Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 10

An excursion into the world of sale of goods helps to assess the importance of ownership in commercial transactions. Here, I have to draw a distinction between the quality of the title that a seller must invest in the buyer and the transfer to the buyer of the totality of the seller’s property rights, however strong the title thus acquired by the buyer against third parties. The quality of the title to which the buyer of goods has a right has been treated as a vital element in the law of sale. It largely determines eligibility to sue for the price in the form of a debt action, failing to qualify for which will leave the seller with a less advantageous damages action against a defaulting buyer40. The quality of the seller’s title has been regarded as a matter of fundamental obligation41, to the point where a failure to pass a title good against the world prevents a seller by statute in all circumstances from excluding its liability to do so42. Moreover, regardless of any factual benefit derived from goods by the buyer, the seller’s failure to pass such a title is treated as a total failure of consideration so that the buyer may rescind the contract and recover the price in full even after prolonged use and enjoyment of the goods43. This amounts to a form of super-breach by the seller, more serious than the supply of defective useless goods, in that the buyer’s remedy may be exercised in cases where the time limit on terminating a contract for a breach of a so-called condition has lapsed44.

Although it is a case that does not turn on the quality of a supplier’s title, a decision of the UK Supreme Court has laid firm emphasis on the necessity for the supplier to pass the property in goods if the contract in question is to be treated as a sale of goods contract for the purpose of the Sale of Goods Act45. The case concerned a contract for the supply of bunker fuel for an ocean-going vessel on credit terms with a so-called reservation of title clause. Under the terms of the contract, the recipient was entitled to consume the fuel before payment and therefore before the property in the bunker fuel could pass. The contemplation of the parties that the goods might be consumed before the property could pass persuaded the court that the contract lacked a central feature of a sale of goods contract, namely, the passing of property to a buyer. The court resisted the supplier’s argument that the reservation of title clause was extinguished at the time when the goods were consumed and thus went up “in a puff of smoke” before payment.

Despite the above, there are contrary indications that play down the significance of ownership. First of all, there is nothing that corresponds to the vindicatio of the civil law. Instead, ownership is protected by tort law, not property law, and only indirectly, through the medium of possession and its offshoot, the right to immediate possession46. The most important tort is conversion which is not available to an owner who has neither possession nor the right to immediate possession at the time of the unlawful act, which act can be described succinctly as one that seriously denies the claimant’s title to the goods. Moreover, it is available to a person who merely has possession of at the time of the unlawful act. Apart from the possibility that a person with a superior property right might be joined to legal proceedings, any damages surplus, over and above the indemnity for the claimant’s loss, has to be remitted to the true owner. Two points may be made at this juncture. The first is that the expression “true owner” shows up regularly even in the world of relativity of title, as though manifesting a yearning for an unattainable ideal state. The second is that damages, contrary to normal rules of compensation, are measured according to the value of the goods at the date of the act of conversion and not according to the extent or quality of the claimant’s proprietary interest in the goods47. This rule has, however, experienced tremors in recent times and there are a few exceptions. Finally, the category of persons with a right to immediate possession includes not just the so-called true owner but also any intermediate person in the holding chain whose possessory rights were interfered with. Hence, to put the matter as bluntly as it can be put, the thief who steals from a thief is liable in conversion to that first thief. Moreover, the first thief can pursue the goods down a holding chain even to a good faith purchaser, who is not in a position to invoke one of the limited exceptions to the rule nemo dat quod non habet48.

I mentioned exceptions to the rule of recovery in full for the value of the chattel. One of them bears directly on the distinction between reservation of title and security. It concerns a common transaction of hire purchase where the hirer of goods, not having completed the payment schedule in full, wishes to trade in the goods, typically a car, for another. The normal practice is for a sum to be settled between the dealer accepting the trade-in and the finance company holding title to the car. For various reasons, this arrangement may not come to fruition and the finance company now sues the dealer in the tort of conversion. Since a hirer does not acquire ownership incrementally as the payment schedule progresses, the finance company in principle ought to recover in full as the owner of the car49. Instead, in a number of decisions, the English Court of Appeal has limited recovery to the sum of outstanding instalments accelerated and discounted to current value. The result, therefore, is the same as if the car had been subject to a charge recognising the hirer as having an equity of redemption in the car50.