CHAPTER
342
HIRE-PURCHASE |
ARRANGEMENT OF
SECTIONS |
PART I
PRELIMINARY |
SECTION |
|
|
Restricted application of Parts II, IV and V. |
PART II
GENERAL |
Enforcement conditional on compliance with
specified requirements. |
Requirements as to cash price. |
Requirements as to content and form of
agreements. |
Requirements as to copies where hirer or buyer
signs at appropriate trade premises. |
Requirements as to copies where hirer or buyer
signs elsewhere than at appropriate trade premises. |
Power of court to dispense with requirements. |
|
Service of notice of cancellation. |
Re-delivery and interim care of goods comprised
in notice of cancellation. |
Further consequences of notice of cancellation. |
Effect of notice of cancellation where goods
given in part-exchange. |
Agency in regard to certain representations. |
Implied conditions and warranties. |
Provisions as to exclusion of implied conditions
and warranties. |
Further implied conditions in special cases. |
Special provisions as to conditional sale
agreements. |
Owner or seller to supply certain information on
request. |
Hirer or buyer to supply information. |
|
Supplementary provisions as to service of notice
of default. |
Right to terminate agreement. |
Liability of hirer or buyer giving notice of
termination. |
Avoidance of certain contractual provisions. |
Power of court to authorise entry on enclosed
premises to recover goods other than protected goods. |
Regulations as to legibility of documents. |
PART III
MOTOR VEHICLES |
Protection of purchaser of motor vehicles. |
Presumptions relating to dealings in motor
vehicles. |
Interpretation of Part III. |
PART IV
RECOVERY OF POSSESSION AND OTHER REMEDIES |
Meaning of "protected goods". |
Restriction on right to recover possession of
protected goods. |
Action by owner to recover possession of
protected goods. |
When a postponed order may be made. |
Restriction on order transferring owner's title. |
Effect of postponed order. |
Supplementary powers of court as to postponed
order. |
Powers of court on non-compliance with order for
specific delivery. |
Claim under minimum payment provision. |
Money claim after order for specific delivery of
goods. |
Application of section 34 to 41 to conditional
sale agreements. |
Evidence of adverse detention of goods. |
Rebate in purchase price on early payment of
instalments. |
PART V
MISCELLANEOUS AND SUPPLEMENTARY |
Appropriation of payments. |
Refusal to surrender goods not to be conversion
in certain cases. |
Jurisdiction restricted to certain magistrates. |
Regulations as to advertisements re
hire-purchase, credit sale or conditional sale. |
SCHEDULES |
FIRST SCHEDULE - Notice to be Included in Hire-purchase
Agreement. |
SECOND SCHEDULE - Notice to be Included in Conditional Sale
Agreement. |
CHAPTER 342 |
HIRE-PURCHASE |
An Act to
make provision for the regulation of hire-purchase, credit sale and conditional
sale agreements and for purposes connected with the matters aforesaid. | 21 of 1974 |
[Assent 24th
October, 1974]
[Commencement 19th December, 1974] |
PART I
PRELIMINARY |
1. This Act may be cited as the Hire-Purchase Act. | Short title. |
2. (1) In this Act, unless the context otherwise
requires- | Interpretation. |
"appropriate
trade premises", in relation to a document, means premises at which either
the owner or the seller named in the document normally carries on business, or
at which goods of the description to which the document relates or goods of a
similar description are normally offered or exposed for sale in the course of a
business; |
"buyer",
in relation to a conditional sale agreement, means the person who agrees to
purchase goods under the agreement and includes a person to whom the rights or
liabilities of that person under the agreement have passed by assignment or
operation of law; |
"conditional
sale agreement" means an agreement for the sale of goods under which the
purchase price or part of it is payable by instalments and the property in the
goods is to remain in the seller, notwithstanding that the buyer is to be in
possession of the goods, until such conditions as to the payment of instalments
or otherwise as may be specified in the agreement are fulfilled; |
"contract of
guarantee", in relation to a hire-purchase agreement, credit sale
agreement or conditional sale agreement means a contract made at the request,
express or implied, of the hirer or buyer, either to guarantee the performance
of the hirer's or buyer's obligations under the agreement, or to indemnify the
owner or seller against any loss which he may incur in respect of that
agreement and "guarantor" shall be construed accordingly; |
"court"
means, subject to section 47, any court having jurisdiction to hear and
determine the matter in issue in accordance with any law in force in The
Bahamas; |
"credit sale
agreement" means an agreement for the sale of goods under which the
purchase price is payable by five or more instalments, not being a conditional
sale agreement; |
"hire-purchase
agreement" means an agreement for the bailment of goods under which the
bailee may buy the goods or under which the property in the goods will or may
pass to the bailee; |
"hire-purchase
price", subject to subsection (3), means the total sum payable by the hirer
under a hire-purchase agreement in order to complete the purchase of the goods
to which the agreement relates, exclusive of any sum payable as a penalty or as
compensation or damages for a breach of the agreement; |
"hirer"
means the person who takes or has taken goods from an owner under a
hire-purchase agreement and includes a person to whom the hirer's rights or
liabilities under the agreement have passed by assignment or by operation of
law; |
"Minister"
means the Minister responsible for Hire-purchase; |
"notice of
cancellation" has the meaning assigned to it by section 10; |
"owner"
means the person who lets or has let goods to a hirer under a hire-purchase
agreement and includes a person to whom the owner's property in the goods or
any of the owner's rights or liabilities under the agreement has passed by
assignment or by operation of law; |
"Part"
means a Part of this Act; |
"seller",
in relation to a conditional sale agreement, means the person who agrees to
sell goods under the agreement and includes any person, other than the buyer,
to whom that person's property in the goods or any of that person's rights or
liabilities under the agreement has passed by assignment or by operation of
law; |
"total
purchase price", subject to subsection (3), means the total sum payable by
the buyer under a credit sale agreement or a conditional sale agreement,
exclusive of any sum payable as a penalty or as compensation or damages for a
breach of the agreement. |
(2) Where by
virtue of two or more agreements, none of which by itself constitutes a
hire-purchase agreement, there is a bailment of goods and either the bailee may
buy the goods or the property therein will or may pass to the bailee, the
agreements shall be treated for the purposes of this Act as a single agreement
made at the time when the last of such agreements was made. |
(3) For the
purposes of this Act, any sum payable by the hirer under a hire-purchase
agreement, or by the buyer under a conditional sale agreement, by way of a deposit
or other initial payment, or credited or to be credited to him under the
agreement on account of any such deposit or payment, whether that sum is to be
or has been paid to the owner or seller or to any other person or is to be or
has been discharged by a payment of money or by the transfer or delivery of
goods or by any other means, shall form part of the hire-purchase price or
total purchase price, as the case may be. |
(4) In this Act,
"antecedent negotiations", in relation to an actual or prospective
hire-purchase agreement, credit sale agreement or conditional sale agreement,
means any negotiations or arrangements with the hirer or buyer whereby he was
induced to make the agreement or which otherwise promoted the transaction to
which the agreement relates; and any reference in this Act to the person by
whom the antecedent negotiations were conducted is a reference to the person by
whom the negotiations or arrangements in question were conducted or made in the
course of a business carried on by him. |
(5) For the
purposes of this Act any negotiations conducted or arrangements or
representations made, by a servant or agent in the course of his employment or
agency, shall be treated as conducted or made by his employer or principal and
anything received by a servant or agent in the course of his employment or
agency shall be treated as received by his employer or principal. |
3. (1) Parts II, IV and V shall apply, and shall apply
only, to and in relation to hire-purchase agreements, conditional sale
agreements and credit sale agreements under which the hire-purchase price or
total purchase price, as the case may be, does not exceed ten thousand dollars,
and references in those Parts to a hire-purchase agreement, a conditional sale
agreement or a credit sale agreement shall be construed accordingly. | Restricted application of Parts II, IV and V. |
(2) Whenever it
appears to the Minister that the amount specified as a limit in subsection (1)
ought to be raised or to be further raised, the Minister may by order
substitute such greater amount as he may think fit as a limit; and from and
after the date of any such order, subsection (1) shall have effect as so
amended. |
PART II
GENERAL |
4. (1) Where goods are let under a hire-purchase
agreement or are sold, or agreed to be sold, under a credit sale agreement or a
conditional sale agreement then, subject to the exercise of any power of the
court under section 9, the owner or seller shall not be entitled to enforce the
agreement unless- | Enforcement conditional on compliance with specified
requirements. |
(a) it is
signed by the hirer or buyer, and by or on behalf of all other parties to it;
and |
(b) the
requirements of sections 5 and 6 and also of section 7 or section 8, as the
case may be, are complied with. |
(2) Where by
virtue of subsection (1) the owner or seller is not entitled to enforce any
agreement- |
(a) he shall
not be entitled to enforce any contract or guarantee relating to it; |
(b) no security
given by the hirer or buyer in respect of any money payable under the
agreement, or given by a guarantor in respect of money payable under a contract
of guarantee relating to it, shall be enforceable against either the hirer or
buyer or against such guarantor by the holder of such a security; and |
(c) if it is a
hire-purchase agreement or a conditional sale agreement, the owner or seller
shall not be entitled to enforce any right to recover the goods from the hirer
or buyer. |
5. (1) The requirements of this section, in relation to
an agreement, are that, before the agreement is made- | Requirements as to cash price. |
(a) the cash
price of the goods has been stated in writing to the hirer or buyer by the
owner or seller, otherwise than in the agreement itself; or |
(b) if the
hirer or buyer has inspected the goods or like goods, then, at the time of his
inspection, tickets or labels were attached to or displayed with the goods
clearly stating the cash price either of the goods as a whole or of all the
different articles or sets of articles comprised therein; or |
(c) the hirer
or buyer has selected the goods by reference to a catalogue, price list or
advertisement which clearly stated the cash price, either of the goods as a
whole or of all the different articles or sets of articles comprised therein. |
(2) In this Part,
"cash price" in relation to any goods, means the price at which the
goods might be purchased by the hirer or buyer for an immediate cash payment. |
6. The requirements of this section, in relation to an
agreement, are that- | Requirements as to content and form of agreements. |
(a) the
agreement contains a statement of- |
(i) the
hire-purchase price or total purchase price (specifically stating the rate of
interest payable) as the case may be; |
(ii) the
cash price of the goods to which it relates; |
(iii) the
amount of each instalment by which the hire-purchase price or total purchase
price is to be paid; and |
(iv) the
date, or mode of determining the date upon which each instalment is payable; |
(b) the
agreement contains a list of the goods to which the agreement relates,
sufficient to identify them; |
(c) the agreement
complies with the requirements of any regulations made under section 28; and |
(d) if it is a
hire-purchase agreement or a credit sale agreement, it contains a notice, which
is at least as prominent as the rest of its contents, in the terms set out in
the
First and Second Schedules to this Act, as appropriate. |
7. (1) The requirements of this section, in relation to
an agreement which is signed by the hirer or buyer at appropriate trade
premises, are that copies are delivered or sent to the hirer or buyer in
accordance with the following provisions of this section. | Requirements as to copies where hirer or buyer signs
at appropriate trade premises. |
(2) If either- |
(a) the
agreement is signed by or on behalf of all other parties immediately after it
is signed by the hirer or buyer, and a copy of the agreement is then and there
delivered to him; or |
(b) the
agreement having been signed by or on behalf of all other parties before it is
signed by the hirer or buyer, a copy of the agreement is delivered to him
immediately after he signs the agreement, |
and, in
either case, the copy so delivered complies with all the requirements of any
regulations made under section 28, then delivery of that copy shall be taken to
have fulfilled the requirements of this section in relation to that agreement. |
(3) If, in a case
not falling within subsection (2)- |
|
(i) the
relevant document was presented, and not sent, to the hirer or buyer for his
signature, and immediately after he signed it there was delivered to him a copy
of that document in the form in which it then was; or |
(ii) the
relevant document was sent to the hirer for his signature together with a copy
of that document in the form in which it then was; and |
(b) in either
case, a further copy of the agreement is delivered or sent to the hirer or
buyer within seven days of the making of the agreement, |
then, if
each copy delivered or sent to the hirer or buyer as aforesaid complies with
all the requirements of any regulations made under section 28, the delivery or
sending of those copies shall be taken to have fulfilled the requirements of
this section in relation to that agreement. |
(4) In this Part,
"the relevant document" means the document which constitutes or is
intended to constitute the original hire-purchase agreement, credit sale
agreement or conditional sale agreement between the parties. |
8. (1) The requirements of this section, in relation to
an agreement which is signed by the hirer or buyer at a place other than
appropriate trade premises, are that copies are delivered or sent to the hirer
or buyer in accordance with the following provisions of this section. | Requirements as to copies where hirer or buyer signs
elsewhere than at appropriate trade premises. |
(2) A copy of the
relevant document (in this Part referred to as "the first statutory
copy") must be delivered or sent to the hirer or buyer as follows, that is
to say- |
(a) if the
relevant document is presented, and not sent, to the hirer or buyer for his
signature, a copy of that document in the form in which it then is, must be
delivered to him immediately after he signs it; |
(b) if the
relevant document is sent to the hirer or buyer for his signature, a copy of
that document, in the form in which it then is, must be sent to him together
with it. |
(3) Within seven
days of the making of the agreement, a further copy of the agreement (in this
Part referred to as "the second statutory copy") must be sent by
registered post to the hirer or buyer. |
(4) The first
statutory copy and the second statutory copy must each contain a full and
sufficient statement as to the rights of the hirer or buyer under section 10. |
(5) Any statement
which, in accordance with regulations made under this Act, is contained in
either the first statutory copy or second statutory copy shall specify the name
and address of a person to whom notice of cancellation may be sent, but
different names and addresses may be so specified in the first statutory copy
and second statutory copy of the same agreement. |
9. (1) Subject to the following provisions of this
section, if in any action the court is satisfied that a failure to comply with
any of the requirements specified in sections 5 to 8 inclusive has not
prejudiced the hirer or buyer, and that it would be just and equitable to
dispense with that requirement, the court may dispense with that requirement
for the purposes of the action, subject to any conditions which it thinks fit
to impose. | Power of court to dispense with requirements. |
(2) The power
conferred by subsection (1) shall not be exercised in relation to subsection
(3) of section 8 except where the second statutory copy has actually been sent
to the hirer or buyer but not within the period therein specified. |
(3) The power
conferred by subsection (1) shall not be exercised in relation to subsection
(4) of section 8. |
10. (1) The provisions of this section shall have
effect where a prospective hirer or buyer signs a document which constitutes a
hire-purchase agreement, credit sale agreement or conditional sale agreement or
which would constitute such an agreement, if executed by or on behalf of
another person as owner or seller of the goods, and that document is signed by
him at a place other than appropriate trade premises. | Notice of cancellation. |
(2) At any time
after he has signed the relevant document and before the end of the period of
four days beginning with the day on which he receives the second statutory copy,
the prospective hirer or buyer may serve a notice of cancellation under this
section upon- |
(a) the owner
or seller; or |
(b) any person
who is the agent of the owner or seller for the purpose of receiving such a
notice. |
(3) A notice of
cancellation shall have effect if, however expressed, it indicates the
intention of the prospective hirer or buyer to withdraw from the transaction to
which the relevant document relates. |
(4) Where a
prospective hirer or buyer serves a notice of cancellation then- |
(a) if, at the
time when the notice is served, the relevant document constitutes a
hire-purchase agreement, credit sale agreement or conditional sale agreement,
the service of the notice shall operate so as to rescind it; and |
(b) in any
other case, the service of the notice shall operate as a withdrawal of any
offer to enter into an agreement contained in or implied by the relevant
document and as notice to the owner or seller that such offer is withdrawn. |
(5) In this
section "owner" or "seller" means the person who, at the
time when the relevant document is signed by the prospective hirer or buyer, is
specified therein as the person who is to let or sell the goods to him, as the
case may be: |
Provided that, if
no person is so specified at that time, any person by whom, or on whose behalf,
the document is subsequently executed and is then specified in the document as
the person letting or selling the goods shall, for the purposes of this
section, be deemed to be and at all material times to have been, the owner or
seller in relation to that document. |
11. (1) For the purposes of section 10 a notice of
cancellation- | Service of notice of cancellation. |
(a) shall be
deemed to be served on the owner or seller if it is sent by registered post
addressed to a person specified in a statement contained either in the first
statutory copy or the second statutory copy of the relevant document as being a
person to whom such notice may be sent and is addressed to that person at an
address so specified; and |
(b) if so
posted and addressed, shall be deemed to be served on the owner or seller at
the time when it is posted. |
(2) The provisions
of subsection (1) shall be without prejudice to the service of a notice of
cancellation by any other lawful method upon the owner or seller or his agent. |
(3) Any person who
conducted any antecedent negotiations, but is not the owner or seller, shall be
deemed to be the agent of the owner or seller for the purpose of receiving any
notice of cancellation of the prospective hirer or buyer. |
12. (1) The provisions of this section shall have
effect where a notice of cancellation is served, and at any time, whether
before or after the service of that notice, any of the goods to which the
relevant document relates are in the possession of the prospective hirer or
buyer, having come into his possession in consequence, or in anticipation, of
his signing that document. | Re-delivery and interim care of goods comprised in
notice of cancellation. |
(2) The
prospective hirer or buyer shall be under no obligation to deliver the goods
except at his own premises and in pursuance of a written request signed by or
on behalf of the person entitled to possession of the goods served on the
prospective hirer or buyer either before, or at the time when, the goods are
collected from his premises; and any such obligation shall be subject to any
lien, or other right to retain the goods, which he may have under subsection
(2) of section 13 or subsection (3) of section 14. |
(3) If the
prospective hirer or buyer- |
(a) delivers
the goods (whether at his own premises or elsewhere) to an authorised person;
or |
(b) sends the
goods at his own expense to an authorised person, |
he shall be
taken to have done so with the consent of that authorised person and of any
other person who is then entitled to possession of the goods, and shall be
discharged from any obligation to retain the goods or to deliver them to any
person so entitled. |
(4) Subject to the
following provisions of this section, the prospective hirer or buyer shall be
under an obligation to take reasonable care of the goods until the end of the
period of twenty-one days commencing with the date of service of the notice of
cancellation. |
(5) Where the
prospective hirer or buyer delivers the goods as mentioned in paragraph (a) of
subsection (3), his obligation to take care of the goods shall thereupon cease;
and if he sends the goods to an authorised person as mentioned in paragraph (b)
of that subsection, he shall be under an obligation to take reasonable care to
see that they are received by that person and are not damaged in transit to
him, but in other respects his obligation to take care of the goods shall cease
when he sends them to that person. |
(6) Where, at any
time during the period of twenty-one days mentioned in subsection (4), the
prospective hirer or buyer receives a request such as is mentioned in
subsection (2) and, unreasonably refuses or fails to comply with it, his
obligation to take reasonable care of the goods shall continue until he
delivers or sends the goods as mentioned in paragraph (a) or paragraph (b) of
subsection (3). |
(7) Any obligation
under subsections (4), (5) or (6) shall be owed to the person for the time
being entitled to possession of the goods and any breach of that obligation
shall be actionable, at the suit of that person, as a breach of statutory duty. |
(8) Except as in
this section specifically provided, the prospective hirer or buyer shall be
under no obligation to take care of the goods by reason of their having come
into his possession as is mentioned in subsection (1). |
(9) In this
section, "authorised person" means any one of the following category
of persons, that is to say- |
(a) the person
who conducted any antecedent negotiations in pursuance of which the prospective
hirer or buyer signed the relevant document; |
(b) the person
for the time being entitled to possession of the goods; |
|
(d) any person
who is specified, as mentioned in paragraph (a) of subsection (1) of section
11, as a person to whom notice of cancellation may be sent, |
and any
reference to the premises of the prospective hirer or buyer is a reference to
the premises specified in the relevant document as his address, or if no such
premises are so specified, to the premises where he usually or habitually
resides. |
13. (1) Where a notice of cancellation operates so as
to rescind a hire-purchase agreement, a credit sale agreement or a conditional
sale agreement- | Further consequences of notice of cancellation. |
(a) that
agreement, and any contract of guarantee relating thereto, shall be deemed
never to have had effect; and |
(b) any
security given by the prospective hirer or buyer in respect of money payable
under the agreement, or given by a guarantor in respect of money payable under
such a contract of guarantee, shall be deemed never to have been enforceable. |
(2) Upon the
service of a notice of cancellation, any sum which- |
(a) has been
paid by the prospective hirer or buyer in respect of the goods to which the
relevant document relates, whether paid before or after the signature thereof;
and |
(b) is
comprised in the hire-purchase price or total purchase price or has, in
pursuance of any antecedent negotiations, been paid to or for the benefit of
the owner or seller or any other person who conducted those negotiations, |
shall be
recoverable by the prospective hirer or buyer from the person to whom it was
paid; and if the prospective hirer or buyer is in possession of the goods, he
shall have a lien upon them for any sum which he is entitled to recover by
virtue of this subsection. |
14. (1) The provisions of this section shall have
effect where a notice of cancellation is served, and, in pursuance of any
antecedent negotiations conducted by him, a person (in this section referred to
as "the dealer") has agreed to take goods in part-exchange and those
goods have been delivered to the dealer. | Effect of notice of cancellation where goods given in
part-exchange. |
(2) Unless, before
the end of the period of twenty-one days beginning with the date of service of
the notice of cancellation, the goods in question are re-delivered to the
prospective hirer or buyer, and are then in a condition which is substantially
as good as when they were delivered to the dealer, the prospective hirer or
buyer shall be entitled to recover from the dealer a sum equal to the
part-exchange allowance. |
(3) During the
period of twenty-one days mentioned in subsection (2) the prospective hirer or
buyer, if he is in possession of the goods to which the relevant document
relates, shall be entitled to retain possession of them until either- |
(a) the goods
agreed to be taken in part-exchange are delivered to him in such a condition as
is therein mentioned; or |
(b) a sum equal
to the part-exchange allowance is paid to him, |
and if,
immediately before the end of that period, he continues by virtue of this
subsection to be entitled to those goods, he shall have a lien upon them for
any sum which he is entitled to recover by virtue of subsection (2). |
(4) Where the
prospective hirer or buyer recovers from the dealer a sum equal to the
part-exchange allowance, his title to the goods agreed to be taken in
part-exchange shall thereupon vest in the dealer, if it has not already done
so. |
(5) For the
purposes of this section- |
(a) the dealer
shall be taken to have agreed to take goods in part-exchange if, in pursuance
of the antecedent negotiations, he has either purchased or agreed to purchase
those goods or has accepted or agreed to accept them as part of the
consideration for the transaction to which the relevant document relates; and |
(b) the
part-exchange allowance shall be taken to be the sum which, in the antecedent
negotiations, was agreed to be allowed in respect of the goods taken in
part-exchange or, if no such sum was agreed, the sum which in all the
circumstances it would have been reasonable to allow in respect of those goods
in that transaction. |
15. (1) Where an owner lets goods under a
hire-purchase agreement or sells or agrees to sell goods under a credit sale
agreement or conditional sale agreement, any representations with respect to
the goods to which the agreement relates made either orally or in writing to
the hirer or buyer by any other person in the course of any antecedent
negotiations conducted by him shall be deemed to have been made by him as agent
of the owner or seller. | Agency in regard to certain representations. |
(2) In this
section "representations" includes any statement or undertaking,
whether or not it constitutes a condition or warranty. |
16. (1) In every hire-purchase agreement and in every
conditional sale agreement there shall be implied- | Implied conditions and warranties. |
(a) a condition
on the part of the owner or seller that he will have a right to sell the goods
at the time when the property is to pass; |
(b) a warranty
that the hirer or buyer shall have and enjoy quiet possession of the goods; and |
(c) a warranty
that the goods shall be free from any charge or encumbrance in favour of any
third party at the time when the property is to pass. |
(2) Subject to
section 17, in every hire-purchase agreement and conditional sale agreement
there shall be implied a condition that the goods will be of merchantable
quality: |
Provided that,
where the hirer or buyer has examined the goods or a sample of them, the
condition referred to in this subsection shall not be implied in respect of
defects which the examination ought to have revealed. |
(3) Where the hirer
under a hire-purchase agreement, or the buyer under a conditional sale
agreement, whether expressly or by implication- |
(a) has made
known to the owner or seller, or to a servant or agent of the owner or seller,
the particular purpose for which the goods are required; or |
(b) in the
course of any antecedent negotiations has made that purpose known to any other
person by whom those negotiations were conducted, or to a servant or agent of
such a person, |
there shall,
subject to section 17, be implied a condition that the goods shall be
reasonably fit for that purpose. |
(4) Nothing
contained in this section or in section 17 shall prejudice the operation of any
other enactment or rule of law whereby any condition or warranty is to be
implied in any hire-purchase agreement or conditional sale agreement. |
17. (1) Where under a hire-purchase agreement or a
conditional sale agreement goods are let or agreed to be sold as second-hand
goods and- | Provisions as to exclusion of implied conditions and
warranties. |
(a) the
agreement contains a statement to that effect, and a provision that the
condition referred to in subsection (2) of section 16 is excluded in relation
to those goods; and |
(b) it is
proved that before the agreement was made the provision thereof so excluding
that condition was brought to the notice of the hirer or buyer and its effect
made clear to him, |
then that
condition shall not be implied in that agreement in relation to those goods. |
(2) Where under a
hire-purchase agreement or conditional sale agreement goods are let or agreed
to be sold as being subject to defects specified therein, and whether referred
to in the agreement as defects or by any other description to the like effect,
and- |
(a) the
agreement contains a provision that the condition referred to in subsection (2)
of section 16 is excluded in relation to those goods in respect of those
defects; and |
(b) it is
proved that before the agreement was made those defects, and the provision in
the agreement so excluding that condition, were brought to the notice of the
hirer or buyer and its effect was made clear to him, |
then that
condition shall not be implied in that agreement in respect of those defects. |
(3) The condition
and warranty specified in subsection (1) of section 16 and, except as provided
by subsections (1) and (2) of this section, the condition specified in
subsection (2) of that section, shall be implied notwithstanding any agreement
to the contrary. |
(4) The owner or
seller shall not be entitled to rely on any provision in a hire-purchase
agreement or conditional sale agreement excluding or modifying the conditions
referred to in subsection (3) of section 16 unless he proves that before the
agreement was made that provision was brought to the notice of the hirer or
buyer and its effect was made clear to him. |
18. (1) Where goods are let under a hire-purchase
agreement, or are agreed to be sold under a conditional sale agreement by
reference to a sample, there shall be implied in the agreement- | Further implied conditions in special cases. |
(a) a condition
that the bulk will correspond with the sample in quality; and |
(b) a condition
that the hirer or buyer will have a reasonable opportunity of comparing the
bulk with the sample. |
(2) Where goods
are let under a hire-purchase agreement, or are agreed to be sold under a
conditional sale agreement by description, there shall be implied in the
agreement a condition that the goods will correspond with the description; and
if the goods are let or agreed to be sold by reference to a sample, as well as
by description, it shall not be sufficient that the bulk of the goods
correspond with the sample if they do not also correspond with the description. |
19. (1) Subsection (3) of section 13 of the Sale
of Goods Act shall not apply to conditional sale agreements. | Special provisions as to conditional sale agreements. |
(2) A conditional
sale agreement shall be treated as not being a contract of sale for the
purposes of sections 14 to 17 inclusive of the Sale of Goods Act. |
(3) A breach of a
condition whether expressed or implied to be fulfilled by the seller under a conditional
sale agreement shall be treated as a breach of warranty, and not as grounds for
rejecting the goods and for treating the agreement as repudiated if, but only
if, it would have fallen to be so treated had the condition been one to be
performed by the owner and had been contained in a hire-purchase agreement
relating to the same goods and made between the same parties as nearly as may
be in the same terms and under the same circumstances as that conditional sale
agreement. |
20. (1) At any time before the final payment has been
made under a hire-purchase agreement, a credit sale agreement or a conditional
sale agreement, any person entitled to enforce the agreement against the hirer
or buyer shall, within four days after receiving a request in writing from the
hirer or buyer together with tender of two dollars for expenses, supply to the
hirer or buyer a copy of the agreement together with a statement signed by that
person or his agent showing- | Owner or seller to supply certain information on
request. |
(a) the amount
paid by or on behalf of the hirer or buyer; |
(b) the amount
which has become due under the agreement but remains unpaid, and the date on
which each unpaid instalment became due, and the amount of each such
instalment; and |
(c) the amount
which is to become payable under the agreement, and the date, or mode of
determining the date, on which each future instalment is to become payable, and
the amount of each such instalment. |
(2) In the event
of a failure to comply with the requirements of subsection (1), then, while the
default continues- |
(a) no person
shall be entitled to enforce the agreement against the hirer or buyer or to
enforce any contract of guarantee relating to the agreement, and, in the case
of a hire-purchase agreement or a conditional sale agreement, the owner or
seller shall not be entitled to recover the goods from the hirer or buyer; and |
(b) no security
given by the hirer or buyer in respect of any money payable under the
agreement, or given by a guarantor in respect of money payable under a contract
of guarantee relating to the agreement, shall be enforceable against the hirer
or buyer or the guarantor by any holder thereof. |
(3) Any copy
supplied to a hirer or buyer in pursuance of a request made under this section
shall comply with such requirements as may be specified by regulations made
under section 28, and, in default of such compliance, such copy shall be deemed
not to have been supplied to the hirer or buyer. |
21. (1) Where by virtue of a hire-purchase agreement
or conditional sale agreement a hirer or buyer is under a duty to keep the
goods comprised in the agreement in his possession or under his control, the
hirer or buyer shall, on receipt of a request in writing from the owner or
seller, inform the owner or seller within fourteen days of the receipt of the
request where the goods are at the time when the information is given. | Hirer or buyer to supply information. |
(2) If a hirer or
buyer fails without reasonable cause to comply with subsection (1) he shall be
guilty of an offence and liable on summary conviction to a fine not exceeding
fifty dollars. |
22. (1) The provisions of this section shall have
effect where goods are let under a hire-purchase agreement, or are agreed to be
sold under a conditional sale agreement, and that agreement, or any other
agreement, contains a provision whereby on the occurrence of, or at a time to
be ascertained by reference to, a default in the payment of one or more
instalments or other sums payable by the hirer or buyer, the agreement or, in
the case of a hire-purchase agreement, the bailment of the goods thereunder,
shall terminate or shall be terminable, or that the owner or seller shall be
entitled to recover possession of the goods. | Notice of default. |
(2) If default is
made in the payment of one or more sums to which a provision such as is
mentioned in subsection (1) applies, none of the consequences specified in the
provision shall follow by reason of that default, unless the owner or seller
serves on the hirer or buyer, by post or otherwise, a notice (in this Act
referred to as "a notice of default") stating the amount which has
become due but remains unpaid and requiring the payment of that amount within
such period, not being less than seven days beginning with the date of service
of the notice, as may be specified therein. |
(3) Where a notice
of default is served in accordance with subsection (2), none of the
consequences in question shall follow before the end of the period specified in
the notice by reason of any default to which it relates; and, if before the end
of that period the amount specified in the notice is paid or tendered by or on
behalf of the hirer or buyer, none of those consequences shall follow
thereafter on account of that default. |
23. Without prejudice to the service of a notice of
default under section 22 in any other way in which a notice can lawfully be
served, such a notice shall be deemed to be served on a hirer or buyer if- | Supplementary provisions as to service of notice of
default. |
(a) it is
addressed to the person last known to the owner or seller as the hirer or buyer
under the agreement concerned and is delivered at, or sent by registered post
to, the last known address of that person; or |
(b) in a case
where that person has died, the notice is addressed to the personal
representative of that person (whether or not for the time being there is any
personal representative of his or not) and is delivered at, or sent by
registered post to, the address which was the last known address of the
deceased person. |
24. (1) At any time before the final payment under a
hire-purchase agreement or conditional sale agreement falls due, the hirer or
buyer shall be entitled to terminate the agreement by giving notice of
termination in writing to any person entitled or authorised to receive the sums
payable under the agreement: | Right to terminate agreement. |
Provided that, in
the case of a conditional sale agreement, where the property in the goods,
having become vested in the buyer is subsequently transferred to a person who
does not become the buyer under the agreement, this subsection shall have no
application. |
(2) Nothing in
this section shall prejudice any right of a hirer or buyer to terminate a
hire-purchase agreement or conditional sale agreement otherwise than by virtue
of this section. |
25. (1) Where the hirer under a hire-purchase
agreement or the buyer under a conditional sale agreement terminates the
agreement by virtue of section 24, then, subject to the following provisions of
this section, and without prejudice to any liability which has accrued before
the termination, he shall be liable- | Liability of hirer or buyer giving notice of
termination. |
(a) in the case
of a hire-purchase agreement, to pay the amount (if any) by which one-half of
the hire-purchase price exceeds the total of the sums paid and sums due in
respect of the hire-purchase price immediately before the termination; or |
(b) in the case
of a conditional sale agreement, to pay the amount (if any) by which one-half
of the total purchase price exceeds the total of the sums paid and sums due in
respect of the total purchase price immediately before the termination. |
(2) If in any
action the court is satisfied that a sum less than the amount specified in
paragraph (a) or paragraph (b) of subsection (1) (as the case may be) would be
equal to the loss sustained by the owner or seller in consequence of the
termination of the agreement by the hirer or buyer, the court may make an order
for the payment of that sum in lieu of that greater amount. |
(3) Where a
hire-purchase agreement or conditional sale agreement has been terminated under
section 24, the hirer or buyer shall be liable to pay damages for any failure
on his part to take reasonable care of the goods. |
(4) Where a hirer
or buyer, having terminated a hire-purchase agreement or conditional sale
agreement under section 24, wrongfully retains possession of the goods, then,
in any action brought by the owner or seller to recover possession of the goods
from the hirer or buyer, the court, unless it is satisfied that it would be
just or equitable to do otherwise, shall order that the goods be delivered to
the owner or seller without giving the hirer or buyer any option to pay the value
of the goods. |
26. (1) Any provision of any agreement shall be void,
that is to say, any provision- | Avoidance of certain contractual provisions. |
(a) whereby an
owner or seller, or any person acting on his behalf, is authorised to enter
upon any premises for the purpose of taking possession of goods which have been
let under a hire-purchase agreement or agreed to be sold under a conditional
sale agreement, or is relieved from liability for any such entry; or |
(b) whereby the
right conferred by section 24 to terminate a hire-purchase agreement or
conditional sale agreement is excluded or restricted, or whereby any liability
greater than, or additional to, that imposed by section 25, is imposed on a
hirer or buyer on account of such termination; or |
(c) whereby any
person acting on behalf of an owner or seller in connection with a
hire-purchase agreement, credit sale agreement or conditional sale agreement is
treated as, or deemed to be, the agent of the hirer or buyer; or |
(d) whereby an
owner or seller is relieved from liability for the acts or defaults of any
person acting on his behalf in connection with a hire-purchase agreement,
credit sale agreement or conditional sale agreement. |
(2) There shall
also be void any provision in any agreement whatsoever which purports to
exclude or restrict- |
(a) the
operation of any provision contained in sections 10 to 14 inclusive or the
exercise of any right conferred by any such provision, or imposing any
liability as a consequence of the exercise of such a right, other than or in
addition to any liability imposed by such a provision; or |
(b) the
operation of any provision contained in section 15; or |
(c) any
condition implied by section 10. |
(3) Any provision
of any agreement whatsoever shall be void to the extent to which, in the event
of the death of the hirer or buyer under a hire-purchase agreement or
conditional sale agreement, it provides that or would take affect so that- |
(a) the
hire-purchase agreement or credit sale agreement or any bailment of the goods
thereunder, shall terminate, or be terminable, or that the owner or seller
shall have a right to recover possession of the goods; or |
(b) any sum
shall become payable by the hirer or the buyer or his estate or by any
guarantor, or any liability of the hirer or buyer or any guarantor shall be
increased or accelerated; or |
(c) any right
of the hirer or buyer under the agreement shall cease to be exercisable or
become, or be liable to become, restricted or postponed. |
27. (1) Where goods have been let under a
hire-purchase agreement or have been agreed to be sold under a conditional sale
agreement and the goods are not protected goods and the owner or seller cannot
obtain possession of the goods because they are kept upon enclosed premises by
or at the direction of the hirer or buyer, the owner or seller may apply ex
parte to the court for a warrant under this section. | Power of court to authorise entry on enclosed premises
to recover goods other than protected goods. |
(2) Upon any
application made under the provisions of this section the court, if it is
satisfied by evidence on oath as to the facts of the case, may issue a warrant
authorising the complainant with or without assistance to enter upon the
premises specified in the warrant and to take and remove therefrom all the
goods so specified. |
(3) No person
acting bona fide under and in execution of any warrant of the court
issued in pursuance of this section shall be liable to any proceedings in tort
at the suit of any person in connection therewith. |
(4) In this
section, "protected goods" has the meaning assigned to it by
subsection (1) of section 32. |
28. (1) The Minister may make regulations prescribing
such requirements (whether as to type, size, colour or disposition of
lettering, quality or colour of paper, or otherwise) as he may consider
appropriate for securing that documents to which this section applies are
easily legible. | Regulations as to legibility of documents. |
(2) The documents
to which this section applies are hire-purchase agreements, credit sale
agreements and conditional sale agreements, and copies of any such agreements
prepared or supplied in accordance with the provisions of this Part, and notes
or memoranda of contracts of guarantee relating to any such agreements. |
(3) Without
prejudice to the generality of this section, any such regulations- |
(a) may specify
which parts of the contents of a document to which the regulations apply are
permitted to consist of handwriting or a reproduction thereof, and may
prescribe different requirements in relation to the handwritten parts and in
relation to any other parts of any such documents; |
(b) may except
from any of the requirements of the regulations any marginal notes or other
subsidiary parts of a document; and |
(c) may contain
special provisions as to the positioning of the statement referred to in
subsection (4) of section 8 in relation to the remainder of any document in
which it is inserted. |
PART III
MOTOR VEHICLES |
29. (1) The following provisions of this section shall
have effect where a motor vehicle has been let under a hire-purchase agreement,
or has been agreed to be sold under a conditional sale agreement, and, at a
time before the property in the vehicle has become vested in the hirer or
buyer, he disposes of the vehicle to any other person. | Protection of purchaser of motor vehicles. |
(2) Where the
disposition referred to in subsection (1) is to a private purchaser, who takes
the motor vehicle in good faith and without notice of the hire-purchase
agreement or conditional sale agreement, that disposition shall be effective to
vest in that purchaser the title of the owner or seller to the vehicle. |
(3) Where the
disposition referred to in subsection (1) is to a trade or finance purchaser,
then the first person who is a private purchaser of the motor vehicle after
that disposition and who takes it in good faith and without notice of the
hire-purchaser agreement or conditional sale agreement, shall by virtue of the
disposition of the same to him, have vested in him the title of the owner or
seller to the vehicle. |
(4) The preceding
provisions of this section shall have effect- |
(a) notwithstanding
anything to the contrary contained in section 23 of the Sale of Goods Act; but |
(b) without
prejudice to the provisions of the Mercantile Agents Act or of any other enactment enabling the
apparent owner of goods to dispose of them as if he were the true owner. |
(5) Nothing in
this section shall exonerate the hirer or buyer from any liability, whether
criminal or civil, to which he would be subject apart from this section and, in
a case where the hirer or buyer disposes of the motor vehicle to a trade or
finance purchaser, nothing in this section shall exonerate- |
(a) that trade
or finance purchaser; or |
(b) any other
trade or finance purchaser who becomes a purchaser of the vehicle and is not a
person claiming under the first private purchaser aforesaid, from any
liability, whether criminal or civil, to which he would be subject apart from
this section. |
30. (1) Where in any proceedings, whether criminal or
civil relating to a motor vehicle it is proved- | Presumptions relating to dealings in motor vehicles. |
(a) that the
vehicle was let under a hire-purchase agreement or was agreed to be sold under
a conditional sale agreement; and |
(b) that a
person, whether or not a party to the proceedings, became a private purchaser
of the vehicle in good faith and without notice of the agreement, |
the
following provisions of this section shall have effect for the purposes of the
operation of section 29 in relation to those proceedings. |
(2) It shall be
presumed for those purposes, unless the contrary is proved, that the
disposition of the vehicle to the person referred to in paragraph (b) of
subsection (1) (in this section referred to as "the relevant
purchaser") was made by the hirer or buyer. |
(3) If it is
proved that the disposition was not made by the hirer or buyer, then it shall
be presumed for those purposes, unless the contrary is proved- |
(a) that the
hirer or buyer disposed of the vehicle to a private purchaser who was a
purchaser of the vehicle in good faith and without notice of the hire-purchase
agreement or conditional sale agreement, and |
(b) that the
relevant purchaser is or was a person claiming under the person to whom the
hirer or buyer so disposed of the vehicle. |
(4) If it is
proved that the disposition of the vehicle to the relevant purchaser was not
made by the hirer or buyer, and that the original purchaser of the vehicle to
whom the hirer or buyer disposed of it was a trade or finance purchaser, then
it shall be presumed for those purposes unless the contrary is proved- |
(a) that the
person who, after the disposition of the vehicle to that original purchaser,
first became a private purchaser of the vehicle was a purchaser in good faith
and without notice of the hire-purchase agreement or conditional sale
agreement; and |
(b) that the
relevant purchaser is or was a person claiming under the original purchaser. |
31. (1) In this Part- | Interpretation of Part III. |
"disposition"
means any sale or contract of sale (including a conditional sale agreement),
any letting under a hire-purchase agreement and any transfer of the property in
goods pursuant to a provision in that behalf contained in a hire-purchase
agreement, and includes any transaction purporting to be such a disposition;
and "dispose of" shall be construed accordingly. |
"motor
vehicle" means a mechanically propelled vehicle intended or adapted for
use on roads to which the public has access. |
"trade or
finance purchaser" means a person who, at the time of the disposition made
to him, carries on the business of purchasing motor vehicles for the purpose of
offering or exposing them for resale or of providing finance by purchasing
motor vehicles for the purpose of letting them under hire-purchase agreements
or agreeing to resell them under conditional sale agreements; and |
"private
purchaser" means a purchaser who, at the time of the disposition made to
him, does not carry on any such business. |
(3) For the
purposes of this Part, a person becomes a purchaser of a motor vehicle if, and
at the time when, a disposition of the vehicle is made to him; and a person
shall be taken to be a purchaser of a motor vehicle without notice of a
hire-purchase agreement or a conditional sale agreement if, at the time of the
disposition made to him, he has no actual notice that the vehicle was the
subject of any such agreement. |
(4) A reference in
this Part to the title of the owner or seller of a motor vehicle which has been
let under a hire-purchase agreement, or agreed to be sold under a conditional
sale agreement, and is disposed of by the hirer or buyer, is a reference to
such title, if any, to the vehicle as was vested, immediately before that
disposition, in the person who was then the owner in relation to the
hire-purchase agreement, or the seller in relation to the conditional sale
agreement, as the case may be. |
PART IV
RECOVERY OF POSSESSION AND OTHER REMEDIES |
32. (1) For the purposes of this Part goods are
"protected goods" if for the time being the following conditions are
fulfilled, that is to say that- | Meaning of "protected goods". |
(a) the goods
have been let under a hire-purchase agreement, or agreed to be sold under a
conditional sale agreement; |
(b) one-half of
the hire-purchase price or total purchase price has been paid or tendered by or
on behalf of the hirer or buyer or a guarantor; |
(c) the hirer
or buyer has not terminated the hire-purchase agreement or conditional sale
agreement, or in the case of a hire-purchase agreement, the bailment of the
goods, by virtue of any right vested in him to do so. |
(2) In this Part
"the agreement" in relation to any protected goods means the
agreement in respect of which those conditions are fulfilled. |
33. (1) The owner or seller shall not enforce any
right to recover possession of protected goods from the hirer or buyer
otherwise than by action in the courts of The Bahamas. | Restriction on right to recover possession of
protected goods. |
(2) If the owner
or seller recovers possession of protected goods in contravention of subsection
(1), the agreement, if not already terminated, shall terminate, and- |
(a) the hirer
or buyer shall be released from all liability under the agreement and shall be
entitled to recover from the owner or seller, in an action for money had and
received, all sums paid by the hirer or buyer under the agreement or under any
security given by him in respect thereof; and |
(b) any
guarantor shall be entitled to recover from the owner or seller in an action
for money had and received, all sums paid by him under the contract of
guarantee or under any security given by him in respect thereof. |
34. (1) This section applies to any action brought by
the owner to enforce a right to recover possession of protected goods from the
hirer where the owner has not previously, in contravention of section 32,
recovered possession of any part of the goods let under the agreement. | Action by owner to recover possession of protected
goods. |
(2) Subject to
such exceptions as may be provided for by rules made under section 76 of the
Supreme Court Act, all parties to the agreement, and any guarantor, shall be
made parties to the action. |
(3) Pending the
hearing of the action the court shall, in addition to any other powers, have
power, on the application of the owner, to make such orders as the court thinks
fit for the purpose of protecting the goods from damage or depreciation,
including orders restricting or prohibiting the use of the goods or giving
directions as to their custody. |
(4) Subject to the
following provisions of this Part on the hearing of the action the court may,
without prejudice to any other power- |
(a) make an
order for the specific delivery of the goods to the owner; or |
(b) make an
order for the specific delivery of the foods to the owner and postpone the
operation of the order on condition that the hirer or any guarantor pays the
unpaid balance of the hire-purchase price at such times and in such amounts as
the court, having regard to the means of the hirer and of any guarantor, thinks
just, and subject to the fulfilment of such other conditions on the part of the
hirer or guarantor as the court thinks just; or |
(c) make an
order for the specific delivery of a part of the goods to the owner and for the
transfer to the hirer of the owner's title to the remainder of the goods. |
(5) In this Part
any reference to an order for the specific delivery of goods to the owner is a
reference to an order for the delivery of those goods to him without giving the
hirer an option to pay their value. |
(6) In the
following sections of this Part, "postponed" means postponed in
pursuance of paragraph (b) of subsection (4) and any reference to postponement
shall be construed accordingly. |
35. The operation of an order for specific delivery of
goods to the owner shall not be postponed unless the hirer satisfies the court
that the goods are in his possession or under his control at the time when the
order is made. | When a postponed order may be made. |
36. (1) The court shall not exercise any power under
this Part to make an order for the transfer to the hirer of the owner's title
to part of the goods to which an agreement relates, unless the court is
satisfied that the amount which the hirer has paid in respect of the
hire-purchase price exceeds the price of that part of the goods by at least
one-third of the unpaid balance of the hire-purchase price. | Restriction on order transferring owner's title. |
(2) In this
section "price" in relation to any part of the goods to which the
agreement relates means such part of the hire-purchase price as is assigned to
that part of the goods by the agreement, or, if no such assignment is made, it
means such part of the hire-purchase price as the court may determine. |
37. (1) While the operation of an order for the
specific delivery of goods to the owner is postponed, the hirer shall, subject
to the following provisions of this section be deemed to be a bailee of the
goods under and upon the terms of the agreement. | Effect of postponed order. |
(2) No further sum
shall be or become payable by the hirer or a guarantor on account of the unpaid
balance of the hire-purchase price, except in accordance with the terms of the
order. |
(3) The court may
make such further modification of the terms of the agreement as the court
considers necessary having regard to the variation of the terms of payment. |
(4) If, while the
operation of the order is postponed, the hirer or guarantor fails to comply
with any condition of the postponement or with any terms of the agreement as
varied by the court, or wrongfully disposes of the goods, the owner shall not
take any court proceedings against the hirer or guarantor otherwise than by
making any application to the court by which the order was made: |
Provided that, in
the case of a breach of any condition relating to the payment of the unpaid
balance of the hire-purchase price, it shall not be necessary for the owner to
apply to the court for leave to execute the order unless the court has so
directed. |
(5) When the
unpaid balance of the hire-purchase price has been paid in accordance with the
terms of the order, the owner's title to the goods shall vest in the hirer. |
38. At any time while the operation of an order for
the specific delivery of goods to the owner is postponed, the court- | Supplementary powers of court as to postponed order. |
(a) may vary
the conditions of postponement and make such further modification of the
agreement as the court considers to be necessary in consequence of such
variation; or |
(b) may revoke
the postponement; or |
(c) subject to
section 36, may make an order for the specific delivery of a part of the goods
to the owner and for the transfer of the owner's title to the remainder of the
goods to the hirer. |
39. (1) Where the owner has brought an action to
enforce a right to recover possession of protected goods from the hirer and- | Powers of court on non-compliance with order for
specific delivery. |
(a) the court
has made an order under subsection (4) of section 34 or paragraph (c) of
section 38 (in this section referred to as "the previous order"); and |
(b) the
previous order has not been complied with, or, in a case where the operation of
that order was postponed, the hirer or any guarantor has failed to comply with
any condition of the postponement or with any term of the agreement as varied
by the court, or has wrongfully disposed of the goods; and |
(c) the owner
has not recovered possession of all the goods which under the previous order
were directed to be delivered to him, |
the owner
may make an application under this section. |
(2) Every
application under this section shall be made to the court by which the previous
order was made and shall be made in the action in which that order was made. |
(3) On any such
application the court shall have power, if in the circumstances it considers it
just to do so, to revoke the previous order and to make an order for payment of
a sum determined in accordance with subsection (4). |
(4) Subject to any
reduction under subsection (5), the sum referred to in subsection (3) shall be
a sum equal to the balance of the price of the unrecovered goods which remains
outstanding at the date when the order under the said subsection (3) is made. |
(5) Where the
court makes an order under subsection (3), the court shall deduct from the
balance referred to in subsection (4) such amount as the court thinks just,
having regard to the extent to which the order requires any part of that
balance to be paid at a date earlier than the date on which it would have
become payable in accordance with the agreement. |
(6) The making of
an order under subsection (3) shall operate to vest the owner's title to the
unrecovered goods in the person against whom the order is made. |
(7) In this
section, "price" has the meaning assigned to it by subsection (2) of
section 36 and any reference to the balance of the price of any goods remaining
outstanding shall be construed accordingly. |
40. (1) The provisions of this section shall have
effect where a hire-purchase agreement validly provides for the payment by the
hirer, on or after the termination of the agreement or bailment, of such sums,
as, when added to the sums paid and the sums due in respect of the
hire-purchase price before termination, is equal to a fixed amount. | Claim under minimum payment provision. |
(2) If, in an
action to which section 34 applies- |
(a) a claim is
made in respect of a sum for which the agreement provides as mentioned in
subsection (1); and |
(b) the court
makes an order for specific delivery of part of the goods to the owner and the
transfer to the hirer of the owner's title to the remainder of the goods, the
claim in respect of that sum shall be disallowed. |
(3) If in any such
action- |
(a) a claim is
made in respect of a sum for which the agreement provides as mentioned in
subsection (1); and |
(b) the court
makes an order for the specific delivery of the goods to the owner and
postpones the operation of that order, |
then, except
as provided by section 41, the court shall not entertain the claim in respect
of that sum unless and until the postponement is revoked, and shall then deal
with the claim as if the agreement had just been terminated. |
41. (1) Where the owner has brought an action to which
section 34 applies, and the court has made an order under either paragraph (a)
or (b) of subsection (4) of that section (in this section referred to as
"the previous order"), then if- | Money claim after order for specific delivery of
goods. |
(a) the owner
has (whether the operation of the previous order was postponed or not)
recovered possession of the goods; or |
(b) the
operation of the previous order was originally postponed but the court
subsequently revokes the postponement, |
the owner
may make or proceed with any claim to which this section applies. |
(2) This section
applies to any claim- |
(a) for the
payment of one or more instalments which has accrued due under the agreement
before the action was brought; or |
(b) for the
payment of any sum for which the agreement makes provision as is mentioned in
subsection (1) of section 40 and which had become payable before the action was
brought. |
(3) In determining
a claim to which this subsection applies the court may treat any sum paid in
pursuance of an order under paragraph (b) of subsection (4) of section 34 as a
payment made, wholly or partly, in respect of any sum or instalment to which
the claim relates. |
42. The provisions of sections 34 to 41 of this Act
shall apply in relation to protected goods where the agreement is a conditional
sale agreement mutatis mutandis and subject also to the modifications
following, that is to say- | Application of sections 34 and 41 to conditional sale
agreements. |
(a) any reference
to the hirer shall be taken as a reference to the buyer; |
(b) any
reference to the owner shall be taken as a reference to the seller; |
(c) any
reference to the hire-purchase price shall be taken as a reference to the total
purchase price. |
43. (1) Where goods have been let under a
hire-purchase agreement or have been agreed to be sold under a conditional sale
agreement and the owner or seller- | Evidence of adverse detention of goods. |
(a) brings an
action to enforce a right to recover possession of the goods from the hirer or
buyer; and |
(b) proves in
that action that, after the right to recover possession of the goods accrued
but before the action was begun, he made a request in writing to the hirer or
buyer to surrender the goods, |
then, for
the purposes of the claim of the owner or seller to recover possession of the
goods, the possession of them by the hirer or buyer shall be deemed to be
adverse to the owner or seller. |
(2) Nothing in
this section contained shall affect a claim for damages for conversion. |
44. Notwithstanding anything to the contrary contained
in a hire-purchase agreement or a conditional sale agreement, where any
instalment payable under the agreement is paid not less than one month before
the date on which it is due, a rebate in the price of the goods shall be
allowed at the rate of five per centum per annum or such rate in lieu thereof
as may be prescribed, calculated on the amount of such instalment for the
period in respect of which it was prepaid. | Rebate in purchase price on early payment of
instalments. |
PART V
MISCELLANEOUS AND SUPPLEMENTARY |
45. (1) Where a hirer or buyer is liable to make
payments to the same owner or seller in respect of two or more hire-purchase
agreements, two or more conditional sale agreements, or one or more
hire-purchase agreements and one or more conditional sale agreements, he shall
be entitled on making any payment in respect of those agreements which is not
sufficient to discharge the total amount then due under all of them, to
appropriate the sum so paid by him either | Appropriation of payments. |
(a) in or
towards satisfaction of the sum due under any one of the agreements; or |
(b) in or
towards satisfaction of the sum due under any two or more of the agreements in
such proportions as he thinks fit. |
(2) If the hirer
or buyer fails to make any such appropriation, the payment shall by virtue of
this subsection be appropriated towards the satisfaction of the sums due under
the several agreements respectively in the proportions which those sums bear to
one another. |
(3) The preceding
provisions of this section shall have effect notwithstanding anything to the
contrary contained in any agreement. |
46. If, at any time when by virtue of this Act the
enforcement by the owner under a hire-purchase agreement, or by the seller
under a conditional sale agreement, of a right to recover possession of goods
from the hirer or buyer is subject to any restriction, the hirer or buyer
refuses to give up possession of the goods to the owner or seller, the hirer or
buyer shall not by reason only of the refusal, be liable to the owner or seller
for conversion of the goods. | Refusal to surrender goods not to be conversion in
certain cases. |
47. Notwithstanding the provisions of any other Act,
no magistrate other than the Chief Magistrate or a stipendiary and circuit
magistrate shall have jurisdiction to hear or determine any action or claim
arising out of or in connection with a hire purchase agreement or a conditional
sale agreement or to make any order or give any directions in pursuance of any
power vested in a court by the provisions of this Act. | Jurisdiction restricted to certain magistrates. |
48. The Minister may make regulations regulating the
advertisement of goods made available for disposal by way of hire-purchase,
credit sale or conditional sale. | Regulations as to advertisements re hire-purchase,
credit sale or conditional sale. |
FIRST SCHEDULE (Section 6) |
NOTICE TO BE
INCLUDED IN HIRE-PURCHASE AGREEMENT |
IMPORTANT |
Right of Hirer
to Terminate Agreement |
1. The hirer may
put an end to this agreement by giving notice to do so in writing to any person
entitled to collect or receive the hire-rent. |
2. He must pay any
instalments which are in arrears when he gives notice. If, when he has paid
those instalments, the total amount that he has paid under the agreement is
less than (here insert the minimum amount which the hirer is required to pay
under subsection (1) of section 25) he must also pay enough to make up that
sum, unless the court determines otherwise. |
3. If the goods
have been damaged because the hirer has failed to take reasonable care of them,
the owner may sue him for the amount of damage. |
4. The hirer
should see whether this agreement contains anything allowing him to put an end
to it on terms more favourable to himself than those above. If it does, he may
put an end to the agreement on those terms. |
Restriction of
Owner's Right to Recover Goods |
5. After (here
insert an amount calculated in accordance with section 32) has been paid then,
unless the hirer has himself put an end to this agreement, the owner of the
goods can not take them back from him without his consent unless the court
makes an order for them to be returned. |
6. If the owner
asks the court for an order, the court may, if it thinks just, allow the hirer
to keep either- |
(a) the whole
of the goods, provided that he pays the balance of the price as the court
directs; or |
(b) a fair part
of the goods according to how much the hirer has already paid. |
SECOND SCHEDULE (Section 6) |
NOTICE TO BE
INCLUDED IN CONDITIONAL SALE AGREEMENT |
IMPORTANT |
Right of Buyer
to Terminate Agreement |
1. The buyer may
put an end to this agreement by giving notice to do so to any person entitled
to collect or receive instalments of the purchase price. |
2. He must then
pay any instalments which are in arrears when he gives the notice. If, when he
has paid those instalments the total amount that he has paid under the
agreement is less than (here insert the minimum amount which the buyer is
required to pay under subsection (1) of section 25) he must also pay enough to
make up that sum unless the court determines otherwise. |
3. If the goods
have been damaged because the buyer has failed to take reasonable care of them,
the seller may sue him for the amount of the damage. |
4. The buyer
should see whether this agreement contains anything allowing him to put an end
to it on terms more favourable to him than those above. If it does, he may put
an end to the agreement on those terms. |
Restriction on
Seller's Right to Recover Goods |
5. After (here
insert an amount calculated in accordance with section 32) has been paid then
unless the buyer has himself put an end to this agreement, the seller of the
goods cannot take them back from him without his consent, unless the court
makes an order for them to be returned. |
6. If the seller
asks the court for an order, the court may, if it thinks just, allow the buyer
to keep either- |
(a) the whole
of the goods, provided that he pays the balance of the price as the court
directs; or |
(b) a fair part
of the goods according to how much the buyer has already paid. |