Gavin's Trustee v. Fraser [1920] ScotLR 595 (22 June 1920)

Gavin's Trustee v. Fraser [1920] ScotLR 595 (22 June 1920)

The Inner House held that the transaction was in both form and substance a sale, not a disguised security; section 61(4) did not apply because the parties intended to create a sale, not a security; property in the plant passed to Fraser before bankruptcy; the transfer was not a fraudulent preference.

Citation
[1920] ScotLR 595
Parties
Pursuer: William Craighead, trustee on the sequestrated estates of Duncan Loggie Gavin; Defender: George Lindsay Fraser, timber merchant
Jurisdiction
Scotland
Judgment Date
22 June 1920
Procedural Posture
Civil / Appeal (reclaiming Motion)
Outcome
appeal allowed; defender assoilzied (absolved)
Legal Topics
Sale Versus Security, Pactum De Retrovendendo, Sale of Goods Act 1893 Section 61(4), Fraudulent Preference, Sequestration, Ownership of Moveables
Contract Law Commercial Law Bankruptcy Law Sale Versus Security Pactum De Retrovendendo Sale of Goods Act 1893 Section 61(4) Fraudulent Preference Sequestration +1 more

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Parties

William Craighead, trustee on the sequestrated estates of Duncan Loggie Gavin

Pursuer

George Lindsay Fraser, timber merchant

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion)

Legal Issues

  1. 1 Was the transaction between Gavin and Fraser a genuine sale or a disguised security?
  2. 2 Does section 61(4) of the Sale of Goods Act 1893 apply to exclude the operation of the Act?
  3. 3 Did property in the plant pass to Fraser before bankruptcy?

Ratio Decidendi

The Inner House held that the transaction was in both form and substance a sale, not a disguised security; section 61(4) did not apply because the parties intended to create a sale, not a security; property in the plant passed to Fraser before bankruptcy; the transfer was not a fraudulent preference.

Court Disposition

appeal allowed; defender assoilzied (absolved)

Orders

  • Lord Ordinary's interlocutor recalled
  • Defender absolved from all conclusions of the summons