One consequence of the passing of property on credit in transactions involving sale is that the relationship of buyer and seller becomes simply one of debtor and creditor. Other than certain proprietary remedies available under the Sale of Goods Act 19791 which usually cease on delivery, the seller’s only remedy on the insolvency of the buyer is to prove in competition with other unsecured creditors. In contrast, under Roman law, at least under the law of Justinian “it was necessary not only that the thing be delivered but also that the price be paid or security given for its payment” before property would pass.2 This was the suspensive lex commissoria 3 and its effect was to protect the seller on the buyer’s insolvency4 by giving him the right to recover his property. This commercial practice even permeated the law in French and Italian cities during the Middle Ages.5

The passing of property on sale was seen under Roman law as an effect of conveyance (delivery) rather than contract.6 Under English law the opposite rule is adopted. Thus, s. 17(1) of the English Sale of Goods Act 1979 provides that property is specific or ascertained goods passes at such a time as the parties intend, while s. 19(1) provides that the seller may “reserve the right of disposal of the goods until certain conditions (for example, payment of price) … are fulfilled”. This proprietary approach means that third party interests, especially those of the buyer’s creditors, may be adversely affected by the seller reserving title in the goods because prima facie these goods will be recoverable from the buyer on his insolvency. From this it follows that a status equivalent to a secured creditor may be enjoyed by the seller and, by this method, English law has reached a position similar to that achieved under Roman law. As such this position conflicts with the principle that a person in possession of an article is presumed owner.