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Importer: How Can You Protect Yourself From Selling To a Company In Trouble?
Adv. Gill Nadel, Shai Babai
In the course of regular business, many companies that purchase goods and services receive credit from the vendor, so that they can pay their debt some time after receiving the goods/services. In a situation in which a company can't pay its debts to creditors and refunds the credit, the company sometimes enters into insolvency and liquidation.
When the company goes into insolvency, sometimes its credits are left in a very problematic situation as the total monies and properties held by the company liquidator (appointed by the court) is less than the company's debts, and the liquidator must decide which creditor's debt takes precedence.
In certain cases, creditors can insure themselves by making a "maintenance of ownership" agreement when supplying the merchandise, which means that the merchandise remains the property of the supplier/creditor (even though physically it's transferred to the purchasing company) until the debt is entirely paid. Thus, if the company goes into liquidation, the relevant merchandise (and in some cases even the money earned from its sale) is not actually part of the company's property, and is not divided between the creditors, but rather returned to its owner.
However, there are firm conditions that must be followed in order for the court to accept the "maintenance of ownership" agreement as legitimate. This was the topic of a decision recently issued by the District Court of Tel Aviv.
The facts of the case and the claims of the parties
The Vita Pri Galil Company (New) Ltd. supplied frozen and dried food products to the Kaplan Meat Marketing Company Ltd. After the Kaplan company went into insolvency, Vita claimed that a "maintenance of ownership" agreement had been signed between it and Vita, so that the merchandise supplied to Kaplan, which had not yet been paid for, remained in the possession of Vita. In light of this, Vita asked the court to instruct the liquidator of the Kaplan Company to give it the merchandise held by Kaplan.
Vita claimed that in the meeting between the companies' managers, it was agreed that Vita would supply Kaplan the merchandise under ""maintenance of ownership" conditions, and that this agreement shall appear on the invoices which Vita gave Kaplan, which were to be signed by the managers of the Kaplan Company. In opposition, the liquidator claimed (in the name of the Kaplan Company) that no "maintenance of ownership" agreement existed between the parties, but rather the parties intended to create a lien (that is to say, until the remuneration was paid, Vita had an encumbrance on the merchandise).
The court's decision:
The court quoted prior precedents regarding "maintenance of ownership" between two parties, which stated that such an agreement was not sufficient, and could not decide on the question of ownership of the merchandise. Instead, the court stated it must check whether a hidden lien transaction was made between the parties, or whether the ownership of the merchandise was yet to be transferred. Only then can it base its decision on the economic and commercial logic of maintenance of ownership to this specific case, while considering the rest of the circumstances of case.
Examining the circumstances of the case, the court noted that the deal between Vita and Kaplan was one of many deals, in which Vita supplied merchandise to Kaplan for a long period of time and in large quantities. In light of this the court ruled that it is reasonable to assume that if the parties wanted to reach a real "maintenance of ownership" agreement, they would have done so expressly in a written agreement, and not made do with writing a side comment on the invoices; it was further proved that in other deals which Vita made, a similar "standard" clause was generally noted and sometimes, for large customers- it was not noted; the court also noted that after Kaplan had been declared insolvent, Vita's managers referred to Kaplan and requested that they quickly pay their debt before the liquidation began, and in Vita's referral to the liquidator, the claim of "maintenance of ownership" was not mentioned.
For these reasons, the court reached the conclusion that an analysis of the business reality between the companies does not justify deviation from the accepted practice in commercial transactions, in which ownership in a sale transfers to the buyer when the merchandise is transferred to the buyer. In light of this, it was ruled that no "maintenance of ownership" agreement was made between the parties, but Vita was only trying to "read" such an agreement into the relations between the parties, in order to receive an unfair advantage over the rest of the company's creditors. In light of this, the court rejected Vita's request that it rule that a "maintenance of ownership" agreement existed, and charged Vita to pay legal expenses in favor of the liquidator of 10,000 NIS, plus VAT.
Notes and conclusions
Importers and exporters are the community most vulnerable to cases of corporate insolvency, since all their business involves buying and selling merchandise, generally under credit conditions. Therefore, an importer who sells merchandise under credit conditions is almost always vulnerable to the risk that it won't be paid for the merchandise. Therefore, it is advised that those dealing in international trade ensure themselves properly against the dangers involved in the profession.
In light of this decision, one efficient way of making sure that those engaged in international trade don't find themselves empty handed is to make the buyer sign a "maintenance of ownership" agreement phrased in such a way as to convince the court that this is the parties' intent.
(PRK 2227-09 Bank Discount Head Branch Tel Aviv et al. v. Kaplan Meat Marketing Ltd, MCA 20578/09, Honorable Judge Danya Karat-Mayer, decision issued 18.11.10. Advocates for parties: Adv. Hanit Nov- official receiver. Accountant Boza Yifat- temporary company liquidator).
About the Author
Gill Nadel - Born in Israel in 1969, graduated from Bar Ilan University`s Faculty of Law (cum laude) and from the Department of Musicology. He also has a master`s degree in law from the same institution. Member of the Israel Bar since 1999. Speaks Hebrew, English and Polish. Fields of expertise: Commercial and Business Law, International Trade Law, Import and Export Law, Intellectual Property Law, Maritime and International Forwarding Law, Litigation and Court Representation. Adv. Nadel provides lectures on international trade law and import and export law to in courses organized by the Bar Ilan University Center for Commercial Law, Israel Bar, Israel Chambers of Commerce, Manufacturers Association of Israel, Israel Export Institute, Customs Brokers Association, International Forwarders, and more.
