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Subsale of goods
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Chris R
Dec 19, 2012, 2:55:02 AM12/19/12
to
If goods are bought by B from A and sold on to C before delivery and before
title passes to B, so that they are delivered direct from A to C, does the
middleman B ever own the goods, even for a fleeting moment of time?
For reasons I won't go into, I need to know whether B was ever the owner of
the goods. Does title pass direct from A to C on delivery, or does it flow
through B?
B is definitely dealing as principal and not as A's agent. Note this is
purely a legal question; practicalities are all working smoothly and all
parties are cooperating. This is a commercial trading arrangement in which
there will be many transactions over a period of years.
In a land transaction A could convey to C and B would never get title, but
can the same happen with goods?
--
Chris R
title passes to B, so that they are delivered direct from A to C, does the
middleman B ever own the goods, even for a fleeting moment of time?
For reasons I won't go into, I need to know whether B was ever the owner of
the goods. Does title pass direct from A to C on delivery, or does it flow
through B?
B is definitely dealing as principal and not as A's agent. Note this is
purely a legal question; practicalities are all working smoothly and all
parties are cooperating. This is a commercial trading arrangement in which
there will be many transactions over a period of years.
In a land transaction A could convey to C and B would never get title, but
can the same happen with goods?
--
Chris R
Percy Picacity
Dec 19, 2012, 3:20:01 AM12/19/12
to
example I do not see that title could in practice pass from A to C
without there being any contract formed between A and C, especially if
the possibility of B acting as A's agent is excluded. In your general
case physical possession may be more conclusive and C may not care
whether there is any contract with A. But that is just to say that
land may not be a good example.
--
Percy Picacity
Nightjar
Dec 19, 2012, 4:05:01 AM12/19/12
to
On 19/12/2012 07:55, Chris R wrote:
> If goods are bought by B from A and sold on to C before delivery and before
> title passes to B, so that they are delivered direct from A to C, does the
> middleman B ever own the goods, even for a fleeting moment of time?
>
> For reasons I won't go into, I need to know whether B was ever the owner of
> the goods. Does title pass direct from A to C on delivery, or does it flow
> through B?
>
> B is definitely dealing as principal and not as A's agent. Note this is
> purely a legal question; practicalities are all working smoothly and all
> parties are cooperating. This is a commercial trading arrangement in which
> there will be many transactions over a period of years.
As A B and C are all businesses, I would expect it to depend upon the
> If goods are bought by B from A and sold on to C before delivery and before
> title passes to B, so that they are delivered direct from A to C, does the
> middleman B ever own the goods, even for a fleeting moment of time?
>
> For reasons I won't go into, I need to know whether B was ever the owner of
> the goods. Does title pass direct from A to C on delivery, or does it flow
> through B?
>
> B is definitely dealing as principal and not as A's agent. Note this is
> purely a legal question; practicalities are all working smoothly and all
> parties are cooperating. This is a commercial trading arrangement in which
> there will be many transactions over a period of years.
terms of the contracts between them.
Colin Bignell
Chris R
Dec 19, 2012, 4:25:02 AM12/19/12
to
>
>
> "Nightjar" wrote in message
> news:7c2dndMs_7zDH0zN...@giganews.com...
direction of B. Both contracts are unconditional contracts of sale, and the
price for the goods is paid by C to B.
--
Chris R
Robin
Dec 19, 2012, 4:25:09 AM12/19/12
to
> As A B and C are all businesses, I would expect it to depend upon the
> terms of the contracts between them.
>
Do we know that C is a business please?
> terms of the contracts between them.
>
Apart from that, I think I agree subject to the point that there used to
be (are?) SOGA provisions about when A loses the right to the goods so
as to protect C.
--
Robin
reply to address is (meant to be) valid
Chris R
Dec 19, 2012, 4:30:02 AM12/19/12
to
>
>
> "Percy Picacity" wrote in message news:66oiqn....@news.alt.net...
cannot pass by contract (or delivery) alone, unlike goods. So there are
certainly relevant differences. Even with land, the buyer acquires an
equitable interest at the time of contract, but you would not usually
describe it as ownership.
It is not uncommon, with land, to have two contracts which are completed by
a single conveyance or transfer from A to C.
--
Chris R
Robin
Dec 19, 2012, 4:30:09 AM12/19/12
to
> IANAL and therefore have no idea what the answer is. But in your land
> example I do not see that title could in practice pass from A to C
> without there being any contract formed between A and C, especially if
> the possibility of B acting as A's agent is excluded. In your general
> case physical possession may be more conclusive and C may not care
> whether there is any contract with A. But that is just to say that
> land may not be a good example.
FIW I took Chris's reference to a sub-sale of land to be by way of
> example I do not see that title could in practice pass from A to C
> without there being any contract formed between A and C, especially if
> the possibility of B acting as A's agent is excluded. In your general
> case physical possession may be more conclusive and C may not care
> whether there is any contract with A. But that is just to say that
> land may not be a good example.
clarifying the issue. In other words, he was pointing out that in the
case of land it is established beyond reasonable doubt (and indeed
beyond all but totally insane doubt) that ownership does not have to
pass through intermediaries in the chain.
Roland Perry
Dec 19, 2012, 4:50:03 AM12/19/12
to
In message <qYKdnSIkBuxR7UzN...@brightview.co.uk>, at
07:55:02 on Wed, 19 Dec 2012, Chris R <inv...@invalid.munge.co.uk>
remarked:
with the shop (bricks and mortar or online) taking the order from the
customer, but the item being shipped from either a general fulfilment
house or direct from a relevant importer/manufacturer/wholesaler.
I would expect that the goods belong to the shop [B] from the moment
they send the order to the fulfilment house [A] and A identifies the
individual item (eg by sticking a label on it with C's address), up
until A successfully delivers it to the customer [C], but with some
additional contractual arrangements between A & B about what happens to
goods lost/stolen/ damaged in transit which might not flow directly from
the legal ownership.
While the goods are in transit A is acting as a courier, not the owner.
But I can see how it might be more complicated than that.
--
Roland Perry
07:55:02 on Wed, 19 Dec 2012, Chris R <inv...@invalid.munge.co.uk>
remarked:
>If goods are bought by B from A and sold on to C before delivery and before
>title passes to B, so that they are delivered direct from A to C, does the
>middleman B ever own the goods, even for a fleeting moment of time?
>
>For reasons I won't go into, I need to know whether B was ever the owner of
>the goods. Does title pass direct from A to C on delivery, or does it flow
>through B?
>
>B is definitely dealing as principal and not as A's agent. Note this is
>purely a legal question; practicalities are all working smoothly and all
>parties are cooperating. This is a commercial trading arrangement in which
>there will be many transactions over a period of years.
Arrangements like this are commonplace for many sales of consumer goods,
>title passes to B, so that they are delivered direct from A to C, does the
>middleman B ever own the goods, even for a fleeting moment of time?
>
>For reasons I won't go into, I need to know whether B was ever the owner of
>the goods. Does title pass direct from A to C on delivery, or does it flow
>through B?
>
>B is definitely dealing as principal and not as A's agent. Note this is
>purely a legal question; practicalities are all working smoothly and all
>parties are cooperating. This is a commercial trading arrangement in which
>there will be many transactions over a period of years.
with the shop (bricks and mortar or online) taking the order from the
customer, but the item being shipped from either a general fulfilment
house or direct from a relevant importer/manufacturer/wholesaler.
I would expect that the goods belong to the shop [B] from the moment
they send the order to the fulfilment house [A] and A identifies the
individual item (eg by sticking a label on it with C's address), up
until A successfully delivers it to the customer [C], but with some
additional contractual arrangements between A & B about what happens to
goods lost/stolen/ damaged in transit which might not flow directly from
the legal ownership.
While the goods are in transit A is acting as a courier, not the owner.
But I can see how it might be more complicated than that.
--
Roland Perry
GB
Dec 19, 2012, 4:55:02 AM12/19/12
to
probably at the moment of delivery to C, or possibly at the moment A
hands them over to an independent courier. That would depend on the
contract between A and B. Even if A retains ownership of the goods until
payment is received from B, when that occurs the change of ownership is
from A to B.
I think there is some confusion here between ownership and possession.
Man at B&Q
Dec 19, 2012, 5:25:01 AM12/19/12
to
On Dec 19, 9:05 am, Nightjar <c...@insert.my.surname.here.me.uk>
wrote:
Indeed, One supplier I use, Farnell, state in their terms of purchase
"The risk of damage to or loss of Goods will pass to the Customer when
the Goods are unloaded from the Company’s carriers at the Customer’s
premises. Ownership of the Goods shall not pass to the Customer until
the Company has received in full (in cash or cleared funds) all sums
due from the Customer to the Company on any account whatsoever. Until
ownership passes to the Customer, the Customer must hold the Goods on
a fiduciary basis as the Company’s bailee"
In this case B is the customer and has fiduciary responsibility even
if the goods are shipped (on Bs instructions) direct to C.
MBQ
wrote:
"The risk of damage to or loss of Goods will pass to the Customer when
the Goods are unloaded from the Company’s carriers at the Customer’s
premises. Ownership of the Goods shall not pass to the Customer until
the Company has received in full (in cash or cleared funds) all sums
due from the Customer to the Company on any account whatsoever. Until
ownership passes to the Customer, the Customer must hold the Goods on
a fiduciary basis as the Company’s bailee"
In this case B is the customer and has fiduciary responsibility even
if the goods are shipped (on Bs instructions) direct to C.
MBQ
Roland Perry
Dec 19, 2012, 5:35:02 AM12/19/12
to
In message <50d18dfc$0$7309$5b6a...@news.zen.co.uk>, at 09:55:02 on
Wed, 19 Dec 2012, GB <NOTso...@microsoft.com> remarked:
the goods are allocated for delivery by A.
>That would depend on the contract between A and B. Even if A retains
>ownership of the goods until payment is received from B, when that
>occurs the change of ownership is from A to B.
I don't think I'd be very impressed to buy a fridge off $retailer, find
it was delivered direct from the factory, then be told to give it back a
month later because the retailer never paid for it.
--
Roland Perry
Wed, 19 Dec 2012, GB <NOTso...@microsoft.com> remarked:
>>> As A B and C are all businesses, I would expect it to depend upon the
>>> terms of the contracts between them.
>>
>> There is no contract between A and C. A delivers the goods to C at the
>> direction of B. Both contracts are unconditional contracts of sale, and the
>> price for the goods is paid by C to B.
>
>IANAL, but it seems obvious to me that B owns the goods at some stage,
>probably at the moment of delivery to C, or possibly at the moment A
>hands them over to an independent courier.
What about the situation when A has his own delivery fleet? Perhaps when
>>> terms of the contracts between them.
>>
>> There is no contract between A and C. A delivers the goods to C at the
>> direction of B. Both contracts are unconditional contracts of sale, and the
>> price for the goods is paid by C to B.
>
>IANAL, but it seems obvious to me that B owns the goods at some stage,
>probably at the moment of delivery to C, or possibly at the moment A
>hands them over to an independent courier.
the goods are allocated for delivery by A.
>That would depend on the contract between A and B. Even if A retains
>ownership of the goods until payment is received from B, when that
>occurs the change of ownership is from A to B.
it was delivered direct from the factory, then be told to give it back a
month later because the retailer never paid for it.
--
Roland Perry
Roland Perry
Dec 19, 2012, 5:40:02 AM12/19/12
to
In message
<faae9ca9-95fd-4307...@10g2000yqk.googlegroups.com>, at
10:25:01 on Wed, 19 Dec 2012, Man at B&Q <manat...@hotmail.com>
remarked:
What happens if you immediately resell those goods to an end user, but
you never pay your monthly account with Farnell.
Can they repossess the goods from your end user customer C, or are they
saying you need to repossess them and hand them back. A bit difficult if
it's something like paint on their walls.
--
Roland Perry
<faae9ca9-95fd-4307...@10g2000yqk.googlegroups.com>, at
10:25:01 on Wed, 19 Dec 2012, Man at B&Q <manat...@hotmail.com>
remarked:
>Indeed, One supplier I use, Farnell, state in their terms of purchase
>"The risk of damage to or loss of Goods will pass to the Customer when
>the Goods are unloaded from the Company’s carriers at the Customer’s
>premises. Ownership of the Goods shall not pass to the Customer until
>the Company has received in full (in cash or cleared funds) all sums
>due from the Customer to the Company on any account whatsoever. Until
>ownership passes to the Customer, the Customer must hold the Goods on
>a fiduciary basis as the Company’s bailee"
>
>In this case B is the customer and has fiduciary responsibility even
>if the goods are shipped (on Bs instructions) direct to C.
So "you" are B, and Farnell is A?
>"The risk of damage to or loss of Goods will pass to the Customer when
>the Goods are unloaded from the Company’s carriers at the Customer’s
>premises. Ownership of the Goods shall not pass to the Customer until
>the Company has received in full (in cash or cleared funds) all sums
>due from the Customer to the Company on any account whatsoever. Until
>ownership passes to the Customer, the Customer must hold the Goods on
>a fiduciary basis as the Company’s bailee"
>
>In this case B is the customer and has fiduciary responsibility even
>if the goods are shipped (on Bs instructions) direct to C.
What happens if you immediately resell those goods to an end user, but
you never pay your monthly account with Farnell.
Can they repossess the goods from your end user customer C, or are they
saying you need to repossess them and hand them back. A bit difficult if
it's something like paint on their walls.
--
Roland Perry
Robin
Dec 19, 2012, 6:25:06 AM12/19/12
to
> So "you" are B, and Farnell is A?
>
> What happens if you immediately resell those goods to an end user, but
> you never pay your monthly account with Farnell.
>
> Can they repossess the goods from your end user customer C, or are
> they saying you need to repossess them and hand them back. A bit
> difficult if it's something like paint on their walls.
As I have already mentioned, see the SOGA on that (and probably other
>
> What happens if you immediately resell those goods to an end user, but
> you never pay your monthly account with Farnell.
>
> Can they repossess the goods from your end user customer C, or are
> they saying you need to repossess them and hand them back. A bit
> difficult if it's something like paint on their walls.
statutes as well by now, but IIRC the SOGA provided for those circs. in
the 19th century).
Message has been deleted
Chris R
Dec 19, 2012, 6:55:01 AM12/19/12
to
>
>
> "Roland Perry" wrote in message news:sjpCa3Mb...@perry.co.uk...
> In message <50d18dfc$0$7309$5b6a...@news.zen.co.uk>, at 09:55:02 on Wed,
> 19 Dec 2012, GB <NOTso...@microsoft.com> remarked:
> >>> As A B and C are all businesses, I would expect it to depend upon the
> >>> terms of the contracts between them.
> >>
> >> There is no contract between A and C. A delivers the goods to C at the
> >> direction of B. Both contracts are unconditional contracts of sale, and
> >> the
> >> price for the goods is paid by C to B.
> >
> >IANAL, but it seems obvious to me that B owns the goods at some stage,
> >probably at the moment of delivery to C, or possibly at the moment A
> >hands them over to an independent courier.
>
> What about the situation when A has his own delivery fleet? Perhaps when
> the goods are allocated for delivery by A.
That's what happens in my case. B has no facilities for storing or
> 19 Dec 2012, GB <NOTso...@microsoft.com> remarked:
> >>> As A B and C are all businesses, I would expect it to depend upon the
> >>> terms of the contracts between them.
> >>
> >> There is no contract between A and C. A delivers the goods to C at the
> >> direction of B. Both contracts are unconditional contracts of sale, and
> >> the
> >> price for the goods is paid by C to B.
> >
> >IANAL, but it seems obvious to me that B owns the goods at some stage,
> >probably at the moment of delivery to C, or possibly at the moment A
> >hands them over to an independent courier.
>
> What about the situation when A has his own delivery fleet? Perhaps when
> the goods are allocated for delivery by A.
delivering. He just tells A where to deliver. I should perhaps say that all
parties would like B never to become the owner, and the contract terms could
be structured accordingly, but I'm not convinced it's possible.
>
> >That would depend on the contract between A and B. Even if A retains
> >ownership of the goods until payment is received from B, when that occurs
> >the change of ownership is from A to B.
>
> I don't think I'd be very impressed to buy a fridge off $retailer, find it
> was delivered direct from the factory, then be told to give it back a
> month later because the retailer never paid for it.
Indeed, and traditionally you would rely on section 25 of SOGA (buyer in
> >That would depend on the contract between A and B. Even if A retains
> >ownership of the goods until payment is received from B, when that occurs
> >the change of ownership is from A to B.
>
> I don't think I'd be very impressed to buy a fridge off $retailer, find it
> was delivered direct from the factory, then be told to give it back a
> month later because the retailer never paid for it.
possession) to ensure that the seller can give good title, but section 25
cannot apply if B never takes possession of the goods. I'm not sure I know
the answer when the seller of goods never takes possession of them. Perhaps
a number of Comet suppliers will be going round picking up fridges?
--
Chris R
========legalstuff========
I post to be helpful but not claiming any expertise nor intending
anyone to rely on what I say. Nothing I post here will create a
professional relationship or duty of care. I do not provide legal
services to the public. My posts here refer only to English law except
where specified and are subject to the terms (including limitations of
liability) at http://www.clarityincorporatelaw.co.uk/legalstuff.html
======end legalstuff======
Message has been deleted
Roland Perry
Dec 19, 2012, 7:20:09 AM12/19/12
to
In message <8738z2s...@news2.kororaa.com>, at 11:50:02 on Wed, 19
Dec 2012, August West <aug...@kororaa.com> remarked:
>Unless you have terms to the contract, section 18 of the Sale of Goods
>Act 1979 applies, and it provides that in an unconditional contract for
>sale and delivery of specific goods in a deliverable state, property
>passes immediately on contract formation. The fact that delivery will be
>to a third party
does not
>affects this presumption.
So if I buy my fridge from the retailer, and it's in a deliverable state
at the manufacturer, does the property pass direct from the manufacturer
to me immediately? Or does it pass from the manufacturer to the shop and
then instantaneously from the shop to me.
There's also the problem that the manufacturer might not know the retail
contract has been made, until some time later. Does that affect when any
of the property transfers happen?
--
Roland Perry
Dec 2012, August West <aug...@kororaa.com> remarked:
>Unless you have terms to the contract, section 18 of the Sale of Goods
>Act 1979 applies, and it provides that in an unconditional contract for
>sale and delivery of specific goods in a deliverable state, property
>passes immediately on contract formation. The fact that delivery will be
>to a third party
does not
>affects this presumption.
So if I buy my fridge from the retailer, and it's in a deliverable state
at the manufacturer, does the property pass direct from the manufacturer
to me immediately? Or does it pass from the manufacturer to the shop and
then instantaneously from the shop to me.
There's also the problem that the manufacturer might not know the retail
contract has been made, until some time later. Does that affect when any
of the property transfers happen?
--
Roland Perry
Message has been deleted
Chris R
Dec 19, 2012, 7:45:02 AM12/19/12
to
>
>
> "August West" wrote in message news:8738z2s...@news2.kororaa.com...
>
>
> The entity calling itself Chris R wrote:
> >
> > If goods are bought by B from A and sold on to C before delivery and
> > before
> > title passes to B, so that they are delivered direct from A to C, does
> > the
> > middleman B ever own the goods, even for a fleeting moment of time?
> >
> > For reasons I won't go into, I need to know whether B was ever the owner
> > of
> > the goods. Does title pass direct from A to C on delivery, or does it
> > flow
> > through B?
> >
> > B is definitely dealing as principal and not as A's agent. Note this is
> > purely a legal question; practicalities are all working smoothly and all
> > parties are cooperating. This is a commercial trading arrangement in
> > which
> > there will be many transactions over a period of years.
>
>
> The entity calling itself Chris R wrote:
> >
> > If goods are bought by B from A and sold on to C before delivery and
> > before
> > title passes to B, so that they are delivered direct from A to C, does
> > the
> > middleman B ever own the goods, even for a fleeting moment of time?
> >
> > For reasons I won't go into, I need to know whether B was ever the owner
> > of
> > the goods. Does title pass direct from A to C on delivery, or does it
> > flow
> > through B?
> >
> > B is definitely dealing as principal and not as A's agent. Note this is
> > purely a legal question; practicalities are all working smoothly and all
> > parties are cooperating. This is a commercial trading arrangement in
> > which
> > there will be many transactions over a period of years.
>
> Unless you have terms to the contract, section 18 of the Sale of Goods
> Act 1979 applies, and it provides that in an unconditional contract for
> sale and delivery of specific goods in a deliverable state, property
> passes immediately on contract formation. The fact that delivery will be
> to a third party affects this presumption.
> Act 1979 applies, and it provides that in an unconditional contract for
> sale and delivery of specific goods in a deliverable state, property
> passes immediately on contract formation. The fact that delivery will be
>
Indeed, but there will be relevant terms in the contract (and it's fairly
rare for this kind of contract to be for "specific goods", as most suppliers
do not appropriate goods to a particular contract until shortly before
delivery). The goods have probably not been manufactured (by A) at the time
of the second sale, but even if they have, A's contract terms will provide
that it retains title until the later of delivery and when A has been paid,
as would be usual in commercial sale contracts.
GB
Dec 19, 2012, 8:00:05 AM12/19/12
to
Nightjar
Dec 19, 2012, 8:00:13 AM12/19/12
to
On 19/12/2012 09:25, Robin wrote:
>> As A B and C are all businesses, I would expect it to depend upon the
>> terms of the contracts between them.
>>
> Do we know that C is a business please?
The OP describes it as a commercial trading agreement that is expected
>> As A B and C are all businesses, I would expect it to depend upon the
>> terms of the contracts between them.
>>
> Do we know that C is a business please?
to continue for years, from which I assumed it is all B2B sales.
> Apart from that, I think I agree subject to the point that there used to
> be (are?) SOGA provisions about when A loses the right to the goods so
> as to protect C.
worse protection than required by statute, but it can give better.
Colin Bignell
Message has been deleted
Nightjar
Dec 19, 2012, 8:05:09 AM12/19/12
to
On 19/12/2012 09:25, Chris R wrote:
>>
>>
>>
>>
even if only expressed as terms and conditions of sale. It is those
contracts that might contain details of the ownership of goods,
particularly if A routinely engages in drop shipping. If not, then, as
others have said, the Sale of Goods Act applies.
Colin Bignell
Robin
Dec 19, 2012, 8:20:09 AM12/19/12
to
> They had drop-shippers in the 19th century? :)
I grew up on tales of what London dockers could manage to drop when
unloading ships ;)
But I have checked and find that what I think I had in mind was s.47
SOGA 1893 (Effect of sub-sale or pledge by buyer).
Roland Perry
Dec 19, 2012, 8:20:19 AM12/19/12
to
In message <87licuq...@news2.kororaa.com>, at 12:40:02 on Wed, 19
Which seller, B or A? B never has possession of it.
> then it's clearly not in a deliverable state,
There could be a bunch of stock reserved at A, for the purpose.
>and it's not even ascertainable (so can't be specified), so s.18 cannot
>apply.
What's not happening strictly contemporaneously is the retailer taking
the money off the end user for something he knows will be in stock at
the manufacturer, and the retailer telling the manufacturer to ship it.
Perhaps it's exploring the blow-by-blow ownership though those stages
which would help?
--
Roland Perry
Dec 2012, August West <aug...@kororaa.com> remarked:
>> So if I buy my fridge from the retailer, and it's in a deliverable
>> state at the manufacturer, does the property pass direct from the
>> manufacturer to me immediately? Or does it pass from the manufacturer
>> to the shop and then instantaneously from the shop to me.
>
>If the seller does not own and have possession of the fridge
>> state at the manufacturer, does the property pass direct from the
>> manufacturer to me immediately? Or does it pass from the manufacturer
>> to the shop and then instantaneously from the shop to me.
>
Which seller, B or A? B never has possession of it.
> then it's clearly not in a deliverable state,
There could be a bunch of stock reserved at A, for the purpose.
>and it's not even ascertainable (so can't be specified), so s.18 cannot
>apply.
What's not happening strictly contemporaneously is the retailer taking
the money off the end user for something he knows will be in stock at
the manufacturer, and the retailer telling the manufacturer to ship it.
Perhaps it's exploring the blow-by-blow ownership though those stages
which would help?
--
Roland Perry
Roland Perry
Dec 19, 2012, 8:25:01 AM12/19/12
to
In message <87haniq...@news2.kororaa.com>, at 13:05:02 on Wed, 19
>Which means that, absenting a contract, the later sections (of the SOGA
>come into effect. Normally, in such a case, rule 5 applies: property
>will pass
From A-B then B-C, or direct from A-C?
> following an unconditional appropriation of goods or, where
>the sale is from a specified bulk, following ascertainment by exhaustion
>(s.18(3)).
--
Roland Perry
>Which means that, absenting a contract, the later sections (of the SOGA
>come into effect. Normally, in such a case, rule 5 applies: property
>will pass
From A-B then B-C, or direct from A-C?
> following an unconditional appropriation of goods or, where
>the sale is from a specified bulk, following ascertainment by exhaustion
>(s.18(3)).
--
Roland Perry
Roland Perry
Dec 19, 2012, 8:25:09 AM12/19/12
to
In message <KtKdneRSvOijJkzN...@giganews.com>, at 13:05:09
on Wed, 19 Dec 2012, Nightjar <c...@insert.my.surname.here.me.uk>
remarked:
the hands of B?
--
Roland Perry
on Wed, 19 Dec 2012, Nightjar <c...@insert.my.surname.here.me.uk>
remarked:
>If not, then, as others have said, the Sale of Goods Act applies.
And what does the SOGA have to say about whether ownership is ever in
the hands of B?
--
Roland Perry
Roland Perry
Dec 19, 2012, 8:30:17 AM12/19/12
to
In message <tbadnU_D_dxaN0zN...@brightview.co.uk>, at
11:55:01 on Wed, 19 Dec 2012, Chris R <inv...@invalid.munge.co.uk>
remarked:
part because trade credit insurers were no longer willing to cover the
risk, meaning Comet had to buy at least some of its stock with cash.
A rather unclear article in the Telegraph this week hints that some
trade suppliers are secured (or at least preferential in some way)
creditors - because unsecured ones are due to get nothing:
"The [Deloitte] report will also explain that 85pc of trade
suppliers who had goods on credit with Comet at the time of its
administration have claimed retention of title, leading to an
estimated £40m of payments to suppliers."
The VATman is £26m out of pocket, apparently.
--
Roland Perry
11:55:01 on Wed, 19 Dec 2012, Chris R <inv...@invalid.munge.co.uk>
remarked:
>> I don't think I'd be very impressed to buy a fridge off $retailer, find it
>> was delivered direct from the factory, then be told to give it back a
>> month later because the retailer never paid for it.
>
>Indeed, and traditionally you would rely on section 25 of SOGA (buyer in
>possession) to ensure that the seller can give good title, but section 25
>cannot apply if B never takes possession of the goods. I'm not sure I know
>the answer when the seller of goods never takes possession of them. Perhaps
>a number of Comet suppliers will be going round picking up fridges?
In Comet's case I believe their (medium term) troubles arose at least in
>> was delivered direct from the factory, then be told to give it back a
>> month later because the retailer never paid for it.
>
>Indeed, and traditionally you would rely on section 25 of SOGA (buyer in
>possession) to ensure that the seller can give good title, but section 25
>cannot apply if B never takes possession of the goods. I'm not sure I know
>the answer when the seller of goods never takes possession of them. Perhaps
>a number of Comet suppliers will be going round picking up fridges?
part because trade credit insurers were no longer willing to cover the
risk, meaning Comet had to buy at least some of its stock with cash.
A rather unclear article in the Telegraph this week hints that some
trade suppliers are secured (or at least preferential in some way)
creditors - because unsecured ones are due to get nothing:
"The [Deloitte] report will also explain that 85pc of trade
suppliers who had goods on credit with Comet at the time of its
administration have claimed retention of title, leading to an
estimated £40m of payments to suppliers."
The VATman is £26m out of pocket, apparently.
--
Roland Perry
Message has been deleted
Chris R
Dec 19, 2012, 8:45:03 AM12/19/12
to
>
>
> "August West" wrote in message news:87haniq...@news2.kororaa.com...
>
>
> The entity calling itself Chris R wrote:
> >
> >>
> >> "August West" wrote in message
> >> news:8738z2s...@news2.kororaa.com...
> >>
> >> The entity calling itself Chris R wrote:
> >> >
> >> > If goods are bought by B from A and sold on to C before delivery
> >> > and before title passes to B, so that they are delivered direct
> >> > from A to C, does the middleman B ever own the goods, even for a
> >> > fleeting moment of time?
> >> >
> >> > For reasons I won't go into, I need to know whether B was ever the
> >> > owner of the goods. Does title pass direct from A to C on delivery,
> >> > or does it flow through B?
> >> >
> >> > B is definitely dealing as principal and not as A's agent. Note
> >> > this is purely a legal question; practicalities are all working
> >> > smoothly and all parties are cooperating. This is a commercial
> >> > trading arrangement in which there will be many transactions over a
> >> > period of years.
> >>
> >> Unless you have terms to the contract, section 18 of the Sale of Goods
> >> Act 1979 applies, and it provides that in an unconditional contract for
> >> sale and delivery of specific goods in a deliverable state, property
> >> passes immediately on contract formation. The fact that delivery will
> >> be
> >> to a third party affects this presumption.
> >>
> > Indeed, but there will be relevant terms in the contract
>
> Exactly. So the answer to the OPs question is either (i) in the SOGA, or
>
> The entity calling itself Chris R wrote:
> >
> >>
> >> "August West" wrote in message
> >> news:8738z2s...@news2.kororaa.com...
> >>
> >> The entity calling itself Chris R wrote:
> >> >
> >> > If goods are bought by B from A and sold on to C before delivery
> >> > and before title passes to B, so that they are delivered direct
> >> > from A to C, does the middleman B ever own the goods, even for a
> >> > fleeting moment of time?
> >> >
> >> > For reasons I won't go into, I need to know whether B was ever the
> >> > owner of the goods. Does title pass direct from A to C on delivery,
> >> > or does it flow through B?
> >> >
> >> > B is definitely dealing as principal and not as A's agent. Note
> >> > this is purely a legal question; practicalities are all working
> >> > smoothly and all parties are cooperating. This is a commercial
> >> > trading arrangement in which there will be many transactions over a
> >> > period of years.
> >>
> >> Unless you have terms to the contract, section 18 of the Sale of Goods
> >> Act 1979 applies, and it provides that in an unconditional contract for
> >> sale and delivery of specific goods in a deliverable state, property
> >> passes immediately on contract formation. The fact that delivery will
> >> be
> >> to a third party affects this presumption.
> >>
> > Indeed, but there will be relevant terms in the contract
>
> (ii) in the contracts between A, B and C.
>
> > (and it's fairly rare for this kind of contract to be for "specific
> > goods", as most suppliers do not appropriate goods to a particular
> > contract until shortly before delivery).
>
> > (and it's fairly rare for this kind of contract to be for "specific
> > goods", as most suppliers do not appropriate goods to a particular
> > contract until shortly before delivery).
>
> Which means that, absenting a contract, the later sections (of the SOGA
> come into effect. Normally, in such a case, rule 5 applies: property
> will pass following an unconditional appropriation of goods or, where
> come into effect. Normally, in such a case, rule 5 applies: property
> the sale is from a specified bulk, following ascertainment by exhaustion
> (s.18(3)).
>
I am the OP. The question is not when property passes (I agree that is
> (s.18(3)).
>
determined by the contract terms and/or SOGA) or whether C gets good title,
but whether B is ever the owner of the goods. No-one wants B to be the owner
of the goods. Does title pass direct to C from A, or must it go via B so
that B is briefly the owner? I don't think the answer can be derived from
contractual terms; it's more a question of legal concepts. Can title under a
contract of sale pass to someone other than the buyer, or from someone other
than the seller? The whole structure of SOGA assumes that title always
passes from the seller to the buyer - though section 25 is interesting, as
by introducing the hypothetical mercantile agent, it suggests that the buyer
in possession (B) is treated as the authorised agent of the seller (A) for
the purposes of the sale to C, in which case title would go direct from A to
C.
Message has been deleted
Nightjar
Dec 19, 2012, 10:05:03 AM12/19/12
to
Colin Bignell
Chris R
Dec 19, 2012, 10:20:09 AM12/19/12
to
> "August West" wrote in message news:8738z2q...@news2.kororaa.com...
> always best to frame a contract to achieve that end, and not to explore
> byways of the law to see what happens if you don't. Such examination of
> the law should be left for academics, and for courts to explore when
> adjuducating on disputes.
>
> Is there any reason not to have specific contract terms, beyond the
> statutorily implied ones?
>
We can write whatever contract terms we like, within reason and without
disturbing the general nature of the relationships (ie as sale and subsale -
we couldn't redraw this as an agency relationship, nor have A contracting
with C), but the question is whether they are legally effective.
--
Chris R
>
>
> The entity calling itself Chris R wrote:
>
> > I am the OP. The question is not when property passes (I agree that is
> > determined by the contract terms and/or SOGA) or whether C gets good
> > title, but whether B is ever the owner of the goods. No-one wants B to
> > be the owner of the goods.
>
> Really, if you have something you specifically want to happen, it's
>
> The entity calling itself Chris R wrote:
>
> > I am the OP. The question is not when property passes (I agree that is
> > determined by the contract terms and/or SOGA) or whether C gets good
> > title, but whether B is ever the owner of the goods. No-one wants B to
> > be the owner of the goods.
>
> always best to frame a contract to achieve that end, and not to explore
> byways of the law to see what happens if you don't. Such examination of
> the law should be left for academics, and for courts to explore when
> adjuducating on disputes.
>
> Is there any reason not to have specific contract terms, beyond the
> statutorily implied ones?
>
We can write whatever contract terms we like, within reason and without
disturbing the general nature of the relationships (ie as sale and subsale -
we couldn't redraw this as an agency relationship, nor have A contracting
with C), but the question is whether they are legally effective.
--
Chris R
Message has been deleted
Stuart A. Bronstein
Dec 19, 2012, 10:40:08 AM12/19/12
to
"Chris R" <inv...@invalid.munge.co.uk> wrote:
> I am the OP. The question is not when property passes (I agree
> that is determined by the contract terms and/or SOGA) or whether
> C gets good title, but whether B is ever the owner of the goods.
> No-one wants B to be the owner of the goods. Does title pass
> direct to C from A, or must it go via B so that B is briefly the
> owner? I don't think the answer can be derived from contractual
> terms; it's more a question of legal concepts. Can title under a
> contract of sale pass to someone other than the buyer, or from
> someone other than the seller? The whole structure of SOGA
> assumes that title always passes from the seller to the buyer -
> though section 25 is interesting, as by introducing the
> hypothetical mercantile agent, it suggests that the buyer in
> possession (B) is treated as the authorised agent of the seller
> (A) for the purposes of the sale to C, in which case title would
> go direct from A to
It seems to me that there are two options. First, a person cannot
> I am the OP. The question is not when property passes (I agree
> that is determined by the contract terms and/or SOGA) or whether
> C gets good title, but whether B is ever the owner of the goods.
> No-one wants B to be the owner of the goods. Does title pass
> direct to C from A, or must it go via B so that B is briefly the
> owner? I don't think the answer can be derived from contractual
> terms; it's more a question of legal concepts. Can title under a
> contract of sale pass to someone other than the buyer, or from
> someone other than the seller? The whole structure of SOGA
> assumes that title always passes from the seller to the buyer -
> though section 25 is interesting, as by introducing the
> hypothetical mercantile agent, it suggests that the buyer in
> possession (B) is treated as the authorised agent of the seller
> (A) for the purposes of the sale to C, in which case title would
> go direct from A to
sell what he does not own. In your case A sells to B, and then B
sells to C before B takes delivery. Under this option B has to own
the goods at some point, whether they are in his hands at the time
title is transferred or not.
The other approach is to look at the transaction as selling a right
to receive goods rather than the goods themselves. For example say
A gives B a cheque. Before cashing it, does B actually own the
money in A's bank account? Or does he just own the right to
collect?
Then when B transfers to C, B transfers only what he already has -
the right to collect money in A's bank account, not the particular
cash itself.
___
Stu
http://DownToEarthLawyer.com
Chris R
Dec 19, 2012, 10:45:02 AM12/19/12
to
>
>
> "August West" wrote in message news:87vcbyo...@news2.kororaa.com...
> to pass god title to C. The only ways to remove B entily from the chain
> of ownership is for A to contract directly with C, or for B to grant C
> some form of preempive personal right in B's prospective right in
> property. I suspect in English law that will be something to do with
> trust and beneficial ownership, or whatever it's called. At this point,
> my skills are exhasuted, as the underlying trust & property law is very
> different North and South of the border.
>
That's my instinct too, but I haven't any authority to back it up. Other
people are assuming that title passes with possession, upon delivery from A
to C, but I think B must be the owner in the chain of title.
--
Chris R
Roland Perry
Dec 19, 2012, 10:45:09 AM12/19/12
to
In message <uPudneSqZK-CSkzN...@giganews.com>, at 15:05:03
that by saying when (and how long) - in the various scenarios I've
floated.
--
Roland Perry
>> And what does the SOGA have to say about whether ownership is ever in
>> the hands of B?
>
>August West is providing much better answers about that than I ever could.
He says B always has ownership at some point, but hasn't yet illustrated
>> the hands of B?
>
>August West is providing much better answers about that than I ever could.
that by saying when (and how long) - in the various scenarios I've
floated.
--
Roland Perry
Stuart A. Bronstein
Dec 19, 2012, 10:45:17 AM12/19/12
to
August West <aug...@kororaa.com> wrote:
>> We can write whatever contract terms we like, within reason and
>> without disturbing the general nature of the relationships (ie
>> as sale and subsale - we couldn't redraw this as an agency
>> relationship, nor have A contracting with C), but the question
>> is whether they are legally effective.
>
> As it stands, B must be the onwer of the goods, at some point,
> in order to pass god title to C. The only ways to remove B
> entily from the chain of ownership is for A to contract directly
> with C, or for B to grant C some form of preempive personal
> right in B's prospective right in property.
If B enters into the initial part of the transaction as C's agent,
>> We can write whatever contract terms we like, within reason and
>> without disturbing the general nature of the relationships (ie
>> as sale and subsale - we couldn't redraw this as an agency
>> relationship, nor have A contracting with C), but the question
>> is whether they are legally effective.
>
> As it stands, B must be the onwer of the goods, at some point,
> in order to pass god title to C. The only ways to remove B
> entily from the chain of ownership is for A to contract directly
> with C, or for B to grant C some form of preempive personal
> right in B's prospective right in property.
title will transfer directly from A to C without any ownership
interest in B. But I have the impression that's not how the parties
are willing to structure it.
___
Stu
http://DownToEarthLawyer.com
Roland Perry
Dec 19, 2012, 10:50:01 AM12/19/12
to
In message <XnsA12E4D90DB7B7s...@130.133.4.11>, at
15:40:08 on Wed, 19 Dec 2012, Stuart A. Bronstein
<spam...@lexregia.com> remarked:
the retailer the right to have the goods delivered direct from the
manufacturer.
>a person cannot sell what he does not own.
Because the goods you are buying don't belong to the shop at the moment
the till goes "ker-ching".
Actually, there's a similar scenario, which is when the retail shop does
have the stock in its possession, but it belongs to the manufacturer.
(This is more common than people realise; alternatively the stock may
belong to a third party finance company, something that afaik is
virtually universal for new vehicle sales through dealers in the USA).
At what point in the process of selling to the customer does it become
the shop's to sell. The millisecond between the "ker" and the "ching"?
--
Roland Perry
15:40:08 on Wed, 19 Dec 2012, Stuart A. Bronstein
<spam...@lexregia.com> remarked:
>The other approach is to look at the transaction as selling a right
>to receive goods rather than the goods themselves.
That's potentially what it feels like to the consumer. You buy from
>to receive goods rather than the goods themselves.
the retailer the right to have the goods delivered direct from the
manufacturer.
>a person cannot sell what he does not own.
the till goes "ker-ching".
Actually, there's a similar scenario, which is when the retail shop does
have the stock in its possession, but it belongs to the manufacturer.
(This is more common than people realise; alternatively the stock may
belong to a third party finance company, something that afaik is
virtually universal for new vehicle sales through dealers in the USA).
At what point in the process of selling to the customer does it become
the shop's to sell. The millisecond between the "ker" and the "ching"?
--
Roland Perry
Message has been deleted
Message has been deleted
Chris R
Dec 19, 2012, 11:00:02 AM12/19/12
to
>
>
> "Roland Perry" wrote in message news:cXtOXCWI...@perry.co.uk...
> In message <8738z2s...@news2.kororaa.com>, at 11:50:02 on Wed, 19 Dec
> 2012, August West <aug...@kororaa.com> remarked:
>
> >Unless you have terms to the contract, section 18 of the Sale of Goods
> >Act 1979 applies, and it provides that in an unconditional contract for
> >sale and delivery of specific goods in a deliverable state, property
> >passes immediately on contract formation. The fact that delivery will be
> >to a third party
>
> does not
>
> >affects this presumption.
>
> So if I buy my fridge from the retailer, and it's in a deliverable state
> at the manufacturer, does the property pass direct from the manufacturer
> to me immediately?
If there's nothing in the conditions of sale (unlikely) and you are buying a
> 2012, August West <aug...@kororaa.com> remarked:
>
> >Unless you have terms to the contract, section 18 of the Sale of Goods
> >Act 1979 applies, and it provides that in an unconditional contract for
> >sale and delivery of specific goods in a deliverable state, property
> >passes immediately on contract formation. The fact that delivery will be
> >to a third party
>
> does not
>
> >affects this presumption.
>
> So if I buy my fridge from the retailer, and it's in a deliverable state
> at the manufacturer, does the property pass direct from the manufacturer
> to me immediately?
particular fridge (eg the one with the dent in the door or one that has been
customised) title would pass to you, if the seller has title. More often you
are contracting to buy a fridge of a particular description. Section 18 is
more likely to apply where you buy ex-display goods, for example.
Or does it pass from the manufacturer to the shop and
> then instantaneously from the shop to me.
>
> There's also the problem that the manufacturer might not know the retail
> contract has been made, until some time later. Does that affect when any
> of the property transfers happen?
In my case (which is not retail) title passes after both contracts have been
> There's also the problem that the manufacturer might not know the retail
> contract has been made, until some time later. Does that affect when any
> of the property transfers happen?
made, and the question is whether it goes direct from A to C or
instantaneously from A to B to C.
Message has been deleted
Roland Perry
Dec 19, 2012, 12:20:02 PM12/19/12
to
In message <87r4mmo...@news2.kororaa.com>, at 15:55:09 on Wed, 19
Dec 2012, August West <aug...@kororaa.com> remarked:
>both of which I've quoted. I really don't have time to investigate the
>application of this to your various scenarios.
All I'm asking is for you to say how long B has title in the most common
of these transactions. Is it milliseconds, or something much longer (eg
between taking the money and the customer getting delivery).
I suspect it's not the latter as I think it was said title passes to the
customer as soon as they've paid. But how does that square with the shop
not yet having paid the manufacturer?
--
Roland Perry
Dec 2012, August West <aug...@kororaa.com> remarked:
>>>August West is providing much better answers about that than I ever could.
>>
>> He says B always has ownership at some point, but hasn't yet
>> illustrated that by saying when (and how long) - in the various
>> scenarios I've floated.
>
>That title must pass through B is an absolute of common law & statute,
>>
>> He says B always has ownership at some point, but hasn't yet
>> illustrated that by saying when (and how long) - in the various
>> scenarios I've floated.
>
>both of which I've quoted. I really don't have time to investigate the
>application of this to your various scenarios.
All I'm asking is for you to say how long B has title in the most common
of these transactions. Is it milliseconds, or something much longer (eg
between taking the money and the customer getting delivery).
I suspect it's not the latter as I think it was said title passes to the
customer as soon as they've paid. But how does that square with the shop
not yet having paid the manufacturer?
--
Roland Perry
Roland Perry
Dec 19, 2012, 12:20:09 PM12/19/12
to
In message <87ip7yo...@news2.kororaa.com>, at 16:05:02 on Wed, 19
Dec 2012, August West <aug...@kororaa.com> remarked:
>S.16, and s.18 rule 5.
Can you please translate that into plain English?
When is such a sale "ascertained" and when is it "specified".
Nothing complicated, this is a transaction that happens every day in a
multitude of shops which rely upon fulfilment for a third party.
--
Roland Perry
Dec 2012, August West <aug...@kororaa.com> remarked:
>> At what point in the process of selling to the customer does it become
>> the shop's to sell. The millisecond between the "ker" and the "ching"?
>
>The SOGA is clear on this; when they are ascertained and specified.
>> the shop's to sell. The millisecond between the "ker" and the "ching"?
>
>S.16, and s.18 rule 5.
Can you please translate that into plain English?
When is such a sale "ascertained" and when is it "specified".
Nothing complicated, this is a transaction that happens every day in a
multitude of shops which rely upon fulfilment for a third party.
--
Roland Perry
Stuart A. Bronstein
Dec 19, 2012, 12:35:02 PM12/19/12
to
Roland Perry <rol...@perry.co.uk> wrote:
> All I'm asking is for you to say how long B has title in the
> most common of these transactions. Is it milliseconds, or
> something much longer (eg between taking the money and the
> customer getting delivery).
It seems to me there are two ways to look at it. On the one hand if
> All I'm asking is for you to say how long B has title in the
> most common of these transactions. Is it milliseconds, or
> something much longer (eg between taking the money and the
> customer getting delivery).
B takes title when he pays, even though the goods are not in
existence at that time, what he is really getting the right to
receive the goods. So B is the owner of that right until C pays him,
at which time C takes ownership of that right.
On the other hand if B doesn't get title until A ships to him, then
at the same time C takes title from B. In other words B has title
only instantaneously, and immediately gives it up to C.
> I suspect it's not the latter as I think it was said title
> passes to the customer as soon as they've paid. But how does
> that square with the shop not yet having paid the manufacturer?
sufficient.
___
Stu
http://DownToEarthLawyer.com
Message has been deleted
Stuart A. Bronstein
Dec 19, 2012, 12:40:02 PM12/19/12
to
Roland Perry <rol...@perry.co.uk> wrote:
> August West <aug...@kororaa.com> remarked:
>>> At what point in the process of selling to the customer does
>>> it become the shop's to sell. The millisecond between the
>>> "ker" and the "ching"?
>>
>>The SOGA is clear on this; when they are ascertained and
>>specified. S.16, and s.18 rule 5.
>
> Can you please translate that into plain English?
>
> When is such a sale "ascertained" and when is it "specified".
For things that are made to order, the goods are ascertained or
> August West <aug...@kororaa.com> remarked:
>>> At what point in the process of selling to the customer does
>>> it become the shop's to sell. The millisecond between the
>>> "ker" and the "ching"?
>>
>>The SOGA is clear on this; when they are ascertained and
>>specified. S.16, and s.18 rule 5.
>
> Can you please translate that into plain English?
>
> When is such a sale "ascertained" and when is it "specified".
specified when that manufacturing is complete. For fungible goods
I'd think it would be when the supplier (or customer) takes them off
the shelf with the intent to sell (or buy) them.
___
Stu
http://DownToEarthLawyer.com
Message has been deleted
Roland Perry
Dec 19, 2012, 5:20:02 PM12/19/12
to
In message <87ehimo...@news2.kororaa.com>, at 17:35:09 on Wed, 19
>them for C.
What does "ascertaining them for C" mean. Plain English please.
--
Roland Perry
Dec 2012, August West <aug...@kororaa.com> remarked:
>> All I'm asking is for you to say how long B has title in the most
>> common of these transactions. Is it milliseconds, or something much
>> longer (eg between taking the money and the customer getting
>> delivery).
>
>In the default case, the time from B obtaining the goods to ascertaining
>> common of these transactions. Is it milliseconds, or something much
>> longer (eg between taking the money and the customer getting
>> delivery).
>
>them for C.
What does "ascertaining them for C" mean. Plain English please.
--
Roland Perry
Roland Perry
Dec 19, 2012, 5:20:09 PM12/19/12
to
In message <XnsA12E61BF07950s...@130.133.4.11>, at
17:40:02 on Wed, 19 Dec 2012, Stuart A. Bronstein
<spam...@lexregia.com> remarked:
fridge, which the manufacturer has in stock at the warehouse and will
ship to me direct as soon as the retailer tells him to.
--
Roland Perry
17:40:02 on Wed, 19 Dec 2012, Stuart A. Bronstein
<spam...@lexregia.com> remarked:
>>>> At what point in the process of selling to the customer does
>>>> it become the shop's to sell. The millisecond between the
>>>> "ker" and the "ching"?
>>>
>>>The SOGA is clear on this; when they are ascertained and
>>>specified. S.16, and s.18 rule 5.
>>
>> Can you please translate that into plain English?
>>
>> When is such a sale "ascertained" and when is it "specified".
>
>For things that are made to order, the goods are ascertained or
>specified when that manufacturing is complete. For fungible goods
>I'd think it would be when the supplier (or customer) takes them off
>the shelf with the intent to sell (or buy) them.
Please run that past me again, using the example of a shop selling me a
>>>> it become the shop's to sell. The millisecond between the
>>>> "ker" and the "ching"?
>>>
>>>The SOGA is clear on this; when they are ascertained and
>>>specified. S.16, and s.18 rule 5.
>>
>> Can you please translate that into plain English?
>>
>> When is such a sale "ascertained" and when is it "specified".
>
>For things that are made to order, the goods are ascertained or
>specified when that manufacturing is complete. For fungible goods
>I'd think it would be when the supplier (or customer) takes them off
>the shelf with the intent to sell (or buy) them.
fridge, which the manufacturer has in stock at the warehouse and will
ship to me direct as soon as the retailer tells him to.
--
Roland Perry
Roland Perry
Dec 19, 2012, 5:20:23 PM12/19/12
to
In message <87a9tao...@news2.kororaa.com>, at 17:40:09 on Wed, 19
>contract of sale is made. "This specific fridge", as opposed to "a
>fridge like this".
That never happens if I go into a retailer and order a fridge for
delivery from the manufacturer. All I contract with the retailer is for
"one like that demo unit over there, but brand new".
I doubt the retailer identifies a particular fridge when asking the
manufacturer to ship it to me "send him one of those, any one will do".
--
Roland Perry
Dec 2012, August West <aug...@kororaa.com> remarked:
>>>The SOGA is clear on this; when they are ascertained and specified.
>>>S.16, and s.18 rule 5.
>>
>> Can you please translate that into plain English?
>
>Essentially, it means goods identified and agreed on at the time a
>>>S.16, and s.18 rule 5.
>>
>> Can you please translate that into plain English?
>
>contract of sale is made. "This specific fridge", as opposed to "a
>fridge like this".
That never happens if I go into a retailer and order a fridge for
delivery from the manufacturer. All I contract with the retailer is for
"one like that demo unit over there, but brand new".
I doubt the retailer identifies a particular fridge when asking the
manufacturer to ship it to me "send him one of those, any one will do".
--
Roland Perry
Message has been deleted
Stuart A. Bronstein
Dec 19, 2012, 6:05:02 PM12/19/12
to
Roland Perry <rol...@perry.co.uk> wrote:
>>For things that are made to order, the goods are ascertained or
>>specified when that manufacturing is complete. For fungible
>>goods I'd think it would be when the supplier (or customer)
>>takes them off the shelf with the intent to sell (or buy) them.
>
> Please run that past me again, using the example of a shop
> selling me a fridge, which the manufacturer has in stock at the
> warehouse and will ship to me direct as soon as the retailer
> tells him to.
When some bureaucrat at the warehouse points to (or otherwise
>>For things that are made to order, the goods are ascertained or
>>specified when that manufacturing is complete. For fungible
>>goods I'd think it would be when the supplier (or customer)
>>takes them off the shelf with the intent to sell (or buy) them.
>
> Please run that past me again, using the example of a shop
> selling me a fridge, which the manufacturer has in stock at the
> warehouse and will ship to me direct as soon as the retailer
> tells him to.
identifies) a fridge and tells whoever is responsible for it, "send
him that one."
___
Stu
http://DownToEarthLawyer.com
Ian Jackson
Dec 19, 2012, 7:10:02 PM12/19/12
to
In article <87a9taq...@news2.kororaa.com>,
August West <aug...@kororaa.com> wrote:
>The entity calling itself Roland Perry wrote:
>>From A-B then B-C, or direct from A-C?
>
>The former. Clearly, ownership must pass at dome time through B.
>Remember the Common Law maxin "nemo dat quod non habet", and SOGA
>s.21(1).
I don't see why B's contract with A couldn't specify that ownership
would pass directly to C. s21 doesn't prohibit this for the contract
of sale between B and C because B's contract with A would obviously
involve A granting the authority or consent required for B's sale to
C.
I guess it might be necessary to rely on the Contracts (Rights of
Third Parties) Act 1999.
--
Ian Jackson personal email: <ijac...@chiark.greenend.org.uk>
These opinions are my own. http://www.chiark.greenend.org.uk/~ijackson/
PGP2 key 1024R/0x23f5addb, fingerprint 5906F687 BD03ACAD 0D8E602E FCF37657
August West <aug...@kororaa.com> wrote:
>The entity calling itself Roland Perry wrote:
>>From A-B then B-C, or direct from A-C?
>
>The former. Clearly, ownership must pass at dome time through B.
>Remember the Common Law maxin "nemo dat quod non habet", and SOGA
>s.21(1).
I don't see why B's contract with A couldn't specify that ownership
would pass directly to C. s21 doesn't prohibit this for the contract
of sale between B and C because B's contract with A would obviously
involve A granting the authority or consent required for B's sale to
C.
I guess it might be necessary to rely on the Contracts (Rights of
Third Parties) Act 1999.
--
Ian Jackson personal email: <ijac...@chiark.greenend.org.uk>
These opinions are my own. http://www.chiark.greenend.org.uk/~ijackson/
PGP2 key 1024R/0x23f5addb, fingerprint 5906F687 BD03ACAD 0D8E602E FCF37657
Message has been deleted
Roland Perry
Dec 20, 2012, 2:40:08 AM12/20/12
to
In message <XnsA12E9911751BEs...@130.133.4.11>, at
23:05:02 on Wed, 19 Dec 2012, Stuart A. Bronstein
<spam...@lexregia.com> remarked:
does it go straight to C?
--
Roland Perry
23:05:02 on Wed, 19 Dec 2012, Stuart A. Bronstein
<spam...@lexregia.com> remarked:
>>>For things that are made to order, the goods are ascertained or
>>>specified when that manufacturing is complete. For fungible
>>>goods I'd think it would be when the supplier (or customer)
>>>takes them off the shelf with the intent to sell (or buy) them.
>>
>> Please run that past me again, using the example of a shop
>> selling me a fridge, which the manufacturer has in stock at the
>> warehouse and will ship to me direct as soon as the retailer
>> tells him to.
>
>When some bureaucrat at the warehouse points to (or otherwise
>identifies) a fridge and tells whoever is responsible for it, "send
>him that one."
Does ownership pass to B at that point (and if so, for how long), or
>>>specified when that manufacturing is complete. For fungible
>>>goods I'd think it would be when the supplier (or customer)
>>>takes them off the shelf with the intent to sell (or buy) them.
>>
>> Please run that past me again, using the example of a shop
>> selling me a fridge, which the manufacturer has in stock at the
>> warehouse and will ship to me direct as soon as the retailer
>> tells him to.
>
>When some bureaucrat at the warehouse points to (or otherwise
>identifies) a fridge and tells whoever is responsible for it, "send
>him that one."
does it go straight to C?
--
Roland Perry
Roland Perry
Dec 20, 2012, 2:45:02 AM12/20/12
to
In message <871uelp...@news2.kororaa.com>, at 22:50:02 on Wed, 19
>and, indeed, it usually is. It must happen at some point in the
>performance of the contract. Even if that's only when it's loaded onto
>the van for delivery. Or maybe, if there are sevral on the van, when one
>is finally picked to be offloaded at your address. And, unless otherwise
>specified, it's at that point (of specification) that ownership passes.
Who does the ownership pass to? Direct to C, or does B have a fleeting
ownership? It's B's ownership the OP was enquiring about, and seems to
be the aspect least covered by the replies he's getting.
What if B's order was for a "lorry-load of fridges to be dropped off
during the day at various customers", does that become B's property as
soon as the lorry is loaded, and then become the customers' property
when each is dropped off.
--
Roland Perry
Dec 2012, August West <aug...@kororaa.com> remarked:
>> That never happens if I go into a retailer and order a fridge for
>> delivery from the manufacturer. All I contract with the retailer is
>> for "one like that demo unit over there, but brand new".
>
>It doesn't have to be you that specificies it; it can be the seller,
>> delivery from the manufacturer. All I contract with the retailer is
>> for "one like that demo unit over there, but brand new".
>
>and, indeed, it usually is. It must happen at some point in the
>performance of the contract. Even if that's only when it's loaded onto
>the van for delivery. Or maybe, if there are sevral on the van, when one
>is finally picked to be offloaded at your address. And, unless otherwise
>specified, it's at that point (of specification) that ownership passes.
Who does the ownership pass to? Direct to C, or does B have a fleeting
ownership? It's B's ownership the OP was enquiring about, and seems to
be the aspect least covered by the replies he's getting.
What if B's order was for a "lorry-load of fridges to be dropped off
during the day at various customers", does that become B's property as
soon as the lorry is loaded, and then become the customers' property
when each is dropped off.
--
Roland Perry
Chris R
Dec 20, 2012, 2:55:01 AM12/20/12
to
>
>
> "August West" wrote in message news:87wqwdo...@news2.kororaa.com...
>
>
> The entity calling itself Ian Jackson wrote:
> >
> > In article <87a9taq...@news2.kororaa.com>,
> > August West <aug...@kororaa.com> wrote:
> >>The entity calling itself Roland Perry wrote:
> >>>From A-B then B-C, or direct from A-C?
> >>
> >>The former. Clearly, ownership must pass at dome time through B.
> >>Remember the Common Law maxin "nemo dat quod non habet", and SOGA
> >>s.21(1).
> >
> > I don't see why B's contract with A couldn't specify that ownership
> > would pass directly to C.
>
> Because the law says you can't force ownership onto a third party. So C
>
> The entity calling itself Ian Jackson wrote:
> >
> > In article <87a9taq...@news2.kororaa.com>,
> > August West <aug...@kororaa.com> wrote:
> >>The entity calling itself Roland Perry wrote:
> >>>From A-B then B-C, or direct from A-C?
> >>
> >>The former. Clearly, ownership must pass at dome time through B.
> >>Remember the Common Law maxin "nemo dat quod non habet", and SOGA
> >>s.21(1).
> >
> > I don't see why B's contract with A couldn't specify that ownership
> > would pass directly to C.
>
> would have to contract with either A( which avoids this entire question,
> butwhich seemingly the OP didn't want to happen), or B; but in those
> circumstances B must first have title in the goods in order to pass them
> to C: nemo dat quod non habet.
>
> > s21 doesn't prohibit this for the contract of sale between B and C
> > because B's contract with A would obviously involve A granting the
> > authority or consent required for B's sale to C.
>
> There are many simple solutions to this "problem", which is only a
> > s21 doesn't prohibit this for the contract of sale between B and C
> > because B's contract with A would obviously involve A granting the
> > authority or consent required for B's sale to C.
>
> problem because of the restraints placed upon its execution by the OP.
>
Well, it's not impossible for the contract between A and B to say that A
will deliver the goods and title to the goods to whomever B specifies and
who has consented to receive them, and for the contract between B and C to
say that B may satisfy its obligations to C by procuring that the goods and
title to them are delivered direct to C from B's supplier (A).
The restraints aren't my invention: they arise from the commercial
realities. B markets the products under its own branding, finds customers
for them (many C's) and sells them, at its own risk and for its own profit.
It buys supplies from A , the manufacturer, to B's specification, at a lower
price. A won't know the prices or terms paid by C and would not want the
risk of being sued by C (so the SOGA responsibility must remain with B), or
the responsibility of recovering debts owed by C; C has its relationship
with B and would not want to deal with A. B wants to remain in control of
the whole process but would rather not own the goods at any stage.
We can no more cut out B than Apple would want its retailer customers going
direct to its suppliers in China.
--
Chris R
Chris R
Dec 20, 2012, 3:00:04 AM12/20/12
to
>
>
> "Roland Perry" wrote in message news:q7CDsB51...@perry.co.uk...
SOGA default rules were allowed to apply, but we can control the timing of
passing of title through the contract terms, to make sure that title does
not pass under the first contract until it also passes under the second.
What I am worried about is whether the true legal analysis is that title
still passes via B in that instant.
--
Chris R
Message has been deleted
Message has been deleted
Roland Perry
Dec 20, 2012, 4:05:01 AM12/20/12
to
In message <87pq25n...@news2.kororaa.com>, at 08:15:01 on Thu, 20
>As explained before, "nemo dat quod non habet" applies - it must pass
>through B, until B ascertains the goods for C.
But B could be selling C the right to have a product delivered direct
from A. Isn't that what brokers (of various sorts) do?
--
Roland Perry
>As explained before, "nemo dat quod non habet" applies - it must pass
>through B, until B ascertains the goods for C.
But B could be selling C the right to have a product delivered direct
from A. Isn't that what brokers (of various sorts) do?
--
Roland Perry
Roland Perry
Dec 20, 2012, 4:15:03 AM12/20/12
to
In message <87lictn...@news2.kororaa.com>, at 08:15:09 on Thu, 20
>to C (perhaps by delivery?), is moot.
Not if there's a regulatory requirement on the owners of such items
(what if they were guns?) or there's an issue with them being lost,
stolen or damaged in transit and only the owner can claim from the
carrier.
>> What if B's order was for a "lorry-load of fridges to be dropped off
>> during the day at various customers", does that become B's property as
>> soon as the lorry is loaded, and then become the customers' property
>> when each is dropped off.
>
>Are you seeing my replies? I already described exactly this scenario.
Unfortunately the replies never seem to quite answer the specific
question.
>Ownership transfers when it's ascertained.
I'm seeking enlightenment as to when that happens in the illustrative
scenarios I'm posting.
>That may be as lte as the
>point that the man in the van picks which one to offload when sitting at
>the bottom of the drive of the house where its to be delivered.
May be... but when *is* it in the example of the lorry-load above. For
both B and C. It seems to me that if an address label is stuck on the
box before the lorry is loaded, C will get to own it before B does, and
more to the point if the carrier drops it in transit, it looks like he's
dropping C's item and not B's. Does C then have no redress on B?
(This scenario actually happened to me, although the retailer sorted it
out eventually).
--
Roland Perry
Dec 2012, August West <aug...@kororaa.com> remarked:
>> Who does the ownership pass to? Direct to C, or does B have a fleeting
>> ownership? It's B's ownership the OP was enquiring about, and seems to
>> be the aspect least covered by the replies he's getting.
>
>It must pass through B at some point. How long for, and when it passes
>> ownership? It's B's ownership the OP was enquiring about, and seems to
>> be the aspect least covered by the replies he's getting.
>
>to C (perhaps by delivery?), is moot.
Not if there's a regulatory requirement on the owners of such items
(what if they were guns?) or there's an issue with them being lost,
stolen or damaged in transit and only the owner can claim from the
carrier.
>> What if B's order was for a "lorry-load of fridges to be dropped off
>> during the day at various customers", does that become B's property as
>> soon as the lorry is loaded, and then become the customers' property
>> when each is dropped off.
>
Unfortunately the replies never seem to quite answer the specific
question.
>Ownership transfers when it's ascertained.
I'm seeking enlightenment as to when that happens in the illustrative
scenarios I'm posting.
>That may be as lte as the
>point that the man in the van picks which one to offload when sitting at
>the bottom of the drive of the house where its to be delivered.
May be... but when *is* it in the example of the lorry-load above. For
both B and C. It seems to me that if an address label is stuck on the
box before the lorry is loaded, C will get to own it before B does, and
more to the point if the carrier drops it in transit, it looks like he's
dropping C's item and not B's. Does C then have no redress on B?
(This scenario actually happened to me, although the retailer sorted it
out eventually).
--
Roland Perry
Nightjar
Dec 20, 2012, 4:55:01 AM12/20/12
to
On 20/12/2012 07:55, Chris R wrote:
>>
>>
>> "August West" wrote in message news:87wqwdo...@news2.kororaa.com...
....
>>
>>
>> "August West" wrote in message news:87wqwdo...@news2.kororaa.com...
>> There are many simple solutions to this "problem", which is only a
>> problem because of the restraints placed upon its execution by the OP.
>>
> Well, it's not impossible for the contract between A and B to say that A
> will deliver the goods and title to the goods to whomever B specifies and
> who has consented to receive them, and for the contract between B and C to
> say that B may satisfy its obligations to C by procuring that the goods and
> title to them are delivered direct to C from B's supplier (A).
>
> The restraints aren't my invention: they arise from the commercial
> realities. B markets the products under its own branding, finds customers
> for them (many C's) and sells them, at its own risk and for its own profit.
> It buys supplies from A , the manufacturer, to B's specification, at a lower
> price. A won't know the prices or terms paid by C and would not want the
> risk of being sued by C (so the SOGA responsibility must remain with B), or
> the responsibility of recovering debts owed by C; C has its relationship
> with B and would not want to deal with A. B wants to remain in control of
> the whole process but would rather not own the goods at any stage.
It is that last, your desire not to own the goods at any stage, that
>> problem because of the restraints placed upon its execution by the OP.
>>
> Well, it's not impossible for the contract between A and B to say that A
> will deliver the goods and title to the goods to whomever B specifies and
> who has consented to receive them, and for the contract between B and C to
> say that B may satisfy its obligations to C by procuring that the goods and
> title to them are delivered direct to C from B's supplier (A).
>
> The restraints aren't my invention: they arise from the commercial
> realities. B markets the products under its own branding, finds customers
> for them (many C's) and sells them, at its own risk and for its own profit.
> It buys supplies from A , the manufacturer, to B's specification, at a lower
> price. A won't know the prices or terms paid by C and would not want the
> risk of being sued by C (so the SOGA responsibility must remain with B), or
> the responsibility of recovering debts owed by C; C has its relationship
> with B and would not want to deal with A. B wants to remain in control of
> the whole process but would rather not own the goods at any stage.
creates the main restriction. Many businesses work the way you describe
without being concerned about having temporary ownership of the goods.
Colin Bignell
steve robinson
Dec 20, 2012, 6:25:02 AM12/20/12
to
Chris R wrote:
>
> >
> >
> > "Nightjar" wrote in message
> > news:7c2dndMs_7zDH0zN...@giganews.com...
> > On 19/12/2012 07:55, Chris R wrote:
> > > If goods are bought by B from A and sold on to C before delivery
> > > and before
> > > title passes to B, so that they are delivered direct from A to C,
> > > does the
> > > middleman B ever own the goods, even for a fleeting moment of
> > > time?
> > >
> > > For reasons I won't go into, I need to know whether B was ever
> > > the owner of
> > > the goods. Does title pass direct from A to C on delivery, or
> > > does it flow
> > > through B?
> > >
> > > B is definitely dealing as principal and not as A's agent. Note
> > > this is purely a legal question; practicalities are all working
> > > smoothly and all parties are cooperating. This is a commercial
> > > trading arrangement in which
> > > there will be many transactions over a period of years.
> >
> > As A B and C are all businesses, I would expect it to depend upon
> > the terms of the contracts between them.
>
> There is no contract between A and C. A delivers the goods to C at
> the direction of B. Both contracts are unconditional contracts of
> sale, and the price for the goods is paid by C to B.
Then it falls to the contractual details of A to B and B to C
>
> >
> >
> > "Nightjar" wrote in message
> > news:7c2dndMs_7zDH0zN...@giganews.com...
> > On 19/12/2012 07:55, Chris R wrote:
> > > If goods are bought by B from A and sold on to C before delivery
> > > and before
> > > title passes to B, so that they are delivered direct from A to C,
> > > does the
> > > middleman B ever own the goods, even for a fleeting moment of
> > > time?
> > >
> > > For reasons I won't go into, I need to know whether B was ever
> > > the owner of
> > > the goods. Does title pass direct from A to C on delivery, or
> > > does it flow
> > > through B?
> > >
> > > B is definitely dealing as principal and not as A's agent. Note
> > > this is purely a legal question; practicalities are all working
> > > smoothly and all parties are cooperating. This is a commercial
> > > trading arrangement in which
> > > there will be many transactions over a period of years.
> >
> > As A B and C are all businesses, I would expect it to depend upon
> > the terms of the contracts between them.
>
> There is no contract between A and C. A delivers the goods to C at
> the direction of B. Both contracts are unconditional contracts of
> sale, and the price for the goods is paid by C to B.
Then it falls to the contractual details of A to B and B to C
steve robinson
Dec 20, 2012, 6:25:09 AM12/20/12
to
Chris R wrote:
> If goods are bought by B from A and sold on to C before delivery and
> before title passes to B, so that they are delivered direct from A to
> C, does the middleman B ever own the goods, even for a fleeting
> moment of time?
>
> For reasons I won't go into, I need to know whether B was ever the
> owner of the goods. Does title pass direct from A to C on delivery,
> or does it flow through B?
>
> B is definitely dealing as principal and not as A's agent. Note this
> is purely a legal question; practicalities are all working smoothly
> and all parties are cooperating. This is a commercial trading
> arrangement in which there will be many transactions over a period of
> years.
>
> In a land transaction A could convey to C and B would never get
> If goods are bought by B from A and sold on to C before delivery and
> before title passes to B, so that they are delivered direct from A to
> C, does the middleman B ever own the goods, even for a fleeting
> moment of time?
>
> For reasons I won't go into, I need to know whether B was ever the
> owner of the goods. Does title pass direct from A to C on delivery,
> or does it flow through B?
>
> B is definitely dealing as principal and not as A's agent. Note this
> is purely a legal question; practicalities are all working smoothly
> and all parties are cooperating. This is a commercial trading
> arrangement in which there will be many transactions over a period of
> years.
>
> title, but can the same happen with goods?
It all revolves around the terms of trade of A
if A terms state that the goods remain thier property until paid for
and B must keep them seperate and identifiable , not resell them until
they are paid for in full then no they never actually own title to the
goods
Infact they by selling them on have breeched the contract
If A terms of trade dont explicitly prevent title passing prior to
payment then yes for a fleeting moment B will own the goods
Many large chain stores operate in this manner often deliverying
directly from manufacturer to your home or office only paying suppliers
after 90 days
All works well until someone goes into administration in the chain and
companies try to enforce the contractual terms which are not always the
same as the trading practices
Francis Davey
Dec 20, 2012, 7:05:01 AM12/20/12
to
Le jeudi 20 décembre 2012 08:00:04 UTC, Chris R a écrit :
>
>
> You are absolutely right that title could pass at different times if the
>
> SOGA default rules were allowed to apply, but we can control the timing of
>
> passing of title through the contract terms, to make sure that title does
>
> not pass under the first contract until it also passes under the second.
>
Sorry to come into this late - its my kind of thing, but I haven't really had the time. Its more useful I think to pursue what you want to happen than what might happen in other scenarios (something you are trying to do - I'm just remarking).
>
>
> You are absolutely right that title could pass at different times if the
>
> SOGA default rules were allowed to apply, but we can control the timing of
>
> passing of title through the contract terms, to make sure that title does
>
> not pass under the first contract until it also passes under the second.
>
One question then is: when would you like title to pass? Am I right in thinking you want title retained by A until B ascertains the identity of the deliverable and the customer to deliver it to? Or do you want A to retain title until (say) delivery to C (I assume not) or some other time?
Does B do the delivery? I.e. does *possession* pass through B?
I am quite certain you can structure the pair of contracts you are using to do exactly what you want - certainly in English law since we tend to want to support the intention of commercial actors.
However I don't think you can do it as a straightforward "sale". As August says, you cannot sell what you don't own - because that's what a sale is.
You can sell what you don't _yet_ own. English law comprehends the sale of future goods in certain circumstances. So you could have B-C contract where B contracted to sell to C an item it might not yet have, when B acquires that item, title could then pass that instant under the contract. The A-C contract could be organised so that A retained title until that sale took place.
But, I suspect there is a scintilla temporis when the good is owned by B in order for B-C to be a sale. I am not sure about that and a brief (very brief) skim of some case law revealed nothing interesting.
Presumably you want A's contract to be to deliver to B (or to B's order) and title to pass in some specified way to C. A won't know C's identity when shipping - and (you haven't given this detail but it may be true) - C's identity might not even be ascertained at that point. I'd be surprised if there was not some shipping contract that worked like that - its not a long way from the use of bills of lading - but I'll have to ponder the point.
Francis
Message has been deleted
Stuart A. Bronstein
Dec 20, 2012, 1:10:02 PM12/20/12
to
"Chris R" <inv...@invalid.munge.co.uk> wrote:
> The restraints aren't my invention: they arise from the
> commercial realities. B markets the products under its own
> branding, finds customers for them (many C's) and sells them, at
> its own risk and for its own profit. It buys supplies from A ,
> the manufacturer, to B's specification, at a lower price. A
> won't know the prices or terms paid by C and would not want the
> risk of being sued by C (so the SOGA responsibility must remain
> with B), or the responsibility of recovering debts owed by C; C
> has its relationship with B and would not want to deal with A. B
> wants to remain in control of the whole process but would rather
> not own the goods at any stage.
>
> We can no more cut out B than Apple would want its retailer
> customers going direct to its suppliers in China.
Can you explain why you are concerned with when and how title
> The restraints aren't my invention: they arise from the
> commercial realities. B markets the products under its own
> branding, finds customers for them (many C's) and sells them, at
> its own risk and for its own profit. It buys supplies from A ,
> the manufacturer, to B's specification, at a lower price. A
> won't know the prices or terms paid by C and would not want the
> risk of being sued by C (so the SOGA responsibility must remain
> with B), or the responsibility of recovering debts owed by C; C
> has its relationship with B and would not want to deal with A. B
> wants to remain in control of the whole process but would rather
> not own the goods at any stage.
>
> We can no more cut out B than Apple would want its retailer
> customers going direct to its suppliers in China.
transfers? I don't understand why it has to be an issue.
___
Stu
http://DownToEarthLawyer.com
Chris R
Dec 20, 2012, 2:20:02 PM12/20/12
to
>
>
> "Francis Davey" wrote in message
> news:c24fb2c8-2743-4f2d...@googlegroups.com...
(though I was struggling to remember the Latin). I'm torn between two
analyses:
1 it's in the nature of a contract for the sale of goods that title
passes under the terms of the contract, so there must be a contract between
seller and buyer, and only an owner can pass title - and you and August both
say; and
2 title to goods is capable of passing by delivery, and if I agree to
sell you goods, then direct some other person to deliver them to you with
the intention of passing title, and that arrangement is permitted by the
terms of our contract, whether and what contract i have with A is largely
irrelevant. I am not sure that I have truly sold you the goods, though.
Conventionally one is either a principal (distributor) or an agent, and what
the parties are trying to create looks like some sort of hybrid.
I can't go into the reasons why B does not want ownership without risking
revealing the identity of the parties; someone postulated a regulatory
reason and I'm happy to run with that, or one might imagine a security
interest attaching to the goods if they passed through B's ownership. I
mention the latter possibility because it would be surprising if B could
defeat the security by arranging to buy goods but having title pass direct
from A to C, while still being entitled to the proceeds of sale.
Title will pass at the point of delivery by A to C. A's terms of trade
(which we can negotiate if necessary) will reserve title until A is paid,
but will permit B to sell and to pass good title, as would be usual. A will
never have been paid at the time of delivery. A will, of course, look only
to B for payment. C will deal on B's standard terms - I will need to warn
against the consequences should C get his own terms incorporated into the
contract.
A will know the identity of C at the time of delivery, but only because A
will have asked A to deliver to C, after C has agreed to buy from A.
Transport will normally be arranged by A, but could conceivably be arranged
by B or C; but it will always be direct from A to C, and B will never take
possession. Title will normally pass when offloaded to C, or perhaps when
C's carrier collects from A. But the important thing is that A and B's terms
of sale match, so that title passes at the same moment.
--
Chris R
========legalstuff========
I post to be helpful but not claiming any expertise nor intending
anyone to rely on what I say. Nothing I post here will create a
professional relationship or duty of care. I do not provide legal
services to the public. My posts here refer only to English law except
where specified and are subject to the terms (including limitations of
liability) at http://www.clarityincorporatelaw.co.uk/legalstuff.html
======end legalstuff======
Chris R
Dec 20, 2012, 2:25:02 PM12/20/12
to
>
>
> "Stuart A. Bronstein" wrote in message
> news:XnsA12F669879F3Bs...@130.133.4.11...
I can't go into the reasons for the concern about title for confidentiality
reasons - see my reply to Francis. But the concern is not about timing, but
about whether B is ever, even for a moment, the owner of the goods. That
would have consequences the parties wish to avoid.
PS the dash-dash-space in your signature is still broken.
--
Chris R
Mark Goodge
Dec 20, 2012, 3:25:01 PM12/20/12
to
On Thu, 20 Dec 2012 08:15:01 +0000, August West put finger to keyboard and
typed:
>
>The entity calling itself Roland Perry wrote:
>>
>theoretical point, and has no clear answer other than at some point, in
>the OP's scenario, B must be owner. pROBABLY the only time it might
>matter is if the goods are damaged or destroyed in transit from A to C.
If C is a consumer, then I think it's probbaly likely to be reasonably
clear: Title passes from A to B when the goods are dispatched and passes
from B to C when they are delivered. That is, B is the owner of (and
responsible for) the goods while in transit, even if the transit has
actually been arranged by A.
That's not hypothetical; I work for an online retailer and that is
precisely how it is for the items that we supply which are actually shipped
directly from the manufacturer. Should anything happen to them in transit
(eg, loss or damage) then it's our job, not the manufacturer's, to sort it
out for the customer. (In practice, we have contracts with our direct-ship
suppliers which cover this kind of scenario and allow us to pass it back to
them, but that's a matter of agreement and not law).
It would be more complex if C is a business, as their contract with B may
then stipulate that title (and liability) passes ex-works. In that case,
there may be no identifiable "real" moment at which the goods are the
property of B. But a notional transition via B must still exist.
Mark
--
Please take my short survey on the Leveson Report:
http://goodge.eu/ak
typed:
>
>The entity calling itself Roland Perry wrote:
>>
>As explained before, "nemo dat quod non habet" applies - it must pass
>through B, until B ascertains the goods for C. However, it's a very
>theoretical point, and has no clear answer other than at some point, in
>the OP's scenario, B must be owner. pROBABLY the only time it might
>matter is if the goods are damaged or destroyed in transit from A to C.
If C is a consumer, then I think it's probbaly likely to be reasonably
clear: Title passes from A to B when the goods are dispatched and passes
from B to C when they are delivered. That is, B is the owner of (and
responsible for) the goods while in transit, even if the transit has
actually been arranged by A.
That's not hypothetical; I work for an online retailer and that is
precisely how it is for the items that we supply which are actually shipped
directly from the manufacturer. Should anything happen to them in transit
(eg, loss or damage) then it's our job, not the manufacturer's, to sort it
out for the customer. (In practice, we have contracts with our direct-ship
suppliers which cover this kind of scenario and allow us to pass it back to
them, but that's a matter of agreement and not law).
It would be more complex if C is a business, as their contract with B may
then stipulate that title (and liability) passes ex-works. In that case,
there may be no identifiable "real" moment at which the goods are the
property of B. But a notional transition via B must still exist.
Mark
--
Please take my short survey on the Leveson Report:
http://goodge.eu/ak
Roland Perry
Dec 20, 2012, 3:45:01 PM12/20/12
to
In message <m3s6d8p1k9c8vp9p2...@news.markshouse.net>, at
20:25:01 on Thu, 20 Dec 2012, Mark Goodge
<use...@listmail.good-stuff.co.uk> remarked:
C from the moment they've been identified/labelled as the ones that A is
shipping to him (on B's instructions).
--
Roland Perry
20:25:01 on Thu, 20 Dec 2012, Mark Goodge
<use...@listmail.good-stuff.co.uk> remarked:
>If C is a consumer, then I think it's probbaly likely to be reasonably
>clear: Title passes from A to B when the goods are dispatched and passes
>from B to C when they are delivered. That is, B is the owner of (and
>responsible for) the goods while in transit, even if the transit has
>actually been arranged by A.
Which contradicts August's persistent assertion that the goods belong to
>clear: Title passes from A to B when the goods are dispatched and passes
>from B to C when they are delivered. That is, B is the owner of (and
>responsible for) the goods while in transit, even if the transit has
>actually been arranged by A.
C from the moment they've been identified/labelled as the ones that A is
shipping to him (on B's instructions).
--
Roland Perry
Stuart A. Bronstein
Dec 20, 2012, 4:20:01 PM12/20/12
to
"Chris R" <inv...@invalid.munge.co.uk> wrote:
>> Can you explain why you are concerned with when and how title
>> transfers? I don't understand why it has to be an issue.
>
>> Can you explain why you are concerned with when and how title
>> transfers? I don't understand why it has to be an issue.
>
> I can't go into the reasons for the concern about title for
> confidentiality reasons - see my reply to Francis. But the
> concern is not about timing, but about whether B is ever, even
> for a moment, the owner of the goods. That would have
> consequences the parties wish to avoid.
It seems to me that in the normal case in the scenario you stated,
> confidentiality reasons - see my reply to Francis. But the
> concern is not about timing, but about whether B is ever, even
> for a moment, the owner of the goods. That would have
> consequences the parties wish to avoid.
that B would have title to the goods at least for an instant in
between the ownerships of A and C. I can't think of a way to avoid
that under the facts you states.
The only way I can think of to avoid it would be, as I think August
suggested, for the contract/invoice/purchase order to have B be the
agent either of A or C.
If you don't want to disclose the identity of A to C, then that
approach won't work, because A's identity would likely have to be
disclosed to C at some point to avoid the kind of problem you are
trying to avoid by B not taking title in the first place.
I suppose another approach would be for B to set up a limited
company to be the one to take title in B's place. But unless it
will be a very large transaction, or a series of transactions that
will add up to a lot, that may be more trouble than it's worth.
One long-shot depends on the kind of business B is in. Is it
possible that B could be an agent of either A or C by statute? I
had a case here were a freight forwarder received invoices from the
shipping line, paid the invoices and then billed the shipper. And
when the shipper went bankrupt, the only way the freight forwarder
could avoid a huge loss was the fact that it was, by law, merely an
intermediary and not a party to the contract between the shipping
line and the shipper.
Good luck.
--
Stu
http://DownToEarthLawyer.com
Message has been deleted
Stuart A. Bronstein
Dec 20, 2012, 5:05:09 PM12/20/12
to
Roland Perry <rol...@perry.co.uk> wrote:
> Mark Goodge <use...@listmail.good-stuff.co.uk> remarked:
>>If C is a consumer, then I think it's probbaly likely to be
>>reasonably clear: Title passes from A to B when the goods are
>>dispatched and passes from B to C when they are delivered. That
>>is, B is the owner of (and responsible for) the goods while in
>>transit, even if the transit has actually been arranged by A.
>
> Which contradicts August's persistent assertion that the goods
> belong to C from the moment they've been identified/labelled as
> the ones that A is shipping to him (on B's instructions).
In my view when the goods are dispatched title passes to B and then
> Mark Goodge <use...@listmail.good-stuff.co.uk> remarked:
>>If C is a consumer, then I think it's probbaly likely to be
>>reasonably clear: Title passes from A to B when the goods are
>>dispatched and passes from B to C when they are delivered. That
>>is, B is the owner of (and responsible for) the goods while in
>>transit, even if the transit has actually been arranged by A.
>
> Which contradicts August's persistent assertion that the goods
> belong to C from the moment they've been identified/labelled as
> the ones that A is shipping to him (on B's instructions).
instantaneously to C. Risk of loss is not the same as title, but
that's what Mark is talking about.
--
Stu
http://DownToEarthLawyer.com
Mark Goodge
Dec 20, 2012, 5:35:02 PM12/20/12
to
On Thu, 20 Dec 2012 21:45:02 +0000, August West put finger to keyboard and
typed:
> If you're looking for right and wrong answers, law really isn't for you.
:-)
>So, in the absence of clear intention to the contrary, title passes when
>the goods are specifed or ascertained.
Doesn't that just raise the question of when ascertainment takes place,
though?
Here's an example of a real life scenario. A customer (we'll call him
customer A) places an order at 8am, online, for an item. There is one left
in the warehouse, although more will be arriving tomorrow. The order goes
throgh the system, is picked, packed, labelled and by midday is waiting to
be loaded onto the truck for the 5pm pickup by the courier.
At 1pm, another customer (B) contacts customer services. She had bought an
identical item earlier in the week, and it has just been delivered - by a
courier firm that has apparently used it as a football in the depot. She
is, understandably, upset, especially as she bought it as a gift and needs
it by tomorrow.
The customer services manager checks the computer to see if we have one in
stock that can be put on next day delivery for customer B. The computer
says no, we've just packaged up the last of the current stock to go to
someone else.
The customer services manager calls the IT manager and the warehouse
manager. The warehouse manager goes to the dispatch area, locates the
package containing the item, tears the label off and throws it away. The IT
manager manually rolls back the stock allocation. Hey presto, we now have
one in stock. This is re-allocated, delivery is upgraded to next day and it
goes out at 5pm headed for customer B. Customer A gets his three days later
(one day waiting for new stock, and two days for delivery as he hasn't paid
for next day delivery). He doesn't complain because he wasn't in a hurry
and had deliberately chosen the cheapest delivery option, and has no idea
how close he was to getting it earlier.
So... Was the item ever ascertained for customer A? If so, a) when was it
ascertained, and b) was it legitimate to revoke that ascertainment? If not,
when was it ascertained for customer B? Would it make a difference if A had
complained about late delivery?
typed:
> If you're looking for right and wrong answers, law really isn't for you.
:-)
>So, in the absence of clear intention to the contrary, title passes when
>the goods are specifed or ascertained.
Doesn't that just raise the question of when ascertainment takes place,
though?
Here's an example of a real life scenario. A customer (we'll call him
customer A) places an order at 8am, online, for an item. There is one left
in the warehouse, although more will be arriving tomorrow. The order goes
throgh the system, is picked, packed, labelled and by midday is waiting to
be loaded onto the truck for the 5pm pickup by the courier.
At 1pm, another customer (B) contacts customer services. She had bought an
identical item earlier in the week, and it has just been delivered - by a
courier firm that has apparently used it as a football in the depot. She
is, understandably, upset, especially as she bought it as a gift and needs
it by tomorrow.
The customer services manager checks the computer to see if we have one in
stock that can be put on next day delivery for customer B. The computer
says no, we've just packaged up the last of the current stock to go to
someone else.
The customer services manager calls the IT manager and the warehouse
manager. The warehouse manager goes to the dispatch area, locates the
package containing the item, tears the label off and throws it away. The IT
manager manually rolls back the stock allocation. Hey presto, we now have
one in stock. This is re-allocated, delivery is upgraded to next day and it
goes out at 5pm headed for customer B. Customer A gets his three days later
(one day waiting for new stock, and two days for delivery as he hasn't paid
for next day delivery). He doesn't complain because he wasn't in a hurry
and had deliberately chosen the cheapest delivery option, and has no idea
how close he was to getting it earlier.
So... Was the item ever ascertained for customer A? If so, a) when was it
ascertained, and b) was it legitimate to revoke that ascertainment? If not,
when was it ascertained for customer B? Would it make a difference if A had
complained about late delivery?
Francis Davey
Dec 20, 2012, 6:00:02 PM12/20/12
to
Chris,
The more I think about this the more I think there should be no problem with this provided you think about it in the right way.
The simplest way to structure it - which seems possible given one of your scenarios - is that A delivers to C on B's instruction. Title passes from A to C whenever you like. If you make it express when title is to pass, and also make it clear that B has no agency role or other fiduciary capacity, then I don't see that the plain words of the contract should cause any doubt.
So, the two contracts would be:
[1] A contracts with B to deliver to C on B's instructions and for title to pass <whenever> (eg delivery).
[2] C contracts with B for the supply to it of the goods.
Both contracts exclude the Contracts (Rights of Third Parties) Act of course and spell out exactly what is going on.
Now if you can't do it like that I still think you should be able to make it work.
Francis
The more I think about this the more I think there should be no problem with this provided you think about it in the right way.
The simplest way to structure it - which seems possible given one of your scenarios - is that A delivers to C on B's instruction. Title passes from A to C whenever you like. If you make it express when title is to pass, and also make it clear that B has no agency role or other fiduciary capacity, then I don't see that the plain words of the contract should cause any doubt.
So, the two contracts would be:
[1] A contracts with B to deliver to C on B's instructions and for title to pass <whenever> (eg delivery).
[2] C contracts with B for the supply to it of the goods.
Both contracts exclude the Contracts (Rights of Third Parties) Act of course and spell out exactly what is going on.
Now if you can't do it like that I still think you should be able to make it work.
Francis
Francis Davey
Dec 20, 2012, 6:00:10 PM12/20/12
to
Oh, and given the importance of this (from the sound of it) it might be worth paying for legal advice rather than merely asking here. I know some of us are lawyers, but as you know, we aren't giving you formal legal advice. Not least because we don't know all the facts.
Francis
Francis
Message has been deleted
Chris R
Dec 21, 2012, 3:20:03 AM12/21/12
to
>
>
> "Francis Davey" wrote in message
they are not specific about title passing direct A-C). But I'm still worried
that the correct analysis is might be that title flows though B.
--
Chris R
Chris R
Dec 21, 2012, 3:25:02 AM12/21/12
to
>
>
> "Francis Davey" wrote in message
to be robust against third parties, knowing that there is significant
uncertainty is itself helpful.
--
Chris R
Robin
Dec 21, 2012, 4:30:03 AM12/21/12
to
>> Oh, and given the importance of this (from the sound of it) it might
>> be worth paying for legal advice rather than merely asking here. I
>> know some of us are lawyers, but as you know, we aren't giving you
>> formal legal advice. Not least because we don't know all the facts.
>
> Of course, but it's helpful to get a number of views. As the
> structure has to be robust against third parties, knowing that there
> is significant uncertainty is itself helpful.
Belatedly occurs to me you might also (if not already done and if
>> be worth paying for legal advice rather than merely asking here. I
>> know some of us are lawyers, but as you know, we aren't giving you
>> formal legal advice. Not least because we don't know all the facts.
>
> Of course, but it's helpful to get a number of views. As the
> structure has to be robust against third parties, knowing that there
> is significant uncertainty is itself helpful.
relevant) wish to check the VAT treatment. IIRC a supply for VAT is the
transfer of a right to dispose of goods so similar issues arise, albeit
there are then additional VAT provisions for agents. But t'was never my
territory so I don't know if dragons are or are not lurking there.
--
Robin
reply to address is (meant to be) valid
Roland Perry
Dec 21, 2012, 4:50:02 AM12/21/12
to
In message <8738z0o...@news2.kororaa.com>, at 21:45:02 on Thu, 20
Dec 2012, August West <aug...@kororaa.com> remarked:
>It all depends on the contract.
The examples I've been using are retailer, consumer and drop-shipment by
the manufacturer. Perhaps we can clear that one specific case up (seeing
as it's so commonplace) before attempting to over-generalise.
I think it's unlikely that C will be made aware of A's role at the time
C contracts with B. So the contract of sale is a normal retail one.
>Clasically, it was delivered that
>effected transfer of title, and that's often still used. Mark's analysis
>makes a good degree of practical sense, but it's open to other views, as
>it's not something that would normlly occur in practice, as terms would
>be agreed making title transfer clear. (per SOGA s.17). It may be that
>B' tile is fleeting, and title passes to B then to C at ascertainment,
>as, in my reading, the goods are ascertained for C at that time.
One view is that ascertaining that the goods are for C (sticking a label
on at the warehouse) will imply that A is also aware that he's
ascertained them for B, at least at a corporate level - the individuals
involved in the warehouse may be in the dark as to B's identity.
--
Roland Perry
Dec 2012, August West <aug...@kororaa.com> remarked:
>It all depends on the contract.
The examples I've been using are retailer, consumer and drop-shipment by
the manufacturer. Perhaps we can clear that one specific case up (seeing
as it's so commonplace) before attempting to over-generalise.
I think it's unlikely that C will be made aware of A's role at the time
C contracts with B. So the contract of sale is a normal retail one.
>Clasically, it was delivered that
>effected transfer of title, and that's often still used. Mark's analysis
>makes a good degree of practical sense, but it's open to other views, as
>it's not something that would normlly occur in practice, as terms would
>be agreed making title transfer clear. (per SOGA s.17). It may be that
>B' tile is fleeting, and title passes to B then to C at ascertainment,
>as, in my reading, the goods are ascertained for C at that time.
One view is that ascertaining that the goods are for C (sticking a label
on at the warehouse) will imply that A is also aware that he's
ascertained them for B, at least at a corporate level - the individuals
involved in the warehouse may be in the dark as to B's identity.
--
Roland Perry
Roland Perry
Dec 21, 2012, 4:55:02 AM12/21/12
to
In message <XnsA12F8E63C3B57s...@130.133.4.11>, at
22:05:09 on Thu, 20 Dec 2012, Stuart A. Bronstein
<spam...@lexregia.com> remarked:
>In my view when the goods are dispatched title passes to B and then
>instantaneously to C.
Dispatch, especially when using an in-house fleet of vehicles, is a bit
of a fuzzy concept. Is it when the lorry is loaded, when it leaves the
premises, of some other point in time?
>Risk of loss is not the same as title, but that's what Mark is talking
>about.
Isn't it the case that only the person with title can make a claim in
the event of loss? In which case it's important to know who that is at
each stage in the process.
--
Roland Perry
22:05:09 on Thu, 20 Dec 2012, Stuart A. Bronstein
<spam...@lexregia.com> remarked:
>In my view when the goods are dispatched title passes to B and then
>instantaneously to C.
of a fuzzy concept. Is it when the lorry is loaded, when it leaves the
premises, of some other point in time?
>Risk of loss is not the same as title, but that's what Mark is talking
>about.
the event of loss? In which case it's important to know who that is at
each stage in the process.
--
Roland Perry
Chris R
Dec 21, 2012, 7:55:08 AM12/21/12
to
>
>
> "Robin" wrote in message news:kb1a5a$90i$1...@dont-email.me...
VAT on the price they pay. I suppose you might argue that the supply of
goods is from A to C rather than A-B-C, but the total VAT liability should
be the same.
Robin
Dec 21, 2012, 10:25:01 AM12/21/12
to
> Thanks, but I don't think there are any VAT problems. B and C will
> both pay VAT on the price they pay. I suppose you might argue that
> the supply of goods is from A to C rather than A-B-C, but the total
> VAT liability should be the same.
If you are happy then I am happy for you:)
> both pay VAT on the price they pay. I suppose you might argue that
> the supply of goods is from A to C rather than A-B-C, but the total
> VAT liability should be the same.
I am left a little puzzled as what A and then B will say is being
supplied on the VAT receipts they give to B and C respectively given (i)
B is determined the goods shall never belong to B and (ii) the supply of
goods for VAT usually requires "the transfer of the right to dispose of
tangible property as owner" (to crib from the VAT Directive). But then
an awful lot of things leave me puzzled these days so if all concerned
(including HMRC) accept it is a pragmatic solution I can see it keeps
the paperwork simple. (FWLIW I am less sure it can be assumed that C
will be happy in all circs. if the VAT invoice shows a supply of goods
from B when ownership passes from A- but then I was also unclear where C
was left by the basic proposition, no doubt because of my ignorance of
the details of the SOGA etc.)
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