The subject of this dissertation is the retention of title clause (ROT) in Belgium, the United Kingdom and the European perspective. Retention of title is on the crossroads of several law themes. It involves contractual issues (questions on validity, contents, does it bind the parties), proprietary issues (opposability, protection of third parties, formal requirements) and insolvency issues (can the clause survive bankruptcy or insolvency in general). The aim is to research the validity of clauses and the problems faced within these jurisdictions. More specifically, attention will be paid to the possibility of registration of the clauses and a possible future (and current) harmonization in Europe. The reason for choosing the act of registration is the remarkable fact that (secured and unsecured) creditors during insolvency proceedings can be surprised by a sudden retention of title clause coming out of nowhere and steeling away the assets they need to get reimbursed. The question is one of opposability of the clause and the notice to other creditors. From a functional point of view, the Retention clauses have the same effect as a charge, so why don't they need the same formalities? As explained below, these jurisdictions asked similar questions when the retention clauses were created, questions on the veil of ignorance that was created and never taken away. In this author's opinion, national and/or international registration of such clauses will benefit clarity in sales contracts between consumers and traders and even more so between traders themselves. This statement suggests that creditors are not always aware of the exact state of assets of their debtors and that third parties will be made aware thereof in order to limit t... ... middle of paper ... ...known by the parties. This event, that in any case will be external to the contract, will then suspend the enforcement of the contract until the completion thereof. Is this definition applicable to payment as a condition precedent in a retention of title clause? Payment in said contract will be a future event, but will not usually be an uncertain one, seen as the contract will only be concluded on the specification of the price. It is now clear from the majority opinion that the retention of title clause in the contract represents a suspensive time period, where the transfer of property will take place for payment. Just as the specification of the price, the transfer of property is one of the essential components of the contract of sale, so it would not be justified to view it as a mere condition. The only thing the parties can agree on is delaying the transfer.
Those who are to benefit from the covenant in today’s law can now be referred to by some generic description a description of class for example the 'owners of Hudson' however they must be in existence when the covenant is made and they must also be identifiable moreover the covenant must clearly be intended to be made with them as well. The cases of (White v Bijou Mansions) (1937)4 and (Amsprop Trading v Harris Distribution) (1997)5 are examples which illustrate and support the view of the LPA 1925, s.56(1).... ... middle of paper ... ... Benefits of a covenant may also be subject to express assignment at common law as long as it is not a personal covenant; it must also be done in writing and notice must be given to the covenantor under s.136 LPA 19259.
The decision of the House of Lords in City of London Building Society v Flegg marks a key stage in how the balance is drawn between occupiers and creditors in priority disputes; the seeds of which were originally planted in the Law of Property Act 1925. It posed a serious challenge to the conventional understanding of overreaching and the machinery of conveyancing.Ref ?
The need for the law to recognise possessory and equitable interests in land under a system of registration of title is a contested issue in Australia. The term ‘title’ means the extent of ownership over property as recognised by the legal system. For the purpose of this essay, a system of registration of title means the Torrens title system. The protection of possessory and equitable interests in Western Australia will be discussed, with reference to the Torrens title system and real property. It will be argued that there is still a need for the law to recognise equitable interests in land, however, the Torrens framework does remove the need for the law for the law to recognise possessory interests, in particular the doctrine of adverse possession.
“any and all Losses, debts or rights, whether fixed or contingent, known or unknown, matured or unmatured, arising out of, relating to, or in any manner connected with any facts, events or circumstances, or any actions taken, at or prior to the consummation of the transactions contemplated by the Merger Agreement that any Releasor ever had or now has against the Releasees, including any right, title and interest in and to the Shares.”
The case of Francovich had a significant impact on the European Union (EU) law. If a conflict arises between the EU law and the national law, the EU law highly prevails. The European Union law is a framework of treaties and legislation, which have a direct or indirect effect on the laws of the member states which are bound to the European Union. Primary and Secondary laws are the two sources of the EU law. This essay will firstly analyse the main institutions of the European Union and define various legal terms. It will then move on, to discuss the case of Francovich and the importance it had for state liability. Furthermore, it will refer to subsequent cases which are linked with state liability and had an impact on the EU Law. Lastly, my own views about State Liability will be presented.
2. A clause in a deed or contract which provides for an early termination of an exciting interest in land, in certain specific circumstances, thereby advancing the future interest.
The contract stipulated that Herring must make a down payment, make timely payments, pay a boarding fee, not remove the horse without permission, be responsible for all incidental costs associated with the horse and give up on the contract if the payments were defaulted on.
...me a director of the third company within five years after the liquidation of the two companies. The third company was funded by a creditor, Mr. Silverleaf. When the third company was wound up, Mr. Silverleaf then had knowledge of the previous two companies’ failures and claimed a debt of close to ₤135,000 . Mr. Silverleaf was successful in bringing proceedings under sections 216 and 217 of Insolvency Act 1986 even there’s no evidence of any asset transfer between the companies.
Current English land law on the co-ownership of interests of land has developed quite a contentious history pertaining to the relationship between the acquisition of rights and the quantification of the shares. In terms of co-ownership, there are huge variances and legal consequences when legal ownership is in one person’s name compared to two. These differences can be seen in various landmark cases which have created precedent and developed refined principles such as Lloyds Bank plc v Rosset and the Stack v Dowden. For the courts, it has often been relatively complex to distinguish between constructive and resulting trusts and to decide on the procedure to be used for the quantification of equitable entitlement once the decision to impute has been established. The quantification of resulting trusts is carefully considered in both, Midland Bank v Cooke and Stack v Snowden. In many co-ownership cases dealing with the acquisition of rights and the quantification of shares, the outcomes aren’t always proportionate. Reasons can include the ambiguities in the identification and changes of common intention and contributions types. In speaking to this issue, Baroness Hale stated in Stack v Dowden that “each case will turn on its own facts” and furthermore elaborated on the conditions for a common intention construct arising. It is furthermore important to critically discuss the repercussions these cases have for the future of co-ownership law to reconcile existing sources of confusion.
(ii) only the periods the property was held by the person acquiring the property (or any related person) shall be taken into account under subparagraph (B)(ii).
While there are lots of authors who are argued in favour of this codification since two centuries, practitioners and business in the English community had always been afraid about this idea. To understand the context of this debate, I will, first, briefly explain what do we generally mean by the term ‘codification’. Then, I’ll take few points about the origins of English commercial law and describe its modern definition. Finally, I will outline the main arguments why I am against the proposition of a commercial
Both the common law and the statutory law have recognized the weaker position of consumers. It is well established an exclusion clause will be valid and enforceable only if it is incorporated in the contract, use clear wordings and does not contravene statutory limits. In order to limit the unfairness resulting from exclusion clauses, the courts have developed certain principles such as the doctrine of non est factum in signature cases, ‘red ink-red hand’ principle in relation to ‘onerous or unusual’ terms, contra proferentem rule when interpreting ambiguous exclusion clauses and ‘fundamental breach’ principle.
This is an expression of willingness to contract made with the intention (actual or apparent) that it shall become binding on the offeror as soon as the person to whom it is addressed accepts it.
Based on common law and precedent, the English law of contract has been formulated and developed over a number of years with it’s primary purpose to provide a regulated framework within which individuals can contract freely. In order to ensure a contract is enforceable there are certain elements which must be satisfied, one of which is the doctrine of consideration. Lord Denning famously professed; “the doctrine of consideration is too firmly fixed to be overthrown by a side wind” . This is a crucial indication that consideration has long been regarded as the cardinal ‘badge of enforceability’ in the formulation and variation of contracts in English common law.
...ed in the terms of the charterparty. This is particularly true in cases where the provisions of the Hague/Visby Rules become applicable after the bill has been indorsed to a third party.