries as depriving a person of a property right, but this approach is difficult to justify in relation to subjective losses, such as pain, suffering and mental distress. A particular variety of loss which creates difficulty of assessment of damage is that of mental distress. Such distress can be caused in one of two ways. In the first place, it may be distress consequent on physical injury and, secondly, it may result from some cause quite separate from any form of physical harm. The first of these two is readily dealt with as a variety of consequential loss, and provided it is not too remote it should be recoverable. The second variety is more problematic, but it should not be believed that English law gives no remedy for mental distress. In the first place, just as in the law of tort, an action for damages for breach of contract will be allowed where it is foreseeable at the time of contracting that the claimant might suffer psychiatric harm. For example, in Cook v Swinfen, the respondent solicitors negligently handled a divorce action with the result that the appellant, their client, suffered from an anxiety neurosis. In the event, it was held, on the facts, that a breakdown in health was not a foreseeable consequence of the failed litigation, but the court, nonetheless accepted that had it been a foreseeable loss, it would have been actionable.

1995 ◽  
pp. 664-664
Keyword(s):  
Property Rights ◽  
Mental Distress ◽  
Market Value ◽  
Property Right ◽  
Personal Injury ◽  
Physical Injury ◽  
Financial Loss ◽  
Physical Damage ◽  
Breach Of Contract ◽  
English Law

1. The Scope of the Subject

2017 ◽  
Author(s):  
Mark P. Thompson ◽  
Martin George
Keyword(s):  
Property Rights ◽  
Residential Area ◽  
Third Party ◽  
Real Property ◽  
Personal Property ◽  
The Third ◽  
The Subject ◽  
English Law ◽  
The Right ◽  
Ownership Rights

Land is an important commodity in society that it is both permanent and indestructible, two features which distinguish it from other forms of property. More than one person can have a relationship with the land and share the right to possess it. The right to possess a land is known as ownership right, but it is also common for people to have enforceable rights in other people’s land. This is the third party right, an example of which is where the owner of a house in a residential area agrees with neighbours that the house will only be used as a residence. This chapter discusses land and property rights, ownership rights, third party rights, and conveyancing. It also examines the distinction in English law between real property and personal property, the meaning of land, items attached to the land, fixtures and fittings, and incorporeal hereditaments.

scholarly journals Common Law Equity in a Civil Law Country

2013 ◽  
Vol 44 (3/4) ◽  
pp. 427
Author(s):  
A H Angelo ◽  
Ashleigh Allan
Keyword(s):  
Property Rights ◽  
Common Law ◽  
Civil Law ◽  
Civil Code ◽  
English Law

This article serves to introduce an aspect of current research related to the review of the Seychelles Civil Code and the important question of the role of trusts. The Civil Code is based on the Code Napoléon and has therefore no provision for the trust of English law. The Courts of Seychelles have, however, a statutory equitable jurisdiction. That jurisdiction has given rise to the question whether the trust of England may be able to operate in Seychelles. The prime area of discussion of this possibility has been in relation to the property rights of the parties to a failed concubinage relationship. This article focuses on that discussion. 

Property Rights over Money: the Italian Perspective and English Law

Global Jurist ◽  
2011 ◽  
Vol 11 (2) ◽  
Author(s):  
Ilaria Amelia Caggiano
Keyword(s):  
Property Rights ◽  
Legal System ◽  
The Other ◽  
Property Law ◽  
First Case ◽  
Italian Law ◽  
English Law

The work considers money in a different way depending on whether it is used as a means of payment or for other functions. Only in the first case it comes to evidence a characteristic proprietary regime which cuts across the different categories of property by which money assets are represented. In the other cases, money should be considered simply as a fungible asset. However, rules of specification of fungibles should be reconsidered. Specifically, the paper deals with the issues arising in transactions where money is transferred to an intermediary for management. It aims to show that the transferor or the beneficiary keeps real interests in the money transferred. It argues how these interests may be relevant to Italian law, by comparing it with the English legal system. The paper demonstrates that reference to property law may be useful for evaluating the quantum of rights of the transferor of money by referring to the concept of value and by the analysis of law of mixtures under the Italian and the English law. The analysis is worked out in terms of corporeal money but argues that law reaches equivalent outcomes for incorporeal money in the field under consideration.

Claims to Traceable Proceeds

2018 ◽  
Author(s):  
Aruna Nair
Keyword(s):  
Property Rights ◽  
Historical Development ◽  
Third Party ◽  
Legal Rights ◽  
Rational Basis ◽  
Fiduciary Duties ◽  
Legal Power ◽  
English Law ◽  
Relationship Of ◽  
Prior Relationship

This book explains the rational basis of the law of tracing, and why and when English law makes claims to traceable proceeds available. Tracing enables a claimant to make a proprietary claim to an asset acquired by a defendant from a third party, on the grounds that that asset represents the ‘traceable proceeds’ of another asset that belonged to the claimant. The book argues that the rules that allow this connection between assets to be established—the rules of tracing—aim to strike a balance between preserving the autonomy of defendants in making decisions to acquire or retain assets and preventing them from exploiting their power to deprive claimants of rights by such decisions. This account of tracing explains its historical development and its application in modern contexts. It also explains the availability of claims to traceable proceeds: an exploitation of power, of the kind that tracing is concerned with, can take place only in the context of a prior relationship of ‘control of assets’, whereby one person has a legal power to vary the legal rights of another with respect to some assignable right, owes that other a duty in respect of the exercise of that power, and is able to validly exercise the legal power in breach of that duty. These relationships, which exist both at law and equity, overlap with the categories of ‘fiduciary duties’ or ‘property rights’, but share additional and distinctive characteristics that justify the availability of tracing.

The justiciability of foreign copyright claims

1999 ◽  
Vol 58 (2) ◽  
pp. 265-293
Author(s):  
Richard Fentiman
Keyword(s):  
South Africa ◽  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Copyright Protection ◽  
Foreign Land ◽  
English Law

WHEN can English defendants be sued in England for the infringement of a foreign copyright? They were once immune, for two distinct reasons. English law formerly governed liability even for foreign torts, the effect of the rule in Phillips v. Eyre (1870) L.R. 6 Q.B. 1. Such claims were therefore pointless because English copyright protection extends only to English infringements; English law, although in principle applicable, could not be applied. Less convincingly, foreign intellectual property rights, like rights in foreign land, were generally regarded as non-justiciable under the rule in British South Africa Co. v. Cia. de Moçambique [1893] A.C. 602.

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