The Moveable Transactions (Scotland) Act 2023 (Financial Collateral Arrangements and Financial Instruments) (Consequential Provisions and Modifications) Order 2025

Transfer of claim assigned as part of financial collateral arrangement

4.—(1) Paragraph (2) applies where an assignation document constitutes a security financial collateral arrangement or a title transfer financial collateral arrangement in respect of a claim.

(2) The claim is transferred either—

(a) as mentioned in section 3(1) of the Act (transfer of claims), or

(b) on the requirements mentioned in paragraph (3) all being met.

(3) Those requirements are that—

(a) the assignor is the holder of the claim,

(b) the financial collateral in question is in the possession, or under the control, of the collateral-taker or of a person authorised to act on the collateral-taker’s behalf,

(c) the claim is identifiable as a claim to which the assignation document relates, and

(d) if the assignation is subject to a condition which must be satisfied before the claim is transferred, the condition is satisfied.

(4) If the claim is transferred by virtue of paragraph (2)(b)—

(a) the assignation document need not comply with the requirements of section 1(1) of the Act (assignation of claims: general) as to execution or authentication, and

(b) the means by which the assignation document may be created include, for example—

(i) writing transcribed by electronic or other means in a durable medium, or

(ii) sounds recorded in such a medium.

(5) For the purposes of paragraph (2)(b), if the claim is a claim such as is mentioned in section 1(4) of the Act—

(a) the requirement mentioned in paragraph (3)(a) is met when the assignor becomes the holder of the claim, and

(b) any rule of law as to accretion does not apply in relation to the claim.

(6) Paragraph (7) applies where—

(a) an assignor grants more than one assignation document in respect of the same claim,

(b) at least one of the assignation documents is one mentioned in paragraph (1),

(c) each of the purported assignations of the claim is to a different person, and

(d) the requirements of paragraph (3) or, as the case may be, section 3(2) of the Act (transfer of claims) are all met in relation to each of the purported assignations at the same time by virtue of—

(i) the assignor becoming holder of the claim,

(ii) the claim becoming identifiable as a claim to which the assignation document relates, or

(iii) where each of the purported assignations is subject to a condition which must be satisfied before the claim is transferred, those conditions being satisfied at the same time.

(7) The claim transfers under paragraph (2) or, as the case may be, section 3(1) of the Act to the person to whom it is assigned by whichever of the purported assignations of the claim first met the requirement of paragraph (3)(b) or, as the case may be, section 3(2)(b) of the Act.

(8) This article is subject to section 4 of the Act (assignation of claims: insolvency).