Part V Enforcement, 19 Enforcement of Financial Devices Involving The Transfer or Retention of Title

2018 ◽  
Author(s):  
Beale Hugh ◽  
Bridge Michael ◽  
Gullifer Louise ◽  
Lomnicka Eva
Keyword(s):  
Equivalent Function ◽  
English Law

This chapter demonstrates how financing devices that involve either the retention or the transfer of title, although performing an equivalent function to security interests, are generally not considered ‘security’ under English law. Hence, the general characteristics that security interests display when they are enforced, in particular the obligation of the secured creditor to account for any surplus and the obligation of the debtor to make good any deficit, do not rise. The financing devices, being straightforward commercial contracts, are enforced according to their terms, without the application of any of those ‘security’ principles. However, in so far as these devices perform a security function, their express terms often reflect these ‘security’ characteristics, with the contract often providing for a financial adjustment so as to preclude the ‘secured creditor’ receiving a ‘windfall’ or suffering a ‘shortfall’.

Part II Description of Interests, 7 Financing Devices Involving the Transfer or Retention of Title

2018 ◽  
Author(s):  
Beale Hugh ◽  
Bridge Michael ◽  
Gullifer Louise ◽  
Lomnicka Eva
Keyword(s):  
Equivalent Function ◽  
English Law ◽  
Economic Function

This chapter discusses financing devices that, although performing an equivalent function to security interests, are not generally considered ‘security’ under English law. These devices fall into two main categories: those involving the retention and those involving the transfer of title. Such financing devices are often called ‘quasi-security’ interests, to acknowledge that their economic function, in ‘securing’ the performance of obligations, is the same as that of true ‘security’. The chapter also considers the characteristics that they normally display, dividing up the discussion by the nature of the collateral involved: goods, investment products, and receivables.

The Uses and Abuses of Constructive Trusts: The Experience of England and Wales

1997 ◽  
Vol 1 (4) ◽  
pp. 437-463 ◽  
Author(s):  
Charles Harpum
Keyword(s):  
England And Wales ◽  
Central Thesis ◽  
Amorphous Nature ◽  
Fiduciary Obligations ◽  
English Law ◽  
Law Commission

This paper, which was first given on 19 October 1996 at a seminar on constructive trusts organised by the Universities of Edinburgh and Strathclyde with the Scottish Law Commission, examines the role that constructive trusts play in English law. It explains the amorphous nature of such trusts, how they are rooted in concepts of equity and conscience, and how they are often imposed in accordance with equity's traditional grounds for intervention. The central thesis of the paper is that a constructive trust, when imposed, will cause the trustee to become subject to one or more fiduciary obligations or incidents. One situation in which this is not the case— where a constructive trust is employed to impose an encumbrance on a transferee of property—is criticised. There is also a critique of the recourse to equitable maxims as a reason for the imposition of constructive trusts. The paper concludes with some reflections on the likely path of development of constructive trusts in English law and whether they ought to be more widely received into Scots law.

Nicolas Gueudeville's Enlightenment Utopia

Moreana ◽  
2018 ◽  
Vol 55 (Number 209) (1) ◽  
pp. 24-60
Author(s):  
Russ Leo
Keyword(s):  
Political Economy ◽  
Eighteenth Century ◽  
New World ◽  
Economic Life ◽  
Political Anthropology ◽  
French Translation ◽  
Natural Religion ◽  
Original Length ◽  
English Law

Nicolas Gueudeville's 1715 French translation of Utopia is often dismissed as a “belle infidèle,” an elegant but unfaithful work of translation. Gueudeville does indeed expand the text to nearly twice its original length. But he presents Utopia as a contribution to emergent debates on tolerance, natural religion, and political anthropology, directly addressing the concerns of many early advocates of the ideas we associate with Enlightenment. In this sense, it is not as much an “unfaithful” presentation of More's project as it is an attempt to introduce Utopia to eighteenth-century francophone audiences—readers for whom theses on political economy and natural religion were much more salient than More's own preoccupations with rhetoric and English law. This paper introduces Gueudeville and his oeuvre, paying particular attention to his revisions to Louis-Armand de Lom d'Arce, Baron de Lahontan's 1703 Nouveaux Voyages dans l'Amérique Septentrionale. Published in 1705, Gueudeville's “revised, corrected, & augmented” version of Lahontan's Voyages foregrounds the rational and natural religion of the Huron as well as their constitutive aversion to property, to concepts of “mine” and “yours.” Gueudeville's revised version of Lahontan's Voyages purports to be an anthropological investigation as well as a study of New World political economy; it looks forward, moreover, to his edition of Utopia, framing More's work as a comparable study of political economy and anthropology. Gueudeville, in other words, renders More's Utopia legible to Enlightenment audiences, depicting Utopia not in terms of impossibility and irony but rather as a study of natural religion and attendant forms of political, devotional, and economic life. Gueudeville's edition of Utopia even proved controversial due, in part, to his insistence on the rationality as well as the possibility of Utopia.

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