Home Law Implementing the Cape Town Convention and the Domestic Laws on Secured Transactions
The owner of the asset under a title-retention agreement enjoys the following remedies subject to contractual arrangements: “he may retake the goods, resell them and normally claim any loss he has suffered as damages from the buyer.As [he] does not have a true ‘security’ interest, there is no question of the buyer having an equity of redemption and hence the seller can keep all the proceeds of sale of the goods”[notes omitted]. As per our discussion under Sect. 4.3.1 these remedies can be exercised on a “self-help” basis or upon the court’s approval.
In all three title-retention agreements, the owner of the asset is required to demonstrate that the buyer/hirer/lessee has lost its right to possession. At common law, this would take place upon a repudiatory breach of the agreement which is accepted by the owner, essentially treating the agreement as at an end. English courts have found the following instances of repudiatory breaches in the context of title-retention devices: “.prolonged non-payment of rentals., renouncing the agreement., and non-punctual payment of an instalment where punctual payment is of the essence... ’’[notes omitted]. Furthermore, in hire-purchases and finance leases, which are essentially contracts of bailments, “any act that is inconsistent with the lessor/bail- or’s rights as such (for example a sale, pledge, or even just offering the goods for sale) automatically terminates the bailment and vests the immediate right to possession in the lessor/bailor” [notes omitted].
To avoid difficult questions whether the breach in question justifies termination of the agreement or whether the owner has affirmed it, the parties make provision in their agreements for a list of repudiatory breaches/events of default that give the right to the owner to terminate the contract and exercise the remedies (see under Sect. 4.3.3). Using the term repudiatory breach in the agreement to describe such events is a misnomer, since the list usually includes events that strictly speaking cannot be qualified as repudiatory breaches, such as the insolvency/bankruptcy of the seller/hirer/lessee or the non-payment of one rental.
It is important to note again that, unlike the holders of security interests, the owner of the asset under a title-retention agreement is not required to account to the buyer/hirer/lessee for any surplus from the sale of the asset. However, this common law right is subject to the parties’ contractual arrangements. The parties usually insert clauses in their title-retention agreements permitting the owners to retain the instalments paid by the buyer/hirer/lessor prior to their termination. Although it is not settled beyond doubt, English courts have upheld the validity of such clauses (especially in cases of hire-purchases and finance leases) and are in general reluctant to grant such relief to the buyer, since they do not want to interfere with the contractual arrangement of the parties. What they are prepared to do is to give the buyer more time to fulfil his/her obligations under the agreement.
In that respect, Article 10 of the Cape Town Convention will not come as a surprise to an English lawyer. Both remedies provided therein are available under English law either on a “self-help” basis or following the court’s approval.
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