The Australian Personal Property Securities Act is expected to come into force on October 31, 2011. The paper discusses the unitary concept of a security interest and the "substance" test that is used to determine if a transaction constitutes a security interest. It then looks at the Canadian...

The “fraud against the bankruptcy law principle” provides that it is not lawful for parties to use contractual provisions to circumvent bankruptcy law. In England this principle has split into two distinct subrules – the pari passu rule which invalidates contractual provisions that alter...

The Canadian Personal Property Security Acts are based on Article 9 of the Uniform Commercial Code (UCC). A unique feature of the Uniform Commercial Code is that it is accompanied by an official comment that serves as a guide to the legislative provision. This feature is lacking in Canada....

In November 2015, the Supreme Court of Canada released three decisions that considered the interplay between federal bankruptcy and insolvency law and provincial legislation. In each case, the matter was resolved through a consideration of the paramountcy principle of constitutional law. Two of...

Section 96 of the Bankruptcy and Insolvency Act sets out provisions that permit a trustee in bankruptcy to challenge pre-bankruptcy transfers at undervalue entered into by a debtor. These provisions were amendments to the BIA that came into force in 2009. There can be no doubt that the transfer...

The medieval alchemists, in their grand quest for the Philosopher's Stone, sought to discover a process for the transmutation of base metals. They thought that the admixture of even a tiny portion of the Stone with molten lead would cause the lead to catalyze into gold. This article examines...

It is standard for general security agreements to provide a charging clause in which a debtor grants a security interest to a secured creditor in all of the debtor's present and after-acquired personal property (“all assets” clauses). It is equally common for the security agreement to...

Although subordination agreements are widely used, they are less comprehensively understood. In order to devise a workable framework for analyzing the legal issues associated with them, a fundamental distinction must be drawn between debt subordination and security interest subordination. In...

Despite the modernization of secured transactions law in every common law province in Canada, the insolvency statutes continue to define a secured creditor using pre-PPSA common law concepts. In order to fall within this definition, the creditor must hold a mortgage, pledge, charge, or lien...

Circular priority problems are endemic in secured transaction law. A circular priority situation arises when there are three or more parties with competing claims to the same asset and there is no clear ranking of priority among them. There are multiple approaches applied by courts or advanced...