November 1999
- Small Business News
|
SEARCH
ENGINES
Engenius
It's Not!
The
well-known
search
engine
software
developers
Engenius
committed
the
'cardinal
sin' of
computing
with the
release of
their
latest
software
application.
Once
loaded,
the
software
caused 'a
number' of
the users
e-mail
capability
to
malfunction,
even stop
altogether.
The answer
"reload
the
operating
system"
(cringe).
The
groveling
e-mail
from the
company
'we tried
it on this
and ....',
'none of
our tests
showed
...', will
be of
little
comfort.
Those
users
suffering
big losses
were
requested
to contact
Engenius
direct
(pay
time).
egasoweb
(Ed: The
lesson,
and one to
note, 'a
week in
politics'
may be a
long
time, but
it's not
in the PC
world -
wait.)
Nowhere
to Hide on
the Net
A new site
for
searching
the web
for e-mail
addresses
uses more
than 27
separate
databases
to search
out your
target. It
works like
a standard
search
engine,
but only
returns
e-mail
addresses.
The down
side:
loads of
advertising.
However
once you
get used
to the
results
format you
can see
through
the ads.
The search
uses the
following:
EMAIL
DIRECTORIES:
Yahoo!
People
Search,
Switchboard,
WhoWhere,
InfoSpace,
America
Online,
Internet
Address
Finder,
World
Email
Directory.
YELLOW
PAGES:
Yahoo! Get
Local, GTE
Superpages,
At Hand,
InfoSpace
YP, Zip2,
Any Who
Business,
SBN, Local
Yellow
Pages, Big
Yellow.
PHONE
DIRECTORIES:
Yahoo! Get
Local,
Switchboard,
WhoWhere,
InfoSpace,
Bigfoot,
Any Who
People,
Four 11,
Info USA.
my email
address is
MARKETING
COMPLIANCE
£5000
Fine for
Unsolicited
Fax
Sending an
unsolicited
fax or
making an
unsolicited
telephone
call can
land you
with a
£5000
fine.
Sage, the
accounting
software
company
have set
up a free
on-line
database
for SME's
to check
whether
the
prospective
company
has
registered
their
company
with the
Telephone
and Fax
Preference
Services.
sage
E-BANKS
UPDATE
Too
Much, Too
Soon!
The
question
of whether
the
e-banks
jumped too
quickly
into the
arena at
the
expense of
customer
numbers
over
service
seems to
be a
resounding
'Yes'.
This weeks
comments:
Source -
Sunday
Times
egg
had one
customer
commenting
"The
interest
rate is
great, the
idea is
wonderful,
but the
service
sucks."
first-e
suffered
no better:
"After 10
minutes of
attempting
to set up
an account
by
downloading
the
First-e
software
the error
message
'page
cannot be
found'
appeared.
The point
this
raises is
"what
happens
when I
need to
transfer
money
quickly"
citibank
had
someone
saying
"Clunky
design and
slow
response
times" and
"the
system
freezes
up".
CREDIT
MANAGEMENT
Big Firms
Take
Little
Notice
Large
companies
are now
taking, on
average,
74 days to
pay
suppliers,
claim
Experian
the credit
reference
company.
This
figure is
up by 2
days on
last year.
With the
introduction
of the
Late
Payment
Act in
1998 this
report is
a blow to
this
governments
small
business
initiative.
(Ed: Those
suffering
from late
payment
are more
than
likely not
reading
this
newsletter,
and have
certainly
not
purchased
the Credit
to Cash
software
http://www.bizhelp24.com
- sorry
for the
plug, but
companies
need to
take
advice,
and our
web site
info is
easy to
understand,
relevant,
extensive
and
FREE.)
GUEST
TOPIC
RESERVATION
OF TITLE
HAVE YOU
DONE
ENOUGH TO
PROTECT
YOUR
RIGHTS?
It is a
fact that
over 90%
of all
Reservation
Of Title
Claims
fail for
reasons of
poor
drafting
of the
Clause and
more
significantly,
LACK OF
INCORPORATION
into the
sale
contract!
ROT is
quite a
complex
and still
developing
area of
the law
that
Judges
described
as "a
maze if
not a
minefield".
You may
have come
across ROT
before and
found the
results
very
disappointing.
However,
the fact
is that
ROT
remains
perhaps
the most
effective
"weapon"
or as I
sometimes
call it
"quasi
security"
which an
otherwise
ordinary
unsecured
creditor
can use
against a
buyer
company in
insolvency.
If ROT is
successful,
the goods
do NOT
form part
of the
insolvent
buyer's
estate
which can
be used
for the
purpose of
discharging
debts owed
to secured
and
preferential
creditors
or
distributed
pari
passu
to ALL
other
unsecured
creditors.
The
successful
ROT
claimant
enjoys a
privileged
or secured
status!
"RESERVATION
OF TITLE"
- WHAT
DOES IT
MEAN AND
WHY DO
SELLERS OF
GOODS RELY
UPON IT?
The
primary
purpose of
any SALE
CONTRACT
is to
transfer
"OWNERSHIP
or
PROPERTY
or TITLE"
in goods
from the
Seller to
the Buyer
for a
price
consideration.
The word
"property"
is that
used in
the
Sale of
Goods Act
1979,
which is
the
statute,
which
governs
sale of
goods
subject to
English
law. The
terms are
used
interchangeably.
It is
crucial to
pinpoint
WHEN TITLE
& PROPERTY
in the
goods
passes
from the
Seller to
the Buyer
because
UNTIL
that time:
-
The
Buyer
cannot
normally
pass
good
legal
title in
the
goods to
a third
party,
unless
that
third
party is
an
innocent
purchaser
of goods
for
value
without
notice
of any
defect
in the
title
held by
the
Buyer -
referred
to as
"equity's
darling".
Usual
maxim
is:
nemo dat
quod non
habet
- one
cannot
pass a
better
title
than
that
which
one has,
It is by
far more
commercially
sensible
and
indeed,
good
business
practice
to
expressly
stipulate
in the
contract
of sale
precisely
when
property
in the
goods
shall pass
to the
buyer.
In the
absence of
express
terms, the
provisions
of the
Sale of
Goods Act
1979 will
apply.
Section
17:
Property
in
specific
goods
passes
to the
Buyer at
such
time as
the
parties
INTEND
it to be
transferred
(usually
upon
delivery
of the
goods).
The
intention
can be
determined
by
reference
to:
Section 18:
Whilst
Section
17 is
the
governing
Section,
if the
parties
have not
evinced
their
intention
as to
when
property
passes,
the 5
Rules
laid
down in
Section
18 must
be
consulted.
By saying
that title
passes
when the
parties
INTEND it
to pass,
the
Seller is
allowed to
reserve a
right of
disposal
of his
goods
until
certain
conditions
are
fulfilled
- Section
19 SOGA
1979.
The
Seller's
contract
may allow
the Buyer
to use the
goods or
even
dispose of
them via a
sub-sale
and in
these
circumstances
both the
actual
physical
possession
of the
goods and
with it
the risk
in the
goods
would
usually be
with the
Buyer.
Possession
is said to
be 9/10s
of the law
but this
will not
be
subordinated
to an
effective
ROT
Clause!
The
courts
will not
imply ROT
into the
sale
contract.
Therefore,
you must
ensure
that you
INCORPORATE
an
effective
ROT clause
into the
sale
contract
which
stipulates
that the
goods
remain
your
property
at all
times
until the
Buyer has
paid the
price in
full along
with any
other
outstanding
sums. In
this way,
the Buyer
will
merely
hold the
goods as
the
Seller's
BAILEE and
the goods
will NOT
form part
of the
Buyer's
assets or
estate.
YOU
MUST
ENSURE
THAT YOUR
ROT TERMS
HAVE
EFFECTIVELY
BEEN
INCORPORATED
INTO AND
FORMS PART
OF THE
CONTRACT
OF SALE
A
well-drafted
ROT clause
will not
be worth
the paper
it is
written on
unless it
is
properly
INCORPORATED
into the
sale
contract.
REASONABLY
SUFFICIENT
NOTICE
of the
clause
must be
given to
the Buyer
BEFORE
or AT
THE TIME
the
contract
is
executed.
In
John
Snow and
Co Ltd -v-
DBG
Woodcroft
Justice
Boreham
said:
"To
entitle a
party to
rely upon
a
particular
term, he
must prove
that the
terms was
brought to
the notice
of the
party
sought to
be bound,
before or
at the
time that
the
contract
was made"
If your
ROT clause
is not
incorporated
expressly
into the
sale
contract,
that MAY
not be
fatal. A
Seller can
rely upon
the
CONDUCT
of the
parties
and if he
can show
incorporation
by a "CONSISTENT
COURSE OF
DEALING"
then the
ROT clause
MAY be
upheld but
it is
difficult
and can
involve
costly
protracted
litigation.
When a
Buyer
ORDERS
goods, it
may be on
the
Seller's
Order Form
or the
Buyer's
own Order
Form. Both
the Seller
and the
Buyer will
want
THEIR
terms of
trade to
govern the
contract
in
question
and their
terms may
differ
remarkably!
The
ORDER
is usually
construed
in
contract
law as
being the
"OFFER"
and if it
is on the
Buyer's
Order Form
bearing
his terms,
and if the
Seller
simply
executes /
accepts
the Order
without
further
communication
bearing
his terms,
then the
contract
would have
been
executed
upon the
Buyer's
terms.
Several
contractual
and other
documents
may pass
between
the Seller
and the
Buyer,
each
bearing
that
party's
terms of
trade.
Whose
terms of
trade
apply?
This is
the
classic "BATTLE
OF THE
FORMS"
scenario.
Of course,
in the
majority
of cases,
the sale
proceeds
as usual
and the
both the
Seller and
the Buyer
are happy
without
ever
having to
refer to
the
standard
terms and
conditions
of sale.
When
problems
do arise
then the
issues
become
significant.
Usually it
is the
party that
has the
LAST SHOT
before or
at the
time the
contract
is made,
who wins
i.e. the
last set
of terms
and
conditions
that
passes
between
the
parties
before the
contract
is
concluded.
An
important
word of
advice -
the Seller
should try
as far as
possible
to ensure
that he
concludes
the sale
contract
upon his
terms of
trade and
this can
effectively
be done by
sending to
the Buyer,
a written
ACKNOWLEDGEMENT
OF ORDER
FORM,
thereby
concluding
the sale
contract
and
incorporating
his (the
Seller's)
terms,
including
a properly
drafted
ROT
clause.
Where
should
your terms
of trade /
ROT clause
be
printed?
When
incorporating
a ROT
clause
into terms
of trade
with
EXISTING
and NEW
Buyers,
you ought
to send a
special
letter to
them
enclosing
a copy of
your
standard
terms and
conditions
bearing
your ROT
clause and
explaining
that those
terms will
apply to
all your
future
contractual
dealings.
Ideally,
you should
also
obtain
from the
Buyer, his
WRITTEN
acknowledgement
of receipt
of and
AGREEMENT
to your
terms.
THE
USUAL
TYPES
OF ROT
CLAUSES
The
SIMPLE
clause
Here
ownership
in the
goods
delivered
is
retained
until the
full
purchase
price for
the goods
has been
paid.
Problem is
that the
Seller has
to
identify
and be
able to
cross-reference
his goods
against
specific
unpaid
invoices.
The ALL
MONIES
clause
Here the
Seller
retains
ownership
in ALL the
goods
delivered
as against
the Buyer
until ALL
DEBTS or
OTHER
OBLIGATIONS
owed by
the Buyer
to the
Seller
have been
paid /
performed
in full -
NB:
instances
of "zero
balances"
when title
can be
said to "flash
through".
Otherwise,
once goods
identified,
no
cross-referencing
of goods
against
unpaid
invoices
is
required.
Apart
from
having a
good "all
monies"
Clause I
would
advise
that you
include
express
provisions
detailing
that:
SOME
COMMON
ISSUES
WHICH YOU
OUGHT TO
BE AWARE
OF IN
CONSIDERING
YOUR
RIGHTS
UNDER ROT
PROVISIONS
It is the
Seller who
has the
burden of
showing
precisely
WHICH
GOODS
are
subject to
a ROT
claim.
Unless the
goods can
be
properly
IDENTIFIED,
your ROT
claim may
fail!
Difficulties
with:
Usually,
in cases
of
SUB-SALES,
title /
ownership
of the
goods will
be lost
once sold
on to a
third
party
purchaser
who
purchases
the goods
in good
faith
without
notice of
any lien
or any
other
right of
the
original
Seller -
Section 25
Sale of
Goods Act
1979
However,
In Re:
Highway
Foods
International
[1994]
- Here the
Buyer
bought
meat
subject to
a ROT
clause and
in turn
sold it on
to a
sub-buyer
upon his
own ROT
terms.
Held:
Unless and
until the
third
party
sub-purchaser
had paid
for the
goods, the
original
Seller
could
claim
title to
the goods
in the
hands of
the third
party
purchaser
PROCEEDS
of
sub-sales
-
Aluminium
Industries
BV-v-
Romalpa
Aluminium
Ltd
[1978]
The most
famous
case where
the court
held that
a claim to
trace
the sale
proceeds
of
goods
supplied
under ROT
succeeded.
Re: Bond
Worth
Limited
[1980]
Blockbuster
judgement
where
court held
that a ROT
clause
constituted
an
UNREGISTERED
CHARGE.
Here the
contract
provided
that
"equitable
and
beneficial
ownership
shall
remain
with the
Supplier
until full
payment
has been
received".
Judge said
that the
Seller
could not
pass legal
title in
the goods
whilst
retaining
equitable
and
beneficial
ownership.
Therefore
the
equitable
and
beneficial
ownership
MUST have
been
GRANTED to
the Seller
by the
Buyer when
they
became
legal
owners and
therefore
it could
only
operate by
creating a
CHARGE.
The charge
was void
as not
being
registered
-
Companies
Act 1985
Section
395 and
396.
Clough
Mill
Limited
-v- Martin
[I985]
Court of
Appeal
confirmed
that the
Seller can
by express
terms
effectively
retain
title in
UNMIXED
GOODS that
the Buyer
has not
re-sold.
No
registration
required,
as no
charge
created.
Simply,
the goods
do not
become the
property
of the
Buyer.
ACTIVATING
AND
ENFORCING
YOUR ROT
RIGHTS -
PRACTICAL
STEPS
WHICH YOU
MUST TAKE
Immediate
verbal and
written
communication
to:
-
the
buyer
-
the
Insolvency
Practitioner
(IP),
should the
buyer be
subject to
insolvency
Ensure
that you
address
the
following:
Arrange
and
confirm a
date on
which you
or your
agents
will be
given
quiet
access to
the
buyer's
premises
to:
What if
the buyer
or IP
refuses to
co-operate
or comply
with your
demands?
-
You must
advise
promptly
in
writing
that any
dealing
with
your
goods
will
result
in
immediate
legal
action
for
wrongful
interference
with
goods
and/or
their
conversion
pursuant
to the
provisions
of the
Torts
(Interference
with
Goods)
Act
1977. In
the case
of an
IP, put
him/her
on
notice
that
such
action
will be
taken
against
him
personally
NB:
The author
strongly
advises
that you
take
independent
legal
advice
from your
solicitor
upon any
of the
matters
discussed
above. You
acknowledge
that
neither
the author
nor EULER
Trade
Indemnity
plc shall
be liable
in any way
whatsoever
to you or
your
organization
as a
result of
any
reliance
placed
upon the
contents
of this
note.
David D.
Dhanoo
LL.B (Hons)
Barrister
Legal
Manager
EULER
Trade
Indemnity
plc
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