The Gazette 1989

GAZETTE

JULY 1989

These questions could go on ad infinitum, each case being put into its own pigeon hole. However, although no universal rule is apparent, case law seems to indicate a vague distrust towards and dislike of reservation of title clauses on the part of judges, who recognise that "this area of the law is . . . a maze if not a minefield." 12 and that "there is no logical reason why this class of creditor (suppliers of unconsumed goods) should be favoured as against other creditors such as the suppliers of consum- ables and services'.. 13 Reforms In 1979 the Commission of the European Communities issued a proposal for a Council Directive on the legal consequences of Reserva- tion of Title. 14 The aim of this draft Directive however, is not primarily to bring about reform but rather to harmonise the laws of the Member States. With this in mind the proposal looks at Reservation of Title from the point of view of suppliers. Its effect if implemented in this Jurisdiction would be firstly

void for want of registration must, from a practical point of view, depend on the facts of each case, i.e. the nature of the goods supplied or the wording of the supply contract. In spite of this, it is the Courts which are left to find some sort of equitable solution which will treat all suppliers on credit, equally. It is the Courts which are left to answer the concerns of suppliers of con- sumables or services that the estate of an insolvent customer should be maximised. Since the early 1980's when the Courts settled on a consistent legal interpretation of the law governing Reservation of Title, suppliers who go to Court relying on their reserva- tion of title clauses seem to approach the bench, cap in hand, to say that while we accept title to resin may disappear once it is caught up in the manufacturing process, would it be possible that title to leather might not similarly disappear when used in the pro- duction of hand bags 10 or that title to diesel engines might still be effective even when they are connected to other machinery 11 .

to copper fasten the existing law of Reservation of Title, warts and all and secondly to strengthen the position of suppliers with regard to various restitutionary remedies which would be made available to them. The draft Directive however is silent on the shortcomings in the law of Reservation of Title and I would submit that if adopted and implemented in this jurisdiction the Directive would serve only to hinder any movement towards reform which the Legislature may wish to pursue. It is therefore perhaps fortunate that after eight years the proposal still remains in draft form. In 1982 the Cork Committee issued its report on the Law and Practice of Insolvency. 15 Having interviewed many of those in the front line of this area, the Com- mittee went on to discuss the sub- missions made to glean a number of recommendations. A large number of suggested reforms are based on the need for ce r t a i n ty w i t h o ut wh i ch the amount of interminable and expensive litigation in this area will unavoidably rise. The Committee

THE LOST CHILDREN OF AUTISM LIKE THE PIPER OF HAML IN AUT I SM CAME AND TOOK MY CHILD'S SENSES AWAY BUT TO WH E R E? I DON 'T K NOW I DON 'T K NOW WH E RE TO GO I DON'T KNOW WH AT TO DO OR TO SAY BUT I WI LL FIND MY CHILD T HOUGH IT MAY T AKE A WH I LE THEN THE HEART ACHE WI LL COME TO AN END BUT T H ROUGH THE TR I ALS AND THE T EARS AND THE PAIN AND THE FEARS IT WOU LD HELP ME WI TH YOU AS A FRIEND. LET YOUR WILL BE A LEGACY OF HOPE FOR THE LOST CHILDREN OF AUTISM DONATIONS OR LEGACIES TO Irish Society for - Autistic Children 14, LOWER O'CONNELL STREET, DUBLIN 1. Tel: (01)744684

WHERE THERE'S A WILL THIS IS THE WAY... When a client makes a will in favour of the Society, it would be appreciated if the bequest were stated in the following words: "/ devise and bequeath the sum of Pounds to the Irish Cancer Society Limited to be applied by it for any of the charitable objects of the Society, as it, the Society, at its absolute discretion, may decide." All monies received by the Society are expended within the Republic of Ireland. "Conquer Cancer Campaign" is a Registered Business Name and is used by the Society for some fund raising purposes. The "Cancer Research Advancement Board" I D I I allocates all Research Grants I l x l . 3 1 I on behalf of A X T Q the Society. > V ^ L l \ SOCIETY 5 Northumberland Road Dublin 4 Ireland Tel: 681855

2 16