Nature and application of the retention of title clause

Introduction

Retention of title clause in law is applicable to the contract of sale of goods. It regulates that the seller provides the goods to the buyer with a condition that the title of the goods is not passed to the buyer until the goods have been paid for in full.[1] This clause in sales contract is meant to assure the seller that the goods will actually be paid for. The retention of title clause also allows the seller to take the possession of the goods if the buyer defaults or fails to pay for them as agreed upon. In case of a buyer’s insolvency, the seller of goods will have priority over other creditors. It is not actually the retention of goods that motivates the buyer to exercise seizure of goods from a defaulting buyer. The seller is often interested in payment than in retaining the goods. In general, the sole purpose of including retention of title clause in the sale of goods contract is to protect the seller from insolvency of the buyer.

There is no statute in international law that is applicable to the retention of title in sale of goods contract. Although the general rules of the retention of title clause apply to many countries across the world, different countries present their clauses differently. For instance, the retention of title clause applicable in the US is not similar to that of UK based on the nature and contents of the clauses. The interpretation and application of each of the clauses in the sale of goods differ significantly. However, the ultimate objective of both UK and US retention of title clauses is to protect the seller from the insolvency of the buyer. The seller ranks over other creditors in both clauses. This indicates that the UK and USA clauses on retention of goods are used differently in the sale of goods contract.

This paper will find a tradeoff between UK’s and US’s treatments of retention of goods clauses as applied to sale of goods contract. The understanding of the differences between US and UK clauses on retention of title enables law-makers to be able to solve issues which are related to international business. For example, if a default occurs in payment by a UK buyer to a US buyer under a sales contract, it becomes difficult to decide which law will be used to resolve the issue. However, if there is a complete knowledge of both laws and either party understand the differences between the two laws, it becomes easier for judges to determine which criteria to give a verdict on the misunderstanding arising from the sale of goods across borders. International laws don’t regulate how such issues should be resolved. Amicable solutions are always arrived at if critical issues in either UK or US laws are analyzed sufficiently. That is why it is important to learn the aspects prevalent in both UK and US clauses on retention of title.

examines the conceptions of the law of retention clauses in UK and US laws. It will then analyse the application of the two clauses and evaluate them so as to determine the significance of both clauses in sales contracts. A comparison will also be made between the two clauses. This paper will also find out which clause between the two is better in sales contracts.

Conceptions of the law on retention of title clauses in different countries

It may not be easy enough to distinguish between the conceptions of the law on retention of title in US and in UK. However, there are some provisions of the US law that are different from the provisions of the UK law on retention of title. To understand these aspects in depth, it is necessary to understand the conceptions of both UK and US laws on retention of title in brief. Both USA and UK laws on retention of goods provide that “since the time when the goods are to be passed to the buyer is a matter of agreement between the buyer and the seller, the property in the goods sold should remain with the seller until the goods are paid in full”[2] However, there are some differences between the two laws on some other aspects.

The US law on retention of title regulate that there should be a registration of the provisions in retention of title so as to validate it against third parties. As long as the clause is registered, the seller is secured against other creditors even if there was other security interests registered prior to that of the seller. The UK law does not require the registration of the retention of title clause. Security interests in the UK law are registered. However, retention on title is not regarded as security interests even though they provide security to the seller.

In order to understand the conceptions of the law on retention of goods further, it is important to identify different types of retention of title clause in both the US and the UK law. The simple retention of title clause is a type of retention of title clause which requires that the goods are delivered to the buyer only with the condition that the title will not pass to the buyer until all the price of the goods have been paid in full. Simple retention of title clause is “impregnably established” [3] as valid in English law. In the US law, the simple retention of title clause is considered valid even if it has not been perfected. Extended retention of title clause extends the seller’s rights in the goods delivered to include the proceeds of resale and/or the claims of the buyer against sub purchasers.[4] The third type of retention of title clause is referred to as enlarged retention of title. In this case, the clause is enlarged to include products made by the buyer in whole or in part with those delivered by the seller. In English law, an authority is conferred in some cases on the seller to become a tenant in common of new products made by the buyer in cases where the seller’s goods are commingled with other goods of the buyer. Extended RT under the U.C.C. in US law is validated by section 9-306(2) which provides that, “except where this Article otherwise provides, a security interest… continues in any identifiable proceeds including collections received by the debtor.”[5]

Comparison of the nature of the Law on retention of title clauses and their application in UK and US

• • Nature of the law on retention of Title in US law

The US law (U.C.C.) considers retention of title clause as a security interest. This is opposed to the provisions of the common law which suggests that the retention of title clause is distinct from the security interest.  This is according to section 2-401(1) of the U.C.C. which indicates that “any retention or reservation by the seller of the title of property in goods delivered to the buyer is limited in effect to the reservation of a security interest”[6]. The clause recognizes a seller as a lender of money with security interest in the goods sold. The security interest in this case is referred to as Purchase Money Security Interest (PMSI). The disadvantage of this clause is to the seller. Regardless of what the contract of sale says about retention of title, the law makes these invalid and irrelevant.

Under the U.C.C., priority rules are accorded to the security interests referred to as Purchase Money Security Interests (PMSIs). These priorities are outlined under a rule referred to as first-to-file-or-perfect-rule explained in section 9-312(5) (a).   Section 9-312(5)(b) of the U.C.C. provides that if there are two security interests in conflict with each other and none of them has been perfected or filed, the first interest to attach is given priority over the second.[7] Section 9-312(5) (a) regulates that if none of the interests in conflict has been perfected but both of them have been attached, then the first one to be filed is given priority over the second one to be filed.[8] The first-to-file-or-perfect rule may not necessarily be applicable if the interest is a PMSI. Subsection 9-312(3) of the UCC regulates that priority is accorded the seller over security interest in inventory or proceeds from inventory that may be identified even if the prior security interest was previously perfected. This is the case if the PMSI is perfected when the buyer possesses the goods and the seller meets some pre-determined notification requirements.

Further provisions regarding interests in conflict suggest that a Purchase Money Security Interest that is applicable to collateral different from inventory is prioritized over another security interest which is in conflict with the PMSI in collateral.[9] This is the case if the PMSI is perfected when the buyer possesses the goods or any time within ten days after the time of possession. The special treatment provided in the case of PMSI is in accordance with the socio-economic rationale behind retention of title clause. In this case, the debtor is made to be economically stable.[10] This is so because the special priority laws give the debtor an opportunity to secure additional security interest when the creditor who was first-to-file fails to provide the secured finance. This makes it possible for the debtor to continue operating in business hence being in a position to pay-off earlier creditor. As a result, the prior creditors are not undermined by the PMSI priority rule provided that they were secured[11].

• Nature of the law of retention of Title clause in UK law

After closely examining the validity and suitability of the US law on retention of title, it is now important to focus on the UK law, which most scholars suggest that it is not efficient in undertaking claims on contract of sale agreements. The main problem with this clause is that it is always likely to be considered invalid if the courts are mandated to scrutinize it. The reason why the retention of title clause is not efficient in English law is because commercial practices in the UK have failed to meet efficacy in adopting a basic form of the clause.[12] Buyers and sellers in the UK have also failed to take into account the simple retention of title clause in a way that may best suit their interests.[13] The English courts have found it difficult to uphold the simple retention of title clause because the clause is enlarging in the UK. As the simple retention clause keep enlarging and expanding in the UK, the English courts find it difficult to uphold the legal theory which guides the simple retention of title clause.  Generally, the purpose of retention of title clause is to act as a security. Opposed to the US law though, the RT clause in the English law does not form a security interest.

The English law rules that a security interest is created when a debtor gives a creditor the rights on goods she/he owns. The debtor should thus possess the title of the goods in order to create the security interest.[14] In a situation in which the price has not been paid, the creditor possesses the title of the goods. In this case, there is no security interest to be granted by the buyer because the buyer does not have any interest in the goods to give the seller.

• Comparison of the nature of law on the retention of title in UK and US law

Retention of title clause in US and UK are similar in that the clause in both UK and US laws are provisions in contract of sales. The law on retention of title as contained in the retention of title clauses of both the UK and US regulates that title of goods remains with the seller until the buyer makes payment. This has given sellers in both UK and US the right of ownership of property even if the property is in the possession of the buyer until all due payments have been made. However, there are also some differences between the provisions of UK’s retention of title clause and US’s retention of title clause.

The US law regards the clause as a security interest against debts. This provides sellers with sufficient protection. US law on retention of title is therefore successful in dealing with issues to do with retention of title. It is appropriate in meeting secured transactions, hence becoming appropriate to the social and economic welfare of both the buyers and sellers in sales contracts. On the other hand, the UK law on retention of title does not meet secured transactions because the clause on retention of title under UK law is not regarded as a security interest.

Application of the law of retention on title in US

There are cases which indicate the application of the retention of title clause. These include:

Application case on Simple retention of title clause

The law of the US provides that the simple retention of title is valid even if it is not yet perfected. This is the case even under the law applicable in the UK (English law). As illustrated in the case of Kansas State Bank v. Overseas Motorsport, Inc., the retention of title clause in the UCC provides that the buyer and seller only need to incorporate the retention of title clause into their contract of sale[15]. In the case, the retention of title clause was applied when the Kansas State Bank advanced a loan of $1,500 to one Steven Hunter. Hunter used the loan to buy a motorcycle from an international company known as Overseas Motorsport, Inc. Hunter, in addition to making a note for the loan to the bank also offered the motorcycle as collateral of his loan. The bank indicated at the back of the draft sent to the overseas motorsport company that the Kansas State Bank has a first lien against the motorcycle to be purchased by Steven Hunter.

In this case, the overseas motorsport company did not record the lien as provided at the back of the draft sent to it. Hunter did not fulfill its part of the bargain by failing to pay the debt he owed Kansas City bank.[16] As a result, the bank sued Overseas Motorsport Inc. for breach of contract. The bank suggested that the overseas company’s failure to record the lien under the contract of sale caused it not to recover the motorcycle from Steve Hunter. This was the agreement which was contained in the agreement between Hunter and the overseas corporation inc. as contained at the back of the draft. The court ruled that the loss of the bank was due to the bank’s misunderstanding of its rights in the contract, not the breach of the agreement between Motorsport Inc. and the bank. According to the court, the UCC does not require the perfection of security interest by way of filling or otherwise so as to be considered as being valid.[17]

The court also affirmed that the three requirements of attachment (UCC 9-204(1)) as explained earlier in this paper had been achieved in the contract. In the contract, there was an agreement to be attached by the security interest, a value was given in the agreement and the debtor reserved some rights in collateral. It is clear from the provisions of the UCC that the bank actually possessed a lien and there was nothing that could be capable of preventing it from holding a foreclosure against its creditor Steven Hunter. In the agreement between the bank and Hunter, there was no third party involved and priorities, as could be applicable under the retention of title clause, are out of question.

Evaluation of the case

            This case indicates how the simple retention of title clause is applied in the US law. The case shows that a security interest does not require a filling or a record in order to be valid. Since under UCC retention of title is considered as a security interest, it is therefore clear from the above case that retention of title does not need a filling in order to be valid. This is the case if the requirements of attachment are fulfilled by the security in the case under consideration

Application case on Extended Retention of title

UCC section 9-306(2) points that, “A security interest … continues in any identifiable proceeds including collections received by the debtor”. [18]

In particular, extended retention of title clause ‘extends’ to include the proceeds of an individual or a company in the form of tangible or intangible goods. This adds security to the creditors as illustrated by In re Alcom America Corp.[19] in the case, Alcom entered into contract of sale with FORPA, an agency of the government of Spain. The contract contained an agreement to purchase ethanol. Alcom established agreements with one company to process ethanol and made a commitment with another company to purchase some of the ethanol. In this regard, it needed some funds to effect this transaction. As a result, it entered into another agreement to obtain financing of $3 million from Arab Banking Corp. The security provided by Alcom was a security interest in the title, right and interest on some debtors including FORPA. Alcom failed to pay its debts to ABC. ABC then placed a claim against the ethanol that was delivered to the processor since it was part of the creditor’s security interest. It was held in the case that ABC was to keep the money from the proceeds of sale of the ethanol.

 Evaluation of the case

Under UCC, a security interest extends to the proceeds of a buyer’s sub-sale of goods supplied by seller and almost anything accruing to the buyer in the foresaid sub sale. This is illustrated clearly in the above case. In the case, the sub sale of ethanol by Alcom carries a security interest against the debts of Alcom owed to the bank. Therefore, the application of the extended interest has been achieved in US cases such as the one explained above.

Application of Enlarged Retention of title

The retention of title clause on accessions (section 9-314) under the US law contends that “a security interest on goods which attaches before the goods are affixed or installed to other goods takes priority as to the goods affixed or installed”.[20] Section 9-315 also applies to enlarged retention of title and provides that, “if a security in goods was perfected and the goods or part of it then become part of a product or a mass, the security interest continues in the mass or the product if (a) the goods are so manufactured, processed, assembled or commingled such that their identity is lost in the product or mass”.[21]

Section 9-315 is applied by the case of in the Matter of San Juan Packers, Inc.[22] In the case; San Juan Packers purchased goods from National Can Corp on credit. These cans were meant to be used in the processing of vegetables. A floating lien over all San Juan’s inventory was granted to National Can Cop. San Juan further bought vegetables from some farmers. Three of these farmers had obtained loans from a bank, placing their crops and its proceeds as security interest for the loan. San Juan received the vegetables, processed and sold a part of it but before paying the farmers, it became bankrupt. The bank claimed for its priority on the security interest of the remaining vegetables of San Juan over other creditors. The parties to this situation agreed to sell the vegetables and keep the proceeds in a safe fund as they wait for the ruling from the bank. The bank ruled that the vegetables were mixed through processing such that no vegetables are identified to specific farmers. Section 9-315 therefore applied. The interests of the bank and National Can Corp were attached to the crops supplied by the farmers, hence the interests of all parties were commingled such that there were two interests attached and perfected in the commingled vegetables. Section 9-315(2) applied and the two interests in the commingled goods ranked equally depending on the ratio of the costs of the goods that the interests originally attached.[23]

Evaluation of the case

This indicates that the application case above is relevant to the requirements of the enlarged retention of title clause. Through the processing of the vegetables offered as collateral, the vegetables commingled with other products. However, the security interest of the vegetables which were commingled as provided by section 9-315 of the enlarged retention of title clause.

• Application of the UK law on retention of title

• Simple retention clause

According to the English laws, retention of title clause is considered to be valid. In order to understand the provisions of the simple retention clause it is important to use an illustration of an application of the clause. One of the cases to be considered is the McEntire v. Crossley Bros.[24] However, the most well known cases used in the English laws regarding simple and extended retention of title is the case of Romalpa[25].  In this case, the court regulated that the seller is the owner of the goods not sold, and which are held by the receiver. He/she is therefore entitled to order for the delivery of the goods to him/her. The case of Compaq Computer Ltd v. Group Ltd also applies to the simple retention of title under UK law. Abercom also argued that the goods delivered by a seller and remaining in the buyer’s inventory, and which have not been sold by the buyer, were delivered back to the seller by the receiver.

This case of Romalpa is relevant to the UK law and is applicable to many court cases relating to retention of title under contract of sale. This case is important determining the title of goods when the goods have been sold to the buyer but dispute arises as to the time passage of title from the seller to the buyer. The other cases also indicate that the title of goods passed to the buyer remains with the seller till the goods have been paid for.

• Extended retention of title

In this type of retention of title clause, the title of the seller is “extended” to the proceeds received from a sub-sale of the goods delivered. This clause on extended retention of title is also applicable in the US law. However, the Romalpa decision applies to the English laws and gives the UK law on retention of title an interesting view and consideration[26].  The case suggests that sellers dealing with an RT clause in their contract of sale have a title on the money received from the sale of goods delivered by sellers. Romalpa case thus agrees with the extension of the retention of title clause to include proceeds of a sub-sale.

However, it has not been easy to uphold the extended retention of title clause in UK like in US. This is because there is a tradeoff between security of property rights, and guarding and protection of commercial transactions from unfair treatment.[27] In order to protect commercial transactions, the courts hold that the title in property related to proceeds of a sub-sale can only be traced if the seller can be able to prove that the buyer holds such proceeds as fiduciary of the seller. If the fiduciary cannot be traced, then the retention of title clause is considered as being a charge on the proceeds, hence termed as void.

Fiduciary requirement is illustrated in the case of Re Hallet’s estate.[28] In this case, the judge held that if a chattel is entrusted by one person on another for the purpose of safe custody or for disposal so that the benefits accrue to the person who entrusted the other, then the chattel or the proceeds there from it may be pursued.

Evaluation of the case

In this case, a seller may not claim an equitable right to the proceeds of goods sub-sold by the buyer just on the basis of retaining a title on the goods. However, there must be a fiduciary relationship apart from the mere retention or title on the physical goods held by the buyer. The case is therefore a significant application of fiduciary requirements under a contract of sale. The case does not sufficiently address the economic welfare of the parties in a commercial transaction. This is because the law is only applied to the extent that the offended party in a fiduciary can pursue the chattel but no remedy is provided against the offender is he/she does not fulfill his part of the contract.

• Comparison between the UK and US application of the law on retention of title

From this analysis of both the UK and the US treatment of retention of title, it can be noted that the US law on retention of title has been successful in dealing with cases related to retention of title. The fact that the US law regards the clause as a security interest against debts provides sellers with sufficient protection. On the other hand, the attempt of English courts to meet the needs of both property protection and commercial transaction protection has made the law to undermine the rights of sellers accorded by security rights of the retention of title clause. As such, the courts in US have managed to address the cases regarding to sales contracts better that the English courts. Specifically, section 9 of the US law needs to be adopted in the UK laws so as to overcome this problem.

The UCC recognizes that such distinction is superficial. The realities of the matter lay on the fact that retention of title clauses are nothing but just another form of security interest. The UCC’s conception on the retention of title clause seems to conform to the international commercial and business realities. In particular, the law meets the needs of buyers and sellers with equality in the international market. In fact, there have been calls in the past few years to improve UK’s approach to retention of title to conform to the requirements of article 9 of the US law on retention of title clause. This is owed to what scholars in the UK law refer to as RT’s profound unsatisfactory treatment. Put in another way, the US Uniform Commercial Code (UCC) carries within itself sufficient elements of directness, simplicity and practicality[29]. The US law on retention of title is therefore more appropriate to international sales.

Conclusion

This paper has covered several issues relating to retention of title under both the US and the UK laws. The paper first analysed the concepts prevalent in both US and UK retention of title clauses regarding sales contracts. It has been found that US clause on retention of title recognizes retention of title as a form of security interest. On the other hand, retention of title under the UK law does not consider retention of title as a security interest against debt. This aspect has made the US law on retention of title more prominent than the retention of title clause under the UK law. The retention of title clauses in both UK and US laws are also categorized into simple, extended and enlarged retention of title clauses. Both clauses also extend to parts of a sub-sale of goods held by a buyer from the sale by a seller.

The application of both UK and US laws on retention of title has also been analysed in this paper. From the analysis, it is clear that both the UK and the US laws have been applied in many cases. The treatment of retention of title as security interest makes the application of US law on retention of title to be successful in solving cases of international sales. clear from this paper that UK law is not able to solve the cases related to retention of title sufficiently. This is because the law attempts to pursue commercial and property protection rather than protecting the interest of the seller in contracts of sale. On the other hand, the US law on retention of title has been applied successfully in many cases. The security interest attached to property in a contract of sale enables the US law to be applied in such a way that the security rights of the seller are protected and that the economic welfare of the seller is upheld. In this regard, US law on retention of title as contained in retention of title clause of the UCC is more applicable to international cases related to contract of sales.

[1] R.B. Johnson, “A Uniform Solution to Common Law Confusion: Retention of Title under English and U.S. Law” (1991). 12 (1) BJIL, 100

[2] ibid.

[3] ibid 101

[4] Moffat, G., Bean, G. M. D., & Dewar, Trusts law: Text and materials, (CUP 2005).

[5] R.B. Johnson (n 1) 115.

[6]ibid 16

[7] UCC (1990) 9, cl 312 (a) & (b)

[8]P. Wood& P. Wood, Comparative law of security interests and title finance, (Sweet & Maxwell 2007).

[9] M.H. Whincup, Contract law and practice: The English system with Scottish, Commonwealth, and Continental comparisons, (Kluwer Law International 2006)

[10] A. McInnis, The new engineering contract: A legal commentary, (Thomas Telford 2001)

[11] R.B. Johnson, “A Uniform Solution to Common Law Confusion: Retention of Title under English and U.S. Law” (1994). 12(1) Berkeley Journal of International Law, 115

[12] J. Feld, Retention of Title, Seller v Receiver (1992). 89(25) LSG, 8

[13] R.B. Johnson, “A Uniform Solution to Common Law Confusion: Retention of Title under English and U.S. Law” (1994). 12(1) Berkeley Journal of International Law

[14] Gotshal Weil & Manges., & American Bar Association, Reorganizing failing businesses: A comprehensive review and analysis of financial restructuring and business   reorganization, (ABA Section of Business Law 2006)

[15] Kansas State Bank v. Overseas Motorsport, Inc.,  (1977) UKHL 563, (1977) P.2d 414

[16] G. McCormack, Secured credit under English and American law, (Cambridge University Press 2004)

[17] R.B. Johnson, “A Uniform Solution to Common Law Confusion: Retention of Title under English and U.S. Law” (1994). 12(1) Berkeley Journal of International Law 120

[18] R.B. Johnson, “A Uniform Solution to Common Law Confusion: Retention of Title under English and U.S. Law” (1994). 12(1) Berkeley Journal of International Law

[19] In re Alcom America Corp [1993] Bankr. D.D.C 154, [1993]  B.R. 97

[20] U.C.C. (1991) 9, cl 314(1)

[21] Id. 9, cl 315 in R.B. Johnson (n 1) 126

[22] in the Matter of San Juan Packers, Inc [1981] 9th Cir., [1981], 696 F.2d 707

[23] C. Rossini, English as a legal language, (Kluwer Law International 1998).

[24] McEntire v. Crossley Bros (1895) Case 457

[25] Aluminium Industrie Vaassen B.V. v. Romalpa Aluminium Ltd., [1976] Eng. C.A, [1976] 1 W.L.R. 676

[26] C. Kessel & M.J.E. Herington, “Retention of title in English Law”  (1994) International Company and Commercial Law Review, 1-10

[27] P. Schlechtriem, & P. Butler, UN law on international sales: The UN Convention on the International Sale of Good,  (Springer 2008)

[28] Knatchbull v. Hallett, [1880] Eng. 13, [1880] Ch. D. 696.

[29] R.B. Johnson, “A Uniform Solution to Common Law Confusion: Retention of Title under English and U.S. Law” (1994). 12(1) Berkeley Journal of International Law, 120

 

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