The provisions of the Treaties and RoT clauses must therefore be carefully formulated to ensure that the desired effect is achieved for all parties concerned. Given the high frequency of insolvencies currently occurring in the construction industry, coupled with a greater propensity of parties to enforce contractual provisions, it is important that employers are aware of the underlying law and it is imperative to ensure that RoT clauses and off-site material agreements are carefully formulated to ensure the transition of title and risk in goods and risks. materials, if the parties so wish. The parties should also ensure that the wording of acquisition certificates is clear and consistent with the underlying contract and takes into account the procedure for certifying payments required by the Construction Act 1996 in construction contracts. To this end, the courts will, as a general rule, be willing to intervene and interpret any ambiguity in favour of the interpretation that corresponds to common sense. The contract contained certain provisions relating to the transfer of ownership of the goods to VVB prior to their delivery to the site. Optilan must issue acquisition certificates to confirm the transfer of ownership. An acquisition clause is a contractual clause that deals with the transfer of ownership of goods and materials, and an acquisition certificate is a document proving the transfer of ownership of such goods or materials. Accordingly, the court found that the provision of the fee less termination was sufficient to trigger the acquisition of the goods.
Optilan did not require any actual payment receipts. Optilan has issued acquisition certificates for long-delay items. The acquisition certificates largely reflected the exercise provisions of the subcontract, but also contained the following additional condition: the Court referred to the fact that the certificates of exercise recognise the interim payment procedure. The Court therefore concluded that the acquisition certificates recorded VVB`s consent to include the values of the long-term items in the payment certificates, which would then be processed with other certified items and against payments previously made. This may result in a zero payment. A construction contract under Scottish law cannot be described as a sales contract and, therefore, it is usually treated in such a way that the customer enters into a separate contract for the purchase of the materials from the contractor (or, where applicable, from the subcontractor) so that the materials are no longer part of their contract. Note that this goes beyond a simple certificate of acquisition, which is not enough to pass the title in Scotland. JCT DB 2016 also provides that the CVC unit becomes the property of the employer once its value has been included in an interim payment and the payment has been made (clause 2.21). It is important that the interim payment identifies with certainty the materials and goods that are the subject of the payment if ownership is to be transferred. A general flat-rate assessment will therefore not suffice.
The parties should also take note of the decision in VVB v. Optilan (which concerned a certificate of acquisition and not the JCT form), in which the court ruled that ownership of the goods was transferred to the buyer because the items were included in the gross certificate in the “declared values”, even though the net payment certified under the contract payment mechanism was “zero”. A recent case highlights the role that acquisition clauses and certificates of practice can play when it comes to the possession of equipment. The court examined the terms of the ambiguous acquisition certificates to determine whether a transfer of ownership of the goods and materials had taken place. Acquisition clauses sometimes use a complementary tool in the form of “acquisition certificates” issued by a contractor or supplier that mark the transfer of ownership of identified assets. As is obvious, the operation of acquisition clauses will often lead to fine distinctions that highlight the importance of ensuring that acquisition clauses clearly reflect the mutual intent of the parties, when transfers of ownership are made, and that the parties understand when the transfer will take place. The contract contained certain provisions relating to the transfer of ownership of the goods to VVB prior to their delivery to the construction site. To this end, Optilan should issue acquisition certificates to confirm the transfer of ownership.
However, Optilan placed an additional condition in the certificates by stating that the transfer of ownership would take place after the “receipt of interim payment” for the goods. Optilan used the goods correctly. However, VVB had a claim for compensation against Optilan`s claim for the value of the goods. VVB therefore issued a “Pay Less” notice with respect to Optilan`s claim.1 VVB considered that VVB did not owe a net amount to Optilan, as stated in its “Pay Less” notice, but that ownership of the goods had passed even though it had not made actual monetary payment for the goods. In this case, it becomes clear how important it is to ensure that acquisition certificates clearly reflect the intentions of both parties when ownership should be transferred. Construction contracts often provide that ownership of the property is transferred to an employer when the goods are delivered to the employer`s location. The situation is more complicated with respect to goods manufactured or stored off-site, where the employer may not be able to see or control them. To this end, “acquisition certificates” are used to provide the employer with certainty that ownership of the property listed in the acquisition document has been or will be transferred to the employer. Acquisition certificates have played an increasingly important role in light of the recent increase in off-site manufacturing. Optilan argued that the acquisition did not take place because the conditions of the certificates of practice were not met.
In particular, neither the payment certificate nor the payment indemnity constituted an “acceptance” of an interim “payment” as required by the acquisition certificate. The FIDIC form is different from the JCT and NEC forms, which explicitly provide for payment when materials are delivered off-site. Those who plan to transfer ownership of materials on-site or off-site against payment of an amount for materials included in a provisional certificate. Optilan submitted a request for provisional payment, also for items with a long delivery time under the acquisition certificates. The VRL payment certificate issued in response contained value for these items, but certified the net payment to be paid to Optilan as “zero”. VRL then issued a no-pay opinion that increased the value of the long-term positions, but still allowed Optilan to receive a zero payment. To this end, acquisition certificates are used to provide the employer with certainty that ownership of the property listed in the acquisition certificate has been or will be transferred to the employer. Acquisition certificates have played an increasingly important role in light of the recent increase in off-site manufacturing. The case highlights the crucial role that acquisition clauses and certificates play in construction and engineering contracts in determining who owns what. In practice, there is a certain variety in the details of these clauses.
Although factual, of general interest, the Court`s approach to interpreting the ambiguous wording on the exercise of certificates in the context of the payment procedure in construction contracts. If the acquisition of materials is related to the payment process, it is likely that the interim payment process will allow the paying party to make a deduction from the amount claimed, taking into account issues other than the value of the materials. In such circumstances, the contractor (or subcontractors or suppliers) may be required to issue a “certificate of acquisition” or a “certificate of practice” certifying that ownership of the goods, equipment or materials listed in a registry passes from one party to another upon payment and confirming that they are properly identified, stored separately, insured and exempt from charges (p.B. retention of title). So how does a paying party try to protect themselves in Scotland when paying for external materials? A distinction can be made if the contract can be properly characterized, not as a construction contract, but as a purchase contract. In these circumstances, it is subject to the legislation on the sale of goods and the ownership of the property can go through agreement on payment and not on delivery. The question of when ownership of property passes from a contractor to an employer can be a critical issue, especially if a party to a project has become insolvent. An English case in early 2020 dealt with this issue and the application of acquisition clauses and certificates. VVB argued that the “receipt” requirement was met, since the value of the goods had been included in the recall minus remuneration, even though the recall had established that no payment was due. Consequently, the acquisition took place less at the time of the service of that remuneration. Therefore, the Court concluded that the acquisition of the long-lead items did not depend on the transfer of a sum of money. It was sufficient for the documents to be included in the payment notification minus the notification and taken into account as part of the certification process for interim payments.
As the Court noted, the transfer of £1 million of materials should not depend on the existence of a net certification of £1 or a certification of zero. However, the creation of such acquisition certificates is important. The recent case VVB M&E Group Limited & VVB Engineering UK Limited v. Optilan (UK) Limited reminds us that the terms of acquisition certificates must be clear, unambiguous and compatible with the underlying contract. To make matters worse, VVB has become insolvent. The dispute over the ownership of the goods therefore revolved around the construction of the contract and the acquisition certificates. .