Goode and Gullifer on Legal Problems of Credit and Security

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Description
Yet again, I am honoured to be entrusted with editing this book, which right from its genesis has the virtue of not only analysing the law, but of pushing the boundaries of the law beyond what has already been considered by the courts and the legislature. This time, although there is a fair amount of new thinking, of which some examples are given below, there has been hardly any restructuring of the text within the chapters, although there have been some changes to the number- ing of paragraphs because of the addition of new text.
In this edition, I have tried to regularise the pronouns used, to reflect the fact that, in a business context, nearly all the parties will be legal persons (companies or other legal entities) rather than natural persons. While this was already recognised to some extent by the use of 'it' rather than 'he', the use was not consistent and I have attempted to achieve consistency by using 'it' throughout, except where the context clearly refers to a natural person. Of course, any legal person must act through natural persons and it is assumed throughout the book that the acts and the knowledge of a legal person are those of its employees and agents, according to the rules of agency and attribution. I have not changed the pronouns used in any quotations. While this regularisation has had the effect of making the text more gender neutral, I have not used the plural pronoun for natural persons, as this can be confusing in a legal text where the number of persons referred to matters.
Perhaps the most significant additions to this new edition are the sections which consider the application of the analysis in the book to 'digital assets', that is, what are commonly called 'crypto-currencies' and other, linked, digital assets such as tokenised securities. In doing this, I have drawn heavily from the work I have been doing with UNIDROIT, in preparing Principles on the private law of digital assets in a jurisdiction neutral way, and also on the work of the Law Commission of England and Wales, who have produced a monumental report on the English private law on digital assets, as well as proposals in relation to electronic trade documents, and with whom I had had many interesting conversations. The changes in the book are chiefly in chapter 1, where there is discussion of digital assets (and electronic trade documents) as the objects of security interests and in chapter 6, where the discussion focuses on the holding of digital assets by custodians, and the application of the Financial Collateral Arrangements (No.2) Regulations to security interests over digital assets.
A number of analyses have been redrafted in the light of new cases or new thinking, drawn to my attention by published articles or discussions with academ- ics or practitioners. Examples include the section on attachment of security interests in paragraphs 2-09-2-11, the ability of the equitable mortgagor of receivables to sue the account debtor (paragraph 3-09) and the section on the ef- fect of an anti-assignment clause on a purported equitable assignment of a contractual right (paragraphs 3-39-3-41). I have rethought a number of sections in chapter 6, on interests in financial collateral, including the section analysing the nature of pooled interests in securities (paragraphs 6-19-6-20), the section on shortfall (paragraph 6-25-6-26), the section on the requirement of 'possession or control' under the FCARS (especially paragraphs 6-50 and 6-52) the section analysing the right of use (paragraphs 6-65-6-67), and whether a claim that has not yet arisen.
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Table of Contents
1. The Nature and Forms of Consensual Security
2. Attachment and Perfection of a Security Interest: General Considerations
3. Attachment, Perfection and Effects of Fixed Security in Non Documentary Receivables
4. The Floating Charge
5. Fixed and Floating Charges : Some Problems of Priority
6. Interests in Financial Collateral
7. Set - Off Netting and Abatement
8. Some Aspects of Suretyship Law
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Author Details
Prof. Louise Gullifer