Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - BOOK REVIEWS: LEGAL ASPECTS OF RECEIVABLES FINANCING
LEGAL ASPECTS OF RECEIVABLES FINANCING by Fidelis Oditah, LL.B., B.C.L., M.A., D.Phil, Fellow of Merton College, Travers Smith Braithwaite Lecturer in Corporate Finance Law, University of Oxford. Sweet & Maxwell, London (1991, xlv and 266 pp., plus 13 pp. Index). Hardback £39.
In developed economies, the bulk of corporate wealth is locked up in simple contract debts (receivables). The focus for this erudite book is the recycling of these valuable assets (pp. vi, 2), usually on the assumption that the debtor is incorporated (why then so much on block discounting?). Its origin is a heavy-weight doctorate under the supervision of D. D. Prentice, examined by Roy Goode and Phillip Wood. No doubt, the published work is enhanced by their learned comments. It certainly reaches a very high academic standard, extending to citation of over 1,000 cases. It contains only the following (remarkably few) proof-reading errors: erosions (p. 4); “a” for “as” (p. 5); proceeds (p. 10); pain (p. 117); the date of the Cann case (p. 168, n. 43); disinvested, sisted (p. 207); particularly (p. 259); prohibition (p. 261). There are equally only a few infelicities: “whilst” for “when” (p. 1); the sentence on p. 50 to n. 42; the “true superfluity” sentence on p. 59; have not jobbers (p. 60) disappeared?; and “were” for “is” in the first sentence on p. 238, ton. 12.
Unfortunately, the book assumes (space considerations?) a high level of knowledge in the reader both of the law (e.g., references to the Companies Act 1985 usually incorporate the 1989 amendments without acknowledgement) and of the practical background of debt factoring (e.g., without any specimen forms). Nor was your reviewer sure that all the assumed factoring practices were necessary apposite to block discounting (as the debtor is normally a private consumer, was it wise to attempt their inclusion?). There appears to be some doctorate-type repetition of (mostly good) arguments: “credit” has the same meaning as in s. 9(1) of the Consumer Credit Act 1974 (pp. 43, 66, 212: see further below); as to a closed list of security instruments (pp. 5, 9); the commercial advantage that sale and discounting is off balance sheet (pp. 35, 42) and has different VAT considerations (pp. 36, 42); an ingenious argument on wrongful trading (pp. 67–8, 102–103); a debtor is not saved from the effect of notice by amnesia (pp. 131, 141); and the rule in Abbey National Building Society v. Cann [1991] 1 A.C. 56 (pp. 91, 168). There was also some of what your reviewer would describe as doctorate-type counting of angels on pin-heads: e.g., in the general theory of secured financing of the “freerider” notion (p. 16), followed by a conventional explanation (pp. 17–18); the concept of documentary receivables (pp. 25–27); and receivables as property rights (p. 32). Despite a relatively large index, it does not include: the author’s own definition of security interest (p. 8); quasi-security interests (p. 11); facultative agreements (p. 47); nonnotification discounting (p. 51); retention funds in block discounting (pp. 53–55); or present security (p. 110). Furthermore, your reviewer could find no explanation of the following important concepts or rules: whole turnover (mentioned at pp. 64, 240): and ex p. James (1874) L.R. 9 Ch.App. 609 (mentioned at p. 210). The date upon which the text states the law (20.9.90—not 1994, as p. 140 would have it) unfortunately allows for no, or insufficient discussion of Armour v. Thyssen Edelstahlwerke A.G. [1991] 2 A.C. 339 and Re Atlantic Computer Systems Plc. [1990] B.C.L.C. 729; [1991] B.C.L.C. 606; [1992] 1 All E.R. 476.
As with many doctorates (by convention?; sed quaere?), the overall scheme of the book was not found to make for ease of navigation, with its nine chapters of varying length bound together by an introductory theoretical discussion and conclusions (written last?).
Chapter 1: Concepts and Definition (18 pages). This starts with the (debatable?) suggestions that in most over-the-counter sales there is always a scintilla temporis during which one party
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