By Jonathan Fitchen
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Additional info for Commercial Lawcards 2010-2011
Our example consisted of only one unpaid transaction and two parties. In the real world, insolvent companies may have entered into many transactions with many persons incurring many debts. Such debts may take the form of other unpaid contracts with other suppliers, money borrowed by different types of commercial loans (eg charges and mortgages), and money owed to employees. Once we factor these other parties into the equation it becomes much harder to see that it is fair or simple to let just one unpaid seller (ahead of 17 RETENTION OF TITLE CLAUSES all others) take back goods which it chose to supply to the buyer on terms of credit which it now wishes it had never extended.
The registration requirement applies whether or not you realise that your retention of title clause has created a registerable charge. Other reasons for sellers not routinely registering retention of title clauses are that the registration process takes time, costs money, and the protection it offers is often useless to the commercial seller (as opposed to the commercial lender). Should a seller register a charge, that charge only takes priority over creditors who register after you have done so and unregistered creditors.
If the seller becomes insolvent before the goods are ascertained, the buyer will be an unsecured creditor, have no claim on the goods, and be likely to recover little or none of his payment (Re Wait ). Once the goods have become ascertained, property passes when the parties intend it to pass (s 17). Failing either a clear expression by the parties as to when they intend property to pass, or other evidence of such an intention, the following ‘default’ rules (from s 18) will be applied by the court.