Personal Property Law for a Zero-Waste Circular Economy : Using Retention of Title Clauses to Reduce Plastics Waste

The literature on circular economy consistently references the possibility of an end to waste, and this remains the case in the specific instance of plastics. The doctrine on waste shows the central role of control in the test for whether goods are waste. Thus, a vital step in dealing with plastics waste in a circular economy is to develop mechanisms to provide the necessary levels of control of goods to avoid such wastes from occurring. This article will examine how English personal property law can help address the problem of control of plastics. Specifically, the doctrine of retention of title will be examined. Retention of title clauses may provide means to control plastics surplus and waste down chains of transactions. It is suggested that the strong policy underlying circular economics justifies an alternative interpretation of the doctrine, allowing for the use of retention of title clauses to extend into products. However, in light of the strength of the orthodox perception of the inability of retention of title to extend into products, an alternative approach may be required. Thus, this article addresses the recent development in sales law wrought by the Supreme Court in PST Energy 7 Shipping LLC v O W Bunker Malta Limited [2016] UKSC 23. There it was held that retention of title clauses can take transactions outside the normal statutory framework for sales and generate sui generis contracts of sale. Such contracts arguably enable effective long-term control of goods down chains of transactions. This article thus contends that English personal property law could provide an ideal doctrinal framework for the implementation of circular economic practices, but at the expense of a significant shift in thinking, with the rise of licences for use rather than sales as appropriate transactional forms.