The Sales on Consignment Act

Transcription

1 The Sales on Consignment Act being Chapter 238 of The Revised Statutes of Saskatchewan, 1930 (effective February 1, 1931). NOTE: This consolidation is not official. Amendments have been incorporated for convenience of reference and the original statutes and regulations should be consulted for all purposes of interpretation and application of the law. In order to preserve the integrity of the original statutes and regulations, errors that may have appeared are reproduced in this consolidation.

2 Table of Contents 1 Short title 2 Interpretation 3 Persons within the Act 4 Application of Act; no contracting out 5 Duties of mercantile agent 6 Duty to make and keep records 7 Duty to report condition of product 8 Duty to report monthly with respect to unsold consignments 9 Duty to account 10 Duty to give information 11 Moneys received are trust funds 12 Payment 13 Mercantile agent not entitled to remuneration 14 Duty of mercantile agent not to purchase without disclosure 15 Agent furnishing false or misleading information 16 Agent not giving impartial distribution 17 Onus of proof in absence of records 18 Inspection by principal 19 Appointment of inspectors by minister 20 Refusal to permit inspection 21 Agent to post up Act 22 Duties of officers and employees 23 Liability of manager 24 Liability of corporation 25 Jobber controlled broker 26 Act not to apply to co-operative associations in certain cases 27 Penalty 28 License required 29 Form of application 30 Bond by applicant and fee for license 31 Renewal of license 32 Suspension or revocation of license 33 Proceedings to enforce bond 34 Penalty 35 Regulations

3 CHAPTER 238 An Act respecting the Duties of Agents in the Sale of Products of the Soil and Other Commodities Short title 1 This Act may be cited as The Sales on Consignment Act. 1927, c.64, s.1; R.S.S. 1930, c.238, s.1. Interprctation 2 In this Act, unless the context otherwise requires, the expression: Consigned 1. Consigned means shipped, consigned or entrusted to a mercantile agent for sale, re-consignment or other dis position; Consignment 2. Consignment means a separate lot or shipment of products consigned; Mercantile agent 3. Mercantile agent includes a broker or agent to negotiate and make contracts for the sale of products of which he is agent not entrusted with the possession or control; a factor or agent to sell or dispose of products of which he is entrusted with the possession or control; and a jobber, or person whose normal business is to buy or sell products in wholesale quantities, when handling or disposing of products on commission; and an agent of such broker, factor or jobber; Minister 4. Minister means the Minister of Agriculture; Principal 5. Principal means a person whether within or without the province, who ships, consigns or entrusts products to a mercantile agent within the province, for sale, re-consignment or other disposition; Producer 6. Producer includes farmer, rancher, grower and market gardener; Products 7. Products means: (a) fruits and vegetables of all kinds and, without limiting the generality of the foregoing, includes berries, grapes, tomatoes, melons and cucumbers; (b) any agricultural product or farm produce except milk, cream and grain, and except live stock when sold in a public stock yard in Saskatchewan. 1927, c.64, s.2; R.S.S. 1930, c.238, s.2.

4 4 c. 238 SALES ON CONSIGNMENT Persons within the Act 3(1) Every person who acts as, or holds himself out as a mercantile agent shall be deemed prima facie to be a the mercantile agent and to come within the provisions of this Act. (2) Where any person purchases any products from any producer and undertakes to pay the whole or any part of the purchase price out of the resale price, he shall be deemed to be a mercantile agent for the purpose of accounting and making payment to the producer; and for that purpose the producer shall be deemed to be a principal, and the products purchased shall be deemed to be a consignment. (3) The rendering by any person of an account of sales of products or other document, indicating that the person rendering the same has acted in respect of products as an agent for the person to whom the same is rendered, shall in all proceedings be prima fade evidence against the first mentioned person that he so acted as a mercantile agent. 1927, c.64, s.3; R.S.S. 1930, c.238, s.3. Application of Act; no contracting out 4 This Act shall apply to every transaction between a principal and a mercantile agent, notwithstanding any agree ment to the contrary; and any provision in a contract purporting to deprive a principal of the benefit of its provisions, or to relieve a mercantile agent from the duties, obligations or liabilities imposed by it, shall be void. 1927, c.64, s.4; R.S.S. 1930, c.238, s.4. Duties of mercantile agent 5 Every mercantile agent, whether acting for a principal within or without the province, shall, in addition to all other legal duties, perform the duties prescribed in this Act. 1927, c.64, s.5; R.S.S. 1930, c.238, s.5. Duty to make and keep records 6(1) Every mercantile agent shall: (a) give to each consignment an individual number, and cause the same to be placed upon all separate packages in the consignment and all documents and entries relating thereto in such a manner as to identify the same; (b) keep such books of account as will fully and truly exhibit and explain his transactions and financial position, including a book or books containing entries from day to day in sufficient detail of all products received, and of all moneys received and disbursed and statements of annual and other stock-takings; (c) make and keep such original or duplicate original receipts, invoices, vouchers, credit notes, account sales and other records as will truly explain and account for the disposition of each consignment; (d) keep a consignment record book, in which shall be entered the name and address of the principal, the nature, description and quantity of each consignment and particulars of each sale or other disposition.

5 SALES ON CONSIGNMENT c (2) The books and records referred to in subsection (1) of this section shall be kept in legible characters and figures. (3) For a period of six years after final report to his principal in respect of any consignment every mercantile agent shall keep at his usual place of business or at some other convenient place in the same municipality the books and records referred to in subsection (1) of this section. (4) The books and records required by this section to be kept shall, as against the mercantile agent, be prima facie evidence of the facts and transactions therein recorded, set out or indicated. 1927, c.64, s.6; R.S.S. 1930, c.238, s.6. Duty to report condition of product 7(1) If any consignment arrives in a damaged or deteriorated condition it shall be the duty of the mercantile agent forthwith: (a) to notify the principal of the fact, giving particulars of the quantities damaged or in a deteriorated con dition, the apparent reduction in market value, and the apparent cause of the damage or deterioration; and (b) in the case of carlot consignments to notify the nearest inspector of the Dominion Department of Agriculture, giving the information required by clause (a). (2) In the case of less than carlot consignments this section shall be deemed to have, been complied with if the information required by clause (a) of subsection (1) is given by an account of sales rendered within two days after the consignment is received. (3) In every case in which the provisions of this section have not been complied with, it shall as against the mercantile agent be presumed prima facie that on the arrival of the con signment it was not in a damaged or deteriorated condition. 1927, c.64, s.7; R.S.S. 1930, c.238, s.7. Duty to report monthly with respect to unsold consignments 8 If on the last day of any month a portion of any con signment, received prior to the first day of that month, remains unsold or undisposed of, the mercantile agent shall within five days thereafter render to his principal an account in writing showing the then disposition of the products in the consignment, the amounts received therefor, and the quantities and condition of the different products on hand and undisposed of. Such account shall be rendered monthly while any products remain on hand or undisposed of. 1927, c.64, s.8; R.S.S. 1930, c.238, s.8.

6 6 c. 238 SALES ON CONSIGNMENT Duty to account 9(1) Every mercantile agent shall within ten days after the sale or other final disposition of any consignment separately, accurately and fully account in writing to his principal for and with respect to the consignment. Such account shall include sufficient particulars of all sales made and of all losses, rebates, allowances, expenses, disbursements and deductions, the rates and amounts of commission charged and retained, and the amounts due and remitted to the principal. (2) No fee, commission, remuneration or profit and no loss, rebate, allowance, expenses, disbursement or other deduc tion not disclosed in writing to the principal shall be allowed to or be retainable by any mercantile agent; and the amount of any fee, commission, remuneration, profit, loss, rebate, allowance, expense, disbursement, or other deduction not so disclosed may be recovered by the principal as moneys had and received by the agent to the use of the principal. 1927, c.64, s.9; R.S.S. 1930, c.238, s.9. Duty to give information 10 Every mercantile agent shall, within five days after a written request by his principal, furnish in writing such information and particulars not already furnished in writing to the principal regarding the consignment and the condition and disposition thereof, and the amounts received therefor as the principal may require. 1927, c.64, s.10; R.S.S. 1930, c.238, s.10. Moneys received are trust funds 11(1) All moneys realised from the sale or other dis position of the products of his principal shall in the hands of every mercantile agent be trust funds, and the principal shall be deemed to be a cestui que trust with the right to demand an accounting and payment, and to follow the moneys. (2) Every mercantile agent shall keep the moneys realised from the sale or other disposition of the products of his principal apart from his own moneys, and shall, as soon as they are received, pay over the same or an equivalent amount to his principal or deposit the same or an equivalent amount in a trust account in a chartered bank; and, except as hereinafter pro vided, a mercantile agent shall not make use of or apply the moneys so realised or deposited or any portion thereof to any purpose other than payment to or on behalf of his principal. (3) Notwithstanding the foregoing provisions of this section, every mercantile agent may apply the moneys realised from the sale or other disposition of any consignment in payment of any commission or remuneration to which he may be lawfully entitled in respect of the consignment, and in payment of any disbursements or expenses which he may be lawfully entitled to charge to his principal in respect of the consignment. 1927, c.64,s.11; R.S.S. 1930, c.238, s.11.

7 SALES ON CONSIGNMENT c Payment 12 Every mercantile agent by whom moneys are payable to a principal in respect of a consignment shall remit the same to or to the order of the principal not later than ten days after the said moneys are received by the said mercantile agent. 1927, c.64, s.12; R.S.S. 1930, c.238, s.12. Mercantile agent not entitled to remuneration 13 No mercantile agent shall be entitled to have or retain any fee, commission, remuneration or profit unless he has substantially complied with the provisions of sections 6 to 12 inclusive, and any fee, commission, remuneration or profit obtained or retained where there has not been such compliance may be recovered by the principal as moneys had and received by the mercantile agent to the use of the principal. 1927, c.64, s.13; R.S.S. 1930, c.238, s.13. Duty of mercantile agent not to purchase without disclosure 14(1) No mercantile agent shall purchase any consigned products without the prior consent of the principal, given after full and clear disclosure by the mercantile agent to the principal of all material circumstances. (2) The onus of establishing such disclosure and the consent of the principal shall be upon the mercantile agent. (3) Where any mercantile agent has purchased consigned products without complying with the provisions of this section, any profit made by him shall belong to and may be recovered by the principal; but any loss shall be borne by the mercantile agent. (4) Every mercantile agent who purchases any consigned products shall within ten days thereafter render to the principal an account in writing, stating clearly that the mercantile agent has purchased for his own account, and indicating precisely and in detail the goods so purchased, the prices paid therefor and the amounts due and owing to the principal in respect thereof. (5) Nothing in this section shall affect the validity of any sale or other disposition of any consigned products for valuable consideration made by a mercantile agent to any person acting in good faith. 1927, c.64, s.14; R.S.S. 1930, c.238, s.14. Agent furnishing false or misleading information 15 Every mercantile agent and every director, officer, shareholder, employee and agent of a mercantile agent, who furnishes a principal with false or misleading information re garding any consignment or the disposition thereof or the moneys received therefor shall be guilty of an offence against this Act, unless he furnishes a reasonable explanation of the error and proves that there was no intent to deceive or mislead. 1927, c.64, s.15; R.S.S. 1930, c.238, s.15.

8 8 c. 238 SALES ON CONSIGNMENT Agent not giving impartial distribution 16 Every mercantile agent under obligation to give impartial distribution of any products to or among any persons or class of persons who, without justification, discriminates in price, adjustments, facilities for purchase, supply or other wise, between or among such persons or members of such class shall be guilty of an offence against this Act. 1927, c.64, s.16; R.S.S. 1930, c.238, s.16. Onus of proof in absence of records 17 If, in any action brought by or on behalf of any principal before the expiration of six years from the sale or other final disposition of any consignment, it appears that the mercantile agent has not substantially complied with the provisions of section 6, it shall as against the mercantile agent be deemed, prima facie, that the products or portion thereof as to which there is any dispute were sold or otherwise disposed of at such prices as products in good condition of a similar description are shown by or on behalf of the principal to have been sold or disposed of at or about the same time; and the onus of proving a sale or other disposition at other prices, and any losses, deterioration, rebates, allowances, expenses, disbursements and deductions, shall lie upon the mercantile agent, and to the full extent to which the mercantile agent fails to discharge such burden of proof the principal shall recover judgment. 1927, c.64, s.17; R.S.S. 1930, c.238, s.17. Inspection by principal 18 At the request of his principal, or on the production by any person of an authorisation thereunto from the principal, every mercantile agent, and every director, officer, employee and agent of the mercantile agent shall admit the principal or authorised person, as the case may be, to all parts of the premises of, or used or occupied by or on behalf of the mercantile agent, where there are or have been stored or kept any pro ducts, or where there are or have been kept any books or records of the mercantile agent, and shall permit him to in spect the said premises and their contents; and the mer cantile agent or director, officer, employee or agent of the mercantile agent shall at the same time produce and submit for inspection of the principal or authorised person, as the case may be, all books and records relating to or contain ing any reference to the products of the principal or the disposition made of them, or to the proceeds thereof. 1927, c.64, s.18; R.S.S. 1930, c.238, s.18. Appointment of inspectors by minister 19(1) The minister may, from time to time, by writing appoint and authorise any person or persons to inspect the books, records and premises of mercantile agents. Such appointment may be made generally or by description and without naming the person or persons whose books, records and premises are to be examined. (2) On the production by any person of the authority of the minister every mercantile agent and every director, officer, employee and agent of a mercantile agent shall admit such authorised person to all parts of the premises of, or used or occupied by or on behalf of the mercantile agent where there are or have been stored or kept any products, or where there are or have been kept any books or records of the mercantile agent, and the mercantile agent or director, officer, employee or agent of the mercantile agent shall at the same time pro duce and submit for inspection of such authorised person all books and records relating to or containing any reference to transactions dealing with consigned products. 1927, c.64, s.19; R.S.S. 1930, c.238, s.19.

9 SALES ON CONSIGNMENT c Refusal to permit inspection 20 Every mercantile agent and every director, officer, employee and agent of a mercantile agent who, in violation of the provisions of this Act, refuses or neglects to admit a prin cipal or any person authorised by him or by the minister or who refuses or neglects to produce or submit for the inspection of the principal or any authorised person, any record, or who refuses or neglects to furnish the principal or authorised person with the means and assistance necessary for making any entry or inspection, or who prevents or impedes the principal or authorised person in his inspection, shall be guilty of an offence against this Act. 1927, s.64, s.20; R.S.S. 1930, c.238, s.20. Agent to post up Act 21 Every mercantile agent shall cause a copy of this Act to be posted up, and to be kept posted up in a conspicuous place on his premises, and it shall be the duty of every mer cantile agent to cause his directors, officers, employees and agents to become acquainted with the provisions thereof. 1927, c.64, s.21; R.S.S. 1930, c.238, s.21. Duties of officers and employees 22 Every director, officer, employee and agent of every mercantile agent shall comply with the provisions of this Act, and shall, so far as he has authority over any other person, cause the same to be complied with; and every such director, officer, employee, or agent who fails to comply with any pro vision of this Act shall be guilty of an offence against this Act. 1927, c.64, s.22; R.S.S. 1930, c.238, s.22. Liability of manager 23 Where an offence against this Act is committed by a mercantile agent, director, officer, employee or agent of the mercantile agent in charge of the business of the mercantile agent at the place at which the offence is committed shall prima facie be deemed to be a party to the offence so committed and shall be personally liable to the penalties prescribed for the offence as a principal offender; and the records of such mercantile agent shall, as against the director, officer, employee or agent, be prima facie evidence of the facts and transactions therein recorded, set out, or indicated, but nothing in this section shall relieve the mercantile agent or the person who actually committed the offence from liability therefor. 1927, c.64, s.23; R.S.S. 1930, c.238, s.23. Liability of corporation 24 Every offence against this Act, committed by any director, officer, employee or agent of a corporation acting as mercantile agent shall be deemed to be the offence of the corporation, and the corporation shall be answerable for and be liable to the penalty for the offence; but nothing in this section shall absolve the actual offender from liability in respect of the offence. l927, c.64, s.24; R.S.S. 1930, c.238, s.24.

10 10 c. 238 SALES ON CONSIGNMENT Jobber controlled broker 25(1) So far as the legislative authority of this province extends, no corporation authorised to carry on the business of mercantile agent, the major or a substantial portion of whose shares is held: (a) by or on behalf of any person or persons, shareholders in any corporation carrying on within or without the province a wholesale or jobbing business in pro ducts; or (b) by or on behalf of any person, partnership or corpor ation or group of cprporations carrying on within or without the province a wholesale or jobbing bus iness in products; or (c) by or on behalf of any partnership or corporation which is part of or a member of or belongs to a group or organisation of partnerships or corporations carrying on within or without the province a wholesale or jobbing business in products; shall carry on the business of mercantile agent in the province; and no corporation authorised to carry on the business of mercantile agent, which is part of or a member of, or belongs to a group or organisation of partnerships or corporations or both, carrying on within or without the province a whole-sale or jobbing business in products, shall carry on the business of mercantile agent in the province. (2) No mercantile agent shall, consign, or otherwise dispose of the products of his principal to: (a) any partnership or corporation which is substan tially owned, operated or controlled by the same person or group or class of persons, or organisation, as substantially owns, operates or controls the mer cantile agent; (b) any partnership or corporation which is part of or a member of, or belongs to, any group or organisation of partnerships or corporations or both to which the mercantile agent belongs or of which the mercantile agent is a member or part. (3) The Court of King s Bench shall have such jurisdiction as may be necessary to give effect to the provisions of this section, and in addition to any other relief may, on the summary application of the Attorney General, order the dissolu tion of any corporation incorporated under the laws of the province, which contravenes the provisions of this section, and the cancellation of any registration of any corporation which contravenes the provisions of this section. (4) Every person contravening the provisions of this section shall be guilty of an offence against this Act. 1927, c.64, s.25; R.S.S. 1930, c.238, s.25. HISTORICAL REFERENCE ONLY Act not to apply to co-operative associations in certain cases 26 Nothing in this Act shall apply to the marketing through co-operative associations, or through corporations controlled or operated by co-operative associations, of the products of producers who are members of such associations. 1927, c.64, s.26; R.S.S. 1930, c.238, s.26.

11 SALES ON CONSIGNMENT c Penalty 27(1) Any person guilty of an offence against any of the foregoing provisions of this Act or neglecting, refusing or omitting, to comply with any of these provisions, or committing any breach or contravention of any of these provisions, shall on summary conviction be liable, if an individual to a penalty not exceeding ten thousand dollars or to imprisonment for a term not exceeding two years, or to both; and if a crporation to a fine not exceeding one hundred thousand dollars. (2) In the case of any offence punishable under this section, the complaint shall be made or the information shall be laid within six months from the time when the matter of complaint or information came to the knowledge of the principal, provided that no complaint may be made or information laid more than six years after the matter of complaint or information arose. 1927, c.64, s.27; R.S.S. 1930, c.238, s.27. License required 28 Subject to the provisions hereinafter contained no person shall act or engage in the business of a mercantile agent in Saskatchewan unless he is the holder of a valid and sub sisting license under this Act. 1927, c.64, s.28; R.S.S. 1930, c.238, s.28. Form of application 29 Applications for a license shall be made to the minister in a form to be prescribed by him. 1927, c.64, s.29; R.S.S. 1930, c.238, s.29. Bond by applicant and fee for license 30(1) When an application has been approved the minister shall issue a license to the applicant empowering him to carry on the business of a mercantile agent until the thirtieth day of April following, provided that: (a) the applicant furnishes a bond in favour of His Majesty in a sum of not less than two thousand dollars, with one or more sufficient sureties, in such form and with such conditions as may be prescribed by regulation of the Lieutenant Governor in Council, such bond to be approved by the minister; (b) the applicant pays a license fee of ten dollars. License to be displayed (2) Such license shall be at all times displayed in a conspicuous place upon the premises of the licensee. 1927, c.64, s.30; R.S.S. 1930, c.238, s.30. Renewal of license 31 Every license issued under this Act shall expire on the thirtieth day of April following the date of issue, and shall be renewable from year to year on payment of a fee of $10 and on compliance with the provisions of this Act and of any regulations made thereunder. 1927, c.64, s.31; R.S.S. 1930, c.238, s.31.

12 12 c. 238 SALES ON CONSIGNMENT Suspension or revocation of license 32(1) The Lieutenant Governor in Council may at any time, upon the recommendation of the minister, suspend or revoke any license issued under this Act. (2) The minister may at any time demand from a licensed mercantile agent such additional bond as he may think fit. 1927, c.64, s.32; R.S.S. 1930, c.238, s.32. Proceedings to enforce bond 33(1) If the minister finds that a mercantile agent has failed to pay to his principal the full balance due him, he may require the sureties to pay the deficiency and in default of their doing so may take proceedings to enforce the bond for the ben efit of the principal, or he may assign the bond to the principal, if deemed expedient. (2) Where the mercantile agent has made an assignment for the general benefit of creditors or been adjudged a bankrupt, the minister may assign the bond to the trustees in bankruptcy, or to the receiver, for the benefit of unpaid prin cipals. 1927, c.64, s.33; R.S.S. 1930, c.238, s.33. Penalty 34(1) Every person carrying on the business of a mer cantile agent without a license shall be guilty of an offence and liable, on summary conviction, to a penalty not exceeding $20 for every day during which the default continues, and proof of the possession of a license shall be at all times upon the accused. (2) A company incorporated by or under the authority of an Act of the Parliament of Canada shall not be considered in default if it procures a license within thirty days after commenc ing business in this province. 1927, c.64, s.34; R.S.S. 1930, c.238, s.34. Regulations 35 The Lieutenant Governor in Council may make regu lations to carry out the purposes of this Act, and such regula tions shall have the same force and effect as if incorporated herein. 1927, c.64, s.35; R.S.S. 1930, c.238, s.35. REGINA, SASKATCHEWAN Printed by the authority of THE QUEEN S PRINTER