My BIL has supplied 3 benches to a church, he contracted with a company that has become insolvent (received IP’s letter etc). 1 is “delivered” ie in situ (outside the church) and invoiced for. While the other 2 are not due for delivery yet he took them to the church and left them inside at the same time to save travelling.

It seems to me he is ****ed regarding the 1st bench but can argue he still owns the other 2…and would be OK to just go and take them?

Funders (local Council) are keen to pay for remaining benches and asked he “not do anything rash” but as I see it he’s not lost anything if he takes them back and can re-sell them to them (or a 3rd party if it doesn’t wok out) although this may be a low risk situation – better safe than sorry?

Funders (local Council) are keen to pay for remaining benches

send them an invoice directly for 2 benches ‘already installed’.

Did he have decent retention of title clause on the invoice? The IP would want proof of title before allowing benches 2 & 3 to be removed, so the challenge there is to prove they are his.

He could invoice for them, but I’d want to make sure that the council didn’t cock up and pay the insolvent company for them by mistake. In my view it wouldn’t be particularly rash for him to take posession of them until the proposed delivery date to make sure that he was going to get paid for them.

Cheers folks, I’m speaking to him later, I’e no idea about the ROT/invoicing details.

he doesnt need a ROT clause, he needs to confirm there was no pass/waiver of title provision. If its silent he still owns what someone didnt pay for and it cant pass to the ultimate client because the company didnt have good title. However he cantdoesnt have the right to just go and remove them, that could be trespass – if he was challenged that is….

I sell civil engineering stuff and in our terms we state the ownership of property is transferred once payment is received.

OK the contract turns out to be a pro-fprma building sub-contract, so no ROT there. It relates to the 1st of the 3 benches only – it was drafted before benches 2 and 3 were ordered. And it was signed after all 3 were delivered!

Anyway no ROT clause meaning delivery makes title pass, correct?

Check that contract is valid before giving up on that. And even if it is, ought the director of the contractor to have allowed it to be signed as (surely, you would argue) he knew he was going bust. There’s a liability game to be played there.

Delivery – were they delivered to the insolvent contractor or were they simply stored on site with the permission of the ultimate client until the planned future delivery? Unless there’s a strong paper trail proving the IP has control, might some conversations with the ultimate client get you somewhere?

AFAIK signing was pre-insolvency.

Benches were left on the site (a church – not owned by the subbie) with I guess implicit consent of ultimate client.

Ultimate client/funder is local Council I guess – who were paying for benches for the church (client).

Anyway no ROT clause meaning delivery makes title pass, correct?

Wrong

So if there is no contract with the church/council and were not officially delivered to the “contractor” he can just go and get them.
Should the church wish to keep them tell them to raise an order to supply. Your BIL can then invoice them directly.