Florence had sold three antique dining tables, each with six beautifully restored chairs, to a customer who had recently opened a French restaurant. However, after sending an invoice, Florence received no response from the customer. Despite sending three reminders, the customer still did not respond. In an attempt to resolve the issue, Florence decided to drive to the restaurant to speak to the owner. The owner explained that he did not have enough funds to pay her and mentioned that the business was slow and it would take a long time to gather sufficient funds.
Instinctively, Florence wanted to take back her furniture and contacted her lawyer. Upon reviewing her terms and conditions, the lawyer advised her that in the absence of a ‘retention of title’ clause, the furniture had become the property of the restaurant owner, regardless of whether he had paid the bill or not.
The Problem:
The absence of a crucial clause renders the transfer of furniture and payment as legally distinct transactions. Failure to fulfil- payment obligations does not nullify the transfer of furniture ownership, leaving Florance vulnerable to non-payment scenarios.
The Solution:
Incorporating a 'retention of title' clause, such as "Title to {the Goods} shall remain vested in {the Seller} until the purchase price for {the Goods} has been paid in full and received by {the Seller}" (Wikipedia), would have safeguarded Florance's interests, allowing her to reclaim the furniture in case of non-payment. Alternatively, this clause would prompt customers to prioritise settling their bills, recognising the furniture's essential role in their restaurant.
What Will Happen:
The inclusion of such a clause prompts two potential outcomes. Firstly, customers are incentivised to settle their bills promptly, understanding the risk of losing possession of the furniture. Secondly, in cases of insolvency, the 'retention of title' clause ensures Florance's priority in reclaiming the furniture before other creditors, offering a measure of protection against financial loss.
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