Proprietary Interests in Commercial Transactions

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ISBN: 9780198262756 | 0198262752
Cover: Hardcover
Copyright: 3/27/1997

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The most pressing problem facing commercial lawyers today is explaining the incidence of proprietary interests in personal property. This book provides a broad overview of the subject. It surveys the enormous range of possibilities and attempts to distill the patterns and approaches evident in the relevant legal analysis. The resulting overview provides a more theoretically rigorous and analytical framework of proprietary interests in personal property.

Table of Abbreviations

xxxi

(2)

Table of Cases

xxxiii

(1)

Table of Statutes

xxxiii

1 INTRODUCTION

(6)

PART I: Proprietary Interests Arising by Agreement

(112)

2 LEGAL OWNERSHIP: RETENTION OF TITLE CLAUSES

(36)

2.1 General features of retention of title clauses

(3)

2.1.1 Whether a retention of title clause creates a security

(1)

2.2 Simple retention of title clauses

(9)

2.2.1 Whether the buyer's rights of dominion signify ownership

(5)

2.2.2 Whether the seller's limited remedies indicate a charge rather than ownership

(3)

2.2.3 Conclusion

(1)

2.3 A rejected alternative-the seller's retention of equitable title

(5)

2.3.1 The possibility of retaining an equitable interest

(2)

2.3.2 Whether the seller's interest is equitable ownership or a charge

(1)

2.3.3 The illusory practical benefits of retained equitable ownership

(1)

2.4 All-moneys retention of title clauses

(2)

2.5 Products retention of title clauses

(6)

2.5.1 Characterizing the seller's potential claims to an interest in the products

(1)

2.5.2 Use of the original goods and its implication for passing of title

(4)

2.5.3 Theoretical possiblity of an effective products clause

(1)

2.6 Proceeds retention of title clauses

(8)

2.6.1 Characterizing the seller's potential claims to an interest in the proceeds

(1)

2.6.2 Resale of the original goods and its implications for passing of title

(1)

2.6.3 Implications if the sale contract contains no express proceeds clause

(2)

2.6.4 Implications if the sale contract contains an express proceeds clause

(3)

2.6.5 Theoretical possibility of an effective proceeds clause

(1)

2.7 Conclusions

(2)

3 EQUITABLE OWNERSHIP: QUISTCLOSE TRUSTS AND RELATED TRANSACTIONS

(28)

3.1 Operation of Quistclose trusts

(2)

3.2 Distinguishing different financing arrangements

(3)

3.2.1 Loan agreements involving purely personal obligations

(2)

3.2.2 Loan agreements and equitable assignments

(1)

3.2.3 Loan agreements and equitable charges

(1)

3.3 Possibility of the lender acquiring proprietary interests by operation of law rather than by agreement

(2)

3.4 Certainty of intention and Quistclose trusts

(10)

3.4.1 The lender's intention to create a Quistclose trust

(2)

3.4.2 Proving the intention necessary to create a Quistclose trust

(4)

3.4.3 The borrower's intention to create a trust: Quistclose-related transactions

(2)

3.5 Certainty of subject matter and Quistclose trusts

(5)

3.5.1 The need for an indentifiable trust fund

(1)

3.5.2 Restricting the subject matter of Quistclose trusts to loan funds

(1)

3.5.3 Quistclose-related transactions: trusts declared by the borrower over assets other than the loan funds

(2)

3.6 Certainty of objects and Quistclose trusts: enforcement of the trust

(2)

3.7 The limits to the security provided by a Quistcolse trust

(1)

3.8 Conclusions

(2)

4 EQUITABLE SECURITY INTERESTS: FLOATING CHARGES

(30)

4.1 Classical definitions of the floating charge

(1)

4.2 Characterization of a charge as fixed or floating

(5)

4.3 Alternative views of the floating chargee's proprietary interest

(4)

4.4 A preference for the 'defeasible charge' theory

(6)

4.4.1 Judicial statements of principle

(2)

4.4.2 Arguments based on policy

(2)

4.4.3 Resolution of priority disputes

(2)

4.5 Licensed dealing which are not completed when the charge crystallises: one aspect of the first category

(8)

4.5.1 Uncompleted sales transactions

(2)

4.5.2 Set-off

(1)

4.5.3 Common law contractual liens

(1)

4.5.4 Execution and garnishment proceedings

(3)

4.6 Unlicensed dealings prior to crystallization: the second category

(2)

4.7 Conclusions

(3)

5 CONTRACTUAL PROVISIONS: THE DE MATTOS V. GIBSON PRINCIPLE

101

(16)

5.1 Development of the De Mattos v. Gibson principle

102

(3)

5.2 Distinguishing the De Mattos v. Gibson principle from tort principles

105

(1)

5.3 Distinguishing the De Mattos v. Gibson principle from property principles

106

(2)

5.4 Explaining the De Mattos v. Gibson principle

108

(3)

5.5 Taking the idea of a trust power a little further

111

(2)

5.6 Conclusions

115

(2)

Part II: Proprietary Interests Arising by Operation of Law

117

(130)

6 LEGAL OWNERSHIP: RETAINED OR REGAINED INTERESTS

121

(24)

6.1 The original owner's assertion of retained or regained legal ownership of the property

122

(11)

6.1.1 Retained legal interests

122

(7)

6.1.2 Regained legal interests

129

(2)

6.1.3 Problems with the rules and alternative possibilities

131

(2)

6.2 Identifying property in which the retained or regained legal interest persists

133

(10)

6.2.1 Substitutions: common law tracing rules

134

(1)

6.2.2 Mixtures: accession, confusion, and commingling

135

(6)

6.2.3 Products

141

(2)

6.3 Conclusions

143

(2)

7 EQUITABLE OWNERSHIP: RETAINED OR REGAINED INTERESTS

145

(42)

7.1 Introduction

146

(2)

7.2 The original owner's assertion of retained or regained equitable ownership of the original property

148

(25)

7.2.1 Transfers of property in the absence of a contract or according to the terms of a void contract

148

(13)

7.2.2 Transfers of property in accordance with the terms of a voidable contract

161

(7)

7.2.3 Transfers of property in accordance with a contract which remains uncompleted because of the disability or fault of one of the parties

168

(4)

7.2.4 Conclusion

172

(1)

7.3 Identifying property in which the retained or regained equitable interest persists

173

(12)

7.3.1 The proprietary consequences of equitable tracing

174

(1)

7.3.2 Tracing rules when the plaintiff's interest in the original property is equitable and the defendant's dealings with it are wrongful

175

(2)

7.3.3 Tracing rules when the plaintiff's interest in the original property is equitable and the defendant's dealings with it are innocent

177

(5)

7.3.4 Tracing rules when the plaintiff's interest in the original property is legal

182

(3)

7.4 Conclusions

185

(2)

8 EQUITABLE OWNERSHIP: NEWLY ACQUIRED INTERESTS

187

(35)

8.1 General features of the proposed analysis of newly acquired equitable ownership interests

189

(2)

8.2 Acquisition of equitable interests by operation of law in non-contractual circumstances

191

(3)

8.2.1 Purchase-money resulting trusts

191

(1)

8.2.2 Constructive trusts arising on breach of fiduciary obligation

192

(2)

8.3 Acuisition of equitable interests by operation of law in contractual circumstances

194

(26)

8.3.1 The requirement for a mandatory (or specifically enforceable) personal obligation to transfer property

197

(9)

8.3.2 The requirement for the obligation to transfer the sale property to be unconditional

206

(9)

8.3.3 The requirement for identified sale property

215

(5)

8.4 Conclusions

220

(2)

9 EQUITABLE SECURITY INTERESTS: RETAINED AND NEW INTERESTS

222

(21)

9.1 General characteristics of equitable liens

223

(1)

9.2 Distinguishing between different types of vendors' and purchasers' liens

224

(2)

9.3 Acquisition of equitable security interests by operation of law

226

(12)

9.3.1 Purchasers' liens on identified sale property

226

(3)

9.3.2 Vendors' liens on identified purchase funds: rejection of the possibility

229

(2)

9.3.3 Vendors' liens on the sale property: the requirement for specific enforceability

231

(5)

9.3.4 Purchasers' liens on the purchase fund: rejection of the possibility

236

(1)

9.3.5 Summary of the incidence of vendors' and purchasers' liens

237

(1)

9.4 Extinction of equitable liens

238

(2)

9.5 Equitable liens and contracts for the sale of goods

240

(1)

9.6 The requirement for property to be identified

240

(2)

9.7 Conclusions

242

(1)

10 CONCLUSIONS

243

(4)

Bibliography

247

(16)

Index

263

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Proprietary Interests in Commercial Transactions

Summary

Table of Contents

Supplemental Materials