Emerald Stainless Steel Ltd v South Side Distribution Ltd
| Jurisdiction | Scotland |
| Judgment Date | 16 December 1981 |
| Date | 16 December 1981 |
| Docket Number | No. 10 |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Ross.
Sale of moveables—Transfer of title—Condition of contract—Title of goods to remain in seller until payment—Purchaser to hold as trustee until payment—Power to purchaser to resell as agent—Proceeds of resale to be held in trust for seller—Whether condition effectual.
International law—Contract—Sale of goods—Contract containing clause that contract governed by English law—No averments on the law of England—Presumption that foreign law the same as the law of Scotland.
A company supplied goods to another company subject to general conditions of sale. Condition 8 provided that title to the goods remained vested in the seller until the full purchase price was paid. Pending payment, the goods were to be held by the purchaser as trustee for the seller with liberty for the purchaser to pass title as agent for the seller on a sale by the purchaser bona fide for full value. The proceeds of any sale were to be held by the purchaser as trust monies for the seller. The contract contained a clause to the effect that the contract was governed by English law, but the summons contained no averments about the law of England.
The purchaser went into receivership and the goods were not paid for. The seller raised an action for delivery of the goods, failing which, for payment of the purchase price and for interdict of the purchaser from selling or disposing of the goods.
The seller sought interim interdict. The purchaser contended that condition 8 was ineffectual because it was an attempt to create a hypothec not recognised by law, and was an invalid attempt to create a trust.
Held (1) that condition 8 was an attempt to create a hypothec not recognised by the law of Scotland and, as the seller had not averred what the effect of English law was on the contract, it must be assumed that the law of England was the same as the law of Scotland.
(2) That no valid trust was created by the words used in condition 8.Clark Taylor & Co. Ltd. and Quality Site Development (Edinburgh) Ltd.1981 S.C. 111followed.
(3) That accordingly interim interdict would be refused.
Emerald Stainless Steel Limited raised an action in the Court of Session against (First) South Side Distribution Limited (In Receivership), (Second) John Neill Anderson and (Third) Ian Scott Murdoch, the joint receivers. The action was for delivery of goods supplied to the first defenders which had not been paid for...
To continue reading
Request your trial
-
Armour v Thyssen
...two decisions of Lord Ross in the Outer House, namely Deutz Engines Ltd. v. Terex Ltd. 1984 S.L.T. 273, and Emerald Stainless Steel Ltd. v. South Side Distribution Ltd. 1983 S.L.T. 6The appellants reclaimed, and the reclaiming action was heard by the Second Division (Lord Justice-Clerk Ro......
-
Armour et al. v. Thyssen Edelstahlwerke A.G., (1990) 113 N.R. 310 (HL)
...Engines Ltd. v. Terex Ltd., [1984] S.L.T. 273, not appld. [para. 5]. Emerald Stainless Steel Ltd. v. South Side Distribution Ltd., [1983] S.L.T. 162, not appld. [para. Macartney v. Macredie's Creditors (1799), Mor. App. s.v. Sale, No. 1, refd to. [para. 7]. Murdoch & Co. Ltd. v. Greig (......