Absolute Bill of Sale
The Bill of Sale Act applies to so-called absolute bills of sale and security bills of sale. An absolute bill of sale is an instrument in writing giving effect to the transfer of immovable property. There is no absolute bill of sale in the usual case, where there is a contract for the sale of goods followed by the transfer of the title to the goods by delivery. A bill of sale is in the nature of a transfer of title.
Bills of sale are rarely encountered although they can come into existence unintentionally. Bills of sale may be subject to stamp duty and are subject under Victorian legislation with complex requirements.
Non-compliance with the Bill of Sale Act in the context of security may render it void. Accordingly, they are usually avoided but the topic is necessary to consider from the perspective of ensuring avoidance.
The purpose of the Bill of Sale Act was to protect creditors from secret transfers of goods by persons who retain possession thereby giving the impression of having more assets than they in fact own. An unregistered bill of sale is void against creditors, bankruptcy officers, sheriffs and other enforcement officers.
The Bill of Sale Act applies only to documents whereby title is transferred. If the transfer takes place orally or symbolically by delivery, it does not apply. It does not apply in the almost invariable circumstances whereby there is a contract for the sale of goods followed by a transfer of title by delivery.
The Act relates to personal chattels i.e. movable items. It applies where the seller retains possession of the goods The Act does not apply to companies. It applies only to individuals and bodies of persons.
The existence or otherwise of a bill of sale is considered by reference to the substance rather than the label. The courts will look at the true nature of the arrangement in the circumstances.
An absolute bill of sale must
- set out the consideration
- be witnessed by a solicitor who confirms he has explained its effect
- be registered in the High Court (Queen’s Bench) within seven days
- an affidavit must prove its proper witnessing.
An absolute bill which fails to comply with the requirements is void as against sheriffs and other court officers in execution of judgements and in a bankruptcy. The bill is still binding on the person who granted it.
The bill is void for non-registration where the seller remains in possession or apparent possession of the goods in question.
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