Assignment by way of security: Difference between revisions

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+{{a|security|}}Not hitherto commonly known as an [[ABWOS]] even though it jolly well ought to be.
+There’s quite a bit more over at [[set-off]] and even more than that at [[netting]], ''and'' some stuff at [[equitable set-off]], too. Unless that’s just a redirect to [[set-off]].
-===Effect on {{tag|Netting}} and {{tag|Set-Off}}===
+Unless it is “by way of security” in name only — don’t ask, but if you must, see the footnote<ref>An [[assignment by way of security]] ''could'' be a legal assignment, if it meets the formal criteria, but one of those is that the assignment is absolute and not by way of security only, so — yeah. And there is authority about this, by the way: {{cite|Mailbox (Birmingham) Limited|Galliford Try Construction Limited|2017|EWHC|67}}. </ref> — an [[assignment by way of security]], usually, does not meet all the formal requirements for a [[legal assignment]] set out in the [[Law of Property Act 1925|Law of Property Act]]. So it’s not as good. Being, therefore, an [[equitable assignment|''equitable'' assignment]] and not a [[legal assignment|''legal'' assignment]], there differences relating to how an assignee enforces its claim against contracting party: a legal assignee can sue in its own name; and equitable assignee only by joining the assignor to the action (I know: shoot me, right?).
-Could a right to assign by way of security could upset close out {{tag|netting}} such that one should, prohibit any assignment by way of security of any rights under a master netting agreement (such as an {{isdama}} or a {{gmsla}}), the answer is no:
-#.An assignment by way of security is a preferred claim in the assignor’s {{tag|insolvency}} over the realised value of certain rights, rather than a direct transfer of those rights to the assignee: the assignor is still obliged to the counterparty, not the assignee, and any claim the assignee would have against the counterparty would be by way of subrogation of the assignor’s claim.
-#.“''Nemo dat quod non habet''” – the counterparty’s rights cannot be improved by assignment, and it being a [[single agreement]] on termination of the agreement the assignee’s claim is to the termination amount determined under the Agreement, which involves terminating all transactions and determining he aggregate mark-to-market and applying netting.
-At the point of closeout, the assignee’s right is to any termination payment payable to the Counterparty. Therefore any assignment of rights is logically subject to the netting, as opposed to potentially destructive of it.
-===See also===
+===Do I need an [[assignment by way of security]] if I have a [[charge]]?===
+Not unless you’re the sort of person who wears two pairs of underpants in case the first fails.<ref>“That old man, despite all the hardships, still manages to put on a clean pair of underpants every day. And, you know? By the end of the week, he can’t get his trousers on.”—From ''There’s no land like Poland'', by the ''Not The Nine O’Clock News'' team.</ref> Both are [[Equitable security|equitable interests]], but a fixed charge is more formal. The problem with a [[fixed charge]] is that it requires control over the asset (an actual thing) being charged: that is easy enough if you can take possession of it (prime brokers: hooray!), but if you can’t - if it is some vague right the debtor has to be paid money at a later date - then your [[fixed charge]] might wind up looking a bit like a [[Floating charge|floating]] charge, which means you may wind up behind other people in the queue.
+{{assignment and set off}}
+{{Lex situs and abwos}}
+{{sa}}
 *[[Close-out netting]]
+*[[Law of Property Act 1925]]
+{{ref}}