the ordinary course of business

‘A company has not the restraint which the fear of bankruptcy imposes on an individual trader... [For] directors of a company... little or no personal discredit falls upon them if their company fails to pay a dividend to its trade creditors. It is, therefore, all the more important that the amount and manner of borrowing by a corporation should be upon a satisfactory basis... We do not consider that a company should have any greater facility for borrowing than an individual, and we think that while a company should have unrestricted power to mortgage or charge its fixed assets and should be allowed to contract that other fixed assets substituted for those charged should become subject to the charge, and the company should also be capable of charging existing chattels and book debts or other things in action, it ought to be rendered incapable of charging after acquired chattels, or future book debts, or other property not in existence at the time of the creation of the charge.’
Minority of the Loreburn Committee, Report of the Company Law Amendment Committee (1906) Cd 3052, 28

Especially as automatic crystallisation ceased to make floating charges an effective form of priority, the next step by businesses was to contract for fixed charges over every available specific asset, and then take a floating charge over the remainder. It attempted to do this as well over book debts that a company would collect and trade with. In two early cases the courts approved this practice. In Siebe Gorman & Co Ltd v Barclays Bank Ltd[69] it was said to be done with a stipulation that the charge was "fixed" and the requirement that proceeds be paid into an account held with the lending bank. In Re New Bullas Trading Ltd[70] the Court of Appeal said that a charge could purport to be fixed over uncollected debts, but floating over the proceeds that were collected from the bank's designated account. However the courts overturned these decisions in two leading cases. In Re Brumark Investments Ltd[71] the Privy Council advised that a charge in favour of Westpac bank that purported to separate uncollected debts (where a charge was said to be fixed) and the proceeds (where the charge was said to be floating) could not be deemed separable: the distinction made no commercial sense because the only value in uncollected debts are the proceeds, and so the charge would have to be the same over both.[72] In Re Spectrum Plus Ltd,[73] the House of Lords finally decided that because the hallmark of a floating charge is that a company is free to deal with the charged assets in the ordinary course of business, any charge purported to be "fixed" over book debts kept in any account except one which a bank restricts the use of, must be in substance a floating charge. Lord Scott emphasised that this definition "reflects the mischief that the statutory intervention... was intended to meet and should ensure that preferential creditors continue to enjoy the priority that section 175 of the 1986 Act and its statutory predecessors intended them to have."[74] The decision in Re Spectrum Plus Ltd created a new debate. On the one hand, John Armour argued in response that all categories of preferential would be better off abolished, because in his view businesses would merely be able to contract around the law (even after Re Spectrum Plus Ltd) by arranging loan agreements that have the same effect as security but not in a form caught by the law (giving the examples of invoice discounting or factoring).[75] On the other hand, Roy Goode and Riz Mokal have called for the floating charge simply to be abandoned altogether, in the same way as was recommended by the Minority of the Loreburn Report in 1906.[76]
Equivalents to security
Main articles: Title retention clause and Quistclose trust
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charges impliedly crystallise when a receiver is appointed,

While both need to be registered, the distinction between a fixed and a floating charge matters greatly because floating charges are subordinated by the Insolvency Act 1986 to insolvency practitioners' expenses under section 176ZA,[59] preferential creditors (employees' wages up to £800 per person, pension contributions and the EU coal and steel levies) under section 175 and Schedule 6 and unsecured creditors' claims up to a maximum of £600,000 under section 176A. The floating charge was invented as a form of security in the late nineteenth century, as a concept which would apply to the whole of the assets of an undertaking. The leading company law case, Salomon v A Salomon & Co Ltd,[10] exemplified that a floating charge holder (even if it was the director and almost sole shareholder of the company) could enforce their priority ahead of all other persons. As Lord MacNaghten said, "Everybody knows that when there is a winding-up debenture-holders generally step in and sweep off everything; and a great scandal it is." Parliament responded with the Preferential Payments in Bankruptcy Amendment Act 1897, which created a new category of preferential creditors - at the time, employees and the tax authorities - who would be able to collect their debts after fixed charge holders, but before floating charge holders. In interpreting the scope of a floating charge the leading case was Re Yorkshire Woolcombers Association Ltd[60] where a receiver contended an instrument was void because it had not been registered. Romer LJ agreed, and held that the hallmarks of a floating charge were that (1) assets were charged present and future and (2) change in the ordinary course of business, and most importantly (3) until a step is taken by the charge holder "the company may carry on its business in the ordinary way".[61] A floating charge is not, technically speaking, a true security until a date of its "crystallisation", when it metaphorically descends and "fixes" onto the assets in a business' possession at that time.

Businesses, and the banks who had previously enjoyed uncompromised priority for their security, increasingly looked for ways to circumvent the effect of the insolvency legislation's scheme of priorities. A floating charge, in order for its value to be ascertained, must have "crystallised" into a fixed charge on some particular date, usually set by agreement.[62] Before the date of crystallisation (given the charge merely "floats" over no particular property) there is the possibility that a company could both charge out property to creditors with priority,[63] or that other creditors could set-off claims against property subject to the (uncrystallised) floating charge.[64] Furthermore, other security interests (such as a contractual lien) will take priority to a crystallised floating charge if it arises before in time.[65] But after crystallisation, assets received by the company can be caught by the charge.[66] One way for companies to gain priority with floating charges originally was to stipulate in the charge agreement that the charge would convert from "floating" to "fixed" automatically on some event before the date of insolvency. According to the default rules at common law, floating charges impliedly crystallise when a receiver is appointed, if a business ceases or is sold, if a company is would up, or if under the terms of the debenture provision is made for crystallisation on reasonable notice from the charge holder.[67] However an automatic crystallisation clause would mean that at the time of insolvency - when preferential creditors' claims are determined - there would be no floating charge above which preferential creditors could be elevated. The courts held that it was legitimate for security agreements to have this effect. In Re Brightlife Ltd[68] Brightlife Ltd had contracted with its bank, Norandex, to allow a floating charge to be converted to a fixed charge on notice, and this was done one week before a voluntary winding up resolution. Against the argument that public policy should restrict the events allowing for crystallisation, Hoffmann J held that in his view it was not "open to the courts to restrict the contractual freedom of parties to a floating charge on such grounds." Parliament, however, intervened to state in the Insolvency Act 1986 section 251 that if a charge was created as a floating charge, it would deem to remain a floating charge at the point of insolvency, regardless of whether it had crystallised.

argue that the contract should be void. The deal created a

In commercial practice the term "debenture" typically refers to the document that evidences a secured debt, although in law the definition may also cover unsecured debts (like any "IOU").[46] The legal definition is relevant for certain tax statutes, so for instance in British India Steam Navigation Co v IRC[47] Lindley J held that a simple "acknowledgement of indebtedness" was a debenture, which meant that a paper on which directors promised to pay the holder £100 in 1882 and 5% interest each half year was enough, and as a result subject to pay duty under the Stamp Act 1870. The definition depends on the purpose of the statutory provision for which it is used. It matters because debenture holders have the right to company accounts and the director's report,[48] because debenture holders must be recorded on a company register which other debenture holders may inspect,[49] and when issued by a company, debentures are not subject to the rule against "clogs on the equity of redemption". This old equitable rule was a form of common law consumer protection, which held that if a person contracted for a mortgage, they must always have the right to pay off the debt and get full title to their property back. The mortgage agreement could not be turned into a sale to the lender,[50] and one could not contract for a perpetual period for interest repayments. However, because the rule limited on contractual freedom to protect borrowers with weaker bargaining power, it was thought to be inappropriate for companies. In Kreglinger v New Patagonia Meat and Cold Storage Co Ltd[51] the House of Lords held that an agreement by New Patagonia to sell sheepskins exclusively to Kreglinger in return for a £10,000 loan secured by a floating charge would persist for five years even after the principal sum was repaid. The contract to keep buying exclusively was construed to not be a clog on redeeming autonomy from the loan because the rule's purpose was to preclude unconscionable bargains. Subsequently, the clog on the equity of redemption rule as a whole was abolished by what is now section 739 of the Companies Act 2006. In Knightsbridge Estates Trust Ltd v Byrne[52] the House of Lords applied this so that when Knightsbridge took a secured loan of £310,000 from Mr Byrne and contracted to repay interest over 40 years, Knightsbridge could not then argue that the contract should be void. The deal created a debenture under the Act, and so this rule of equity was not applied.
Registration
See also: Companies House
In London the main office of Companies House, where all charges against a company need to be registered, is on Bloomsbury Street, just near the British Museum.