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Lending and Taking Security in Hong Kong: Overview

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• Security and Quasi Security
• Cross-border - Finance
• Hong Kong - PRC

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Assignment of Contract Rights

LEARNING OBJECTIVES

• Understand what an assignment is and how it is made.
• Recognize the effect of the assignment.
• Know when assignments are not allowed.
• Understand the concept of assignor’s warranties.
• The Concept of a Contract Assignment
• Method of Assignment
• Effect of Assignment
• When Assignments Are Not Allowed
• Partial Assignments
• Successive Assignments
• Assignor’s Warranties
• Learning Objectives LEARNING OBJECTIVES
• Functions of the Law
• Law and Politics KEY TAKEAWAY EXERCISES
• Legal Positivism: Law as Sovereign Command
• Natural Law The Unanimous Declaration of the Thirteen United States of America
• Other Schools of Legal Thought KEY TAKEAWAY EXERCISES
• Law: The Moral Minimums in a Democratic Society
• The Common Law: Property, Torts, and Contracts
• State Courts and the Domain of State Law
• Civil versus Criminal Cases
• Substance versus Procedure KEY TAKEAWAY EXERCISES
• Constitutions
• Statutes and Treaties in Congress
• Delegating Legislative Powers: Rules by Administrative Agencies
• State Statutes and Agencies: Other Codified Law
• Judicial Decisions: The Common Law
• The Constitution as Preemptive Force in US Law
• Statutes and Cases
• Treaties as Statutes: The “Last in Time” Rule
• Causes of Action, Precedent, and KEY TAKEAWAY EXERCISES
• Comparing Common-Law Systems with Other Legal Systems
• Civil-Law Systems KEY TAKEAWAY EXERCISES
• A Sample Case Note to Students CASE QUESTIONS
• Summary and Exercises Summary EXERCISES SELF-TEST QUESTIONS SELF-TEST ANSWERS
• How Do Law and Ethics Differ?
• Why Should an Individual or a Business Entity Be Ethical? KEY TAKEAWAY EXERCISES
• Utilitarianism
• Rules and Duty: Deontology
• Social Justice Theory and Social Contract Theory
• Aristotle and Virtue Theory
• Josephson’s Core Values Analysis and Decision Process KEY TAKEAWAY EXERCISES
• Josephson’s Core Values Model The Core Values KEY TAKEAWAY EXERCISES
• Legal Organization of the Corporation
• Maximizing Profits: Milton Friedman “The Social Responsibility of Business Is to Increase Its Profits”
• Stakeholder Theory
• Ethical Leadership Is Top-Down
• Accountability Is Often Weak
• Killing the Messenger
• Ethics Codes
• Ethics Hotlines and Federal Sentencing Guidelines
• Managing by the Numbers Managing by Numbers: The Sears Auto Center Story
• Conscious Capitalism
• Learning Objectives LEARNING OBJECTIVES Robinson v. Audi
• Limited Jurisdiction Courts
• General Jurisdiction Courts
• Appellate Courts
• District Courts
• Courts of Appeal
• United States Supreme Court KEY TAKEAWAY EXERCISES
• The Federal-State Balance: Federalism
• Exclusive Jurisdiction in Federal Courts
• Concurrent Jurisdiction Summary of Rules on Subject Matter Jurisdiction Robinson v. Audi
• Legal Procedure, Including Due Process and Personal Jurisdiction
• Complaint and Summons
• Jurisdiction and Venue
• Service of Process and Personal Jurisdiction Summary of Rules on Personal Jurisdiction
• Choice of Law and Choice of Forum Clauses KEY TAKEAWAY EXERCISES
• Initial Pleadings, and Motions to Dismiss
• Discovery KEY TAKEAWAY EXERCISES
• Pretrial Conference
• Posttrial Motions KEY TAKEAWAY EXERCISES
• Judgment or Order
• Judgment and Order KEY TAKEAWAY EXERCISES
• Case or Controversy: Standing to Sue
• Class Actions KEY TAKEAWAY EXERCISES
• Costs KEY TAKEAWAY EXERCISES
• Arbitration
• Mediation KEY TAKEAWAY EXERCISES
• Summary CASE QUESTIONS
• Ferlito v. Johnson & Johnson CASE QUESTIONS
• The Constitution as Reflecting American Values
• General Structure of the Constitution
• Separation of Powers and Judicial Review KEY TAKEAWAY EXERCISES
• Early Commerce Clause Cases
• From the New Deal to the New Frontier and the Great Society:1930s–1970
• The Substantial Effects Doctrine: World War II to the 1990s KEY TAKEAWAY EXERCISES
• Dormant Commerce Clause LEARNING OBJECTIVES Dealing with Unwelcome Waste KEY TAKEAWAY EXERCISES
• Preemption: The Supremacy Clause LEARNING OBJECTIVES The Supremacy Clause KEY TAKEAWAY EXERCISES
• First Amendment
• Fourth Amendment
• Fifth Amendment
• Fourteenth Amendment: Due Process and Equal Protection Guarantees KEY TAKEAWAY EXERCISES
• Griswold v. Connecticut CASE QUESTIONS
• Wickard v. Filburn
• Kassel v. Consolidated Freightways Corp. CASE QUESTIONS
• Hunt v. Washington Apple Advertising Commission CASE QUESTIONS
• Citizens United v. Federal Election Commission CASE QUESTIONS
• Why Have Administrative Agencies?
• Why Regulate the Economy at All? Ideal Conditions for a Free Market
• History of Federal Agencies
• Classification of Agencies
• Powers of Agencies
• The Constitution and Agencies KEY TAKEAWAY EXERCISES
• Legislative Control
• Executive Control
• Judicial Review of Agency Actions KEY TAKEAWAY EXERCISES
• Trial-Type Hearings
• Rulemaking KEY TAKEAWAY EXERCISES
• The Paperwork Burden
• Inspections
• Access to Business Information in Government Files KEY TAKEAWAY EXERCISES
• Exhaustion of Administrative Remedies
• Strategies for Obtaining Judicial Review
• Suing the Government KEY TAKEAWAY EXERCISES
• Marshall v. Barlow’s, Inc. CASE QUESTIONS
• American Textile Manufacturers Institute v. Donovan CASE QUESTIONS
• The Nature of Criminal Law KEY TAKEAWAY EXERCISES
• Assault and Battery
• Theft: Larceny, Robbery, Embezzlement, False Pretenses
• Receiving Stolen Property
• Mail and Wire Fraud
• Violations of the Food and Drug Act
• Environmental Crimes
• Violations of the Foreign Corrupt Practices Act
• Violations of the Racketeering Influenced and Corrupt Organizations Act
• Computer Crime KEY TAKEAWAY EXERCISES
• Impossibility
• Agency and Corporations KEY TAKEAWAY EXERCISES
• Mistake of Fact and Mistake of Law
• Other Excuses
• Lack of Capacity KEY TAKEAWAY EXERCISES
• Procedure LEARNING OBJECTIVES KEY TAKEAWAY EXERCISES
• Search and Seizure
• Double Jeopardy
• Self-Incrimination
• Speedy Trial
• Cross-Examination
• Assistance of Counsel
• Cruel and Unusual Punishment
• Presumption of Innocence KEY TAKEAWAY EXERCISES
• False Pretenses CASE QUESTIONS
• White-Collar Crimes CASE QUESTIONS
• Definition of Tort
• Kinds of Torts
• Dimensions of Tort Liability
• Dimensions of Tort: Fault
• Dimensions of Tort: Nature of Injury
• Dimensions of Tort: Excuses
• Damages KEY TAKEAWAY EXERCISES
• False Imprisonment
• Intentional Infliction of Emotional Distress
• Trespass and Nuisance
• Intentional Interference with Contractual Relations
• Malicious Prosecution
• Absolute Privilege
• Qualified Privilege
• Invasion of Privacy
• Appropriation of Name or Likeness
• Personal Space
• Public Disclosure of Embarassing Facts
• False Light KEY TAKEAWAY EXERCISES
• Elements of Negligence
• Standard of Care
• Duty of Care and Its Breach
• Causation: Actual Cause and Proximate Cause
• Problems of Proof
• Contributory and Comparative Negligence
• Assumption of Risk
• Vicarious Liability KEY TAKEAWAY EXERCISES
• Historical Basis of Strict Liability: Animals and Ultrahazardous Activities
• Strict Liability for Products KEY TAKEAWAY EXERCISES
• Intentional Torts: False Imprisonment CASE QUESTIONS
• Negligence: Duty of Due Care CASE QUESTIONS
• Negligence: Proximate Cause CASE QUESTIONS
• Klein v. Pyrodyne Corporation CASE QUESTIONS
• The Role of Contracts in Modern Society
• The Definition of Contract
• Overview of the Contracts Chapter KEY TAKEAWAY EXERCISES
• History of the UCC
• Organization of the UCC
• The Convention on Contracts for the International Sale of Goods KEY TAKEAWAY EXERCISES
• Express Contract
• Implied Contract (Implied in Fact)
• Quasi-Contract
• Bilateral Contract
• Unilateral Contract
• Unenforceable
• Degree of Completion
• Terminology: Suffixes Expressing Relationships KEY TAKEAWAY EXERCISES
• Explicitness: Implied Contract CASE QUESTIONS
• Mutuality of Contract: Unilateral Contract CASE QUESTIONS
• Unilateral Contract and At-Will Employment CASE QUESTIONS
• The Significance of Agreement
• The Objective Test KEY TAKEAWAY EXERCISES
• The Definition of Offer
• Advertisements
• Invitations to Bid
• Communication
• Definiteness
• The UCC Approach
• Revocability
• Irrevocable Offers
• Revocability under the UCC
• Irrevocability by Law
• Rejection by the Offeree
• Counteroffer
• Acceptance with Counteroffer
• The UCC and Counteroffers
• Lapse of Time
• Death or Insanity of the Offeror
• Destruction of Subject Matter Essential to the Offer
• Postoffer Illegality KEY TAKEAWAY EXERCISES
• General Definition of Acceptance
• When Is Acceptance Effective?
• Instantaneous Communication
• Stipulations as to Acceptance
• The “Mailbox Rule”
• Acceptance “Outruns” Rejection
• Electronic Communications
• General Rule: Silence Is Not Acceptance
• Exceptions KEY TAKEAWAY EXERCISES
• Objective Intention CASE QUESTIONS
• Advertisements as Offers CASE QUESTIONS
• Silence as Acceptance CASE QUESTIONS
• Summary and Exercises Summary EXERCISES SELF-TEST QUESTIONS SELF-TEST ANSWERS SELF-TEST ANSWERS
• Physical Duress
• Duress by Threat
• Undue Influence KEY TAKEAWAY EXERCISES
• General Description
• Misstatement of Fact
• Concealment
• Nondisclosure
• Statement Made False by Subsequent Events
• Statements of Opinion
• Misstatement of Law
• Assertions of Intention
• Intentionally Made Misrepresentation
• Negligent Misrepresentation
• Materiality
• Justifiable Reliance
• Innocent Misrepresentation
• Remedies KEY TAKEAWAY EXERCISES
• Unilateral Mistake
• Mutual Mistake
• Material Effect on the Agreed-to Exchange of Performance
• Party Seeking Relief Does Not Bear the Risk of the Mistake KEY TAKEAWAY EXERCISES
• The General Rule
• Exceptions and Complications
• Necessities
• Nonvoidable Contracts
• Misrepresentation of Age
• Ratification
• Duty to Return Consideration Received
• Tort Connected with a Contract
• Mentally Ill Persons
• Intoxicated Persons KEY TAKEAWAY EXERCISES
• Undue Influence CASE QUESTIONS
• Discussion CASE QUESTIONS
• Misrepresentation by Assertions of Opinion CASE QUESTIONS
• Mutual Mistake CASE QUESTIONS
• The Purpose of Consideration
• A Definition of Consideration KEY TAKEAWAY EXERCISES
• Actual versus Legal Detriment
• Adequacy of Consideration
• Threat of Litigation: Covenant Not to Sue
• Accord and Satisfaction Generally
• Settling an Unliquidated Debt
• Settling a Disputed Debt
• The “In-Full-Payment” Check Situation
• Unforeseen Difficulties
• Creditors’ Composition
• Preexisting Duty
• Illusory Promises
• Exclusive Dealing Agreement
• Outputs Contracts and Needs Contracts KEY TAKEAWAY EXERCISES
• Past Consideration
• Promise Revived after Statute of Limitations Has Passed
• Voidable Duties
• Promissory Estoppel
• Moral Obligation
• Under the UCC
• International Contracts KEY TAKEAWAY EXERCISES
• Consideration for an Option CASE QUESTIONS
• Consideration: Preexisting Obligation CASE QUESTIONS
• Consideration: Required for Contract Modification CASE QUESTIONS
• General Perspectives on Illegality LEARNING OBJECTIVES KEY TAKEAWAY EXERCISES
• Gambling Contracts
• Sunday Contracts
• Licensing Statutes KEY TAKEAWAY EXERCISES
• Common-Law Restraint of Trade
• Sale of a Business
• Employment Noncompete Agreements
• Unconscionable Contracts
• Exculpatory Clauses
• Obstructing the Administration of Justice or Violating a Public Duty
• Family Relations KEY TAKEAWAY EXERCISES
• Effect of Illegality
• Party Withdrawing before Performance
• Party Protected by Statute
• Party Not Equally at Fault
• Excusable Ignorance
• Partial Illegality KEY TAKEAWAY EXERCISES
• Extension of Statutory Illegality Based on Public Policy CASE QUESTIONS
• Unlicensed Practitioner Cannot Collect Fee CASE QUESTIONS
• Unconscionability CASE QUESTIONS
• Overview of the Statute of Frauds
• Promises to Pay the Debt of Another
• Agreements of Executor or Administrator
• The Marriage Provision
• Contracts Affecting an Interest in Real Estate
• The One-Year Rule
• Other Writing Requirements
• Exceptions under the UCC
• The Ten-Day-Reply Doctrine
• “Specially Manufactured Goods”
• The “Admission” Exception
• The “Payment or Delivery and Acceptance” Exception
• At Common Law
• Full Performance
• Detrimental Reliance
• Oral Rescission
• Contract Modification KEY TAKEAWAY EXERCISES
• The Purpose of the Rule
• Not an Integrated Contract
• Void or Voidable Contracts
• Contracts Subject to a Condition Precedent
• Untrue Recital or Errors
• Postcontract Modification
• The UCC Approach KEY TAKEAWAY EXERCISES
• The General Problem
• The Basic Rule of Interpretation
• Tools of Interpretation KEY TAKEAWAY EXERCISES
• The Statute of Frauds’ Main Purpose Doctrine CASE QUESTIONS
• The Statute of Frauds’ One-Year Rule CASE QUESTIONS
• The Parol Evidence Rule: Postcontract Modification CASE QUESTIONS
• Manifesting Assent
• Acceptance and Revocation
• General Rule
• Material Change in Duties of the Obligor
• Assignment of Personal Rights
• Assignment Forbidden by Statute or Public Policy
• Contracts That Prohibit Assignment
• Future Contracts
• Assignor’s Warranties KEY TAKEAWAY EXERCISES
• Effect on Obligor
• Personal Services
• Public Policy
• Delegations Barred by Contract KEY TAKEAWAY EXERCISES
• Creditor Beneficiary
• Donee Beneficiary
• Modification of the Beneficiary’s Rights
• Government Contracts KEY TAKEAWAY EXERCISES
• Nonassignable Rights CASE QUESTIONS
• Assignment Includes Delegation CASE QUESTIONS
• Third party Beneficiaries and Foreseeable Damages CASE QUESTIONS
• Nonperformance, Material Breach
• Substantial Performance
• Anticipatory Breach and Demand for Reasonable Assurances KEY TAKEAWAY EXERCISES
• Conditions Classified Based on How They Are Created
• Conditions Classified Based on Their Effect on Duty to Perform
• Condition of Timeliness
• Condition That a Party Must Be Satisfied KEY TAKEAWAY EXERCISES
• Mutual Rescission
• Substituted Agreement
• Accord and Satisfaction KEY TAKEAWAY EXERCISES
• Death or Incapacity of a Personal Services Contractor
• Destruction or Deterioration of a Thing Necessary for Performance
• Performance Prohibited by Government Regulation or Order
• Impracticability
• Common-Law Impracticability
• Commercial Impracticability
• Frustration of Purpose KEY TAKEAWAY EXERCISES
• Cancellation, Destruction, or Surrender
• Power of Avoidance
• Statute of Limitations
• Bankruptcy KEY TAKEAWAY
• Substantial Performance; Conditions Precedent CASE QUESTIONS
• Waiver of Contract Rights; Nonwaiver Provisions CASE QUESTIONS
• Impossibility as a Defense CASE QUESTIONS
• Purpose of Remedies
• Parties Have the Power—but Not the Right—to Breach KEY TAKEAWAY EXERCISES
• Promisee’s Interests Protected by Contract LEARNING OBJECTIVE KEY TAKEAWAY EXERCISE
• Compensatory Damages
• Incidental Damages
• Consequential Damages
• Nominal Damages
• Liquidated Damages
• Punitive Damages KEY TAKEAWAY EXERCISES
• Specific Performance
• Restitution
• Total Nonperformance by Breaching Party
• Part Performance and Then Breach
• Restitution in Other Cases KEY TAKEAWAY EXERCISES
• Foreseeability
• Mitigation of Damages
• Certaintymages
• Affirmation
• Rights of Third Parties
• Agreement of the Parties Limiting Remedies
• Tort versus Contract
• Legal versus Extralegal Remedies KEY TAKEAWAY EXERCISES
• Consequential Damages CASE QUESTIONS
• Liquidated Damages CASE QUESTIONS
• Injunctions and Negative Covenants CASE QUESTIONS
• Limitation on Damages: Mitigation of Damages CASE QUESTIONS
• Summary and Exercises Summary EXERCISES  SELF-TEST QUESTIONS  SELF-TEST ANSWERS 
• History of Products-Liability Law
• Current State of the Law KEY TAKEAWAY EXERCISES
• Express Warranties
• Implied Warranties
• Implied Warranty of Merchantability
• Fitness for a Particular Purpose
• Other Warranties
• Exclusion or Modification of Warranties
• Exclusion of Express Warranties
• Exclusion of Implied Warranties in General
• Implied Warranty of Fitness
• Conflict between Express and Implied Warranties
• The Magnuson-Moss Act and Phantom Warranties
• Horizontal Privity
• Vertical Privity
• Contributory Negligence, Comparative Negligence, and Assumption of Risk KEY TAKEAWAY EXERCISES
• Design Defects
• Warning Defects
• Common-Law Defenses against Negligence
• Preemption KEY TAKEAWAY EXERCISES
• Strict Liability Defined
• Product in a Defective Condition
• Unreasonably Dangerous
• Engaged in the Business of Selling
• Reaches the User without Change in Condition
• Liability Despite Exercise of All Due Care
• Liability without Contractual Relation
• Disclaimers
• Plaintiff’s Conduct
• Misuse or Abuse of the Product
• Limited Remedy
• The Third Restatement KEY TAKEAWAY EXERCISES
• The Cry for Reform
• Statutes of Repose
• State-of-the-Art Defense
• Failure to Warn
• Comparative Fault for Consumer Misuse
• Criminal Penalties
• Federal Reform KEY TAKEAWAY EXERCISES
• Implied Warranty of Merchantability and the Requirement of a “Sale” CASE QUESTIONS
• Strict Liability and Bystanders
• Failure to Warn CASE QUESTIONS
• Patents LEARNING OBJECTIVES
• What May Be Patented
• What May Not Be Patented
• Tests for Patentability
• Procedures for Obtaining a Patent
• Patent Ownership
• Infringement and Invalidity Suits
• Patent Misuse KEY TAKEAWAY EXERCISES
• Definition of Trade Secrets
• Originality
• Economic Espionage Act
• Right of Employees to Use Trade Secrets KEY TAKEAWAY EXERCISES
• Definition and Duration
• Protected Expression
• Preventing Copying
• Infringement
• Copyrightability Standards
• Who May Obtain a Copyright?
• Obtaining a Copyright
• Computer Downloads and the Digital Millennium Copyright Act KEY TAKEAWAY EXERCISES
• Definitions of Trademarks
• Kinds of Marks
• Limitations on Marks
• Dilution, Tarnishment, and Blurring
• Acquiring Trademark Rights
• Loss of Rights KEY TAKEAWAY EXERCISES
• Fair Use in Copyright CASE QUESTIONS
• Trademark Infringement and Dilution CASE QUESTIONS
• Public and Private Insurance
• Life Insurance
• Health Insurance
• Disability Insurance
• Homeowner’s Insurance
• Automobile Insurance
• Other Liability Insurance
• Workers’ Compensation
• Property Insurance
• Malpractice Insurance
• Business Interruption Insurance
• Liability Insurance KEY TAKEAWAY EXERCISES
• Insurable Interest in Property
• Subrogation
• Intentional Losses
• Coinsurance Clause
• Liability Insurance
• No-Fault Trends
• Insurable Interest
• Change of Beneficiary and Assignment
• Murder KEY TAKEAWAY EXERCISES
• Representation
• Incontestable Clause
• Requirement of Insurer’s Good Faith KEY TAKEAWAY EXERCISES
• Misrepresentation to Insurer CASE QUESTIONS
• Why Is Agency Law Important, and What Is an Agent?
• Recurring Issues in Agency Law
• Recurring Issues in Agency
• General Agent
• Special Agent
• Agency Coupled with an Interest
• Independent Contractor
• Agency Created by Agreement
• Consideration
• Formalities
• Agency Created by Operation of Law
• Implied Agency
• Apparent Agency KEY TAKEAWAY EXERCISES
• Fiduciary Duty
• Duty to Avoid Self-Dealing
• Duty to Preserve Confidential Information
• Other Duties
• Duty of Skill and Care
• Duty of Good Conduct
• Duty to Keep and Render Accounts
• Duty to Act Only as Authorized
• Duty Not to Attempt the Impossible or Impracticable
• Duty to Obey
• Duty to Give Information
• “Shop Rights” Doctrine
• Contract Duties
• General Contract Duties
• Employment at Will
• Duty to Indemnify
• Tort and Workers’ Compensation Duties
• Background to Workers’ Compensation
• The System in General Kansas Workers’ Compensation Benefits for Specific Injuries
• Paying for Workers’ Compensation
• Recurring Legal Issues KEY TAKEAWAY EXERCISES
• Creation of Agency: Liability of Parent for Contracts Made by “Agent” Child CASE QUESTIONS
• Employee versus Independent Contractor CASE QUESTIONS
• Breach of Fiduciary Duty CASE QUESTIONS
• Workers’ Compensation: What “Injuries” Are Compensable? CASE QUESTIONS
• Principal’s Contract Liability Requires That Agent Had Authority
• Express Authority
• Implied Authority
• Apparent Authority
• Ratification KEY TAKEAWAY EXERCISES
• The Distinction between Direct and Vicarious Liability
• Direct Liability
• Vicarious Liability
• Agents for Whom Principals Are Vicariously Liable
• Liability for Agent’s Intentional Torts
• Deviations from Employment
• The “Scope of Employment” Problem
• The Zone of Risk Test
• Special Cases of Vicarious Liability
• Use of Automobiles
• Torts of Family Members
• Other Torts Governed by Statute or Regulation
• Principal’s Criminal Liability KEY TAKEAWAY EXERCISES
• Tort Liability
• Contract Liability
• Agent for Undisclosed or Partially Disclosed Principal
• Lack of Authority in Agent
• Agent Acting on Own Account
• By Act of the Parties
• Express Termination
• Implied Termination
• By Operation of Law KEY TAKEAWAY EXERCISES
• Implied Authority CASE QUESTIONS
• Employer’s Liability for Employee’s Intentional Torts: Scope of Employment CASE QUESTIONS
• Facts and Proceedings in the Trial Court
• Importance of Partnership Law
• Through the Twentieth Century
• The Current State of Partnership Law
• Meaning of “Legal Entity”
• Entity Characteristics of a Partnership
• For Accounting Purposes
• For Purposes of Taxation
• For Purposes of Litigation
• For Purposes of Owning Real Estate
• For Purposes of Bankruptcy KEY TAKEAWAY EXERCISES
• Creation in General
• Specific Issues of Concern
• Who Can Be a Partner?
• Written versus Oral Agreements
• Validity of the Partnership Name
• Creation of Implied Partnership
• Association of Persons
• Co-owners of a Business
• Sharing of Profits
• Business for Profit
• Sharing the Profit
• Other Factors
• Creation of Partnership by Estoppel KEY TAKEAWAY EXERCISES
• Tests of Partnership Existence CASE QUESTIONS
• Background Facts
• Suit against Whitehead
• The Faxed Credit References
• The Fax Cover Sheet
• The Epsco Personnel Credit Application
• The Checks to Epsco
• The Business Card
• The Dealership Application CASE QUESTIONS
• Duty to Serve
• Duty of Loyalty
• Application of the Fiduciary Standard to Partnership Law
• Limits on the Reach of the Fiduciary Duty
• Activities Affected by the Duty of Loyalty
• Duty of Care
• Duty of Obedience
• Duty to Inform Copartners
• Duty to Account
• Rights to Distributions
• Right to Profits (and Losses)
• Right to Indemnification
• Right to Return of Capital Contribution
• Right to Compensation
• Right to Management
• Right to Choose Partners
• Right to Property of the Partnership
• Rights in Specific Partnership Property: UPA Approach
• Rights in Specific Property: RUPA Approach
• Right to Assign Partnership Interest
• Voluntary Assignment
• Involuntary Assignment
• Right to Enforce Partnership Rights
• Right to Information and Inspection of Books KEY TAKEAWAY EXERCISES
• Liability of the Partnership
• Partnership “Statements”
• Personal Liability of Partners, in General
• Liability of Existing Partners
• Liability of Incoming Partners
• Partnership Liability for Torts
• Partners’ Personal Liability for Torts
• Liability for Crimes
• Liability for Taxes KEY TAKEAWAY EXERCISES
• Meaning of Dissolution under UPA
• Causes of Dissolution
• In Accordance with the Agreement
• In Violation of the Agreement
• By Operation of Law
• By Court Order
• Effect of Dissolution on Authority
• After Dissolution
• Forming a New Partnership
• Winding Up and Termination
• Dissociation
• Causes of Dissociation
• Effect of Dissociation
• Dissolution
• Effect of Dissolution
• Continuing after Dissociation
• Who Can Participate in Winding Up
• Settlement of Accounts among Partners KEY TAKEAWAY EXERCISES
• Breach of Partnership Fiduciary Duty CASE QUESTIONS
• Partnership Authority, Express or Apparent CASE QUESTIONS
• Winding Up the Partnership
• Lopez’s Liability for the IKON Debt
• Attorneys’ Fees
• Conclusion CASE QUESTIONS
• Dissolution under RUPA CASE QUESTIONS
• Governing Law
• Capitalization
• General Partners
• Limited Partners
• Assignment of Partnership Rights
• Inspection of Books
• Addition of New Partners
• Compensation
• Winding Up KEY TAKEAWAY EXERCISES
• History of the Limited Liability Company
• Creation of the LLC
• Liability to Outsiders
• Internal Liabilities
• Continuity of Life
• Dissolution and Winding Up
• Free Transferability of Interest KEY TAKEAWAY EXERCISES
• Creation and Capitalization
• Transferability of Ownership
• Limited Liability Limited Partnerships
• Ethical Concerns KEY TAKEAWAY EXERCISES
• Limited Partnerships: Limited Partners’ Liability for Managing Limited Partnership CASE QUESTIONS
• Liability Issues in LLCs CASE QUESTIONS
• Defective Registration as a Limited Liability Partnership CASE QUESTIONS
• A Fixture of Every Major Legal System
• US Corporation Formation
• Corporate Law Today KEY TAKEAWAY EXERCISES
• Ease of Formation
• Ownership and Control
• Transferability of Interests
• Taxation KEY TAKEAWAY EXERCISES
• The Basic Rights of the Corporate “Person”
• Absence of Rights
• Failure to Act as a Corporation
• Other Types of Personal Liability KEY TAKEAWAY EXERCISES
• Nonprofit Corporations
• Public Corporations
• Professional Corporations
• The Two Types KEY TAKEAWAY EXERCISES
• Function of the Charter
• Charter as a Contract
• Where to Charter
• Why Choose Delaware?
• Preincorporation Stock Subscriptions
• Execution and Filing of the Articles of Incorporation
• Organizational Meeting of Directors KEY TAKEAWAY EXERCISES
• De Jure and De Facto Corporations
• Corporation by Estoppel KEY TAKEAWAY EXERCISES
• Limiting a Corporation’s First Amendment Rights CASE QUESTIONS
• Piercing the Corporate Veil CASE QUESTIONS
• Corporate Promoter CASE QUESTIONS
• De Jure and De Facto Corporations CASE QUESTIONS
• Learning Objectives LEARNING FAKE OBJECTIVES
• Debt Securities
• Equity Securities
• Other Forms of Finance KEY TAKEAWAY EXERCISES
• Basics of Corporate Bonds
• Advantages and Disadvantages of Bonds KEY TAKEAWAY EXERCISES
• Authorized, Issued, and Outstanding Stock
• Par Value and No-Par Stock
• Preference to Dividends
• Liquidation Preference
• Convertible Shares
• Redeemable Shares
• Voting Rights
• Common Stock
• Stocks and Bonds and Bears, Oh My! KEY TAKEAWAY EXERCISES
• Nature of the Consideration
• Evaluating the Consideration: Watered Stock KEY TAKEAWAY EXERCISES
• Cash Dividend
• Stock Dividend
• Property Dividend
• Stock Split
• Distribution from Capital Surplus
• Record Date, Payment Date, Rights of Stockholders
• When Directors Are Too Stingy
• When Directors Are Too Generous KEY TAKEAWAY EXERCISES
• Changes in the Revised Model Business Corporation Act
• Introduction to Article 8 of the Uniform Commercial Code
• The UCC and the 1933 and 1934 Securities Acts KEY TAKEAWAY EXERCISES
• Consideration in Exchange for Stock CASE QUESTIONS
• Payment of Dividends CASE QUESTIONS
• Express Powers
• Implied Powers
• The Ultra Vires Doctrine
• Criminal, Tortious, and Other Illegal Acts KEY TAKEAWAY EXERCISES
• General Management Functions
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Factoring and Set off Rights – Some Practical Tips

Factoring is a widely used mechanism in the business world. This article discusses the law in relation to factoring and practical tips to be adopted by companies when it comes to factoring and set off rights.

What is factoring?

Factoring is a form of financing by which a company sells debts that are due to be collected from a customer to a third party (the Factor) at a discounted price, and in turn assigns its rights to collect the debts from the customer or customers to the Factor.

After the factoring arrangement is entered into between the company and the Factor, it is the usual practice for the Factor to send out to the relevant customers a letter giving notice that from the date of the letter and until further notice, all debts owed by the customers to the company are automatically assigned and become payable to the Factor. This letter is usually known as an introductory letter.

Law on factoring and its effect on set off rights

Under Hong Kong law, the assignment of debts is governed by both statute and common law principles. Section 9 of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) (the Ordinance) provides that:-

“ Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee…) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor .”

This means that when a customer receives (and/or acknowledges) a written notice of assignment (including an introductory letter) from the Factor, the assignment of debt to the Factor becomes effective in law.

Section 9 of the Ordinance provides that the Factor takes the assignment of debt subject to all equities which would have been entitled to priority over the rights of the Factor.  Cases have interpreted this wording to mean that:-

(a)        the Factor takes subject to the customer’s right of set off against the assignor; but

(b)        if the set off does not arise out of or is not closely connected with the same contract or the subject-matter of the assignment, the customer can only claim a set off against the Factor if the right of set off arose before the notice of assignment is given.

Where there is a prior contractual set off agreement in place between the company and the customer, the law is not as clear cut when it comes to deciding whether such an agreement will also be effective against the Factor where the transaction out of which the cross-claim sought to be set off arose was entered into after the notice of assignment is given. There are two competing views arising from the case law on this issue:-

(a)        One view is that the assignee (i.e. the Factor) takes the same interest and is subject to the same liabilities as the assignor (i.e. the company) at the date of the notice of assignment, and the prior agreement will allow the debtor (i.e. the customer) to set off cross-claims, both present and future, including claims which arise out of new transactions.

(b)        The competing view is that when the debtor receives notice, the debtor should regulate its conduct accordingly and should not rely on debts arising out of new transactions to diminish the rights of the assignee as they stood at the time of notice: in other words, set off is not available in respect of new transactions.

A set-off agreement entered into by the company and customer after the customer has notice of the assignment will not ordinarily be effective as against the Factor.

In summary, set off rights will continue to apply after assignment where:

(a)      the relevant cross-claim arose before the assignment;

(b)      the relevant cross-claim arose out of the same contract or is closely connected with it;

(c)      the factor expressly (or, depending on the facts, by implication) agrees to the continuation of a contractual set off right.

Practical Tips

Below are various measures which can be taken by a company to strengthen its position when it comes to factoring and set off rights:-

• It is prudent for a company to include a clause in their terms and conditions with the supplier providing that the set off rights which the company has under the contract will continue to be enforceable against the supplier and their assignees regardless of (a) any existing or future agreements entered into between the supplier and a third party assigning the right to the third party to collect its receivables or (b) any future notice of assignment of debt which may be received by the company in relation to the supplier’s debt.  Again, it is also prudent to get an acknowledgement from the Factor and the supplier that they will adhere to these terms.
• Set up measures to ensure that Factors are kept up to date with the set off arrangements which the company has in place with their customers e.g. by periodically sending letters to Factors (especially if the Factor is involved in a long term trading relationship) reminding them that the company’s set off rights against the customer and Factor will continue to apply to future assigned debts of the customer; and
• In the event the company’s right to set off crystallises (e.g. default by the supplier), the company should put the supplier and Factor on immediate notice that the company will exercise their set off rights against any assigned debts which are the subject of any existing or future invoices which may be issued by the supplier.

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Hong Kong – Assignment, Novation Or Sub-Participation Of Loans.

April 28, 2022 by Balaram Adhikari

TRANSFERABILITY OF LOANS

The legal analysis regarding the transferability of loans can be complex.  The loan agreement should be examined with a view to identifying any restrictions on transferability of the loan between lenders, such as prior consent of the debtor and, in some cases, whether such consent may be withheld.  Other general restrictions may apply given that most banks have internal confidentiality rules and data protection requirements, the latter of which may also be subject to governmental regulations.  Certain jurisdictions may restrict the transfer of loans relating to specific types of receivables – mortgage or consumer loans being prime examples.  It is imperative to conduct proper due diligence on the documentation and underlying assets in order to be satisfied with the transferability of the relevant loans.  This may be complicated further if there are multiple projects, facility lines or debtors.  It is indeed common to see a partial transfer of loans to an incoming lender or groups of lenders.

METHODS OF TRANSFER

The transfer of loans may be carried out in different ways and often involves assignment, novation or sub-participation.

A typical assignment amounts to the transfer of the rights of the lender (assignor) under the loan documentation to another lender (assignee), whereby the assignee takes on the assignor’s rights, such as the right to receive payment of principal and interest on the loan.  The assignor is still required to perform any obligations under the loan documentation.  Therefore, there is no need to terminate the loan documentation and, unless the loan documentation stipulates otherwise, there is no need to obtain the debtor’s consent, but notice of the assignment must be served on the debtor.  However, many debtors are in fact involved in the negotiation stage, where the parties would also take the opportunity to vary the terms of the facility and security arrangement.

Novation of a loan requires that the debtor, the existing lender (transferor) and the incoming lender (transferee) enter into new documentation which provides that the rights and obligations of the transferor will be novated to the transferee.  The transferee replaces the transferor in the loan facility and the transferor is completely discharged from all of its rights and obligations.  This method of transfer does require the prior consent of the relevant debtor.

Sub-participation is often used where a lender, whilst wishing to share the risks of certain loans, nonetheless prefers to maintain the status quo.  There is no change to the loan documentation – the lender simply sells all or part of the loan portfolio to another lender or lenders.  From the debtor’s perspective, nothing has changed and, in principle, there is no need to obtain the debtor’s consent or serve notice on the debtor.  This method of transfer is sometimes preferred if the existing lender is keen to maintain a business relationship with the debtor, or where seeking consent from the debtor or notifying the debtor of any transfer is not feasible or desirable.  In any case, there would be no change to the balance sheet treatment of the existing lender.

OFFSHORE SECURITY ARRANGEMENTS

The transfer of a loan in a cross-border transaction often involves an offshore security package.  A potential purchaser will need to conduct due diligence on the risks relating to such security.  From a legal perspective, the security documents require close scrutiny to confirm their legality, validity and enforceability, including the nature and status of the assets involved.  Apart from transferability generally, the documents would reveal whether any consent is required.  A lender should seek full analysis on the risks relating to enforcement of security, which may well be complicated by the involvement of various jurisdictions for potential enforcement actions.

A key aspect to the enforcement consideration is whether a particular jurisdiction requires that any particular steps be taken to perfect a security interest relating to the loan portfolio (if the concept of perfection applies at all) and, if so, whether any applicable filing or registration has been made to perfect the security interest and, more importantly, whether there exists any prior or subsequent competing security interest over all or part of the same assets.  For example, security interests may be registered in public records of the security provider maintained by the companies registry in Bermuda or the British Virgin Islands for the purpose of obtaining priority over competing interests under the applicable law.  The internal register of charges of the security provider registered in the Cayman Islands, Bermuda or the British Virgin Islands should also be examined as part of the due diligence process.  Particular care should be taken where the relevant assets require additional filings under the laws of the relevant jurisdictions, notable examples of such assets being real property, vessels and aircraft.  Suites of documents held in escrow pending a potential default under the loan documentation should also be checked as they would be used by the lender or security agent to facilitate enforcement of security when the debtor defaults on the loan.

DUE DILIGENCE AND BEYOND

Legal due diligence on the loan documentation and security package is an integral part of the assessment undertaken by a lender of the risks of purchasing certain loan portfolios, regardless of whether the transfer is to be made by way of an assignment, novation or sub-participation.  Whilst the choice of method of transfer is often a commercial decision, enforceability of security interests over underlying assets is the primary consideration in reviewing sufficiency of the security package in any proposed loan transfer.

For further information, please contact:

Fiona Chan , Partner, Appleby

[email protected]

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Newsletter No. 149 (EN)

Securing and assigning claims in hong kong.

• Last updated:
• 31 January, 2023

I. Introduction

Security in the form of a charge over certain assets, such as receivables or “book debt” for instance, is of signifi­cant importance for international trade and loan transactions. In order for a creditor to minimize the risk of default by the debtor and obtain assurance that only secured rather than unsecured debts are held, the creditor must take several steps to reserve a preferential rank over other creditors.

This newsletter will discuss the assign­ment of receivables, in German called “Zession”, and what is required for a registration in Hong Kong to reserve a preferential rank in case of insolvency of the debtor. First, the relevant terms will be defined and then described in further detail in context of Hong Kong legisla­tion. The final part of the newsletter will explain what is required to register a blanket assignment of receivables in Hong Kong.

II. Definitions

1.       Assignment of receivables

Assignments of receivables are regulated in Germany in § 398 of the Civil Law Code ( B ürgerliche G esetz b uch, BGB ). The assignment of receivables is a common security for loans. The legal re­lationship usually consists of a party granting security, the grantor (e.g. per­son or entity taking a loan) who assigns receivables (e.g. receivables for goods supplied) to a secured party (e.g. entity or person giving a loan). The assignment of receivables makes the se­cured party the creditor of the receiva­bles.

2.      Types of assignment of receivables

Assignments generally can be distin­guished into single assignment (“Einzel­zession”), overall assignment (“Mantel­zession”) and blanket assignment (“Globalzession”). The blanket assign­ment is also sometimes re­ferred to as global assignment. The blanket assign­ment is differentiated from the single as­signment and overall assign­ment insofar, as the blanket assign­ment assigns all cur­rent and future receivables in favour of the secured person or entity. In contrast, a single assign­ment only assigns a specif­ic receivable while an overall assignment usually assigns only receivables that ex­isted at a certain point in time. Some­times, overall assignments are accompa­nied with an arrangement that all future receivables will be assigned through ad­ditional overall assignments. However, since such arrangement is very similar to the blanket assignment, usually in such circumstances the parties agree to pro­ceed with a blanket assignment.

3.      Absolute and undisclosed assign­ments

Independent of whether current or fu­ture receivables are assigned, or whether one specific receivable or a group of re­ceivables are assigned, the assign­ment can be either absolute or undisclosed. With an undisclosed assign­ment the se­cured party decides not to disclose the assign­ment to the third-party debtor, who continues to settle the receivables by payment to the grantor. With an absolute assignment, the assign­ment is disclosed to the third-party debtor and the debtor is only able to set­tle the receivables with discharging ef­fect by payment to the secured party, not the grantor.

In Hong Kong, no requirement exists that for an absolute assignment the third-party debtor has to only settle the receivables with discharging effect by payment to the secured party. It is how­ever common, if the secured party is a bank, that a special account is opened, which is used by the third-party debtor to settle the receivables. The money held in these accounts can only be accessed or transferred with the permission of the secured party (usually the bank).

III. Assignment of receivables in Hong Kong

Assignments of receivables such as the blanket assignment are generally possi­ble and are regulated under the broader term “charges”. In Hong Kong and many other common law jurisdictions a distinction is made between “fixed” and “floating” charges.

A fixed charge is a charge over assets which are specified (e.g. a machine or a specific receivable). With the effect of the assignment that the grantor (“char­gor”) is no longer free to deal with those assets. In contrast, a floating charge is an assignment of a type or group of assets (e.g. inventory, goods in a warehouse, undefined number of receivables, or the general under­taking or property of the company) which are not specifically identifiable and the chargor is able to continue to use the assets (processing and selling goods, collect receivables, etc.) while the secured person (“chargee”) retains certain rights in case of insolvency.

Charges are generally available to sole-traders as security instrument in business transactions while in practice “floating charges“ are primarily only granted by companies. The C ompanies O rdinance Chap. 622 ( CO ) does not define fixed and floating charges and so its definition is based on case law in alignment with common law principles. Assignments of receivables have generally been catego­rised as fixed charges. However, the conditions of what constitutes a fixed charge have changed significantly after the decisions in Agnew v IRC [2001] UKPC 28 and National Westminster Bank Ltd v Spectrum Plus Ltd [2004] 3 WLR 503.

A blanket assignment has the character­istic that the underlying assets, the re­ceiv­ables, constantly change (old receiv­ables are settled, and new ones are add­ed). Therefore, it is generally accept­ed that the blanket assignment is not treat­ed like a fixed charge, but as a float­ing charge. The classification is not up to the involved parties, but is determined by the relevant judge on a case by case basis (common law).

In case the grantor would like to classify the blanket assignment as a fixed charge, it would be necessary to open a bank ac­count, which is used for all settlement payments of the relevant receivables, and the grantor is unable to access or transfer any amounts from this account without the prior permission of the se­cured party. Since such arrangement is rather unpractical, it can be noted that the blanket assignment will most likely be characterised as a floating charge. With a floating charge, the secured party has only access to the charged receiva­bles, when they “concretise”. A floating charge will concretises if:

• the company winds-up;
• commences insolvency proceedings;
• ceases its business;
• any agreed terms of the charge.

The disadvantage of a floating charge is that the secured party is ranked after creditors that are in the possession of a fixed charge.

IV. Registration

To ensure that a party providing a loan becomes a secured creditor in compari­son to an unsecured creditor, it is neces­sary that the charge is valid and regis­tered. If an assignment of receiv­ables is not registered, it is invalid towards the liquidator and other creditors of the company. The registration of charges is regulated in Section 333 ff of the CO.

1.       Registration

Section 334 of the CO includes a list of charges that must be registered (inde­pendent whether they are considered fixed or floating charges). Among the listed charges are receivables.

2.      Registration period

Section 335 of the CO requires that a charge is registered within a month af­ter its creation.

3.      Registry keeping

Pursuant to Section 352 of the CO, a company must keep a registry at its reg­istered office. In case that the registry is not kept at the registered office, the Registrar of Companies must be in­formed. The registry must be kept in Hong Kong.

4.      Registration by the company or its creditors

In theory it is the duty of the company to register the charge. However, it is common that the registration is done by the creditor.

A blanket assignment of receivables is possible in Hong Kong and must be registered at the Companies Registry as charge. A registration is also possible (recommended) by the creditor. A blan­ket assignment of receivables is most likely categorised as a floating charge, which has the disadvantage that in case of insolvency, the secured party’s set­tlement of claims will be ranked after the creditors of fixed charges.

We hope that we have been able to assist you with this information. If you have any further questions, please contact us:

Lorenz & Partners Co., Ltd.

27th Floor, Bangkok City Tower, 179, S Sathorn Rd,

Thung Maha Mek, Sathon, Bangkok 10120

Email:  [email protected] www.lorenz-partners.com +66 (0) 2 287 1882

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Opinion: 'Glory be to thee, Hong Kong!'

Scott Simon

Demonstrators hold up lights from their phones during a rally organized by Hong Kong mothers in support of extradition law protesters, in Hong Kong on July 5, 2019. Hector Retamal/AFP via Getty Images hide caption

Demonstrators hold up lights from their phones during a rally organized by Hong Kong mothers in support of extradition law protesters, in Hong Kong on July 5, 2019.

This is "Glory to Hong Kong." Singing this song, or listening to it, or merely quoting the lyrics in conversation, could soon get people in Hong Kong sent to prison. Even for life.

"Glory to Hong Kong" has lyrics that declare: " Break now the dawn, liberate our Hong Kong / May people reign, proud and free, now and evermore / Glory be to thee, Hong Kong!"

Hong Kong, of course, was returned to China from British rule in 1997. "Glory to Hong Kong" was written during the 2019 Hong Kong protests by a pop-rock musician who wishes only to be known as "Thomas dgx yhl." He told Hong Kong's Stand News website that he was inspired by anthems in composing the song, including "God Save the King" and " Battle Hymn of the Republic."

Radio Free Asia closes its Hong Kong operation over safety concerns for its staff

By the way: Stand News was shut a year after running the interview.

This week Hong Kong's appeals court Judge Jeremy Poon ruled that "Glory to Hong Kong" should not be performed, broadcast, or reproduced.

A spokesperson for China's Ministry of Foreign Affairs approved, saying, "It is only legitimate and necessary for the Hong Kong Special Administrative Region to stop anyone from using and disseminating relevant songs to incite secession and insult the national anthem."

But Sarah Brooks, Amnesty International's China director, told us, "Singing a protest song should not be a crime. It fundamentally violates international human rights."

"Glory to Hong Kong" has already been banned from Hong Kong's schools. And a man was arrested outside the city's British consulate in 2022 for playing the song on a harmonica after the death of Queen Elizabeth.

The court has also suggested that internet companies might, "stop facilitating the acts being carried out on their platforms."

Hong Kong passes a new security law that toughens punishment of dissent

So far, internet companies have not removed "Glory to Hong Kong" from their platforms. After this week's court ruling, do you think they would risk losing the right to do business there?

But you might wonder, too, if trying to stop "Glory to Hong Kong" from being sung and heard will only make the song more compelling—and powerful.

People who are barred from assembling to sing the song in public could begin to whisper the lyrics to one another, urgently, from behind their hands. They might tell one another, in hushed, urgent voices, "Our voice grows evermore: / For Hong Kong, may Glory reign!"

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Manual for Legal Aid Practitioners

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