The Conditional Sales Act

Transcription

1 The Conditional Sales Act being Chapter 291 of The Revised Statutes of Saskatchewan, 1940 (effective February 1, 1941). 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 Conditional sales 3 Registration 4 Registration in case of motor vehicles 5 Registration in outside districts 6 Memorandum of satisfaction 7 Retaking possession 8 Notice of sale 9 Notice of repossession and sale to be given to assignor 10 Copies of instrument evidence 11 Fees 12 When registration not necessary 13 Rectification of omissions and errors 14 Power of clerk to administer oaths 15 Goods affixed to realty 16 Assignment 17 Removal into Saskatchewan of goods subject to conditional sale or bailment 18 Where sale subject to foreign law 19 Implied conditions and warranties in contract of conditional sale or bailment 20 Certain conditions prohibited 21 Agreements waiving Act null and void 22 Application of sections 19, 20 and 21 to hire-purchase contracts

3 CHAPTER 291 An Act respecting Lien Notes and Conditional Sales of Goods Short title 1 This Act may be cited as The Conditional Sales Act. R.S.S. 1930, c.243, s.1; R.S.S. 1940, c.291, s.1. Conditional sales 2(1) Whenever on a sale or bailment of goods of the value of $15 or over it is agreed, provided or conditioned that the right of property or right of possession in whole or in part shall remain in the seller or bailor notwithstanding that the actual possession of the goods passes to the buyer or bailee, the seller or bailor shall not be permitted to set up any such right of property or right of possession as against any purchaser or mortgagee of or from the buyer or bailee of such goods in good faith for valuable consideration or as against judgments, executions or attachments against the buyer or bailee unless the contract of sale or bailment with such agreement, proviso or condition is in writing signed by the buyer or bailee or his agent and registered as hereinafter provided. Such writing shall contain such a description of the goods the subject of the sale or bailment that the same may be readily and easily known and distinguished. (2) Nothing in this section or in section 17 or section 18, shall apply to any bailment where it is not intended that the property in the goods shall eventually pass to the bailee on payment of purchase money in whole or in part or the performance of some condition by the bailee. (3) Nothing in this section or in section 17 or section 18, shall apply in cases of conditional sales or bailments of incorporated companies to railway companies if the contract evidencing the conditional sale or bailment or a copy thereof certified under the hand of the president or vice president and secretary of the company and verified by an affidavit of the secretary thereto attached or indorsed thereon and having the corporate seal attached thereto is filed with the registrar of joint stock companies within thirty days from the execution thereof. R.S.S. 1930, c.243, s.2; R.S.S. 1940, c.291, s.2. Registration 3(1) Such writing or a true copy thereof shall be registered in the office of the registration clerk for chattel mortgages in the registration district within which the buyer or bailee resides within thirty days from the time of the actual delivery of the goods to the buyer or bailee; and if the goods are delivered in a registration district other than that in which the buyer or bailee resides at the time of the delivery, such writing or a true copy thereof shall also be registered, within thirty days from the time of the actual delivery of the goods, in the registration district in which the goods are delivered. (2) If the goods are after the delivery thereof removed by the buyer or bailee into another registration district, a true copy of such agreement shall be filed in the registration district into which the goods are removed, within sixty days after removal.

4 4 c. 291 CONDITIONAL SALES (3) Every such agreement or a true copy thereof shall, upon every such registration, be accompanied by an affidavit of the seller or bailor or his agent stating that the written agreement annexed thereto truly sets forth the agreement entered into between the parties and that the said agreement was entered into bona fide and not for the purpose of protecting the goods mentioned therein against the creditors of the buyer or bailee. (4) Where a lien note is taken under the provisions of The Farm Implement Act, the registration of the note or a true copy thereof accompanied by an affidavit of the seller or bailor, or his agent, stating that the said lien note was given under the provisions of The Farm Implement Act, bona fide and not for the purpose of protecting the goods mentioned therein against the creditors of the buyer or bailee, shall be a sufficient compliance with the provisions of subsection (3). (5) No goods comprised in a lien note or conditional sale agreement shall be removed into another registration district unless a notice of the intention to remove is mailed, post paid and registered, to the seller or vendor at his last known place of address not less than twenty days prior to such removal. (6) A person violating the provisions of subsection (5) shall be guilty of an offence and liable on summary conviction to a fine not exceeding $100. R.S.S. 1930, c.243, s.3; R.S.S. 1940, c.291, s.3. Registration in case of motor vehicles 4(1) When the subject of a conditional sale or bailment is a motor vehicle within the meaning of The Vehicles Act, the writing evidencing the sale or bailment or a true copy thereof, authenticated as required by subsection (3) of section 3, shall be registered, within thirty days from the time of the actual delivery of the vehicle, in the office of the registration clerk for chattel mortgages in the registration district of Regina and in the registration district in which the buyer or bailee resides if that is a district other than the registration district of Regina. (2) Except as mentioned in subsection (1), the provisions of section 3 shall not apply to such sale or bailment. (3) No motor vehicle, the subject of a sale or bailment evidenced by a lien note or conditional sale agreement registered as required by this section, shall be removed out of Saskatchewan without the written consent of the seller or bailor. (4) Any person violating the provisions of subsection (3) shall be liable to a penalty not exceeding $100. R.S.S. 1930, c.243, s.4; , c.76, s.2; R.S.S. 1940, c.291, s.4. Registration in outside districts 5(1) In cases falling within section 4, where the buyer or bailee resides in a registration district other than Regina, the writing evidencing the sale or bailment, or a true copy thereof authenticated as required by subsection (3) of section 3, may be registered in the office of the registration clerk for that district, and a true copy so authenticated filed with the clerk to be forwarded by him to the clerk of the registration district of Regina. (2) On receipt of such copy and on payment of the necessary postage and the proper fee for registration at Regina, the clerk shall forward the copy by registered mail to the clerk for the registration district of Regina who shall register the same.

5 CONDITIONAL SALES c (3) The registration clerk in whose office the writing evidencing the sale or bailment, or a true copy thereof, is first registered shall not be considered the agent of the seller or bailor or person registering the document, nor shall he be liable for any delay or for any failure to forward the copy. R.S.S. 1930, c.243, s.5; R.S.S. 1940, c.291, s.5. Memorandum of satisfaction 6 The seller or bailor shall, upon payment or tender of the amount due in respect of such goods or performance of the conditions of the bailment, sign and deliver to any person demanding it a memorandum in writing stating that his claims against the goods are satisfied, and such memorandum shall thereupon operate to divest the seller or bailor of any further interest or right of possession in the goods. Any such memorandum, if accompanied by an affidavit of execution of an attesting witness may be registered. R.S.S. 1930, c.243, s.6; R.S.S. 1940, c.291, s.6. Retaking possession 7 In case the seller or bailor retakes possession of the goods, he shall retain the same in his possession for at least twenty days and the buyer, bailee or any one claiming by or through or under the buyer or bailee, may redeem the same upon payment of the amount actually due thereon and the actual necessary expenses of taking possession. R.S.S. 1930, c.243, s.7; R.S.S. 1940, c.291, s.7. Notice of sale 8 The goods shall not be sold without eight days notice of the intended sale being first given to the buyer or bailee or his successor in interest. The notice may be personally served or may, in the absence of such buyer, bailee or his successor in interest, be left at his residence or last place of abode or may be sent by registered letter deposited in the post office at least ten days before the time when the said eight days will elapse, addressed to the buyer or bailee or his successor in interest at his last known post office address in Canada. The said eight days or ten days may be part of the twenty days mentioned in section 7. R.S.S. 1930, c.243, s.8; R.S.S. 1940, c.291, s.8. Notice of repossession and sale to be given to assignor 9(1) Where the seller or bailor assigns his interest in the contract of sale or bailment and agress with the assignee to be liable for any sums due under the contract in default of payment thereof by the buyer or bailee, and the assignee retakes possession of the goods, he shall, within forty-eight hours thereafter, give notice thereof to the assignor. The notice may be personally served or may, in the absence of the assignor, be left at his residence or last place of abode or may be sent by registered letter deposited in the post office within the said forty-eight hours addressed to the assignor at his last known post office address in Canada. (2) The assignee shall not sell the goods without first having given eight days notice of the intended sale to the assignor. The notice may be given in the same manner as the notice provided for by section 8 and the said eight days may be part of the twenty days mentioned in section , c.53, s.1; R.S.S. 1940, c.291, s.9.

6 6 c. 291 CONDITIONAL SALES Copies of instrument evidence 10 Copies of any instrument filed under this Act certified by the registration clerk shall be received as prima facie evidence for all purposes as if the original instrument were produced, and also as prima facie evidence of the execution of the original instrument according to the purport of such copy. And the clerk s certificate shall also be prima facie evidence of the date and hour of registration or filing. R.S.S. 1930, c.243, s.9; R.S.S. 1940, c.291, s.10. Fees 11 The fees payable for services under this Act shall be such as may from time to time be prescribed by the Lieutenant Governor in Council. R.S.S. 1930, c.243, s.10; R.S.S. 1940, c.291, s.11. When registration not necessary 12 Registration shall not be required in the case of a sale or bailment of manufactured goods, of the value of $15 or over, which, at the time of the actual delivery thereof to the buyer or bailee, have the manufacturer s or vendor s name painted, printed or stamped thereon or plainly attached thereto by a plate or similar device; provided that the manufacturer or vendor, being the seller or bailor of such goods, keeps an office in Saskatchewan where inquiry may be made and information procured concerning the sale or bailment of such goods; and provided further that the manufacturer or vendor or his agent does, within five days after receiving a request so to do made to him either in person or by registered letter, furnish to any applicant therefor a statement of the amounts, if any, paid thereon and the balance remaining unpaid. The person so inquiring shall if such inquiry is by letter give a name and post office address to which a reply may be sent ; and it shall be sufficient if the required information is given by registered letter deposited in the post office within the said five days addressed to the person inquiring at his proper post office address, or where a name and address is given, addressed to such person by the name and at the post office so given. R.S.S. 1930, c.243, s.11; 1931, c.78, s.1; R.S.S. 1940, c.291, s.12. Rectification of omissions and errors 13 Subject to the rights of third persons accrued by reason of such omissions as are hereinafter defined, a judge of the Court of King s Bench or the judge of the district court of the judicial district within which goods the subject of a conditional sale or bailment are situated, on being satisfied that the omission to register any instrument under this Act within the time prescribed by this Act or the omission or mis-statement of the name, residence or occupation of any person was accidental or due to inadvertence or impossibility in fact, may in his discretion order such omission or mis-statement to be rectified by the insertion of the true name, residence or occupation or by extending the time for registration, on such terms and conditions, if any, as to security, notice by advertisement or otherwise or as to any other matter, as he thinks fit to direct. R.S.S. 1930, c.243, s.12; R.S.S. 1940, c.291, s.13.

7 CONDITIONAL SALES c Power of clerk to administer oaths 14 All oaths required for this Act may be taken and administered by the registration clerk or his deputy and the sum of 25 cents shall be payable for every oath thus administered. R.S.S. 1930, c.243, s.13; R.S.S. 1940, c.291, s.14. Goods affixed to realty 15 Where the goods have been affixed to realty they shall remain subject to the rights of the seller or bailor as fully as they were before being so affixed and shall not be realty so long as the claim of the seller or bailor against the goods remains unsatisfied but the owner of such realty or any purchaser or any mortgagee or other incumbrancee thereof shall have the right as against the seller or bailor or other person claiming through or under him to retain the goods upon payment of the amount owing on them c.76, s.3; R.S.S. 1940, c.291, s.15. Assignment 16 A valid assignment of a lien note or conditional sale agreement shall transfer the assignor s rights of property in the goods therein comprised, his rights of seizure, removal and sale and all other rights with regard to the enforcement of the security possessed by him. R.S.S. 1930, c.243, s.15; R.S.S. 1940, c.291, s.16. Removal into Saskatchewan of goods subject to conditional sale or bailment 17 In the event of the permanent removal into Saskatchewan of goods of the value of $15 or over subject to an agreement, made or executed without Saskatchewan, that the right of property or right of possession in whole or in part shall remain in the seller or bailor notwithstanding that the actual possession of the goods passes to the buyer or bailee, then, unless: (a) the agreement contains such a description of the goods, the subject of the sale or bailment, that the same may be readily and easily known and distinguished; (b) a copy thereof and of the affidavits and instruments relating thereto, proved to be a true copy by the affidavit of some person who has compared the same with the originals, is filed in the office of the registration clerk of the district to which such goods and chattels are removed, within three weeks from such removal; the seller or bailor shall not be permitted to set up any right of property in or right of possession to the goods as against the creditors of the buyer or bailee, a trustee in bankruptcy, a liquidator in winding up proceedings, subsequent purchasers or mortgagees in good faith for valuable consideration whose conveyances or mortgages have been duly registered or are valid without registration, or as against judgments, executions or attachments against the buyer or bailee. R.S.S. 1930, c.243. s.16; R.S.S. 1940, c.291, s.17.

8 8 c. 291 CONDITIONAL SALES Where sale subject to foreign law 18 When a contract has been made without Saskatchewan with reference to goods not then within Saskatchewan, by which under the law governing the contract the vendor has, upon default in payment of the price or the insolvency of the purchaser, a right of revendication or a preference for the price of the goods sold or a right to a dissolution of the sale and to resume possession of the goods notwithstanding the possession of the purchaser, and the goods are brought into Saskatchewan, the vendor shall not be permitted to set up such right of revendication, such preference for the price or, except in the case of an agreement which complies with the terms of section 17 and is registered as thereby required, such right to a dissolution of the sale and to resume possession of the goods, as against the creditors of the buyer or bailee, a trustee in bankruptcy, a liquidator in winding up proceedings, subsequent purchasers or mortgagees in good faith for valuable consideration, whose conveyances or mortgages have been duly registered or are valid without registration, or as against judgments, executions or attachments against the buyer or bailee. R.S.S. 1930, c.243, s.17; R.S.S. 1940, c.291, s.18. Implied conditions and warranties in contract of conditional sale or bailment 19(1) In every contract of conditional sale or bailment there is: (a) an implied warranty that the buyer or bailee shall have and enjoy quiet possession of the goods; (b) an implied condition on the part of the seller or bailor that he will have a right to sell the goods at the time when the property is to pass; (c) an implied warranty that the goods shall be free from any charge or incumbrance in favour of any third party not declared or known to the buyer or bailee before or at the time when the contract is made; (d) except where the goods are sold or let as second hand goods and the contract of sale or bailment contains a statement to that effect, an implied condition that the goods shall be of merchantable quality; provided that no such condition shall be implied by virtue of this clause as regards defects of which the seller or bailor could not reasonably have been aware at the time when the contract was made or, if the buyer or bailee has examined the goods, as regards defects which the examination ought to have revealed; (e) where the buyer or bailee expressly or by implication makes known the particular purpose for which the goods are required, an implied condition that the goods shall be reasonably fit for that purpose, except where the goods are sold or let as second hand goods and the contract of sale or bailment contains a statement to that effect.

9 CONDITIONAL SALES c (2) Notwithstanding the provisions of section 21, the seller or bailor shall be entitled to rely on a provision in the contract excluding or modifying the condition set out in clause (e) of subsection (1) if he proves that before the contract was made the provision was brought to the notice of the buyer or bailee and its effect made clear to him. (3) Nothing in this section shall prejudice the operation of any other enactment or rule of law whereby any condition or warranty is to be implied in any contract of conditional sale or bailment. (4) This section shall not apply to a contract for sale of a farm implement. 1939, c.88, s.1; R.S.S. 1940, c.291, s.19. Certain conditions prohibited 20 No conditional sale agreement or lien note, or agreement collateral thereto, shall contain any provision the application of which depends merely on the opinion of the seller or bailor that a circumstance or state of things exists which affects his security; and any such provision shall be null, void and of no effect. 1939, c.88, s.1; R.S.S. 1940, c.291, s.20. Agreements waiving Act null and void 21 Subject to subsection (2) of section 19, every agreement or bargain, verbal or written, express or implied, that this Act or any provision thereof shall not apply or that any benefit or remedy provided by it shall not be avialable, or which in any way limits, modifies or abrogates or in effect limits, modifies or abrogates any such benefit or remedy, is and shall be null, void and of no effect. 1939, c.88, s.1; R.S.S. 1940, c.291, s.21. Application of sections 19, 20 and 21 to hire-purchase contracts 22 Sections 19, 20 and 21 shall, mutatis mutandis, also apply to contracts or agreements for the hire and purchase of goods on the system commonly known as the hire-purchase system. 1939, c.88, s.1; R.S.S. 1940, c.291, s.22.

10 Regina, Saskatchewan Printed by the authority of THE QUEEN S PRINTER