Moveable Transactions (Scotland) Act 2023
| Jurisdiction | Scotland |
| Year | 2023 |
| Citation | 2023 asp 3 |
Moveable Transactions (Scotland) Act 2023
2023 asp 3
An Act of the Scottish Parliament to make provision in relation to the assignation of claims; to establish a register for assignation documents in respect of such claims; to make provision in relation to the granting of security in the form of a pledge over corporeal and incorporeal moveable property; to establish a register of statutory pledges; and to end the creation of agricultural charges.
[13 June 2023]
Part 1
Assignation
Chapter 1
Assignation of claims, protection of debtors and related matters
Assignation of claims
1 Assignation of claims: general
(1) The assignation of a claim requires the execution or authentication of a document assigning the claim (an “assignation document”) by the person assigning it.
(2) The assignation document must identify the claim.
(3) But an assignation document which assigns a number of claims need not identify each claim separately provided that the document identifies the claims in terms of their constituting an identifiable class.
(4) It is competent to assign a claim which, at the time the assignation document is granted, is not held by the assignor (whether or not the claim yet exists at that time).
(5) For the purposes of subsection (2), the ways in which the claim can be identified in the assignation document include by making reference in the assignation document to another document, the terms of which are not reproduced.
(6) Nothing in this Part applies to the assignation of a claim as part of a financial collateral arrangement, within the meaning of regulation 3(1) of the Financial Collateral Arrangements (No.2) Regulations 2003 ( S.I. 2003/3226).
2 Assignation of claim subject to a condition
(1) The assignation of a claim may be subject to a condition which must be satisfied before the claim is transferred.
(2) Any such condition must be specified in the assignation document.
(3) The condition may, for example—
(a)
(a) be the occurrence of a particular date,
(b)
(b) depend on something happening (whether or not it is certain that the thing will happen), or
(c)
(c) depend on a period of time elapsing during which something must not happen (whether or not it is certain that the thing will happen at some time).
(4) For the purposes of subsection (2), the ways in which the condition can be specified in the assignation document include by making reference in the assignation document to another document, the terms of which are not reproduced.
3 Transfer of claims
(1) A claim in respect of which an assignation document is granted is transferred on the requirements mentioned in subsection (2) all being met.
(2) Those requirements are that—
(a)
(a) the assignor is the holder of the claim,
(b)
(b) either—
(i) intimation of the assignation is effected under section 8(1), or
(ii) the assignation document is registered,
(c)
(c) the claim is identifiable as a claim to which the assignation document relates, and
(d)
(d) if the assignation is subject to a condition which must be satisfied before the claim is transferred, the condition is satisfied.
(3) For the purposes of subsection (1), if the claim is a claim such as is mentioned in section 1(4)—
(a)
(a) the requirement mentioned in subsection (2)(a) is met when the assignor becomes the holder of the claim, and
(b)
(b) any rule of law as to accretion does not apply in relation to the claim.
(4) Subsection (2)(b)(ii) is subject to section 27 (effective registration of assignation document) and, accordingly, the requirement of that subsection—
(a)
(a) is not met if the registration of the assignation document is ineffective in accordance with section 27(1), and
(b)
(b) is met if and when that registration becomes effective in accordance with section 27(3).
(5) Subsection (6) applies where—
(a)
(a) an assignor grants more than one assignation document in respect of the same claim,
(b)
(b) each of the purported assignations of the claim is to a different person, and
(c)
(c) the requirements of subsection (2) are all met in relation to each of the purported assignations at the same time by virtue of—
(i) the assignor becoming the holder of the claim,
(ii) the claim becoming identifiable as a claim to which the assignation document relates, or
(iii) where each of the purported assignations is subject to a condition which must be satisfied before the claim is transferred, those conditions being satisfied at the same time.
(6) The claim transfers under subsection (1) to the person to whom it is assigned by whichever of the purported assignations of the claim first met the requirement of subsection (2)(b).
(7) This section is subject to section 4 (assignation of claims: insolvency).
(8) The Scottish Ministers may by regulations prescribe types of claim in relation to which sub-paragraph (i) of subsection (2)(b) is to be disregarded.
4 Assignation of claims: insolvency
(1) This section applies where—
(a)
(a) an assignation document is granted in respect of a claim such as is mentioned in section 1(4), and
(b)
(b) after the document is granted, the assignor becomes insolvent.
(2) The assignation is ineffective in relation to the claim if the assignor becomes the holder of the claim after becoming insolvent.
(3) But subsection (2) does not apply in relation to a claim in respect of income from property in so far as that claim—
(a)
(a) is not attributable to anything agreed to by, or done by, the assignor after the assignor became insolvent, and
(b)
(b) relates to the use of property in existence at the time the assignor became insolvent.
(4) Subsection (5) applies where—
(a)
(a) but for subsection (3), the assignation would be ineffective by virtue of subsection (2), and
(b)
(b) the assignor is discharged—
(i) under section 137, 138 or 140 of the Bankruptcy (Scotland) Act 2016, or
(ii) by virtue of section 184(3) of that Act.
(5) The assignation is ineffective, in relation to the claim, if by the time of discharge the assignor has not become the holder of the claim.
(6) For the purposes of this section—
(a)
(a) an assignor who is an individual, or the estate of which may be sequestrated by virtue of section 6 of the Bankruptcy (Scotland) Act 2016, becomes insolvent when—
(i) the assignor’s estate is sequestrated,
(ii) the assignor grants a trust deed for creditors or makes a composition or arrangement with creditors,
(iii) the assignor is adjudged bankrupt,
(iv) a voluntary arrangement proposed by the assignor is approved,
(v) the assignor’s application for a debt payment programme is approved under section 2 of the Debt Arrangement and Attachment (Scotland) Act 2002, or
(vi) the assignor becomes subject to any other order or arrangement analogous to any of those mentioned in sub-paragraphs (i) to (v) anywhere in the world, and
(b)
(b) an assignor other than is mentioned in paragraph (a) becomes insolvent when—
(i) a decision approving a voluntary arrangement entered into by the assignor has effect under section 4A of the Insolvency Act 1986 (the “”),
(ii) the assignor is wound up under Part 4 or 5 of the 1986 Act or under section 367 of the Financial Services and Markets Act 2000,
(iii) an administrative receiver, as defined in section 251 of the 1986 Act, is appointed over all or part (being a part which includes the claim) of the property of the assignor,
(iv) the assignor enters administration (“enters administration” being construed in accordance with paragraph 1(2) of schedule B1 of the 1986 Act),
(v) an order under section 901F of the Companies Act 2006 sanctioning a compromise or arrangement entered into by the assignor comes into effect over all or part of the property of the assignor, or
(vi) the assignor becomes subject to any other order, appointment or arrangement analogous to any of those mentioned in sub-paragraphs (i) to (v) anywhere in the world.
(7) The Scottish Ministers may by regulations modify—
(a)
(a) subsection (4),
(b)
(b) subsection (5),
(c)
(c) subsection (6).
5 Assignation in part
(1) A claim may be assigned in whole or in part.
(2) But if the claim is not a monetary claim, the claim may be assigned in part only if the claim is divisible and either—
(a)
(a) the debtor consents, or
(b)
(b) the assignation is not likely to result in the obligation to which it relates becoming significantly more burdensome for the debtor.
(3) Except in so far as the debtor agrees otherwise with the assignor, or agreed otherwise with a person who was previously the holder of the claim (when that person was the holder), the assignor is liable to the debtor for any expense incurred by the debtor which is attributable to the claim’s being assigned in part rather than in whole.
6 Limitations as to assignability: general
(1) Nothing in this Part affects any other enactment, or any rule of law, by virtue of which the assignation of a claim is of no effect.
(2) But such an enactment or rule of law does not apply to an assignation if the grounds on which the assignation would be of no effect by virtue of that enactment or rule are grounds which this Part provides do not make the assignation of no effect.
(3) The assignation, in whole or in part, of a claim is of no effect if and in so far as, before the assignation document in respect of the claim was granted—
(a)
(a) the debtor and the holder of the claim had agreed that the claim was not to be so assigned, or
(b)
(b) the person whose unilateral undertaking gives rise to the claim had stated that the claim was not to be so assigned.
(4) For the purposes of subsection (3)(a), it does not matter whether the holder of the claim became the holder of the claim after the agreement was made.
(5) Nothing in subsection (3) affects the operation of any other enactment concerning the effect of an agreement or statement such...
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