Security and Quasi Security

An Ask the team on the distinction between a "legally binding guarantee" and a "contract of guarantee" as referred to in the Guidance on execution of documents at a virtual signing or closing prepared by the Law Society Company Law Committee and the City of London Law Society Company Law and Financial Law Committees (the Guidance).

The High Court has held that a contract made between the Football League and ONdigital was not guaranteed by Ondigital’s parent companies, Carlton and Granada.

On 31 May 2007, the DTI published a consultation seeking views on the government's proposal to use its new powers under the Companies Act 2006 to treat floating charges registered in the Scottish register of floating charges as having been registered with the Registrar of Companies. This proposal will remove the burden of double registration which will otherwise apply to all floating charges granted under Scottish law (irrespective of whether the grantor company is registered in Scotland) once the relevant provisions of the Bankruptcy and Diligence etc (Scotland) Act 2007 have been brought into force. The consultation closes on 24 September 2007 and the government expects to publish draft regulations implementing the proposal in early 2008.

On 6 April 2009, the Department for Business, Enterprise and Regulatory Reform published a draft statutory instrument, The Overseas Companies (Company Contracts and Registration of Charges) Regulations 2009 together with a note on revised regulations for the Registration of Charges created by Overseas Companies.

In Fearns v Anglo Dutch Paint & Chemical Company Ltd [2010] EWHC 2366 (Ch), the High Court considered the date at which damages payable to the claimant (in euros) and a debt payable by the claimant (in sterling) should be converted into a common currency and set off against each other. It also considered whether a costs order could be set off against the damages award.

Standard execution clauses and drafting guidance relating to the execution of deeds and documents by charities.

Standard form execution clauses (or attestation clauses) for the execution of simple contracts or deeds by an individual, together with related drafting guidance. 

Standard form execution clauses and drafting guidance for the execution of deeds or documents by a limited partnership formed under the Limited Partnerships Act 1907.

Standard form execution clauses (or attestation clauses) for the execution of  deeds and documents under the laws of England and Wales or Northern Ireland by a company incorporated outside the United Kingdom.

Drafting guidance in relation to the execution of deeds and documents by private trusts.

How to create a valid fixed charge and the considerations for a lender where fixed security is impossible.

The government has published its response to the BIS consultation paper on registration of charges created by companies and limited liability partnerships. (Free access.)

The High Court has held, in Metha v J Pereira Fernandes SA, that, for the purposes of an enforceable guarantee under section 4 of the Statute of Frauds 1677, an e-mail (which contained the essential terms of an offer of a personal guarantee which had been accepted orally and unconditionally by the other party) constituted a sufficient note or memorandum of the agreement, but the presence of an automatically inserted e-mail address at the top of the e-mail did not constitute a signature by, or on behalf of, the would-be signatory as it was not inserted into the document in order to give, or with the intention of giving, authenticity to it.

A report on the case Rust Consulting Ltd v PB Ltd [2010] EWHC 3243 (TCC). This decision has been overturned on appeal (Rust Consulting Ltd v PB Ltd [2012] EWCA Civ 1070). See Legal update, Court of Appeal overturns decision on interpretation of indemnity and estoppel.

Where two or more persons are liable to another, they may be jointly liable, severally liable or jointly and severally liable. This note explains the concepts of joint, several, and joint and several liability.

This note explains the role of notaries and what notarisation means. It outlines the types of documents that are notarised and explains what legalisation and apostille mean. It includes a checklist of what to consider when instructing a notary.

An update on Commercial Marine Piling Limited v Pierse Contracting Limited [2009] EWHC 2241 (TCC) in which the court considered the place of performance of a guarantee under the Brussels Regulation.

A note outlining the law under the Companies Act 2006 on the registration of charges created on or after 1 October 2009 (but before 6 April 2013) by companies and limited liability partnerships registered in England and Wales. The relevant sections of the Companies Act 2006 referred to in this note came into force on 1 October 2009. For a note setting out the registration regime under the Companies Act 1985, the regime that applied to charges created before 1 October 2009, see Practice note, Registration of charges under the Companies Act 1985. Note: The regime for registering charges at Companies House changed on 6 April 2013. For more information, see Practice note, Registration of charges created by companies and limited liability partnerships on or after 6 April 2013.

An introduction to the law applying to retention of title clauses.

An update on Bulbinder Singh Sandhu (trading as Isher Fashions UK) v Jet Star Retail Limited (trading as Mark One) (in administration) and others [2010] EWHC B17 (Mercantile) in which the High Court considered whether a supplier's all monies retention of title clause was effective against the purchaser's administrators where the goods supplied consisted of clothing designed for immediate resale. 

The Companies Act 2006 (Amendment of Part 25) Regulations 2013 (SI 2013/600) have been published.

The Department for Business Innovation and Skills (BIS) has published a note of issues to be resolved before it publishes draft regulations relating to security registration in summer 2011. Comments are requested until 13 May 2011.

In Collier v P & M J Wright (Holdings) Limited [2007] EWCA Civ 1329, the Court of Appeal held that an alleged agreement between the debtor and creditor was not strictly a binding agreement in law as there was no good consideration (see Foakes v Beer (1883-4) LR 9 App Cas 605). However, the Court held that the statutory demand served on the debtor should be set aside on the basis that there was a triable issue of promissory estoppel. Where there is a compromise agreement, the doctrine of promissory estoppel means that an agreement is binding in equity if it would be inequitable for the creditor to enforce his strict legal rights. The case emphasises the importance of the promissory estoppel doctrine for alleviating the effects of the rule in Pinnel's case (1603) 5 Coke's Rep 117a that payment of a lesser sum in satisfaction of the greater cannot be any satisfaction of the whole. It also confirms that the threshold for the test to be applied when considering setting aside a statutory demand is not lower than for the test applied on an application for summary judgment.

A brief overview for corporate lawyers of the options available to lenders when taking security for loans. For a more detailed note on taking security, see Practice note, Taking security.

The first part of a two-part series outlines the options available to lenders when taking security for loans.

The High Court has held that a third party creditor may enforce a guarantee in a deed even if it is not a party to it, and that fraud by the debtor is not a ground for the guarantor to avoid his obligations to the third party creditor.

An update on the adoption by UNCITRAL of a supplement to its legislative guide on secured transactions dealing with security rights in intellectual property.