Short title
1. This Act may be cited as the Conditional Sales Act.
RSN1970 c56 s1
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Definitions
2. In this Act
(a) "affidavit" includes statutory declaration;
(b) "affixed" as applied to goods means erected upon or affixed or annexed to land in the manner and under the circumstances that constitutes them fixtures;
(c) "building" includes a structure, erection, mine or work built, erected or constructed on or in land;
(d) "building materials" includes goods that become so incorporated or built into a building that their removal would necessarily involve the removal or destruction of some other part of the building and cause substantial damage to the building apart from the value of the goods removed, but does not include goods that are severable from the land merely by unscrewing, unbolting, unclamping or uncoupling, or by some other method of disconnection, and does not include machinery installed in a building for use in the carrying on of an industry where the only substantial damage, apart from the value of the machinery removed, that would necessarily be caused to the building in removing the machinery is that arising from the removal or destruction of the bed or casing on or in which the machinery is set and the making or enlargement of an opening in the walls of the building sufficient for the removal of the machinery;
(e) "buyer" means a person who buys or hires goods by a conditional sale, and includes the heirs, executors, administrators, successors and assigns of that person;
(f) "conditional sale" means
(i) a contract for the sale of goods under which possession is or is to be delivered to a buyer and the property in the goods is to vest in him or her at a later time on payment of the whole or part of the price or on the performance of another condition, or
(ii) a contract for the hiring of goods under which it is agreed that the hirer will become or have the option of becoming the owner of the goods on compliance with the terms of the contract;
(g) "creditor" means a creditor of a buyer, whether an execution creditor or not, who becomes a creditor before the filing of the conditional sale or of a renewal statement and, for the purpose of enforcing the rights of that creditor but not otherwise, includes a creditor suing on behalf of himself or herself and other creditors, an assignee for the general benefit of creditors, a trustee under the Bankruptcy Act (Canada), and a liquidator of a company under the Winding-up Act (Canada) or under the Corporations Act, without regard to the time when the creditor so suing becomes a creditor or when the assignee, trustee or liquidator is appointed;
(h) "department" means the Department of Justice;
(i) "goods" means personal chattels other than things in action or money, and includes emblements, industrial growing crops and things attached to or forming part of the land that are agreed to be severed before the sale or under the contract of sale, and motor vehicles;
(j) "motor vehicle" means motor vehicle within the meaning of the Highway Traffic Act;
(k) "registrar" means the Registrar of Conditional Sales appointed under of section 3;
(l) "registry" means the Registry of Conditional Sales, Bills of Sale and Chattel Mortgages referred to in section 3; and
(m) "seller" means a person who sells or lets to hire goods by a conditional sale and includes the heirs, executors, administrators, successors and assigns of that person.
RSN1970 c56 s2; 1974 No51 s2; 1975-76 No58 s4; 1981 c4 Sch C; 1984 c41 Sch C;
1986 c12 Sch;
1989 c19 Sch B
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Registry
3. (1) There shall be a registry in the department for the registration of documents to be known as the Registry of Conditional Sales, Bills of Sale and Chattel Mortgages.
(2) There shall be a Registrar of Conditional Sales, to be appointed in the manner authorized by law.
(3) There may be appointed, in the manner authorized by law, a Deputy Registrar of Conditional Sales.
(4) In the absence of the registrar or when the office of the registrar is vacant, the deputy registrar shall perform the functions and duties, and may exercise the powers of the registrar.
1974 No51 s3
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Provision void
4. Where possession of goods has been delivered to a buyer under a conditional sale, a provision contained in it whereby the property in the goods remains in the seller is, unless this Act is complied with, void as against a creditor and as against a subsequent purchaser or mortgagee claiming from or under the buyer in good faith for valuable consideration without notice and the buyer shall, notwithstanding the provision, be considered as against such a person to be the owner of the goods.
RSN1970 c56 s3
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Contents of documents
5. (1) A conditional sale of goods shall be evidenced by a writing, executed prior to or at the time of or within 10 days after delivery of the goods by the buyer or his or her agent, giving a description of the goods by which they may be readily and easily known and distinguished, and stating the amount of the purchase price remaining unpaid or the terms and conditions of the hiring.
(2) The description of a motor vehicle in the writing evidencing a conditional sale shall include the serial number of the vehicle.
(3) The writing or a copy of it shall be filed in the registry within 30 days from the date of its execution.
(4) The registrar shall number a conditional sale or a copy of it filed in the registry, endorse it with a memorandum of the date, hour and minute of its filing, and index it by entering in a register kept by him or her the names and addresses of the parties to the conditional sale, its registration number and the date of its filing and the names of the parties to each conditional sale shall be entered in the register alphabetically according to the name of the purchaser.
RSN1970 c56 s4
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Manufactured goods
6. (1) The filing of the conditional sale is not required where a conditional sale of manufactured goods is made by the manufacturer of the goods and
(a) at the time of the delivery to the buyer the goods have the name of the manufacturer plainly painted, printed, stamped or otherwise inscribed on them or plainly attached by a plate or similar device; and
(b) the manufacturer maintains an office in the province where inquiry may be made and information obtained concerning the sale of the goods.
(2) Where a manufacturer who maintains an office referred to in paragraph 1(b) fails to provide to an applicant, within 5 days after receiving the application, a statement of the amount paid for the goods and the amount remaining unpaid, he or she shall not afterward be entitled to rely on subsection (1).
RSN1970 c56 s5
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Goods brought into province
7. Notwithstanding subsection 6(1), where goods are brought into the province and are subject to an agreement made or executed outside the province that provides that the right of property in the goods or the right of possession of the goods, in whole or in part, remains in the seller notwithstanding that the actual possession of the goods passes to the buyer, then unless
(a) the agreement contains such a description of the goods that they may readily and easily be known and distinguished; and
(b) a copy of the agreement is filed in the registry within 30 days after the seller has received notice of the place to which the goods have been brought,
the seller is not entitled to set up a right of property in or right of possession of the goods as against a creditor or as against a subsequent purchaser or mortgagee claiming from or under the buyer in good faith for valuable consideration without notice and the buyer shall, notwithstanding the agreement, be considered as against such a person to be the owner of the goods.
RSN1970 c56 s6
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Failure to comply with section 7
8. Where a contract has been made outside the province with reference to goods not then in the province, by which, under the law governing the contract, the seller has, upon default in payment of the price or the insolvency of the buyer, a right of revendication or a preference for the price of the goods sold, or a right to a dissolution of the sale and to resume possession of the goods notwithstanding the possession of the buyer, and the goods are brought into the province, the seller, except in the case of an agreement that complies with section 7 and is filed as required by that section, is not entitled to set up the right of revendication, the preference for the price or the right to a dissolution of the sale and to resume possession of the goods as against a creditor or as against a subsequent purchaser or mortgagee claiming from or under the buyer in good faith for valuable consideration without notice and the buyer shall, notwithstanding the contract, be considered as against such a person to be the owner of the goods.
RSN1970 c56 s7
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Sale to traders
9. Where a seller of goods expressly or impliedly consents that the buyer may sell them in the ordinary course of business and the buyer so sells the goods, the property in the goods passes to the purchaser from the buyer notwithstanding the other provisions of this Act.
RSN1970 c56 s8
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Delivery of copy of conditional sale
10. The seller shall deliver a copy of the conditional sale to the buyer within 20 days after the execution of it and if after the request he or she neglects or refuses to do so, a judge of the Trial Division may on summary application make an order for the delivery of a copy.
RSN1970 c56 s9; 1986 c42 Schs A&B
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Seller's duty to provide particulars
11. (1) Within 5 days after the receipt of a request from a person proposing to purchase the goods or from an actual or intending creditor of the buyer or from another interested person, accompanied by a sufficient amount of money or postage stamps to pay the postage on a reply by registered letter, the seller shall provide particulars of the amount remaining due to him or her and the terms of payment and in default he or she is liable to a penalty not exceeding $50.
(2) The person making the request shall give a name and postal address to which a reply may be sent and it is sufficient if the information is given by registered letter deposited in a post office within the prescribed time addressed to the name and postal address so given.
RSN1970 c56 s10
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Renewal statements
12. (1) A conditional sale that has been filed in accordance with this Act stops being valid after the expiration of 3 years from its filing as against a creditor and as against a subsequent purchaser or mortgagee claiming from or under the buyer in good faith for valuable consideration without notice, unless before the expiration of that period a renewal statement in Form 1 is filed in accordance with this section.
(2) The renewal statement shall state the interest of the seller in the goods that are subject to the conditional sale and the amount unpaid on account of the purchase price or under the terms and conditions of the hiring and shall be accompanied by an affidavit of the seller or his or her agent or of 1 of the sellers or his or her or their agent stating that the renewal statement is true and that the conditional sale is not being kept in force for a fraudulent purpose or to defeat, delay or prejudice creditors of the buyer.
(3) Unless a further renewal statement is filed in accordance with this section within 3 years from the filing of the 1st renewal statement and afterward within 3 years from the filing of the last preceding renewal statement, the conditional sale stops being valid after the expiration of any such period to the extent provided in subsection (1).
(4) Where a mistake is made in a renewal statement, an amended statement verified by affidavit referring to the former statement and specifying and correcting the mistake in it may be filed.
(5) Where before the filing of an amended statement a person relying on the accuracy of the renewal statement as first filed, has in good faith made an advance of money or given valuable consideration to the buyer or has taken proceedings and incurred costs, the conditional sale, as to the amount so advanced or the valuable consideration given or costs incurred by the person, shall as against him or her stand good only for the amount stated in the renewal statement as first filed.
(6) The registrar shall number, endorse and index a renewal statement and an amended statement filed in the registry in the same manner as a conditional sale.
RSN1970 c56 s11
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Redemption and resale
13. (1) Where the seller retakes possession of the goods under a condition in the contract, he or she shall retain them for a month and the buyer may redeem them within that period by paying or tendering to the seller the amount then due on the contract price together with the actual costs and expenses of retaking and keeping possession or by performance or tender of performance of the condition upon which the property in the goods is to vest in the buyer and payment of those costs and expenses and then the seller shall deliver up to the buyer possession of the goods so redeemed.
(2) Where the goods are not redeemed within the period of 1 month, the seller may sell the goods after the expiration of that period either by private sale at a fair market price or at public auction.
(3) Where the seller retakes possession of the goods in accordance with subsection (1), his or her right is restricted to repossession and sale of the goods and a claim by the seller for the unpaid purchase price is, because of the retaking of possession and sale, fully paid and satisfied.
(4) Where the seller does not retake possession of the goods in accordance with subsection (1), he or she may bring an action against the buyer for the unpaid purchase money.
(5) Where a judgment is obtained in an action taken under subsection (4) and the goods are seized and sold under an execution issued under the judgment, the amount realized from the sale of the goods is in full satisfaction of the judgment and costs.
(6) This section applies to all instalment sales whether effected by way of a conditional sale agreement or lien note or by way of agreement or arrangement made at the time of sale or subsequent to it whereby the buyer gives to the seller a chattel mortgage or bill of sale covering the whole or part of the purchase price of the goods.
(7) Subsections (3), (4) and (5) do not apply to a case where the goods, before or after being repossessed by the seller, are by the wilful act of the buyer or by his or her neglect or otherwise
(a) destroyed; or
(b) damaged or unduly depreciated to such an extent that the seller's security is materially impaired.
(8) Where a seller has retaken possession of the goods in accordance with subsection (1) and it is found that an accessory forming part of the goods was removed from the goods before they were repossessed and was not replaced by another accessory of the same kind and value, the seller may sue the buyer for
(a) the value of the accessory; or
(b) the amount by which the sum realized on the sale of the goods falls short of the value which the goods might have had if the accessory had not been removed and the amount of the proper fees, charges, claims and disbursements in connection with the repossession and sale,
whichever is the lesser.
(9) Where the seller sells the goods under subsection (2) or (3), he or she shall pay over to the buyer the surplus remaining after the unpaid purchase price of the goods and the costs of the retaking and keeping possession and the sale have been satisfied.
(10) Where goods are sold under an execution referred to in subsection (5), the surplus remaining after the judgment and costs referred to in that subsection have been satisfied shall be paid over to the buyer.
(11) This section applies notwithstanding a statute or law to the contrary and notwithstanding an agreement to the contrary.
(12) A provision of an agreement which is contrary to or conflicts with this section is not binding upon and may not be enforced by or against the parties to the agreement.
RSN1970 c56 s12
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Certificate of discharge
14. (1) Upon payment or tender of a fee of $1 and of the amount due in respect of the goods or upon performance of the conditions of the sale and upon written demand delivered personally or by registered mail by the buyer or another person having an interest in the goods, the seller shall sign and deliver personally or by registered mail to the person demanding it a certificate of discharge in Form 2 and an affidavit of a certifying witness of the execution of it.
(2) Where for 10 days after receipt of the demand referred to in subsection (1) the seller unreasonably fails to deliver the required certificate and affidavit he or she is liable to the person demanding it for the damages resulting from the failure.
(3) A conditional sale filed under this Act may be discharged in whole or in part by the filing in the registry of a certificate of discharge signed by the seller and accompanied by an affidavit of a certifying witness of the execution of it.
(4) The registrar shall note the fact of the discharge against each entry in the books of the registry respecting the conditional sale and shall make an identical notation upon the writing evidencing the conditional sale or copy filed in the registry and upon a renewal statement and an amended statement with respect to it filed in the registry.
(5) The registrar shall on request provide a certificate of the entry of the discharge.
RSN1970 c56 s13
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Notice of conditional sale
15. (1) In this section "goods" means personal chattels capable of being affixed to land.
(2) This section does not apply in respect of building materials and stops applying in respect of other goods upon their becoming affixed to land in the manner that constitutes them building materials.
(3) Notwithstanding the Registration of Deeds Act, where possession of goods is delivered to the buyer and the goods are affixed to land, they remain subject to the rights of the seller as fully as they were before being affixed.
(4) In addition to complying with section 5, and not later than 30 days after the start of the affixing of the goods to the land, the seller or his agent shall sign and file with the Registrar of Deeds a notice in Form 3 setting out
(a) the name and address of the seller;
(b) the name and address of the buyer;
(c) a description of the goods by which they may readily be known and distinguished;
(d) the name and address of the owner of the land to which the goods are to be affixed and a description of the land;
(e) the amount unpaid on account of the purchase price or under the terms and conditions of the hiring; and
(f) the registration number of the conditional sale in the registry.
(5) Upon the filing of the notice under subsection (4) the Registrar of Deeds shall register it in the Registry of Deeds.
(6) The registration of the notice under subsection (5) shall be considered actual notice of the existence of the conditional sale and of the provisions of it to a person who is an owner of the land described in the notice or of an interest in the land or who is a purchaser, lessee, mortgagee, or other encumbrancer of the land or of an interest in the land.
(7) The seller is not entitled to retake possession of the goods so affixed or remove them from the land unless he or she has given to each person who appears by the records of the registry to have an interest in the land a written notice of the intention to retake possession of and to remove the goods and unless each person so notified fails to pay the amount due on the goods for a period of 1 month after the giving of the notice to him or her or for the longer period that a judge of the Trial Division fixes on cause shown to his or her satisfaction.
(8) The notice specified in subsection (7) shall be signed by the seller or the seller's agent and shall set out
(a) the name and address of the seller;
(b) the name and address of the buyer;
(c) a description of the goods;
(d) a description of the land to which the goods are affixed; and
(e) the amount unpaid on account of the purchase price or under the terms and conditions of the hiring and the amount presently due on it,
and shall contain a demand that the amount so due shall be paid on or before a day mentioned, not being less than 1 month after the giving of the notice, and a statement of the intention to take possession of and to remove the goods unless the amount due on it is paid within the time mentioned.
(9) Notice to a person under subsection (7) may be given by personal delivery to him or her or by mailing it by registered mail addressed to him or her at his or her last known address and where the notice is so mailed it shall be considered to be given at the time when it would reach its destination in the ordinary course of mail.
(10) Notice under subsection (7) may be given by the form of substituted service that a judge of the Trial Division may direct.
(11) Each person having an interest in the land, whether registered or not, has a right as against the seller to pay the amount due within the time mentioned in the notice and upon payment the goods shall, subject to a remaining right of the seller under the conditional sale, remain affixed to the land.
(12) Where a person, other than the buyer, having an interest in the land pays the amount unpaid on account of the purchase price or under the terms and conditions of the hiring he or she may demand and receive from the seller an assignment of the conditional sale.
(13) The seller, on becoming entitled to remove the goods from the land, shall exercise his or her right of removal in a manner that will not cause unnecessary damage to the land or to personal property situated on it or put the owner, lessee or occupier of the land to no greater inconvenience than is necessarily incidental to the work of effecting the removal of the goods.
(14) Upon receipt of an executed copy of a certificate of discharge in Form 2 signed by the seller and accompanied by an affidavit of execution of a certifying witness, or a certificate referred to in subsection 14(5), the Registrar of Deeds shall register it in the Registry of Deeds.
(15) In the case of a partial discharge the form of the certificate may be varied accordingly and shall be registered in accordance with subsection (14).
(16) Upon the registration of a certificate referred to in subsection (14) or subsection (15), subsections (3) and (6) no longer apply in respect of the goods and land to which the certificate extends.
RSN1970 c56 s14; 1974 No51 s4; 1975 No7 s2;
1986 c42 Schs A&B
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Expiry of time where registry closed
16. Where under this Act the time for the filing of a document expires on a day on which the registry is closed, the filing, so far as regards the time of filing, is valid, if made on the next day on which the registry is open.
RSN1970 c56 s15
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Proof of execution
17. (1) Where the certifying witness to a document to which this Act applies dies or leaves the province before making the affidavit of execution required by this Act or becomes incapable of making or refuses to make the affidavit, a judge of the Trial Division upon being satisfied as to the execution and certification of the document may make an order permitting the filing of the document.
(2) The order or a copy of it shall be filed with the document.
(3) Filing of the document under the order has the same effect as the filing of it with the affidavit of execution otherwise required by this Act.
RSN1970 c56 s16; 1986 c42 Schs A&B
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Affidavits; registrar
18. (1) In addition to a person authorized by law to take affidavits, the registrar may take the affidavit of a person under this Act.
(2) A conditional sale or other document to which this Act applies shall not be held to be defective or void on the ground that an affidavit required by this Act was taken and made before a solicitor for a party to the conditional sale or other document or before a partner of the solicitor or before a clerk in the office of the solicitor.
(3) An affidavit required by this Act to be made by a seller may, in the event of his or her death, be made by his or her executor or administrator or by his or her next of kin or by an authorized agent of the executor or administrator.
(4) Where the seller or his or her agent is a corporation, an officer, employee or agent of the corporation may make an affidavit or statement under this Act on behalf of the corporation.
(5) An affidavit made under this Act by an agent of a seller or by an executor or administrator or a next of kin or an authorized agent of an executor or administrator or by an officer, employee or agent of a corporation shall state that the deponent is aware of all the circumstances connected with the conditional sale and that he or she has personal knowledge of the facts deposed to.
(6) Where a document to which this Act applies is executed by a corporation, an affidavit of a certifying witness is not required.
RSN1970 c56 s17
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Proof in certain cases
19. Where a certificate of discharge is executed
(a) within the province in the presence of a justice of the peace, a notary public under his or her official seal or a commissioner for oaths in and for the province; or
(b) outside the province in the presence of a notary public, under his or her official seal or a commissioner for oaths outside the province,
and where that person signs the certificate of discharge as a witness and
(c) sets out immediately after his or her signature as a witness the capacity in which he or she signs and if a notary public, affixes his or her seal near the signature or if a commissioner for oaths makes the notation required by the Commissioners for Oaths Act; or
(d) without complying with paragraph (c), signs a certificate, endorsed upon or attached to the certificate that the certificate was executed in his or her presence, and sets out immediately after the signature to the certificate the capacity in which he or she signs and if a notary public, affixes his or her seal near the signature, and if a commissioner for oaths makes the notation required by the Commissioner for Oaths Act,
further proof of the execution of the certificate is not required.
1979 c51 s9
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Rectification of omissions, etc.
20. (1) A judge of the Trial Division upon being satisfied that an omission to file a conditional sale, a notice required to be filed under section 15 or renewal statement or amended statement within the time prescribed by this Act, or that an omission or misstatement in a document filed under this Act was accidental or due to inadvertence or impossibility or other sufficient cause, may, subject to the rights of other persons accrued because of it, extend the time for filing or order the omission or misstatement to be rectified on the terms and conditions that he or she directs.
(2) An order under this section or a copy of it shall be filed with the registrar who shall attach it to the document on file or tendered for filing and shall make the appropriate entries in the register.
RSN1970 c56 s18; 1986 c42 Schs A&B
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Effects of defects
21. A document to which this Act applies shall not be invalidated or its effect destroyed by reason only of a defect, irregularity, omission or error in it or in the execution or certification of it unless, in the opinion of the judge before whom a question relating to it is tried, the defect, irregularity, omission or error has actually misled some person whose interests are affected by the document.
RSN1970 c56 s19
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Evidence
22. (1) A copy of a document filed under this Act, certified as such by the registrar, is receivable in evidence as, in the absence of evidence to the contrary, proof as if the original document were produced and also, in the absence of evidence to the contrary, proof of the execution of the original document, according to the purport of the copy.
(2) The registrar's certificate is receivable in evidence as, in the absence of evidence to the contrary, proof of the date, hour and minute of the filing of the document.
(3) Proof is not required of the signature or official position of the registrar in respect of a certificate produced as evidence under this section.
RSN1970 c56 s20
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Custody of documents
23. (1) The registrar has the care and custody of the books and documents of record kept or filed under this Act.
(2) During the regular office hours of the registry, a person may, on filling out a requisition form indicating with reasonable certainty the object of search and on payment of the prescribed fee, inspect the books and documents in the registry relating to his or her stated object.
(3) The registrar may require a person, before entering the place where the books and records are kept, to deposit at a place outside all pens or writing or marking instruments containing ink or moist or indelible colours, and to declare that he or she does not take in a writing or marking instrument except a soft blacklead pencil the marks of which may be readily erased.
(4) A person, not being a member of the Law Society of Newfoundland, who acts as a professional searcher, that is to say, a person who makes numerous and frequent searches on behalf of his or her clients, shall be required to obtain a certificate of approval from the Minister of Justice before being allowed to have access to the books and records, and the minister may withdraw the certificate of approval in his or her discretion.
(5) The Minister of Justice may, before approving a professional searcher, require him or her to sign an undertaking that he or she will pay to the registrar the fee set out in the regulations made under section 24 for each search made by him or her and that he or she will not, having requisitioned a search, avail of the opportunity to make a search into matters not connected with the object mentioned in the requisition, and the minister may require the professional searcher to sign a declaration, that he or she has not in fact, since he or she was first approved or since his or her last declaration, made a search not covered by a requisition and search fee.
(6) A professional searcher shall pay the fee set out in the regulations made under section 24 for each search made by him or her.
(7) Notwithstanding subsection (6), in the case of generalized searches by a professional searcher, where his or her object is to obtain lists of persons rather than to search in respect of known parties, the registrar, with the approval of the Minister of Justice, may fix a lump sum payment which may be paid, in the manner prescribed by the registrar, by a professional searcher to cover all generalized searches made by him or her during the period in respect of which the lump sum payment is made, instead of the fees prescribed in the regulations made under section 24 for searches.
RSN1970 c56 s21; 1974 No51 s5; 1975-76 No58 s4; 1981 c4 Sch C; 1984 c41 Sch C;
1989 c19 Sch B
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Fees
24. (1) The registrar shall collect and pay through the department into the Consolidated Revenue Fund the fees set out in the regulations made under this section.
(2) The Lieutenant-Governor in Council shall make regulations prescribing the fees to be paid under subsection (1) and the regulations may be made with retroactive effect to a date stated in the regulations.
(3) The registrar shall not register a document under this Act unless the fees prescribed in the regulations made under this section are paid.
1974 No51 s6
FORM 1
(Section 12)
Renewal Statement
Statement of the interest of in the goods mentioned in the conditional sale between of the one part and of the other part and filed in the Registry of Conditional Sales, Bills of Sale and Chattel Mortgages on the day of , 19 , as No. , and in respect of which a renewal statement was last registered in the Registry of Conditional Sales, Bills of Sale and Chattel Mortgages: