Retention of Title in the House of Lords: Unanswered Questions
The retention cf title clause is now commonplace in commercial transactions but despite a decade and a half of commercial usage, and at least nine reported cases, the effectiveness of any particular clause will often be difElcult to predict, since it will depend on the wording of the particular clause and the circumstances of the contract in which it appears.' One particularly difficult area has been the effectiveness of the so-called 'all monies' clause. Under a simple retention of title, the seller retains title to goods supplied under a particular contract until he receives the price for those goods. The effectiveness of such a clause was established by the decision of the Court of Appeal in Clough Mill Ltd v GeoJ0rey Martin,2 although it seems that an attempt to extend the seller's protection by laying claim to proceeds of sale of his goods, or to new products manufactured from his goods, will probably fail.3 An 'all monies' clause seeks to extend the seller's protection in a different way; the seller retains title to goods supplied undeI the contract until he is paid not just their price but also other sums due from the buyer. Many different forms of such clauses are in use; the seller nzay retain title until payment of 'all sums due at the time of this contract' or 'all sums due at the tilne of payment' or 'all sums due to us on any account at any time.' Although in several of the reported cases4 the clauses in question were of the all tnonies variety, each of those cases was argued and decided on a different point, without consideration of the special problems of an all monies clause. Now, at last, the House of Lords has considered the validity of such a clause and has pronounced it effective. However, for reasons which will become apparent, the decision is rather unsatisfying.