Moveable Transactions (Scotland) Act 2023

Moveable Transactions (Scotland) Act 2023

2023 asp 3

Commentary on Sections

Part 2 – Security over Moveable Property

Chapter 1 - Pledge

Enforcement of pledge

Section 66 – Whether court order required for enforcement

295. Subsection (1) confirms that a court order is only required for enforcement in the circumstances set out.

296. Under subsection (2), a court order is required before a pledge is enforced against an individual where the individual is a sole trader and the enforcement is against business assets.

297. Subsection (3) deals with property subject to a statutory pledge which is the sole or main residence of an individual, although that will be unusual as a pledge can only be granted over moveable property. It may, however, be relevant on occasion in relation to, say, a caravan or a houseboat. A court order is required unless there is a written agreement to enforcement, after the pledge becomes enforceable, between the person in residence, the provider (if a different person) and the secured creditor. If such an order is sought, it cannot be granted unless it is reasonable to do so (see subsection (4)), and subsection (5) sets out some of the factors which may require to be considered by the court.