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The transfer of property and risk (Retention of title (notwithstanding the…
The transfer of property and risk
unascertained goods
s16 SGA 1979
no property passes to B unless and until they are ascertained
McDougall v Aeromarine of Emsworth
specific or ascertained goods
property passes when parties intend it to transfer
intent
terms
conduct
circumstances of the case
s18 - absence of intention
rule 1
- specific goods in deliverable state
unconditional contract - property passes at time of contract irrespective of postpone in payment or time of delivery - intention deemed to have been so
unconditional = nothing in the contract that restricts when it may come into force or prevents the rule from applying
deliverable state - goods in condition that B is bound to take delivery of them -
Rugg v Minett
- not so, so no property had passed
Rule 2 -
contract for specific goods and the seller is bound to do something to the goods to put them into a deliverable state
property not pass until seller does that and the B has notice that it has been done
Rule 3 -
contract for sale of specific goods in deliverable but the
seller
(not any third party) is bound to do some act or thing in order to ascertain the price
property not pass until the act or thing is done and the buyer has notice that it has been done
Rule 5 -
only applies to unascertained goods or future goods by description and are in
deliverable state and unconditionally appropriated to the contract
by either party with the assent of the other
property may pass to B
assent = express or implied
given before or after appropriation
Re Wait -
unconditionally appropriated = attach contract irrevocably yo the goods, so that those goods and no other are the subject of the sale and become property of buyer
apparent intention
Re London wine
physical segregation not enough
3p acknowledges to B, he holding goods on behalf of B then risk and property passes to B
appropriation by delivery to carrier -
delivery to carrier for onward transmission to B without reserving right of disposal = unconditional appropriation
appropriation by exhaustion
goods in deliverable state
sale of specified quantity of unascertained goods forming part of bulk
undivided share forming part of bulk
Re Wait -
purchased specified quantity of unascertained goods from an identified bulk
1 more item...
specified quantity of unascertained goods = not in fractions but in units of quantity
deemed consent by co-owners to dealings in bulk goods
B is only remaining B who is entitled to the goods from the bulk
bulk identified by contract or subsequent agreement
bulk reduced to amount due under contract
Rule 4 -
goods delivered to B on approval or on sale or return or other similar terms the property in the goods passes to B if
B signifies his approval or acceptance or any act adopting the transaction
pay price
retain
conversion
Kirkham v Attenborough
retains goods without notice of rejection
retention after expiry of fixed period or reasonable period
reasonable time - circumstances of the case and nature of product and market fluctuations
degree of voluntariness required
on rejection - goods made available to seller within a reasonable time
Retention of title
notwithstanding the delivery of goods, property does not pass until payment has been made
typically invoked in case of B's insolvency
invoked whenever B owes seller money beyond the terms agreed in the contract
dangers of the clause
FG Wilson v John Holt
cannot bring an action for the price und er s49 SGA because it required the B to have property in the goods
s19
contract for sale of specific goods or where goods are subsequently appropriated the seller may by the terms of the contract or appropriattion
reserve the right of disposal of the goods until certain conditions are fulfilled
property will not pass regardless of who has possession of the goods until the conditions are fulfilled
Aluminium industrie Vaassen v Romalpa Aluminium
obligation shall continue until all that is owing is paid
Romalpa could not use money paid by customers for any other reason other than pay AIV
always retain those proceeds in a separate account for AIV unless and until the entirety of outstanding indebtedness discharged
property in the goods will never pass to Romalpa even in respect of those goods paid for under a different contract
fiduciary obligation = ought to keep foil entirely separate from their own goods
seller entitled to all proceeds from the sales even if these are more than what is owed to him
frustrate commercial reality
should have been registered as charge
All Liabilities Clause
(all monies)
reservation of ownership in goods which form the subject matter of the contract
until price and incidental charges under that contract have been paid
any legal ground would suffice
Armour v Thyssen
- goods remain our property until all debts due to us including any balances existing at relevant times due on any legal grounds are settled
only works in unaltered goods
alter or use in manufacturing of finished goods
ownership of finished goods
Re Peachdard Ltd -
needs registration of charge
2 more items...
mere incorporation
Hendy Lennox v Grahame
1 more item...
Passing of risk
non consumers
risk passes with property unless parties have agreed otherwise
res perit domino
- thing is lost to the owner
s20(1) SGA
Pignataro v Gilroy -
regardless of delivery
neglect notice of unconditional appropriation and on expiry of reasonable time after receipt of notice - property deemed to have passed
otherwise agreement = at the time of contract
risk and property not pass simultaneously - agreement inferred from circumstances
Sterns v Vickers
- B's acceptance of delivery warrant - risk passed
s20(2) delivery delayed due to fault of one party - risk is of party at fault
consumers
CRA 2015
s29
goods at sellers risk until consumer gets physical possession of them
carrier commissioned by consumer to deliver goods and was not named by trader - consumer risk
consumer buyer expectations reflected
trader responsibility stated