Retention of Title UK and Insolvency Clauses

Written by John A Waller, Director. Reviewed November 6th,2022.

A retention of title (ROT) clause is a clause in a sales contract, meaning the seller retains legal ownership of the goods until obligations are fulfilled by the buyer, usually final being payment for them.

The original test case in Law: Known as Romalpa clause uk“Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd”.

A successful retention of title clause gives the seller a proprietary right in insolvency. An ROT is part of what claims require attention in an insolvency process.

However, how can an unsecured creditor claim tile to goods when others remain unpaid? 

Suppose a company provides goods to customers in terms of credit. Then, the terms do not make, as agreed. Payment accepted. Possibly due to cash flow issues or, more importantly, insolvency of the recipient company. Therefore, the clause titled Retention Of Title comes into play. 

What if liquidation is the only option for their customer? In that case, the supplier ranks as an ‘unsecured creditor’.

To mitigate risk, include a retention of title (ROT) clause within a contract of sale. It’s essential to get professional direction when drafting a clause, as retention of title is a complicated legal area, confused by situations that could transpire.

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Directors Concerned

Retention of Title UK and Insolvency clauses What is a retention of title clause?

A “retention of title UK” (ROT) clause written within the terms and conditions of sale.

However, IT allows suppliers to retain ownership of the goods supplied until certain conditions are met, therefore, providing the supplier with a form of security against the buyer’s default or insolvency. Often referred to as the ‘Romalpa Clause UK’ and ‘A reservation of title clause’.

Under the Sale of Goods Act 1979, If a contract exists for specific goods sold, the seller may retain a right to ownership of those goods even after delivery to the buyer. However, all parties to the contract must agree to the clause. Therefore, once proven valid. Then, the supplier retains title to the goods supplied until receiving full payment in full. Thus, the supplier’s claim to any unused goods remains binding against an appointed liquidator.

Other ROT clauses, however, may be used under the relevant situations.

If the clause is clearly and specifically defined in the contract and the agreement signed by both parties, it remains documentary proof that the title should therefore remain with the supplier. Directors of a failing company must take care, to insure goods that are subject to an ROT claim and are protected to avoid any criticism of trading while insolvent.

The goal of a retention of title contract?

For suppliers experiencing a creditors voluntary liquidation who turn into creditorsd, any insolvency of a notable customer threatens a supplying company itself. Bad debts can quickly sink a company. Therefore, suppliers use retention of title clauses to narrow their risks of not being paid. However, the clause needs to clearly state the clause on every piece of paper and ensure it is not open to more than one interpretation.

Before any commencement of delivery of goods. The purchaser must, however, know the ROT clause before agreeing on sales terms. Once approved and signed, the delivery may occur, ensuring every step of the way, with every document clearly stating the clause. The goods supplied may be identified as those delivered on the agreed terms.

If noted on an invoice, the customer would therefore, need to sign it before delivery of the goods. So the signature then expresses acceptance of the terms by the purchaser.

Retention of title (ROT) clause Examples

ROT 

Primary aim of a retention of title clause,stating the title to the specific goods as per the delivery note and invoice belongs to the seller, and ownership does not pass until payment is made in full.

ROT: All Sums or Current Account or Monies Clause

Exists when the supplier retains ownership of the goods, however until the buyer has paid all debts remain paid or any other obligation paid.

ROT Proceeds of sale.

The proceeds of sale clause applies to goods already sold by the buyer, and then claims monies from the sale.

ROT for various goods.

Items supplied, then used in some aspect of manufacture and combined with other goods, may enable the supplier to demand the right of ownership over the original raw materials supplied. Fraught with issues as challenging to split if now part of manufactured goods, and possible damage to other goods subject to a ROT claim.

Do there exist potential limitations on the effectiveness of ROT clauses in commercial law?

  • The ordinary course of trade: Supplier knows of buyer’s ‘normal course of business’ and sold before payment made, therefore a ROT clause may well be worthless.  
  • The balance on the purchaser’s account – Only goods delivered after the date on which there is a nil or credit balance on the buyer’s account are eligible for retention of title. 
  • Buyer in administration – Moratorium protects the insolvent company.
  • Perishable goods however are difficult to enforce.

Making retention of title clause claim

To avert the liquidation of goods involved in the retention of title clause. The Liquidator should therefore be informed as quickly as possible to avoid confusion when evaluating a retention of title claim.

The Liquidator may request the supplier to file a retention of title questionnaire with the IP, allowing a more evident opinion of the circumstances and ascertaining if the clause mentioned meets the requirements needed? Additionally, the evidence required showing the clause on documents duly signed, such as 

  • Quotations;
  • Contract;
  • Delivery Notes;
  • Invoices;
  • Statements;
  • Sales leaflets;
  • Adverts;
  • Websites. 

The Liquidator may however want to know of any previous trading history, along with any prior acceptance of these clauses. 

Retention of Title UK and Insolvency Clauses – Liquidators considering a claim

Before accepting a claim from a supplier, therefore allowing creditors to repossess the goods. A liquidator must therefore be satisfied with each of the following:

  • The wording of the clause includes the goods specifically, or monies claimed;
  • That the clause clearly shows as included in the contract;
  • That goods claimed can be specifically identified; and 
  • When the clause is not an “all sums” clause, that the goods provided correlate specifically to an unpaid invoice.
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