A. INTRODUCTION

B. NINETEENTH CENTURY LEGAL PERSONS

C. THE CLAUSES ACTS

D. BONDS, MORTGAGES AND DEBENTURE STOCK

E. THE UNDERTAKING

F. PUBLIC PURPOSES AND PROFIT

G. ENFORCEMENT: JUDICIAL FACTORS AND RECEIVERS

(5) ‘A little more intensity to the Conveyance’: ‘Property and Works’

(6) Receivers, managers and judicial factors

H.CONCLUSIONS

A. INTRODUCTION

‘The whole method of creating a floating charge,’ said Lord Dunedin in 1908, ‘is absolutely foreign to our law.’ For Lord Cooper, the floating charge ‘is utterly repugnant to the principles of Scots law and is not recognised by us as creating a security at all. In Scotland, “equitable security” is meaningless’

Floating charges were introduced into Scots law by the Companies (Floating Charges) (Scotland) Act 1961. Prior to 1961, it is often said, it was impossible for a Scottish company to create a ‘floating charge’ over the whole or any part of its property and undertaking. The purpose of this paper is to demonstrate that the quotable dicta from Lord Dunedin and Lord Cooper, though correct in relation to the ‘equitable’ aspect of floating charges, may otherwise be taken too far. The floating charge has a number of aspects. First, it may be (though it need not be) a universal security: it may cover all of the granter's patrimonial rights. In the actual words of the statute, the company may grant a floating charge ‘over all or any part of the property (including uncalled capital) which may from time to time be comprised in its property and undertaking’.