Hire‐Purchase Agreements As Bills Of Sale (I)
| Author | Aubrey L. Diamond |
| Date | 01 July 1960 |
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00613.x |
| Published date | 01 July 1960 |
HIRE-PURCHASE AGREEMENTS
AS
BILLS
OF
SALE
(I)
THE
questifin has often come before the courts whether a document
which purports to be a hire-purchase agreement is to be treated as
a
bill of sale.
In
the second part
of
this article, which will appear
later,
it
is proposed to review the cases in an attempt to discover
what principles guide the courts in deciding this problem. First,
however,
it
is necessary to consider shortly the objects
of
the Bills
of Sale Acts, the statutory definition of a bill of sale, and the effect
of the Acts.
PART
I:
THE BILLS
OF
SALE
ACTS
At common law a bill of sale is simply
‘‘
a written instrument effec-
ting a transfer of personal propertyyy1
or,
more shortly, a “convey-
ance” of goods. The most common examples were
no
doubt a deed
of gift of goods, an assignment
of
personal property
for
the benefit
of
creditors, and a mortgage
on
goods, but even a simple contract
in
writing for the sale of goods was properly described as a bill of sale.
No
special form
or
formalities were required, though usually a
deed was executed, and
a
deed
was
later essential to effect a gift of
goods where possession of the goods did not pass to the grantee.’
This kind of transaction early caught attention,
for
an attempt
to transfer the ownership of goods from A to
B,
where A remained
in possession of the goods after he had ceased to be their owner,
was clearly capable of misleading persons dealing with A; they
would naturally assume that he remained the owner of the goods
which were still in his possession, whereas had they known the true
position they might have been less prepared to allow A credit.
In
1876
collusive gifts were avoided
in
favour
of
execution
creditors,’ and three years later
it
was enacted
in
more general terms
that
“
fraudulent deeds made by debtors to avoid their creditors,
shall be void.”’ To the like effect was the statute
8
Hen.
7,
c.
4,s
and in
1571
came the well-known Act,
18
Eliz.
1,
c.
5,
passed, accord-
ing to its preamble,e because the earlier legislation had been
of
little
*
Ozford
English
Dictionmy.
The
expression is still
used
in this sense
in relation
to
the transfer of
a
British ship or
a
share therein
:
see Merchant
Shipping Act,
1894,
8.
24,
and the form
of
bill of sale in the First Schedule
to
that Act.
2
Cochiane
v.
llloore
(1890)
25
Q.B.D.
57;
Y.B.
7
Edw.
IV,
Mich., pl.
21
and
29 (1467).
See, too, Pollock
(1890) 4
L.Q.R.
446
(reprinted in
Essays
in
the
Law
at
p.
141).
3
50
Edw.
3,
c.
6.
4
2
Ric.
2,
Stat.
2,
c.
3 (1379).
5
1486.
6
See note on next page.
399
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