Reservation of Title Clauses: Impact and Implications

Reservation of Title Clauses: Impact and Implications

Reservation of Title Clauses: Impact and Implications

Reservation of Title Clauses: Impact and Implications

Synopsis

This volume is an empirical analysis of the use of retention of title clauses. It focuses on the work of insolvency practitioners and lawyers in defending and asserting these claims, and examines the negotiating process involved, using this to create a model for out-of-court negotiation and settlement in a commercial context.

Excerpt

This chapter will look at the construction of a reservation of title claim. There are several key stages involved in the bringing of a claim. Each stage operates as a claims filter: for each potential claimant who progresses from one stage to the next there are others that do not. The stages involved in bringing a claim are not always made into claims filters by the claims defenders, the insolvency practitioners. The conversion from merely stages involved in bringing a claim into stages which filter out claims can occur because of practical problems, such as those that will be found in relation to notification, discussed below. They can also be the result of a conflict between the stages and the forward looking perspectives of the supplier.

It is impossible to quantify accurately the number of claimants who drop out at each stage. It may be a combination of stages which filter out a particular claim. For example, the attitude of the insolvency practitioner and his staff at inspection and the information required by the questionnaire.

The formal law which was analysed in Chapter 2 provides the structural base for claims. The legal rules form the boundaries of the claim and its underlying foundation. As with all facets of the law, the legal rules have to be interpreted to provide a structure for administration: for example, the law says the goods must be unpaid for; it is up to the parties to determine how that is shown. The law is unconcerned with any practical problems which may arise from its dictates. It is the role of the parties involved to overcome these difficulties. Onto this structure provided by the formal law the variables of each claim must be superimposed. These variables are factors which play a major role in determining whether the claim succeeds or not. They are factors like the quality of legal advice obtained by the claimant, the scarcity of the commodity claimed, the forcefulness and speed with which the claim is pursued, and the economic resources and tenacity of the enforcer. A sound legal framework and structure for a claim is insufficient on its own. Certain . . .

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