To consolidate and amend the law relating to factors.
[cf. 1889 c. 45
U.K.]
[1 July 1896]
(Format changes—E.R. 1 of 2019)
Preliminary
2.
Interpretation
(1)
In this Ordinance, unless the context otherwise requires—
document
of
title
(所有權文件
) includes any bill of lading, dock
warrant, 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 indorsement or by delivery, the possessor of the document to transfer or
receive goods thereby represented;goods
(貨品
) includes wares and merchandise;mercantile
agent
(商業代理人
) means 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;person
(人
) includes any body of persons corporate or
unincorporate;pledge
(質押
) includes 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.(2)
For the purposes of this Ordinance, 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.
Dispositions by
Mercantile
Agents
3.
Powers 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
Ordinance, 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,
noticed
that the person making the disposition has
no
authority to make the same.
(Amended E.R. 1 of 2019)
(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,
noticed
that the consent has been determined.
(Amended E.R. 1 of 2019)
(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 Ordinance, be deemed to be with the consent of the owner.
(4)
For the purposes of this Ordinance, the consent of the owner shall be presumed
in the absence of evidence to the contrary.
4.
Pledge of documents of title
A pledge of the documents of title to goods shall be deemed to be a pledge of the goods.
5.
Pledge for antecedent debt
Where 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.
6.
Rights acquired by exchange of goods or documents
The consideration necessary for the validity of a sale, pledge, or other disposition of goods, in pursuance of this Ordinance, 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, document, or security when so delivered or transferred in exchange.
7.
Agreement through clerk, etc.
For the purposes of this Ordinance, 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.
8.
Provisions as to consignor and consignee
(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.
Dispositions by
Sellers and Buyers of
Goods
9.
Disposition by seller remaining in possession
Where 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.
10.
Disposition by buyer obtaining possession
Where 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.
11.
Effect of transfer of document of title on vendor’s lien or right of stoppage in transitu
Where 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.
Supplementary
12.
Mode of transferring document
For the purposes of this Ordinance, the transfer of a document may be by
indorsement, 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.
13.
Saving for rights of true owner
(1)
Nothing in this Ordinance 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 Ordinance 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 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 Ordinance 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.
14.
Saving of common law powers of agent
The provisions of this Ordinance shall be construed in amplification and not in
derogation of the powers exercisable by an agent independently of this
Ordinance.