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Mar 30, 2009

TPA Kreglinger v. New Patagonia Meat Company [1914] AC 23, which came before the House of Lords some ten years after the quartet of appeals to which I have just referred. The appellants were a firm of woolbrokers who had lent to the respondent company the sum of £10,000 on the security of a floating charge over its undertaking. The agreement for loan provided that, for a period of five years, the appellants should have a right of first refusal over all sheepskins sold by the company. The company paid off the loan, but the appellants claimed that they were entitled to continue to exercise their right of first refusal. It was held that the right of first refusal formed no part of the mortgage transaction; it was a collateral contract entered into as a condition of the company obtaining the loan; and that the appellants were entitled to enforce it. As I have indicated the House of Lords took the opportunity to review the principles relating to collateral advantages obtained in connection with mortgage transactions. The substantive speeches were those of Viscount Haldane, Lord Chancellor, and Lord Parker of Waddington. The Earl of Halsbury and Lord Atkinson expressly agreed with both of them. Lord Mersey also agreed, but added some words of his own, including the well known observation that the equitable doctrine prohibiting the imposition of a clog on the mortgagor's right to redeem is "like an unruly dog, which, if not securely chained to its own kennel, is prone to wander into places where it ought not to be".

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