Accessory security rights
Section 16 – Accessory security rights
95.It is an existing rule of Scots law that where a claim is transferred, the assignee is entitled to the benefit of any accessory rights enjoyed by the assignor. This section puts the rule onto a statutory footing as regards accessory security rights.
96.Subsection (1) provides for this section to apply only to a claim assigned in whole (and not to a claim assigned in part). However, it makes it clear that the rule in subsection (2) is a default rule, leaving it open to the parties to an assignation document to agree that a right will not be acquired despite a claim being assigned in whole, or to provide that a right will be acquired despite the claim being assigned only in part. If only part of the claim is assigned, it is less clear whether (and to what extent) the assignee should acquire an accessory right. Any such right may, for example, relate to the whole obligation, and parties will therefore likely make their own provision in such cases. If they do not then the partial assignation will not carry the security right.
97.Subsection (2) has the effect that the assignation will transfer any security (or, where formalities are required, the right to any security) which relates to the claim transferred and which is restricted to that claim.
Example 1
David lends Edgar £100,000. Edgar grants a standard security over his house in respect of the £100,000 debt. If David assigns the right to repayment of the £100,000 to Flora then she acquires the security unless agreed otherwise.
Example 2
As for example 1, but the standard security is granted for all sums due and that may become due. The assignation of the right to repayment of the £100,000 does not carry the security unless agreed otherwise, because the security is not restricted to the £100,000.
Example 3
Same as for example 2, but the assignation document expressly states that the all sums security is carried. Flora acquires the security.
