Notes and Changes

A recording of this event (together with the slides) is available here.

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Whether a contract creates a proprietary interest or merely personal rights is an issue with which the law has had to grapple many times.  The result in a particular case will often depend on the approach of the courts to characterisation: should it be a matter of form or of substance? 

This presentation examines these issues in the light of the decision of the Canadian Supreme Court in Caisse Populaire Desjardins de l'Est de Drummond v Canada [2009] SCC 29, and reflects on the implications for the law in Canada and throughout the common law world.  The case concerns 'cash collateral', that is, money held in an account with a bank or other financier, as 'security' for repayment of a loan or an obligation under other types of financing facility.  The nature of the rights that a bank has in relation to the cash collateral was considered in the Drummond case where, by a majority, the court held that a contract providing for a combination of set-off and a flawed asset created a security interest (a proprietary interest).  There was a strong minority dissent, concluding that merely contractual (personal) rights had been created. 

This presentation will be of great interest to all concerned with the approach of the courts to the legal concepts used in financial transactions, as well as those interested in the conceptual taxonomy of the common law.

This event will be chaired by Professor Louise Gullifer, and a comment provided by Professor Robert Stevens.

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