The contract contained certain provisions relating to the ownership of goods to VVB prior to their delivery to the site. To this end, Optilan should issue free movement certificates to confirm the transfer of ownership. Optilan, however, placed an additional condition in the certificates stating that the transfer of ownership would be done with the “intermediate payment receipt” for the goods. Optilan duly claimed the goods. Die VVB hatte jedoch eine Ausgleichsforderung gegen Optilans Forderung im Wert der Warenforderung. The VVB therefore made a “lower payment” with respect to the optilans claim.1 The VVB considers that no net amount was owed by the VVB to Optilan, as stated in its “staggered” communication, but that the title to the goods was transferred when it had not made an actual cash payment for the goods. Click here to download “Building Contracts: Property Rights” (PDF). A recent case highlights the role that vesting clauses and vesting certificates can play in the possession of materials. The Tribunal examined the conditions of the ambiguous free movement certificates to determine the existence of a transfer of ownership of goods and materials. The VVB submitted that ownership of the goods had been transferred to them in the free communication because they had included the “reported values” of the materials in the raw certification. Optilan submitted that neither the payment certificate nor the toll notification could constitute the receipt of the “payment” and that the abandonment had not taken place. To complicate matters, vvB has become insolvent.
(1) In another [transfer contract for the transfer of property in question] which does not apply in paragraph 3 below, there is an implied condition on the part of the assignor to have the right to transfer the property in the event of the transfer of the assets in the goods and, in the event of an agreement to transfer the property to the commodity, such a right invoked by Optilan at the time of the contrary the fact that the breach did not take place because neither payment no less constitutes the receipt of a payment as provided in the wording of the Vesting certificates. How do you determine what is “set” for these purposes? First, you need to see both the degree of annexation and the purpose of the annexation.2 Something that is not at all appropriate, but based on its own weight (which is not excessive) will probably not be fixed to the campaign. If there is some annexation (i.e. the goods are not simply bulk on the ground), the burden of proof for the property moves away from the landowner and further to the party trying to prove the goods. The Tribunal found that, while the contract contemplated Optilan`s payment for the goods, this did not mean that the transfer of ownership depended on Optilan`s actual receipt of an amount indicated in the Vesting certificates. The inclusion of a declared sum was only the first necessary step in the payment transaction and could not be read as a “safeguard” of the payment of the values indicated in them.