MODERN USES OF TRUSTS IN COMMERCIAL TRANSACTION : ROMALPA CLAUSE, RETENTION MONIES, CONSIGNMENT AGREEMENTS AND MATURED BONDS by Syahrul Adam

TRUSTS IN COMMERCIAL TRANSACTION ?

syahruladamofficial — 2023-10-16 03:57:23 UTC

Trusts have evolved significantly in the realm of commercial transactions, serving as versatile instruments for achieving various business objectives. In the modern business landscape, trusts are employed not only for traditional asset protection and estate planning but also for a wide range of innovative applications. This abstract explores the contemporary uses of trusts in commercial transactions, highlighting their roles in securing privacy, facilitating business succession, optimizing tax strategies, and fostering philanthropic endeavors. Additionally, it underscores the increasing importance of trust structures in the context of cross-border trade and the management of digital assets, emphasizing their adaptability to address ever-changing business needs and regulatory challenges. Understanding these modern uses of trusts is crucial for businesses and individuals seeking to leverage the benefits of this sophisticated financial tool in today's dynamic economic environment. (Dr. Matthew Bianchi)

Example : Asset Protection, Estate Planning, Business Succession, Charitable Trusts, Vehicle Investment and etc.

ROMALPA CLAUSE

syahruladamofficial — 2023-10-16 03:59:48 UTC

A Romalpa clause, also known as a "reservation of title" clause, is a provision commonly used in commercial contracts, especially in the context of the sale of goods. This clause allows a seller to retain legal ownership of the goods they've sold until the buyer fulfills certain conditions, typically making full payment for the goods. In other words, the seller retains title to the goods until they have been paid in full. If the buyer fails to make the payment as agreed, the seller can reclaim the goods.

RETENTION MONIES

syahruladamofficial — 2023-10-16 04:00:11 UTC

Retention monies are funds withheld by one party (usually the payer) in a commercial transaction to secure the performance of the other party (usually the contractor or service provider). The withheld funds act as a form of security to ensure that the agreed-upon work is completed to the satisfaction of the payer.

CONSIGNMENT AGREEMENTS

syahruladamofficial — 2023-10-16 04:00:26 UTC

Definition
The consignor supplies goods to the consignee for the purpose of selling, storing or for the resale of those goods. The consignor will retain ownership of the goods until they are sold, despite the consignee possessing the goods.

Parties Involved:
1) Consignor
2) Consignee
3) Trust Entity

How it works??

It allow consignee to sell goods on behalf of a consignor without purchase the goods.
The consignment arrangement allow outlets to sell goods without having to invest in purchasing them.
eg: Gardenia
Consignment stores provide marketing & sale of these goods without bearing mush risk.
The governing law and equitable relief clause will allow both parties to implement procedures when conflicts or disputes arise.

MATURED BONDS

syahruladamofficial — 2023-10-16 04:00:36 UTC

Bonds are essentially IOUs that you buy, acting as a lender to governments or corporations (the issuers).
The funds raised are used by issuers for various purposes.
Bondholders receive periodic income and get back the principal amount when the bonds mature.
Typically a long-term investment, can last up to 30 years, but 5 to 10 years is more common.
Bonds are stable and are often used by fund managers in investment products.
Bond can be obtained through brokers or banks.

SCENARIO

syahruladamofficial — 2023-10-16 05:47:53 UTC

A bicycle shop, Bike Adams, sells a bicycle to a customer, Shasha

A - Agreement
P - Payment Terms
R - Romalpa Clause
I - Initial Payment
D - Default
E - Enforcement of Romalpa Clause
R - Repossesion

EXAMPLE FOR THE USE OF RETENTION MONIES

2023-10-16 12:02:13 UTC

Construction Project: In the construction industry, retention monies are commonly used to ensure that the contractor completes the project according to the agreed-upon specifications and within the allocated time frame. These funds are often placed in a trust, held by an independent trustee.

Example:
A, the employer, hired B, a contractor, to build a new office building for A. A agrees to pay B a total of RM100,000 for the work, but agrees to hold back 5% (RM5,000) of the contract value as retention money. The monies only will be released to the contractor once the conditions for release are fulfilled (for example, after getting the Certificate of Practical Completion). Only then B will receive the RM5,000 retention monies.

2023-10-16 14:22:00 UTC

Example of Matured Bonds:
An investor holds government bonds that have reached their maturity date. The bondholder has entrusted these bonds to a trustee, typically a financial institution, throughout the bond's life. When the bonds mature, the trustee ensures the investor receives the principal amount along with any accrued interest, honoring the terms of the bond agreement.

Example of Consignment Agreement

shasharazi — 2023-10-16 14:33:23 UTC

Tyra takes a dresser to Ken's Consignment Furniture Store. Tyra owns the dresser and is placing it with Ken to sell in his store. If Ken sells the dresser, he keeps a commission or fee and Tyra receives the rest of the sale price.

Law Cases Example

syafiqahaliah456 — 2023-10-21 13:42:10 UTC

Case: Qimonda Malaysia Sdn Bhd (in liquidation) v Sediabena Sdn Bhd & Anor 2012

Issue:
Whether retention monies in building contracts were the subject-matter of a trust.

Held:
COA held that retention funds under a building contract were subject to a trust despite the contract's failing to contain an express clause or another term to that effect and the non-segregation of the retention payments.

Case: SK M&E Bersekutu Sdn Bhd v Pembinaan Legenda Unggul Sdn Bhd

Issue:
- Whether the retention sums owed to the two sub-contractors would be dealt with “pari passu” with the other unsecured creditors, or
- Were the retention sums held on trust for the sub-contractors to be paid in full later on?

Held:

The Federal Court confirmed that there is no common regulation stating that all retention amounts in construction contracts must be maintained in trust for the contractors or subcontractors. There can only be a trust over the retention amounts if the establishment of the trust is expressly provided for in the construction contract, and the employer has placed the retention amounts in a separate account.

This case overrules the previous Court of Appeal decision of Qimonda Malaysia case in which the Court ruled that a trust did exist, despite the absence of express clause or words to that effect in the contract and retention monies were not required to be stored in separate bank accounts because they are by their very nature and purpose trust funds held by employers as fiduciaries to the trust for contractors and subcontractors.

Law Case Example

syahruladamsallehibrahim — 2024-02-04 07:50:29 UTC

Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676 (“Romalpa Case”)

The Romalpa Case, which occurred around 40 years ago, involved a Dutch company selling aluminum foil to an English company. The English company went insolvent, leaving a significant unpaid amount to the Dutch seller. The seller relied on a clause in their sales terms (Clause 13) stating that ownership of the goods would only transfer to the buyer upon full payment.

The case focused on the unsold aluminum foil and the proceeds from its sub-sales, held by a receiver. The court upheld the seller's right to reclaim both, considering Clause 13 created a fiduciary relationship. The court rejected the argument that it constituted a registrable charge, emphasizing that as ownership never passed to the buyer, registration wasn't necessary.

The decision emphasized the fiduciary nature of the relationship, allowing the seller to trace and recover the proceeds of sub-sales, providing relief to unpaid sellers in cases of buyer insolvency.