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Mixture of goods

Published online by Cambridge University Press:  02 January 2018

Gerard McCormack
Gerard McCormack*
Affiliation:
University of Southampton
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Extract

Problems relating to the admixture of goods have arisen in many contexts. An up-to-date example is where the supplier of goods subject to a reservation of title clause lays claim to materials in which the goods supplied have been incorporated. Notwithstanding the practical importance of the subject, the matter has not perhaps attracted the degree of discussion that it deserves. This article attempts to redress the balance somewhat but firstly an effort is made to put terminological inexactitude and imprecision at rest.

Type
Research Article
Information
Legal Studies , Volume 10 , Issue 3 , December 1990 , pp. 293 - 306
Copyright
Copyright © Society of Legal Scholars 1990

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References

1 (1986) at p 89.

4 op cit.

3 See Davies, I. R., ‘Reservation of title clauses: a legal quagmire? (1985) LMCLQ 49 at 64.Google Scholar

4 See generally ‘Accession and Confusion in the Law of Hire Purchase’ (1964) 27 MLR 505.CrossRefGoogle Scholar

5 See Whittaker, , ‘Retention of Title and Specification’ (1984) 100 LQR 35.Google Scholar

6 See generally R. M. Goode, Hire Purchase Law and Practice (2nd edn, 1970) at p 751.

7 I have not discussed the questions which arise when goods are attached to land so as to become part of the land, ie fixtures. The relevant issues are analysed by Goode, op cit, chapter 32 and by McCormack, ‘Hire Purchase, Reservation of Title and Fixtures’ (1990) Conv 275. Issues of accession also arise in the reservation of title context on which see Hendy Lennox Ltd v Grahame Puttick Ltd (1984) 1 WLR 485. There is a comprehensive account of the reservation of title phenomenon in McCormack, Reservation of Title (Sweet & Maxwell, 1990).

8 (1951) 82 CLR 477.Google Scholar

9 Reference might be made to accessions by natural increase. In Tucker v Farm and General Investment Trust Ltd (1966) 2 QB 421 it was held that lambs bred to ewes during the currency of a hire agreement belonged to the hirer of the ewes. Diplock LJ said at 431 that where there is a lease of livestock and where accordingly property and possession are divided, the English rule and the rule in the civil law is that the progeny and the produce of the livestock belong to the person entitled to the possession: that is to say the lessee in English law, the usufructuary in civil law.

10 (1964) 27 MLR 505 at 507–509. A dissentient note in the area of accession is sounded by Paul Matthews ‘Proprietary Claims at Common Law for Mixed and Improved Goods’ (1981) CLP 159. He rejects the view that the owner of the dominant chattel becomes the owner of the whole to the entire exclusion of the other party. His suggestion is that, on principle, those who have contributed to mixed property should become owners in common of the whole in accordance with their respective contributions. It may be argued that the test for accession should vary depending on whether the goods attached were the property of a hirer or conditional buyer or the property of some third party. The cases, however, do not support such a distinction.

11 [1957) VR 604.

12 Ibid, at 606.

13 (1929) 30 SR (NSW) 61.Google Scholar

14 (1956) 56 SR (NSW) 439.Google Scholar

15 [1957 1 VR 604 at 609.Google ScholarPubMed

16 [1942) 3 DLR 159.Google ScholarPubMed

17 (1971) 17 DLR (3d) 229.Google Scholar

18 Ibid, at 231.

19 [1977) 1 NZLR 385.Google Scholar

20 Ibid, at 391. The quotation is at (1957) VR 604 at 610.

21 (1977) 1 NZLR at 392.

22 [1949) 1 KB 295.

23 [1973) 1 QB 195. See also Rendell v Associated Finance Pty Ltd (1957) Vr 604 at 607 and Whitely Ltd v Hilt (1918) 2 Kb 808 at 818 and 824.Google Scholar

24 What if the goods supplied by a Romalpa seller have been incorporated in a dominant chattel? Title thereto would appear to be lost by virtue of the doctrine of accession. Sections 3(6) and 6(1) of the 1977 Act seem to be of no avail. To protect his position, a Romalpa seller should consider inserting in the conditions of sale as clause precluding the incorporation of his goods in a major chattel. If the buyer goes ahead and incorporates the goods disregarding the clause then the supplier might claim the claimant chattel under the doctrine of Lupton v White (1808) 15 Ves 432 discussed infra. If the dominant chattel belongs to a third party then the courts might adopt a tenancy in common in proportionate shares solution.

25 (1808) 15 Ves 432.

26 (1988) 1 QB 345. On this case see Stein (1987) 46 Clj 369; Brown (1988) Lmclq 286

27 Ibid, at 370. It should be noted that the punitive rule was extant in this century. For example in Sandeman & Sons v Tyzack and Branfoot SS Co Ltd (1913) AC 680, Lord Moulton insisted that if the mixing was the fault of one party, then the other could claim the entirely of the goods.

28 Ibid, at 369.

29 (1863) 3 B & S 566, 122 ER 213.

30 (1868) L3 CP 427

31 (1863) 3 B & S 566 at 574 – 575, 122 ER 213 at 216.

32 (1868) LR CP 427 at 438 –439.

33 Ibid, at 438.

34 [1913) AC 680 at 695. See too Jones v Moore (1841) 4 Y & C Ex 351; Gill & Duffus (Liverpool) Ltd v Scruttons Ltd (1953) 1 WLR 1407. Section 188 of the Law of Property Act 1925 should also be borne in mind in cases of tenancies in common. The section empowers the court to order a division of chattels, according to a valuation or otherwise but only on the application of a person or persons interested in a moiety or upwards.

35 See Birks, ‘Intermingling of Property in English Law’, Proceedings of Anglo-Polish Legal Symposium 1989.

36 Op cit, at pp 16–17.

37 (1850) 5 Exch 557.

38 See text accompanying footnotes 45–51 infra.

39 [1913) AC 680.

40 (1868) LR3CP427.

41 (1815) 3 M & S 562.

42 See generally Jones (AE) v Jones (FW) (1977) 1 WLR 438; Dennis v McDonald (1982) Fam 63; Chhokar v Chhokar (1984) FLR 313. The jurisdiction appears to have been originally based on s 27 of the Administration of Justice Act 1705 but that provision was repealed by the Law of Property (Amendment) Act 1924, Sch 10. See on this Coleman v Harvey (1989) 1 NZLR 723. The surviving jurisdiction of the courts as between tenants in common may be based on an equitable liability to account– see Pulteney v Warren (1801) 6 Ves 73 at 77, 78. See also Megarry and Wade, The Low of Real Property (5th edn, 1984) at p 420.

43 (1979) 2 NSWLR 181.

44 See generally Ryan v King (1932) QWN 1 and Sackville and Neave, Property Law: Cases and Materials (4th edn, 1988) at pp 670–671.

45 (1854) 9 Ex 145.

46 Ibid, at 148. See generally Derham, , ‘Conversion of Wrongful Disposal as between Co-owners’ (1952) 68 LQR 507.Google Scholar

47 (1856) 2 K & J 49. See also Heath v Hubbard (1803) 4 East 110 and Farrar v Beswick (1836) I M & W 682 and the other cases referred to by Derham, op cit.

48 (1989) 1 NZLR 723.

49 (1849) 7 CB 229.

50 Ibid, at pp 247–248.

51 The other substantive judgment in the case was delivered by Cooke P who agreed with Somers J on this point.

52 Proprietary Rights and Insolvency in Sale Transactions (2nd edn, 1989) at pp 90–91.

53 (1949) 78 CLR 504 at 510.

54 2nd ed, vol 1 at p 746.

55 [1989) 1 NZLR 723. See too Good v Bruce (1917) Nzlr 514 and see generally Watts (1990) 106 Lqr 552.Google Scholar

56 (1910) SC 182.

57 Ibid, at 192. Lord Law quoted the Scottish institutional writer Erskine to the effect that when by the mixing together of two or more substances of different kinds, belonging to different proprietors, a new species is formed, which cannot be brought back again to the first condition of these substances, the mixer, whether he be one of the proprietors or a third party, must, as the maker of the new species, become the sole proprietor of the subjects mixed.

58 Ibid, at 194.

59 See Matthews, (1981) 10 Anglo Am L Rev 121; see generally also Wylie (1978) Conv 37.CrossRefGoogle Scholar

60 See generally Whittaker, (1984) 100 LQR 35 at 40.Google Scholar

61 Matthews, (1981) 10 Anglo Am L Rev 121 at 123.CrossRefGoogle Scholar

62 In Borden (UK) Ltd v Scottish Timber products Ltd (1981) Ch 25 the court of Appeal was faced with a clause in a contract for the sale of resin which provided that the resin was to remain the property of the seller until paid for. The resin was mixed by the buyer with wood chips in the manufacture of chipboard. It was held the seller of the resin did not acquire any rights in the finished product. His title to the resin disappeared when the resin was used as part of the process of manufacture. See also Re Peachdart (1984) Ch 131; Re Androbell Ltd (1984) 3 All ER 407. In Clough Mill Ltd v Martin (1985) 1 WLR 111 at 124. Oliver LJ was inclined to the view that the original legal title in a newly manufactured article composed of materials belonging to A and B should lie where A and B have agreed that it shall lie. See also Robert Goff LJ at 119. See generally on reservation of title Parris, Effective of Title Clauses (1986); McCormack, Reservation of Title (Sweet & Maxwell, 1990, forthcoming).

63 Goode, Proprietary Rights and Insolvency in Sale Transaction (2nd edn, 1989) at p 92.

64 (1845) 6 QB 769

65 . (1973) 1 QB 195.