§ 391t. Compulsory resale by seller. Case 385. Uniform Conditional Sales Act, Sec. 19. 19. Compulsory Resale by Seller. If the buyer does not redeem the goods within ten days after the seller has retaken possession, and the buyer has paid at least fifty per cent of the purchase price at the time of the retaking, the seller shall sell them at public auction in the state where they were at the time of the retaking, such sale to be held not more than thirty days after the retaking. The seller shall give to the buyer not less than ten days' written notice of the sale, either personally or by registered mail, directed to the buyer at his last known place of business or residence. The seller shall also give notice of the sale by at least three notices posted in different public places within the filing district where the goods are to be sold, at least five days before the sale. If at the time of the retaking $500 or more has been paid on the purchase price, the seller shall also give notice of the sale at least five days before the sale by publication in a newspaper published or having a general circulation within the filing district where the goods are to be sold. The seller may bid for the goods at the resale. If the goods are of the kind described in Section 8, the parties may fix in the conditional sale contract the place where the goods shall be resold. Question 385: When must a seller who has retaken the goods, resell them. What must he do to make such sale valid? May he buy at the sale himself? (Note: It has been decided in many states where this Act was not in force that a seller may retake, peaceably or by replevin, when the buyer is in default, and the buyer in that event forfeits the payments he has already made. This is inequitable in many cases where the buyer has paid a considerable sum, and the purpose of this act, is to take away this right and reduce the damages to a logical and certain basis. § 391u. Resale at option of parties. Case 386. Uniform Conditional Sales Act, Sec. 20. 20. Resale at Option of Parties. If the buyer has not paid at least fifty per cent of the purchase price at the time of the retaking, the seller shall not be under a duty to resell the goods as prescribed in Section 19, unless the buyer serves upon the seller, within ten days after the retaking, a written notice demanding a resale, delivered personally or by registered mail. If such notice is served, the resale shall take place within thirty days after the service, in the manner, at the place and upon the notice prescribed in Section 19. The seller may voluntarily resell the goods for account of the buyer on compliance with the same requirements. Question 386: If the seller need not resell under Section 19, can the buyer compel him to resell under this section? § 391v. Proceeds of resale. Case 387. Uniform Conditional Sales Act, Sec. 21. 21. Proceeds of Resale. The proceeds of the resale shall be applied (1) to the payment of the expenses thereof, (2) to the payment of the expenses of retaking, keeping and storing the goods, (3) to the satisfaction of the balance due under the contract. Any sum remaining after the satisfaction of such claims shall be paid to the buyer. Question 387: What shall the seller do with the proceeds of the resale? § 391w. Deficiency on resale. Case 388. Uniform Conditional Sales Act, Sec. 22. 22. Deficiency on Resale. If the proceeds of the resale are not sufficient to defray the expenses thereof, and also the expenses of retaking, keeping and storing the goods and the balance due upon the purchase price, the seller may recover the deficiency from the buyer, or from anyone who has succeeded to the obligations of the buyer. Question 388: Has the seller the right to charge the buyer for a loss arising out of the resale? What are proper elements in computing the loss? § 391x. Rights where no resale. Case 389. Uniform Conditional Sales Act, Sec. 23. 23. Rights of Parties Where There is no Resale. Where there is no resale, the seller may retain the goods as his own property without obligation to account to the buyer except as provided in Section 25, and the buyer shall be discharged of all obligation. Question 389: Where there is no resale (in cases authorized by the act) and the seller retakes the goods, what is the effect upor. the sellers' rights and remedies. § 391y. Election of remedies. Case 390. Uniform Conditional Sales Act, Sec. 24. 24. Election of Remedies. After the retaking of possession as provided in Section 16 the buyer shall be liable for the price only after a resale and only to the extent provided in Section 22. Neither the bringing of an action by the seller for the recovery of the whole or any part of the price, nor the recovery of judgment in such action, nor the collection of a portion of the price, shall be deemed inconsistent with a later retaking of the goods as provided in Section 16. But such right of retaking shall not be exercised by the seller after he has collected the entire price, or after he has claimed a lien upon the goods, or attached them, or levied upon them as the goods of the buyer. Question 390: If a seller sues for the price, may he also retake the goods? What limitations? If he retakes the goods may he sue for the price? (Note: Aside from the provisions of this Act it is generally held that if the seller sues for the entire purchase price, he waives his right to retake the goods. This act changes that view and gives the seller the right to sue and later to retake.) § 3912. Recovery of part payments. Case 391. Uniform Conditional Sales Act, Sec. 25. 25. Recovery of Part Payments. If the seller fails to comply with the provisions of Sections 18, 19, 20, 21, and 23 after retaking the goods, the buyer may recover from the seller his actual damages, if any, and in no event less than one-fourth of the sum of all payments which have been made under the contract, with interest. Question 391: When may the buyer recover from the seller what he has paid? § 391aa. Waiver of statutory protection. Case 392. Uniform Conditional Sales Act, Sec. 26. 26. Waiver of Statutory Protection. No act or agreement of the buyer before or at the time of the making of the contract, nor any agreement or statement by the buyer in such contract, shall constitute a valid waiver of the provision of Sections 18, 19, 20, and 25; except that the contract may stipulate that on such default of the buyer as is provided for in Section 16, the seller may rescind the conditional sale, either as to all the goods or as to any part thereof for which a specific price was fixed in the contract. If the contract thus provides for rescission, the seller at his option may retake such goods without complying with or being bound by the provisions of Sections 17 to 25 inclusive, as to the goods retaken, upon crediting the buyer with the full purchase price of those goods. So much of this credit as is necessary to cancel any indebtedness of the buyer to the seller shall be so applied, and the seller shall repay to the buyer on demand any surplus not so required. Question 392: May the parties by contract waive the protection and requirements of this act? § 391bb. Loss and increase. Case 393. Uniform Conditional Sales Act, Sec. 27. 27. Loss and Increase. After the delivery of the goods to the buyer and prior to the retaking of them by the seller, the risk of injury and loss shall rest upon the buyer. The increase of the goods shall be subject to the same conditions as the original goods. Question 393: On whom is risk of loss in case of loss when goods are in buyer's possession and while the title is still reserved in the seller? |