Academic opinions Flashcards
D Webb ‘Title and trandofrmation: who owns?’
Courts taken approach that there is no conceptual bar to clause
clause is artificial and results in considerable inconsistencies
central q is whether goods undergone transformation
ROT displaces rules that have been accorded and creates inconsistencies
to allow these clauses would destroy foundation
A Hicks
Compaq driven one more nail into coffin of romalpa
is an unassailable devide where goods can be identified and recovered
claims to proceeds are speculative
R Goode
Can work if drafted correctly and carefully
Kevin Low
Res Cognitas produces uncertainty in an extremely common and useful category of sales
many other unknown consequences may follow
couldn’t have come at worse time due to brexit
so amending s.2 unlikely
law fallen down rabbit hole and not in wonderland
Dermot Turing
Department of trade said any claim over proceeds ineffective
could reform whole system of charges to be like US
need full-proof drafting
W Goodhart ‘Clough Mill’
clause makes clear courts will normally regard simple ROT claues to not give rise to a charge and not registrable
Louise Gullifer
Bunkers cause significant uncertainty
Responses: re analysis of passing of prop, re draft of SGA or functional analysis of ROT (quicker and cheaper)
E Victoria ‘ROT clauses’
As people emerge from rescission paying more attention to terms of contract
establishing communication of ROT clause is first hurdle
W Thornley
minefield
Felix W Chan
Decision in PST is unappealing and seems to be inconsistent w both commercial purposes of transaction and intentions of parties
no of sale containing clause is large
public policy arguments
D Webb ‘The potential dnager of ROT”
in wake of FG wilson ROTS area of balance
S desire to protect against Bs insolvency and ability to bring s.49
should be drafted in accordance w CA : care to exclude express terms and irrespective of delivery
Mark Phillips
A S who cannot identify his own goods has not lost the goods - this is a myth
if not consumed or incorporated is no bar to claim
extent of claim depend on whether mixed storage consensual
G McMeel ‘ROT: interface’
Interfact between contract and insolvency
UE and restituion have surfaced
No of principles need to be re-examined: bailment = redundant, romalpa promiscuous and attempts to trace are attempt to use reg charge
can be avoided by created a security interest rather than ROT
Tribe
ROT morally justifie prevents B from defaulting further
Jones
Romalpa clause is in reality just another security interest - absurd to have different rules
