Property Law and Real Estate Commons^™

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Human Worth As Collateral, Rashmi Dyal-Chand

ExpressO

Human worth has taken on a surprising new role: that of market asset. Specifically, lenders in radically different contexts are using their borrowers’ human worth as collateral in loan transactions. The two examples of this new collateralization that I examine are credit card lending in the United States and microlending programs in the Third World. I conclude that the use of human worth in these two contexts is too similar to be coincidental. Rather, this new collateralization is a product of globalization. For those interested in the effect of law on globalization, this convergence in the market for credit teaches …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The Floating Charge – An Elegy, Riz Mokal

ExpressO

This paper argues that the usual way of conflating floating with fixed charges as small variations on a single theme – as priority-based devices differing only in degree – fundamentally misunderstands its true nature. The floating charge plays a distinctive role as a residual management displacement device which can only be effective if coupled with an appropriate set of fixed security that enables its holder to gather information about the competence of the debtor’s managers and to control their incentives to misbehave. The floating charge allows the debtor free use of its circulating assets while its management is doing well, …

Administrative Receivership And Administration - An Analysis, Riz Mokal

ExpressO

This paper argues that the Enterprise Act 2002 has changed the way those dealing with distressed companies are required to behave much more significantly than most commentators realise. The motivation for this change lies in the ways in which administrative receivership is destructive of social value (in terms of unnecessary job losses and other resource misallocations). The paper identifies three such ways, all linked with the fact that receivership ties the office-holder’s duties to the interests of the debtor’s main bank. This is undesirable because the bank (a) is usually oversecured and thus has little incentive, once receivership is underway, …

Charges Over Chattels – Issues In The Fixed/Floating Jurisprudence, Stephen Atherton, Riz Mokal

ExpressO

Much of the recent debate as to the criteria which determine whether a charge is properly characterised as fixed or floating has revolved around charges over book debts or other receivables. Charges over chattels have received somewhat less attention, even though an attempt to create a fixed charge over chattels gives rise to interesting questions, some of which do not arise when the collateral consists simply of receivables. While some of these questions have received judicial attention in recent years, others are only now starting to be considered. In this paper, we provide an overview of some of the most …

Liquidation Expenses And Floating Charges - The Separate Funds Fallacy, Riz Mokal

ExpressO

In the context of the decision by the House of Lords in Buchler v. Talbot, and of the Government’s resolve legislatively to overturn that decision, this paper considers the nature of the charge and the mortgage, and asks what effect the creation of such security interests has on the property of the company. It argues that their Lordships appear to have displayed a misunderstanding of the nature of the charge, and might have created significant doctrinal confusion in the process. The paper then provides empirical evidence to suggest that floating charges are not usually taken in order to ensure priority …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

The End Of Notice: Secrets And Liens In Commercial Finance Law, Jonathan C. Lipson

ExpressO

This article explores important recent changes in the way that we treat personal property in commercial finance transactions. Among other things, these changes reduce or eliminate the obligation to give notice of interests in personal property when it is used in commercial finance transactions (as, e.g., collateral for a loan).

A principal purpose of notice-filing has been to deter the creation of secret liens, interests in property that are neither recorded nor otherwise readily observable. Secret liens are universally castigated as abhorrent.

Yet, two recent sets of legislative developments suggest that we may care much less about the problem of …

Secrets And Liens: Verification And Measurement In Commercial Finance Law, Jonathan C. Lipson

ExpressO

This article argues that commercial finance law increasingly uses contract rules to displace property rules, especially as these rules pertain to verifying and measuring property interests. In this context, verification simply means confirming the existence of a property interest, such as a lien or security interest. Measurement means determining the relationships of various property interests to one another (i.e., the priority of interests).

Historically, commercial finance law – in particular the Uniform Commercial Code, which governs loans secured by personal property – provided that something would be treated as “property” only if its property character was fairly easy to discover. …