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Part 4 Abolition of poindings and warrant sales

58 Abolition of poindings and warrant sales

(1) It is not, subject to section 59 below, competent to enforce payment of a debt by poinding or warrant sale; and any enactment or rule of law allowing such enforcement shall cease to have effect.

(2) The following provisions of the Debtors (Scotland) Act 1987 (c. 18) are repealed—

(a) Part II;

(b) section 74(2);

(c) Schedule 1; and

(d) Schedule 5.

59 Savings

(1) The provisions set out in subsection (5) below continue to have effect in relation to a poinding in respect of which a warrant sale has been completed before 30 December 2002 as if sections 58(2) above and 61 below had not come into force.

(2) Subject to subsection (3) below, those provisions also continue to have that effect in relation to a poinding executed before that date in respect of which a warrant sale has not been completed before that date.

(3) The saving provided for in subsection (2) above—

(a) has effect only if the poinding was executed at a place other than a dwellinghouse; and

(b) continues to have effect after 31 March 2003 only if a warrant sale is completed in respect of the poinding on or before that date.

(4) A summary warrant which, before 30 December 2002, authorised a poinding and sale in accordance with Schedule 5 to the Debtors (Scotland) Act 1987 (c. 18) is to be treated on and after that date as authorising an attachment.

(5) The provisions referred to in subsections (1) and (2) above are—

(a) paragraph 24 of Schedule 7 to the Bankruptcy (Scotland) Act 1985 (c. 66);

(b) the provisions of the Act of 1987 mentioned in section 58(2) above; and

(c) the provisions of the Act of 2002 mentioned in paragraph 29 of schedule 3 to this Act.

Part 5 Miscellaneous and general

60 Application of this Act to sequestration for rent and arrestment

(1) Sections 12, 16, 49 and 55(3) above apply to a landlord’s or superior’s right of hypothec and its enforcement by a sequestration for rent or feuduty as they apply to an attachment.

(2) It is not competent for such a hypothec to arise in any article—

(a) of the type described in section 11(1); or

(b) which is kept in a dwellinghouse and which is not a non-essential asset for the purposes of Part 3 of this Act.

(3) An arrestment (other than an arrestment of a debtor’s earnings in the hands of the debtor’s employer) of any article of the type mentioned in paragraph (a) or (b) of subsection (2) above is incompetent.

(4) The Scottish Ministers may, by order, modify subsection (1) above by repealing the words “or superior's” and “or feuduty” where they appear in that subsection.

(5) Such an order may not have effect before the day appointed by the Scottish Ministers under section 71 (power to appoint the day on which the feudal system of land tenure is abolished) of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5).

61 Minor and consequential amendments and repeals

Schedule 3 to this Act (which contains minor amendments, amendments consequential upon the provisions of this Act and repeals) has effect.

62 Regulations and orders

(1) Any power of the Scottish Ministers under this Act to make an order or regulations is exercisable by statutory instrument.

(2) Any such power includes power to make—

(a) different provision for different cases and for different classes of case; and

(b) such incidental, supplementary, consequential, saving or transitional provision as the Scottish Ministers think necessary or expedient.

(3) A statutory instrument containing an order (other than an order made under section 47, 60 or 64 of this Act) or regulations (other than the first regulations made under section 7 of this Act) made under this Act is subject to annulment in pursuance of a resolution of the Scottish Parliament.

(4) A statutory instrument containing the first regulations made under section 7 above or any order made under section 47 above shall not be made unless a draft of the instrument is laid before, and approved by a resolution of, the Scottish Parliament.

63 Crown application

This Act binds the Crown acting in its capacity as a creditor or employer.

64 Short title and commencement

(1) This Act may be cited as the Debt Arrangement and Attachment (Scotland) Act 2002.

(2) Subject to subsections (3) and (4) below, this Act (except this section and sections 43 and 62 above) comes into force on 30 December 2002.

(3) Any power conferred by this Act to make provision by Act of Sederunt is exercisable from Royal Assent.

(4) Sections 1 to 9 above come into force on such day as the Scottish Ministers may by order appoint.

(5) An order under subsection (4) above may appoint different days for different purposes.