7 - Hohfeld and the Scots Law Floating Charge

Summary

A. INTRODUCTION

B. HOHFELDIAN ERRORS

(1) Transposition errors

(2) Case law

(a) Pre-history

(b) Cases following the statutory introduction

(3) Legislation

(4) Relevance

C. HOHFELDIAN PROGNOSIS

(1) Dyads: jural correlatives and jural opposites

(2) Application

(a) Security interests

(b) Floating charges

(3) Critique

D. CONCLUSION

A. INTRODUCTION

What is a Scots law floating charge? In different chapters we can see various places where the floating charge does not act like a security interest in its traditional sense. From insolvency law, cross-border analysis, potential for reform, and historical analysis we can see what Professor Gretton has been holding true for a number of years: that the Scottish floating charge does not neatly fit within Scots law of security interests. This is important in and of itself, but it also begs a further question: what, exactly, is a modern Scottish floating charge?

To answer that question, the author will borrow the analysis of a thinker from the early twentieth century, Wesley Newcomb Hohfeld. Hohfeld unfortunately died at the age of thirty-nine, having published only seven articles over the course of eight years, yet became a professor at both Stanford and Yale in that time. Of those seven articles, two in particular have had a lasting impact. Hohfeld's main contribution was to bring a (much needed) clarity to legal analysis. The problem, as he saw it, was repeated judicial and scholarly laxness of language that led to a confusion and conflation of legal concepts. This could be solved by way of atomisation – separating out legal relationships, distilling any legal relationship into its core elements and then reconstructing from those core elements to provide a clarity that the analyses of most courts were lacking.

This chapter will use Hohfeld's techniques to attempt to find clarity for analysis of the floating charge. First, it shall review problems that Hohfeld identified in early twentieth century American jurisprudence, and establish whether such errors can be seen in the case law of the Scots law floating charge and the relevant legislation. Secondly, it shall review Hohfeld's atomisation approach and apply this analysis to the Scottish floating charge. The aim is to see whether such a Hohfeldian analysis can provide us with any particular insight into the operation of the floating charge in Scotland.