Property and Insolvency Law: The Need for Multiple Perspectives

Property and Insolvency Law: The Need for Multiple Perspectives
2020-10-29

Dr Alisdair MacPherson presents the first contribution to the Centre for Commercial Law (CCL)’s blog series on “Seeing Commercial Law from Different Perspectives” launched to celebrate the University of Aberdeen’s 525 anniversary and to showcase CCL members thought-provoking standpoints on researching, teaching, or practising commercial law. Alisdair joined the School of Law as a lecturer in June 2018, having previously been a teaching fellow at the University of Edinburgh. His research and teaching interests include rights in security, insolvency law, company law, commercial law, property law, law of trusts, comparative law and modern legal history. 

“When considering legal problems and law reform, it is important to examine matters from multiple perspectives. This is particular true in relation to property and insolvency law. It can be easy to focus merely on the travails of two parties at the centre of a dispute. For example, while there may be an understandable urge to protect an individual disputing the ownership of property with a large company that is entering insolvency, attention needs to be given to other parties who may have a direct or indirect interest in such property. This could include: another individual who has also sought to obtain the property from the company; a lender who has acquired security over the company’s property as a condition of providing finance; an unpaid trade creditor of the company who is having cash flow problems and has sought to enforce against the company’s property; the company’s employees who may have preferential claims to payment from the company’s estate in an insolvency process; and workers who have suffered injuries due to the company’s negligence and are relying on the company having sufficient assets to pay them. Insolvency law, by its nature, involves the balancing of various interests in order to seek an outcome that is broadly fair and equitable, but which might be viewed as unfair if particular parties are considered in isolation. Failing to recognise this and to give due regard to certainty and coherence can create significant and unanticipated consequences in a legal system.” 

The next contribution to this series by Ms Donna McKenzie-Skene is titled 'Bankruptcy is in the Eye of the Beholder.'  

Published by School of Law, University of Aberdeen

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