English lawyers pride themselves on the fact that their law is not systematic, or constructed as a logical edifice, all of a piece, but rather has been developed empirically, like a mosaic, each piece representing the facts of a concrete factual situation having to be resolved by the courts. Not for us the cold, Contintental rigour of an all enveloping Code; rather, the concentrated consideration of individual points as and when they arise, like a hop, skip and a jump across the stepping stones of a river, touching firm ground at every step. There are many advantages to the English system, but there are also disadvantages. One of these is that lines of knowledge grow outward from separate legal bases, like honeysuckle tendrils seeking the sunlight, and, unless they accidently brush against one another, there can be no cross-fertilization of ideas.

Thus, on the one hand, it has long been part of English law that a person whose property was taken from him, by his consent or not, and mingled with another’s goods, or used to create another product, or sold and the proceeds invested in some other matter, might have a proprietary claim on the physical or monetary proceeds of such actions. These are the doctrines of “tracing”. Similarly, it was settled law early on that parties to a contract of sale and purchase might stipulate the point at which property in the goods the subject of the contract should pass from the vendor to the purchaser. Yet, while the latter proposition of law was known to every common lawyer, and to every commercial lawyer who claimed to practise as such, the former doctrines were almost exclusively the preserve of the Chancery lawyers who inhabited Lincoln’s Inn and spent their waking hours concerned with wills, trusts, and settlements, and not at all with sales of goods.

It was not until a hundred years after the fusion of the common law and Chancery courts and the administration of law and equity in a single judicature that in 1975 these two branches of learning crossed one another, to enable the English courts for the first time to recognize what had long been known to the intellectually impoverished lawyers of the Continent, and indeed should have been known to any English lawyer with three half-pence worth of sense, namely that it is possible for the parties to a contract for the sale of goods to stipulate that property in the goods being sold should pass only when the vendor was paid in full for his goods, and that any sale in the meantime including the vendor’s goods was a sale by a fiduciary with a duty to account for the proceeds of sale. The retention of title clause (or “reservation of title clause”) had arrived.

Until that time, commercial lawyers’ attitude to the use of equity in sale of goods transactions had always been one either of ignorance or of outright hostility. In Re Wait [1927] 1 Ch. 606, 635–636, Atkin, L.J., one of the foremost common lawyers of his day, said that:

It is of course true that Atkin, L.J., had even more difficulty than most common lawyers in understanding plain doctrines of equity, thus leading to his misunderstandings of the basis for the decisions in Taylor v. Plumer (1815) 3 M & S. 562 (in Banque Beige pour I’Etranger