How far does a retention of title clause shield an unpaid supplier once the main contractor has become insolvent, and what limits have the courts set on it?
A retention of title clause keeps ownership with the supplier until payment. On a project it runs into section 25 of the Sale of Goods Act, fixtures law and insolvency law, and its protection is narrower than it looks.
Sometimes, but narrowly: a retention of title clause keeps ownership until payment, yet section 25 of the Sale of Goods Act 1979 can give an employer who pays without notice a good title once there has been a disposition, following title into manufactured goods risks a registrable charge, a supply-and-fix subcontract passes no sale of goods, and permanently fixed items become part of the land
Sometimes, but the protection is narrower than suppliers expect. A retention of title clause keeps ownership with the supplier until payment, but section 25 of the Sale of Goods Act 1979 lets a buyer in possession pass a good title to an employer who pays without notice of the clause, once there has been a delivery under a sale or other disposition; delivery to site under a contract that bars removal without consent is such a disposition, as P4 v Unite held. While goods keep their identity a clause can hold good, and a Romalpa clause can trace the proceeds of an authorised resale, but following title into new manufactured goods risks being treated as a registrable charge, as Clough Mill v Martin shows. In construction, W Hanson v Rapid protected a supplier where the employer had only agreed to sell, not bought, whereas Archivent v Strathclyde gave the employer good title under section 25 once payment was certified. Where a subcontractor supplies and fixes, as in Dawber Williamson v Humberside, there is no sale of goods, the contractor owns nothing to pass on, and the employer may have to pay twice. Once goods are permanently fixed they become part of the land, and insolvency law under the Insolvency Act 1986 restricts repossession.
| The clause | Ownership stays with the supplier until payment in full |
| Section 25 | A buyer in possession can pass good title to a payer without notice |
| Disposition | Delivery to site barring removal is a disposition (P4 v Unite) |
| Manufactured goods | Following title into new goods risks a registrable charge |
| Supply and fix | No sale of goods; the employer may pay twice (Dawber Williamson) |
| Fixtures | Permanently fixed items become part of the land |
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