Moveable Transactions (Scotland) Act 2023 Explanatory Notes

Moveable Transactions (Scotland) Act 2023

2023 asp 3

Commentary on Sections

Part 2 – Security over Moveable Property

Chapter 1 - Pledge

Assignation, amendment, restriction or extinction of statutory pledge

Section 57 – Assignation of statutory pledge

265. Subsection (1) confirms that a statutory pledge may be assigned (unless the parties agree otherwise). A pledge is a security rather than a claim, so Part 1 of the Act does not apply to the assignation of a pledge. However, subsection (2) provides that assignation must be by means of a document duly executed or authenticated by the secured creditor.

266. The effect is that it is not competent to register an assignation of a pledge in the new Register of Assignations. The pledge will therefore only transfer if the other requirements of the general law on assignation of rights are met, including, where required, delivery of the document to the assignee. It would, however, be possible to correct the RSP to show the assignee as the secured creditor (see sections 96 to 99 of the Act).

267. Subsection (3) makes it clear that the default position is that a statutory pledge which is being enforced can be assigned by the secured creditor, and that the assignee can continue with the enforcement rather than having to re­commence the enforcement procedure or re-serve any notice.