The Gazette 1980

JULY-AUGUST 1980

GAZETTE

adopting the view expressed in the Romalpa case that a clause such as condition (1) in the present case was effective to retain the property in the goods in the vendor even though the goods were in the possession of the purchaser. Held: (per McWilliam J.) that in the present case, the clause and nature of the transaction appeared to be more similar to that in the Romalpa case, but that the wording of the clauses and the construction of the intentions of the contracting parties as evidenced by the contract as a whole must be considered and each case must stand on its own facts. The parties to a contract could agree to any terms they wished and the Court would have to decide what was their intentions. The clause in the present case was clear, in that there was only one article sold, the resale of which was most unlikely to have been contemplated by either the vendor or purchaser, and accordingly the Plaintiff had retained the property in the refrigerating machine until payment was made in full. Frigoscandia (Contracting) Limited v. Continental Irish Meat Limited and Lawrence Crowley — High Court (McWilliam J.) — 25 April 1979 — Unreported. CONTRACT Specialist roofing contractors liable for damages arising from their failure to provide an effective waterproofing of a roof within a reasonable time. The specialist roof contractors had a duty to provide for and insist on any special precautions in the design of the basic roof structure that they required for their specialist form of roofing insulation. In 1974 the Plaintiffs were in the course of constructing a shopping centre in Dundalk. The Defendants, who described themselves as specialists and licencees in the Shell Monoform system of roofing and re- roofing quoted for roofing in the shopping centre. The quotation was accepted on behalf of the Plaintiffs by their Architect on 2 April 1974 subject to the fact that the Defendants commenced work on 24 September, 1974, at which time the

full of the monies outstanding. The Defendants argued that the property in the goods passed either on delivery or once user commenced and that the reservation of title clause (above quoted) was only effective to create a charge or some other kind of security on the machine for the purchase price, and as such ought to have been registered under Section 99 of the Companies Act, 1963. As it was not so registered, the Defendants claimed that the clause was void as against the Receiver and creditors of the first Defendant. The High Court (McWilliam J.) had considered the effect of a number of such clauses in the previous case of Stokes McKiernan Limited (December 1978 unreported) where the Court had been referred to and relied on the earlier decision in the case of Aluminium Industries B.V. v. Rompala Ltd. [ 1976] 1 WLR 676 but that unfortunately at that time (December 1978) the full judgement of Slade J. in re Bond Worth Limited [1979] 3 All ER 919 had not then been delivered. The High Court considered that in the Bond Worth case, the wording of the clause in question (in fact similar to the wording of one of the clauses in the Stokes McKiernan case) and the nature of the transaction as a whole did appear to create only an equitable charge over the goods in question for the purchase price. The clause in the Bond Worth case was as follows:— "The risk in the goods passes to the buyer upon delivery, but equitable and beneficial ownership shall remain with us until full payment has been received (each order being considered as a whole) or until prior resale, in which case our beneficial entitlement shall attach to the proceeds of resale or to the claim for such proceeds." The clause in the Romalpa case was similar to that in the present case in that the entire property in the goods was expressed, although in a different form, to be retained by the vendor until all that was owing had been paid. The clause was as follows:— "The ownership of the material to be delivered to A.I.V. will only be transferred to purchaser when he has met all that is owing to A.I.V., no matter on what grounds." McWilliam J. had held in the Stokes McKiernan case (December 1978)

RECENT IRISH CASES

CONTRACT — RESERVATION OF TITLE The effect of reservation of title clauses in contracts for the sale of goods must be considered in the light of the intentions of the parties as shown by the provisions of the whole agreement and each case rests on its own facts and the nature of the transaction. The Plaintiffs sold a refrigerating machine to the first Defendant for a price which was to be paid by four instalments during the period commencing with the placing of the order and ending shortly after the machine was in situ and ready for operation. The contract contained (inter alia) the following clauses:— (1) "Until all sums due to the Seller have been fully paid to it, the plant, machinery and materials supplied by the Seller herein shall remain the Seller's personal property and retain its character as such no matter in what manner affixed or attached to any structure. If the Buyer fails fully to perform this contract, the unpaid portion of the purchase price shall, at the option of the Seller, become immediately due and payable without notice, together with all reasonable legal or collection agency fees incurred in the collection thereof'. (3) "In case of default, the Seller reserves the right to enter upon the premises where the materials are located and take possession of and remove the same, if so elects. In the event of such removal the Seller may retain all payments made therefor as compensation for the use of the materials." The facts, which were not in dispute, were that the machine was installed and operational but that approximately 25% of the purchase monies remained outstanding when the second Defendant was appointed Receiver over the property of the first Defendant. The Plaintiff claimed that the machine was still its property and demanded its return or payment in