Moveable Transactions (Scotland) Act 2023

Moveable Transactions (Scotland) Act 2023

2023 asp 3

Commentary on Sections

Part 2 – Security over Moveable Property

Chapter 1 - Pledge

Statutory pledge

Section 48 – Creation of statutory pledge by registration: general

223. This section has the effect that a statutory pledge is created by—

• registration of the constitutive document in the Register of Statutory Pledges (see section 113 of the Act for the meaning of references to “registering” or similar expressions),

• the property being the provider’s property, and

• the property being identifiable as property that is subject to the pledge.

224. The pledge is only created when each of the requirements is met, regardless of which occurs first. It follows for example that a pledge is not created at the time of registration if the property is not the provider’s at that time.

• Example

  Adam grants a pledge in June to the Haddington Bank over motor vehicles he has recently acquired, to be listed in a schedule to be given to the Bank. The Bank registers the pledge in the RSP in July. Adam sends the schedule to the Bank in August. The statutory pledge is created in August when all three conditions in subsection (2) are met.

225. Subsection (3) provides that subsection (2)(b) is subject to section 91 of the Act, with the effect that registration only counts if it is effective. It is ineffective if the entry in the statutory pledges record does not include a copy of the constitutive document, the document is invalid, or the entry has a seriously misleading inaccuracy.

226. Subsection (4) further qualifies the effect of this section by making it subject to section 50 of the Act. The effect of this is that a pledge over property yet to be acquired may be ineffective if the property is acquired after the provider becomes insolvent.