South Australian Consolidated Acts South Australian Consolidated Acts11—Covenants and powers implied in bills of sale
The following covenants and powers will, unless negatived and subject to any
modification, be implied in favour of the grantee and as to paragraph (h)
as an agreement between the parties in every bill of sale for securing money:
(a) the
grantor will pay to the grantee the principal and interest money secured, or
intended to be secured, by the bill of sale, at the time and in the manner
provided for payment in the bill of sale;
(b) the
grantor will not, without the consent in writing of the grantee, sell,
exchange, or fraudulently remove the personal chattels comprised in the
bill of sale from the premises mentioned in the bill of sale, and will at all
times keep the personal chattels in good order and condition;
(c) the
grantor will not permit the personal chattels comprised in the bill of sale to
be distrained for any rent, rates, or taxes, nor permit any execution to be
levied against his or her goods or chattels, nor become insolvent, call a
meeting of his or her creditors, or make any statutory assignment for the
benefit of his or her creditors;
(d) the
grantor will produce to the grantee, upon demand, the last receipt for all
rent, rates, and taxes in respect of the premises at which the personal
chattels are situated;
(e) the
grantee or the grantee's agents, may, at all reasonable times, enter upon the
grantor's premises at which the personal chattels are kept, and view their
state and condition, and the grantor will produce to the grantee or the
grantee's agents the personal chattels comprised in the bill of sale, and
permit the grantee or the grantee's agents to take an inventory of them;
(f) if
the grantor makes default in the payment of the principal or interest money
secured by the bill of sale at the time provided for payment, or in the
observance or performance of any one of the covenants, terms, conditions, or
agreements, whether expressed or implied, in the bill of sale, it will be
lawful for the grantee, without any further consent or concurrence on the part
of the grantor, to enter into and upon the land, messuage, or tenement on
which the personal chattels assigned are, or into or upon any other land,
messuage, or tenement on or in which the personal chattels, or any other
personal chattels comprised and included in the bill of sale respectively, may
be, or may reasonably be supposed to be, and for that purpose to open or
remove any outer or inner gate, door, fastening, or other obstruction, without
liability to any action of trespass, or other proceeding for so doing; but
with liberty to plead the leave and licence given in bar to any such action or
proceeding, if any such be brought or instituted, and to seize and take
possession of all such personal chattels, and to remove them to any other
place or places for safety, convenience of sale, or for any other purpose, or
permit them to remain in the place or places where they may be found, and to
sell and dispose of such chattels and premises, or any of them, either
together or in parcels, at such time or times, and place or places, and either
by public auction or private contract, or partly by public auction and partly
by private contract, to any person or persons, for such price or prices,
either for cash or on credit, or partly for cash and partly on credit, and if
either wholly or partly on credit, giving such time or times for payment, and
taking or foregoing any security or securities for the payment of the unpaid
purchase-money as the grantee may deem proper or expedient, with power for the
grantee to make any other terms and conditions in regard to such sale or sales
as the grantee may think proper, and also to buy in all or any of the chattels
at any such sale or sales by auction, and rescind or vary any contract for
sale, and again to resell or offer for resale the chattels from time to time,
without being answerable or accountable for any loss, diminution in price,
costs, or expenses to be occasioned by any such buying in, rescission,
variance, or actual or attempted resale;
(g) it
will be lawful for the grantee, upon or after any such sale, to execute any
contract or other document that is necessary or expedient for the purpose of
making and effecting any such sale, and which will be as binding and
conclusive upon and against the grantor as if the grantor had executed it. And
also that the receipt or receipts in writing of the grantee for all
purchase-money or other property which is paid or delivered to the grantee
under or by virtue of the bill of sale, will be a good and sufficient
discharge or good and sufficient discharges to all purchasers or other persons
paying or delivering the same, and that the purchaser or other persons will
not be required to see the application, or be answerable for the
misapplication or nonapplication of the purchase-money or other property, or
be bound or concerned to inquire into the propriety or expediency of any such
sale or resale;
(h) the
grantee will out of the money which comes to the grantee's hands by reason of
any such sale or sales, in the first place, discharge the costs and expenses
incurred or sustained in or about such sale or sales, and all other costs,
charges, and expenses incurred or occasioned in or about the execution of the
powers and authorities contained in the bill of sale, and retain the balance
of the money, or so much of it as may be necessary, in or towards payment and
satisfaction of all money due and owing to him or her upon the security of the
bill of sale, and the grantee will pay to the grantor the surplus then
remaining.