Factors Act 1891 (TAS)

Factors Act 1891

An Act to amend and consolidate the law relating to advances made to agents entrusted with goods

[Royal Assent 13 August 1891]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short titleThis Act may be cited as the Factors Act 1891 . 2Commencement [Section 2 Amended by 25 Geo. V No. 78 ]This Act shall commence on 1st January 1892. 3Interpretation [Section 3 Amended by 25 Geo. V No. 78 ]In this Act, unless the contrary intention appears – (a) the expression mercantile agent shall mean a mercantile agent having in the customary course of his business as such agent authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods; (b) a person shall be deemed to be in possession of goods or of the documents of title to goods where the goods or documents are in his actual custody, or are held by any other person subject to his control or for him or on his behalf; (c) the expression goods shall include wares and merchandise; (d) the expression document of title shall include any bill of lading, warehouse-keeper’s certificate, and warrant or order for the delivery of goods and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize either by endorsement or by delivery the possessor of the document to transfer or receive goods thereby represented; (e) the expression pledge shall include any contract pledging or giving a lien or security on goods, whether in consideration of an original advance or of any further or continuing advance, or of any pecuniary liability. 45Powers of mercantile agent with respect to disposition of goods (1)  Where a mercantile agent is, with the consent of the owner, in possession of goods or of the documents of title to goods, any sale, pledge, or other disposition of the goods made by him when acting in the ordinary course of business of a mercantile agent shall, subject to the provisions of this Act, be as valid as if he were expressly authorized by the owner of the goods to make the same: Provided that the person taking under the disposition acts in good faith, and has not at the time of the disposition notice that the person making the disposition has not authority to make the same. (2)  Where a mercantile agent has, with the consent of the owner, been in possession of goods, or of the documents of title to goods, any sale, pledge, or other disposition which would have been valid if the consent had continued shall be valid notwithstanding the determination of the consent: Provided that the person taking under the disposition has not at the time thereof notice that the consent has been determined. (3)  Where a mercantile agent has obtained possession of any documents of title to goods by reason of his being or having been, with the consent of the owner, in possession of the goods represented thereby, or of any other documents of title to the goods, his possession of the first-mentioned documents shall, for the purposes of this Act, be deemed to be with the consent of the owner. (4)  For the purposes of this Act the consent of the owner shall be presumed in the absence of evidence to the contrary. 6Effect of pledges of documents of titleA pledge of the documents of title to the goods shall be deemed to be a pledge of the goods. 7Pledge for antecedent debtWhere a mercantile agent pledges goods as security for a debt or liability due from the pledgor to the pledgee before the time of the pledge, the pledgee shall acquire no further right to the goods than could have been enforced by the pledgor at the time of the pledge. 8Rights acquired by exchange of goods or documentsThe consideration necessary for the validity of a sale, pledge, or other disposition of goods in pursuance of this Act may be either a payment in cash, or the delivery or transfer of other goods, or of a document of title to goods, or of a negotiable security, or any other valuable consideration; but where goods are pledged by a mercantile agent in consideration of the delivery or transfer of other goods, or of a document of title to goods, or of a negotiable security, the pledgee shall acquire no right or interest in the goods so pledged in excess of the value of the goods, documents, or security when so delivered or transferred in exchange. 9Agreements through clerks, &c.For the purposes of this Act, an agreement made with a mercantile agent through a clerk or other person authorized in the ordinary course of business to make contracts of sale or pledge on his behalf, shall be deemed to be an agreement with the agent. 10Provisions as to consignors and consignees (1)  Where the owner of goods has given possession of the goods to another person for the purpose of consignment or sale, or has shipped the goods in the name of another person, and the consignee of the goods has not had notice that such person is not the owner of the goods, the consignee shall, in respect of advances made to or for the use of such person, have the same lien on the goods as if such person were the owner of the goods, and may transfer any such lien to another person. (2)  Nothing in this section shall limit or affect the validity of any sale, pledge, or disposition by a mercantile agent. 11Disposition by seller remaining in possessionWhere a person, having sold goods, continues or is in possession of the goods or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, or under any agreement for sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same. 12Disposition by buyer obtaining possessionWhere a person, having bought or agreed to buy goods, obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, or under any agreement for sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner. 13Effect of transfer of documents, or vendor's lien, or right of stoppage in transituWhere a document of title to goods has been lawfully transferred to a person as a buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, the last-mentioned transfer shall have the same effect for defeating any vendor’s lien or right of stoppage in transitu as the transfer of a bill of lading has for defeating the right of stoppage in transitu. 14Mode of transferring documentsFor the purposes of this Act the transfer of a document may be by endorsement, or, where the document is by custom or by its express terms transferable by delivery, or makes the goods deliverable to the bearer, then by delivery. 15Saving of rights of true owner (1)  Nothing in this Act shall authorize an agent to exceed or depart from his authority as between himself and his principal, or exempt him from any liability, civil or criminal, for so doing. (2)  Nothing in this Act shall prevent the owner of goods from recovering the goods from an agent or his trustee in bankruptcy at any time before the sale or pledge thereof, or shall prevent the owner of goods pledged by an agent from having the right to redeem the goods at any time before the sale thereof, on satisfying the claim for which the goods were pledged, and paying to the agent, if by him required, any money in respect of which the agent would by law be entitled to retain the goods or the documents of title thereto, or any of them, by way of lien as against the owner; or from recovering from any person with whom the goods have been pledged any balance of the money remaining in his hands as the produce of the sale of the goods after deducting the amount of his lien. (3)  Nothing in this Act shall prevent the owner of goods sold by an agent from recovering from the buyer the price agreed to be paid for the same, or any part of that price, subject to any right of set-off on the part of the buyer against the agent. 16Saving of common law powers of agentThe provisions of this Act shall be construed in amplification and not in derogation of the powers exercisable by an agent independently of this Act. Schedule 1

Section 4

Reference to Act	Title
4 Geo. IV, c. 83	An Act for the better protection of the Property of Merchants and others who may hereafter enter into Contracts or Agreements in relation to Goods, Wares, or Merchandizes entrusted to Factors or Agents.
6 Geo. IV, c. 94	An Act to alter and amend an Act for the better protection of the Property of Merchants and others who may hereafter enter into Contracts or Agreements in relation to Goods, Wares, or Merchandize entrusted to Factors or Agents.

Schedule 2

Section 4

Reference to Act	Title
32 Vict. No. 13	An Act to amend the law relating to Advances made to Agents entrusted with Goods.