An exploration of the legal minefield of retention of title clauses

Student thesis: Doctoral ThesisDoctor of Philosophy


This thesis explores how the functional objectives of retention of title clauses, as a commercial mechanism, are hindered by significant legal uncertainty and judicial disfavour. A comprehensive critique of the law governing retention of title clauses is provided and the fundamental problems of a conceptual and practical nature for those parties seeking to rely on retention of title clauses in the event of insolvency are examined. This thesis demonstrates how retention of title clauses have been inadequately treated by the courts, which has invariably led to controversial implications and nuances in application. Areas of legal uncertainty, inconsistency and unpredictability are highlighted to illustrate the difficulties encountered under the present legal regime. The discussion will also challenge recent judicial decisions which have arguably produced contradictory outcomes and have significantly contributed to the uncertainty of this area of law. It is submitted that the unsatisfactory application of the law can be consistently evidenced across the breadth of legal fields in which these clauses are prevalent, a remit which extends far beyond the law of sales and subsequently, ventures into the law of property, contract law, the law of agency, company charges, and corporate insolvency. The arguments put forward will demonstrate that there is still substantial difficulty in resolving claims of retention of title and that the legal uncertainty is exacerbated by weak rationalisation of legal rules, inconsistent interpretation of the clauses in case law and a general reluctance by the courts to enforce claims pertaining to title
Date of Award2021
Original languageEnglish
Awarding Institution
  • Aberystwyth University
SupervisorDavid Poyton (Supervisor) & Nathan Gibbs (Supervisor)

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