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Bunkers in Wonderland

其他書名	A Tale of How the Growth of Romalpa Clauses Shrank the English Law of Sales
出版	SSRN, 2018
URL	http://books.google.com.hk/books?id=nlz7zgEACAAJ&hl=&source=gbs_api

註釋In PST Energy Shipping LLC v OW Bunker Malta Ltd [2016] UKSC 23, [2016] 2 WLR 1193 (“The Res Cogitans”), the Supreme Court held that a contract under which a supplier agreed to deliver bunker fuel (through some other upstream supplier who retained title to the bunkers) to a shipowner was not a contract “of sale of goods” within the meaning of s 2(1) of the Sale of Goods Act 1979 (SGA) if it provided that the supplier also retained title until payment and that the shipowner was entitled to consumer all or some of the bunkers before payment. In doing so, it effectively exiled large swathes of commercial contracts containing such clauses from the English law of sales. This article traces the developments leading to this astonishing decision, from the Dutch origins of retention of title (ROT) clauses through its explosive adoption in England and concomitant growth in sophistication; from the English courts' initial warm embrace to the cold shoulder the same courts gave increasingly assertive clauses; and most importantly, how an apparent change in attitude by the English Court of Appeal in FG Wilson Engineering Ltd (later known as Caterpillar (NI) Ltd) v John Holt & Co (Liverpool) Ltd [2013] EWCA Civ 1232, [2014] 1 WLR 2365 (“Caterpillar”), which might have led to a decline in their usage over time, led instead to the decision in The Res Cogitans and the curious conclusion that many commercial sales of goods are not sales in the eyes of English law. The implications of this decision will also be considered, one of which, it is suggested, is that ROT clauses will become even more attractive and entrenched in practice as they may permit the evasion of consumer protection legislation.