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Commercial Law - Lecture 5 - Diligence
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Lecture notes for the commercial law module with case descriptions. Author achieved a first-class grade for the module.
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Lecture 5 – DiligenceContents
Authority for diligence .......................................................................................................................... 2
Types of Diligence ................................................................................................................................. 3
Arrestment............................................................................................................................................ 3
Attachment ........................................................................................................................................... 7
Inhibitions ........................................................................................................................................... 11
Adjudication for Debt ......................................................................................................................... 12
What is Diligence?
In Scottish law, it is the term used for various processes of debt enforcement. Those who don’t pay
their debt, can be forced to pay their debt. E.g. Assets may be moved, bank account might be ceased,
may be prevented to be able to sell their house, house might be transferred to creditors. Collectively
known as diligence.
Law on Diligence
No one statute deals with diligence
• The Bankruptcy and Diligence (Scotland) Act 2007 (“the BAD Act”)
• The Debt Arrangement and Attachment (Scotland) Act 2002
• The Debtors (Scotland) Act 1987
Some of the law is still under the common law.
Diligence is used where there is the possibility of payment
Understanding a few terms when discussing Diligence
• “Debt Advice and Information Package” – to be served to individual debtors.
Before any form of diligence, the requirement is that you need to serve this debt advice and
information package on the individual debtor. It is a booklet containing information on money
advice and it is required when you are starting diligence.
• “Charge for Payment”
• Means attendance at the debtor’s premises of sheriff officers (England: Bailiffs)
bearing a copy of the decree from the court or other document of debt, indicating the
debtor to make payment of the debt plus interest and expenses within 14 days, failing
which diligence will commence against the debtor
, • Since 2007, a creditor must (nearly always) serve a “charge” on an individual debtor
before effecting diligence (BAD Act, s. 209).
Authority for diligence
Authority for diligence
Diligence usually takes place following a decree from the courts in the creditor’s favour. The courts
will grant “warrant” (i.e. permission) for diligence to take place.
There are 2 types of warrants used to pursue diligence:
“Summary Warrant”
• No need to obtain decree from court, creditors could proceed straight to diligence.
• Mainly for public debts, such as payment of council tax and rates.
“Non-Summary Warrant”
• A permission of the court or the law generally to carry out diligence.
• A decree for payment from the court contains within it the wording for warrant.
“Summary Diligence”
• ie., diligence without a warrant or a charge, which is available for certain private debts (some
of them following registration in a public registration).
• It may also take place by means of “summary diligence” (i.e. without a warrant from the
courts) which is applicable when a debtor has previously consented in a document of debt
(for example, a loan agreement or a guarantee) to diligence being carried out against him.
• Summary diligence is used for:
• Dishonoured bills of exchange
• Promissory notes following registration in the Sheriff Court Books
• An obligation registered for execution in the Books of Council and Session or
Sheriff Court Books
• Collectively, the above are known as ‘documents of debt’
• No charge is necessary to enforce the above debt, though in practice it is common.
Diligence carried out against a human debtor must be preceded by a charge, which is a notice
delivered to the debtor by sheriff officers or messengers at arms indicating that if the debt is not paid
within 14 days, diligence may take place. – Bankruptcy and Diligence etc (Scotland) Act 2007 s.209.
Human debtors must also be given a copy of a debt information and advice package.
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