‘Sales’ on Retention of Title Terms: Is the English Law Analysis Broken?

(2017) 133 Law Quarterly Review 244

Oxford Legal Studies Research Paper No. 8/2018

24 Pages Posted: 27 Mar 2018 Last revised: 29 May 2018

See all articles by Louise Gullifer

Louise Gullifer

University of Cambridge - Faculty of Law

Date Written: December 16, 2016

Abstract

Hard cases make bad law. The history of the Bunkers litigation in the English courts demonstrates, as is often the case, that the history and context of litigation can have a strong and decisive effect on both the result and the legal reasoning leading to that result. This article argues that, while the decision of the Supreme Court in the Bunkers case was understandable given its context and background, it, together with the decision of the Court of Appeal in Caterpillar v Holt, has led to such uncertainty surrounding the use of retention of title (‘ROT’) clauses in inventory financing, that it is time for a reanalysis of the legal position. This article sets out suggested options for that reanalysis, some more radical than others.

The second section of this article analyses the current law on retention of title clauses, and sets it in the context of secured finance. The third discusses the Caterpillar litigation, the fourth, the Bunkers litigation and the fifth looks at the wider ramifications of both decision. The sixth examines three possible reanalyses, and the seventh section concludes.

Keywords: Sale of goods, retention of title, secured transactions, bunkers

Suggested Citation

Gullifer, Louise, ‘Sales’ on Retention of Title Terms: Is the English Law Analysis Broken? (December 16, 2016). (2017) 133 Law Quarterly Review 244, Oxford Legal Studies Research Paper No. 8/2018, Available at SSRN: https://ssrn.com/abstract=3146930

Louise Gullifer (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

HOME PAGE: http://https://www.law.cam.ac.uk/people/academic/l-gullifer/78501

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