Buyer’s claim in detinue or conversion for wrongful seizure
It would seem therefore that the mere fact that the parties agree on their pleadings, and the trial judge also found as a fact that the agreement is a hire-purchase agreement is not enough under our Act to deprive the buyer of a right to claim damages in detinue or conversion for wrongful seizure. Much depends on the actual terms of contract which must be read as a whole and its substantial effect ascertained. Once the goods have been delivered to the buyer there is a presumption that the property in them has passed unless a different intention appears from the contract. Where no such intention appears, there must be an express provision conferring on the seller a right to retake possession of the goods.
In this case the agreement is oral but there is evidence which was rightly accepted by the trial judge that the property in the goods was not to pass to the plaintiff until she had completed paying the whole purchase price. In the circumstances I agree with the trial circuit judge that her claim for damages was not maintainable.
Consequences of non-compliance with the formal requirements
It is clear therefore that it is the seller who suffers for non-compliance with the provisions of section 66 (1) of Act 137 and this is as it should be, as the duty of stating the cash price in writing is imposed by the Act on the seller and not on the buyer.
Recovery of goods after half the hire-purchase price is paid
Section 69 of the Sale of Goods Act, 1962 (Act 137), is the high-water mark of the legislative effort at protecting the hirer or consumer from the actions of the seller. Section 69 provides: “(1) Where goods have been delivered to a buyer under a contract of hire-purchase, and at least fifty per cent, or such other minimum percentage as may be prescribed, of the hire-purchase price has been paid or tendered by or on behalf of the buyer, the seller may not enforce any right to recover possession of the goods from the buyer otherwise than by action. (2) If a seller recovers possession of goods in contravention of subsection (1) the hire-purchase contract, if not previously determined, shall determine, and— (a) the buyer shall be released from all liability under the contract and shall be entitled to recover from the seller all sums paid by the buyer under or in respect of the contract; and (b) any guarantor shall be entitled to recover from the seller all sums paid by him under or in respect of the contract of guarantee.”
In this case there was admittedly a contract of sale within section 1 (2) of the Sale of Goods Act, 1962 (Act 137). The purchase price was made payable by more than five instalments. There is evidence which the trial judge justifiably accepted that more than fifty percent of the purchase price in respect of the vehicle had been paid to the seller. The seller nevertheless seized the vehicle. The buyer’s right to recover from the seller all sums paid in respect of the contract seems to me unimpeachable.
The Sale of Goods Act, 1962 (Act 137), states simply and realistically that a hire-purchase agreement is a contract of sale and it differs from other contracts of sale of goods only in respect to the terms provided for the payment of the purchase price; it must be in five or more instalments. The questions whether the property in the goods passes to the hirer or remains with the owner until the exercise of the option are largely irrelevant to the determination of whether a hire-purchase contract has been created or not. It follows therefore that where the purchase price is payable in less than five instalments, no hire-purchase contract is created even though the agreement is one for the hire of goods with an option in the hirer to purchase them at a further date, or whether all the other provisions of the Act have been complied with.
Whether a hire-purchase agreement must be in writing
The whole history of legislative incursions into the field of hire-purchase law shows that the primary concern of the legislature has been the protection of the buyer, hirer or consumer from the cupidity and rapacity of sellers or, owners, and from their own inexperience and gullibility. The trend of legislation has been to limit the rights of the owner or seller at common law, and to confer more effective rights on the buyer, hirer or consumer. The rights of the buyer at common law have largely not been limited. The right of the hirer or buyer to enforce a hire-purchase agreement is not affected by the absence of writing although a seller cannot do so except the agreement is in writing or the court dispenses with this requirement under section 66 (4) of the Act.
Where there is a sale and not a mere bailment of goods under a contract of hire with an option to purchase, and there is superimposed on that sale an express right to retake possession of the goods, the buyer in my view can maintain an action for detinue or conversion if that right to retake possession is wrongfully exercised, e.g. by exercising it in contravention of the provisions of the Act where more than 50 per cent of the purchase price has been paid. Where there is a sale with no such express right reserved, the buyer’s right to maintain an action for damages is clearly unaffected even though the agreement is a hire-purchase contract under the Sale of Goods Act, 1962. In these cases it is my view that the remedy provided under section 69 of the Sale of Goods Act, 1962, cannot be said to be exhaustive, nor the only remedy available to a buyer who has paid more than 50 per cent of the purchase price under a contract where such price is payable by five or more instalments. Where there is a bailment of the goods the buyer as is now well settled has no right of action in detinue or conversion, because the property in the goods remains in the seller.
