Given the differences between the treaties, parties wishing to rely on free movement clauses must carefully consider the functioning of free movement certificates (if used) in relation to other provisions of the treaty. The Tribunal found that, while the contract contemplated Optilan`s payment for the goods, this did not mean that the transfer of ownership depended on Optilan`s actual receipt of an amount indicated in the Vesting certificates. The inclusion of a declared sum was only the first necessary step in the payment transaction and could not be read as a “safeguard” of the payment of the values indicated in them. Accordingly, the Tribunal found that the provision of the “Pay less” communication was sufficient to trigger the diversion of the goods. No effective “receipt” of payment by Optilan was required. The contract contained certain provisions relating to the ownership of goods to VVB prior to their delivery to the site. To this end, Optilan should issue free movement certificates to confirm the transfer of ownership. Optilan, however, placed an additional condition in the certificates stating that the transfer of ownership would be done with the “intermediate payment receipt” for the goods. Optilan duly claimed the goods.
Die VVB hatte jedoch eine Ausgleichsforderung gegen Optilans Forderung im Wert der Warenforderung. The VVB therefore made a “lower payment” with respect to the optilans claim.1 The VVB considers that no net amount was owed by the VVB to Optilan, as stated in its “staggered” communication, but that the title to the goods was transferred when it had not made an actual cash payment for the goods. However, not all contracts fall within THE scope of SOGA. One of the most important factors in determining who owns goods or materials is whether the contract is governed by SOGA or the Supply of Goods and Services Act 1982 (SGSA). The distinction between SOGA property sales contracts and contracts for the sale of goods and services in Scotland under the SSGSA poses some difficulties in how the supply of goods and materials is managed in Scottish construction contracts (which fall under the latter Act). Essentially, the transfer of ownership to goods in the course of a sale of goods is only carried out if the parties intend to do so; However, the transfer of ownership to goods sold under a combined contract for goods and services can only take place after delivery, when the goods are attached to the structure. This delay in glorifying ownership of materials provided under a combined contract is undesirable for a number of reasons, and the common solution to this problem is to enter into a separate supply contract or a contract outside of the tracking equipment. The provisions of the treaties and roT clauses must therefore be carefully developed to ensure that the desired effect for all parties involved is achieved. Given the high incidence of bankruptcies currently occurring in the construction industry, combined with a greater propensity among contracting parties to enforce contract law provisions, it is important that employers are aware of the underlying law and it is essential to ensure that roT clauses and off-site equipment agreements are carefully developed to ensure exclusion from ownership and risk. goods and materials if the parties wish.