Zahnrad Fabrik Passau v Terex [1985] ScotCS CSOH_6 (29 August 1985)

Zahnrad Fabrik Passau v Terex [1985] ScotCS CSOH_6 (29 August 1985)

The defenders' averments of accession were irrelevant as they did not specify facts showing that the goods could not be removed without destruction or material detriment. If the pursuers prove incorporation of their terms, including retention of title, they retain property in the goods until payment. The court allows proof before answer on the incorporation issue but excludes the defenders' averments on accession from probation.

Citation
[1985] ScotCS CSOH_6
Parties
Pursuer: Zahnrad Fabrik Passau GmbH; Defender: Terex Limited and its joint receivers
Jurisdiction
Scotland
Judgment Date
29 August 1985
Procedural Posture
Civil / Procedure Roll (interlocutory)
Outcome
Proof before answer allowed on specified issues; defenders' averments on accession excluded from probation.
Legal Topics
Retention of Title, Sale of Goods, Accession, Choice of Law, Incorporation of Terms
Conflict of Laws Commercial Law Property Law Retention of Title Sale of Goods Accession Choice of Law Incorporation of Terms

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Parties

Zahnrad Fabrik Passau GmbH

Pursuer

Terex Limited and its joint receivers

Defender

Procedural Posture

Civil / Procedure Roll (interlocutory)

Legal Issues

  1. 1 Whether the pursuers' general terms and conditions, including retention of title, were incorporated into the contracts
  2. 2 Whether German law or Scots law governs the passing of property in the goods
  3. 3 Whether the defenders' averments of accession under Scots law are relevant

Ratio Decidendi

The defenders' averments of accession were irrelevant as they did not specify facts showing that the goods could not be removed without destruction or material detriment. If the pursuers prove incorporation of their terms, including retention of title, they retain property in the goods until payment. The court allows proof before answer on the incorporation issue but excludes the defenders' averments on accession from probation.

Court Disposition

Proof before answer allowed on specified issues; defenders' averments on accession excluded from probation.

Orders

  • Proof before answer allowed in relation to the first, second, and third conclusions, restricted to averments in condescendence 3 and answer 3.
  • Proof before answer allowed in relation to the fourth, fifth, and sixth conclusions.