Warranties and Guarantees in English Law EUROJURIS英语法律保证和担保eurojuris.pptVIP

? Rix Kay Solicitors LLP 2012 Warranties and Guarantees in English Law Presented by Francis Wallace Rix Kay Solicitors LLP October 2012 Types of Warranties and Guarantees Mortgage (or charge) over land Mortgage of movable property (chattels) Charge or assignment of choses in action, E.g. Book debts, life policies, company shares Fixed charges and floating charges Charges created by court orders Personal Guarantees Legal Formalities for all Charges / Mortgages Contracts creating a security must comply with requirements common to other contracts: There must be monetary consideration for the security, or the security document must be by deed. That is, in a document stated to be a deed: formerly, the seals of the parties had to be attached to the deed Personal Guarantees A common form of security Often required by banks, from company Directors, in respect of loans to the company The Guarantor assumes the same responsibility for payment of the debt as the Debtor himself, and can be sued by the Creditor as well as, or instead of, the Debtor Guarantee should be in writing and Guarantor should take independent legal advice, particularly if lender is a bank No requirement for registration Mortgages of Land Mortgages or charges of land must be in writing Mortgage must be registered against the land at H M Land Registry Mortgage gives Creditor the right to sell the land and to use the proceeds towards payment of the debt If Debtor refuses to give up possession of the land, the Creditor is entitled to seek a possession order from the court Order of registration decides priority of mortgages So check before accepting security, what prior mortgages are registered? Land Register is open to public inspection Note: Prior mortgages often contain restrictions prohibiting registration of later mortgages without prior lender’s consent. Banks often refuse consent Mortgages of Land Charging Orders Creditor who has a judgment can apply to court to register a charge ag