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Know your BIFA Standard Trading Conditions 2021: Clause 8 part 3, Clause 8 (B)
CLAUSE 8 (B) When the goods are liable to perish or deteriorate, the Company’s right to sell or dispose of or deal with the Goods shall arise immediately upon any sum becoming due to the Company, subject only to the Company taking reasonable steps to bring to the Customer’s attention its intention to sell or dispose of the Goods before doing so. COMMENT ON CLAUSE 8 (B) Clause 8 (A) (ii) of the BIFA 2021 STC confers the right to sell or dispose of goods on giving at least 21 days’ notice, which is a very reasonable and generous time scale. However, in the case of perishable goods or those likely to deteriorate, such a time scale would be useless and so Clause 8 (B) confers the right to sell or dispose of such goods immediately upon sums becoming due, provided that reasonable steps are taken to draw the defaulter’s attention to the intention to sell before doing so. Caution! Under S.8 of the Food Safety Act 1990 it is a criminal offence to sell or offer for This month we come to the end of Clause 8, which covers liens. We probably get more calls on this topic than any other at the secretariat and this article should be read in conjunction with the previous two BIFAlink issues
sale food that fails to comply with food safety requirements and the punishment can be a fine, a custodial sentence, or both. Clause 8 (B) gives by contract, the right to sell perishable goods when a lien is being exercised. No such right exists at common law and the only alternative remedy would be for the BIFA Member to make an application for a Court Order under Part 25.1 (1) (c) (v) of the Civil Procedure Rules, which came into force in 1999 and which states: “The court may grant the following interim remedies... an order... for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly”. The granting of such an Order is
discretionary. This facility may be sought when the goods are not perishable or likely to physically deteriorate but are likely to substantially lose their value or the whole point of their production within a short time and in less than the time needed to give at least 21 days’ notice. Liens are also covered in the BIFA Good Practice Guide, A Guide to Exercising a Lien Using the BIFA Standard Trading Conditions (BIFA STC). This is one of many good practice guides that can be found on the BIFA website www.bifa.org > INFORMATION > GOOD PRACTICE TOOLBOX Always remember that it is prudent to engage the services of a solicitor when applying a lien.
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www.ttclub.com
January 2023
17
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