Ireland: True Sales Under Irish Law – Market Approach Confirmed

The Irish High Court has recently ruled on the test for determining whether the transfer of a debt is a "true sale" or is by way of a charge. It has, helpfully, adopted the well-established test taken in a long line of English cases which emphasises that the legal form of the contract adopted by the parties will determine its nature, provided the contract is not a "sham".

Re Eteams (International) Limited (in voluntary liquidation) is the first Irish High Court decision dealing with these issues in the context of debt sales or invoice discounting ([2017] IEHC 393). To date, Irish lawyers advising on whether a transaction is a "true sale" have had to base their advices on an assumption that the Irish courts would take a similar approach to those English cases. The decision means that this assumption is no longer necessary. His decision confirms that Irish law is effectively the same as English law on this issue.

The claim involved in Eteams was relatively modest. However the decision is important in the context of analogous transactions typically involving significant sums of money, such as the outright transfer of debt portfolios in structured finance and securitisation transactions or the correct characterisation in Irish law of securities sale/repurchase transactions where Irish counterparties are party to these structured products.

Relevant facts

Eteams (International) Limited (the "Company") entered into a debt sale agreement with Bank of Ireland (the "Bank"). It was a straightforward invoice discounting agreement whereby the Bank agreed to buy (at a discount to face value) debts owed to the Company by its customers. The Company went into liquidation. The Company's liquidator contended that the agreement was a charge, which was void because it was not registered with the Companies Registration Office under the then-applicable charges registration regime (namely section 99 of the Companies Act 1963.)

The liquidator's arguments and the court's response

The liquidator advanced a number of arguments – which the judge described as "increasingly unfocussed" - in support of his contention that the transaction was an unregistered charge.

These included the following:

  • The first was that a director had asserted that the transaction was a form of security. This was dismissed by the judge as inadmissible hearsay. It was also dismissed based on the well-known principle that in interpreting a contract, and looking at its background, the subjective intentions of a party are inadmissable; and

  • The second was a contention that a debt factoring agreement which does not transfer the commercial risk in the underlying debt is necessarily a charge. This argument was dismissed as not supported by the authority cited for the proposition (which was on the nature of factoring in the context of VAT treatment), and inconsistent with case law indicating that it is quite normal for security to be provided to support a party's obligations in a sale contract.

The court also dismissed an argument that the contract was a charge because no notice of assignment was given to the Company's debtors of the assignment of the underlying debt (all this meant was that the assignment was an equitable assignment.) A similar fate befell a standard fall-back boilerplate clause providing that if the assignment failed for whatever reason, the Company held any receipts on trust for the Bank. The court accepted this was a standard "belt and braces" provision.

The court's overall reasoning and decision

The court adopted the approach taken in a consistent line of English authority dating from the 19th century (citing with approval cases from Re George Inglefeld Ltd [1993] Ch 1 through to Welsh Development Agency v Export Finance Co. Ltd [1992] BCLC 148) which has emphasised the following:

  • Parties to a contract are free to adopt whatever legal structure they choose. Provided this is not a "sham" the court will recognise and give effect to that structure (a "sham" is where the parties deliberately adopt a structure which they know does not reflect the true nature of the transaction);

  • Accordingly parties are free to adopt a sale and purchase structure in order to allow the debt vendor to obtain finance on the basis of its receivables. The fact that this "looks like" a loan secured on the debts is irrelevant;

  • The labels adopted by the parties are not dispositive: the court will look at the substance of the entire contract; and

  • The fact that the contract provides for the debt purchaser to transfer back receivables does not of itself mean that the contract is a charge.

In Eteams the liquidator did not contend that the contract was a "sham." An allegation that the parties have engaged in a "sham" is tantamount to alleging fraud. Accordingly in the unusual cases where this is alleged, full particulars must be provided.

Impact of Companies Act 2014

The Companies Act 2014 ("CA 2014") has exempted from registration certain types of asset. These include (relevantly) cash and monies in a bank account. However a charge over "book debts" still needs to be registered. Accordingly the issue continues to be relevant under CA 2014.


Eteams is an important decision for lawyers giving a "true sale" opinion in structured finance transactions. It confirms that Irish law is substantially the same as English law in allowing the parties freedom to adopt the legal structure of a sale and purchase transaction where finance is raised on the basis of a debt portfolio.

While Irish and international arrangers of relevant transactions (including rated securitisations) have always been satisfied with the level of comfort provided in Irish true sale opinions, these can now be strengthened further and finance parties should enjoy reduced qualifications in these opinions in future. The Eteams decision further enhances Ireland as a primary jurisdiction for the structured finance and securitisation industries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Nollaig Murphy
Callaghan Kennedy
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.