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Transaction Avoidance in Insolvencies$
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Rebecca Parry, James Ayliffe, Sharif Shivji, Hamish Anderson, and William Trower

Print publication date: 2018

Print ISBN-13: 9780198793403

Published to Oxford Scholarship Online: March 2021

DOI: 10.1093/oso/9780198793403.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use.date: 27 January 2022

Avoidance of Floating Charges (Insolvency Act 1986, Section 245: Corporate Insolvency Only)

Avoidance of Floating Charges (Insolvency Act 1986, Section 245: Corporate Insolvency Only)

(p.403) 17 Avoidance of Floating Charges (Insolvency Act 1986, Section 245: Corporate Insolvency Only)
Transaction Avoidance in Insolvencies

Rebecca Parry

Oxford University Press

A floating charge, of course, increases the likelihood upon the winding up of the debtor that a creditor will receive payment for sums that the creditor has advanced. Conversely, the existence of a charge over property reduces the likelihood of payment for creditors, such as those who supplied the property in the first place. Limitations have accordingly been placed on the availability of such charges in order to ensure that any creditor obtaining the advantage of this method of security has earned the priority that it confers. Section 245, which applies only in the context of liquidation and administration, provides that any floating charge that is created within a specified period of the onset of insolvency is void except to the extent that the charge holder advanced value to the debtor at the same time as, or after, the creation of the charge. Unlike many of the other avoidance provisions, the operation of section 245 is automatic and does not depend on an application being made by the liquidator or administrator. An exception to the operation of section 245 applies in the context of financial collateral arrangements.

Keywords:   connected parties, fixed charges, floating-charge avoidance, misfeasance, money, recharacterized transactions, relevant time, remedies, valuation

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