PART 3 RIGHTS AND OBLIGATIONS
WHEN GOODS ARE PAWNED |
| Division 1 — Pawning of goods |
| Valuation to be given beforehand |
48.—(1) A pawnbroker must, before taking goods in pawn, give the person offering to pawn the goods a valuation of the goods offered to be pawned.| (2) A loan agreement is voidable at the instance of the pawner unless subsection (1) is fully complied with. |
| (3) A pawnbroker is not liable for any loss or damage suffered (whether by the pawner or by any third party) as a result of relying on a valuation given under subsection (1), unless the pawnbroker did not act in good faith, or did not take reasonable care, in giving the valuation. |
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49.—(1) A pawnbroker must not take goods in pawn unless the pawnbroker issues to the pawner a pawn ticket in accordance with this section.| (2) A pawn ticket must be marked with a unique identification number, and must contain the prescribed particulars in the prescribed format. |
| (3) The pawner must sign a copy of the pawn ticket. |
| (4) The pawnbroker must keep a signed copy of the pawn ticket. |
| (5) A loan agreement is voidable at the instance of the pawner unless subsections (1), (2), (3) and (4) are fully complied with. |
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| Permitted profit and fees |
50.—(1) When a pawnbroker lends money on the security of a pledge, the pawnbroker must not take any profit on the loan or charge any fee other than what is permitted under the Second Schedule.| (2) A loan agreement is void to the extent that it purports to confer on a pawnbroker a right to take any profit on the loan or charge any fee other than what is permitted under the Second Schedule. |
| (3) A pawnbroker that contravenes subsection (1) shall be guilty of an offence. |
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| Sections 48, 49 and 50 to apply, with modifications, to agreement to extend redemption period |
51.—(1) Where the redemption period for a pledge is extended by agreement, sections 48, 49 and 50 apply as if the pledge is offered to be pawned for the first time, subject to the modifications in subsections (2) to (5).| (2) The pawnbroker must cancel the original pawn ticket. |
| (3) The new pawn ticket issued by the pawnbroker must state the profit due at the date of the agreement to extend the redemption period, in addition to the particulars required under section 49(2). |
| (4) The rights and obligations under the original agreement to pawn the goods are deemed to have merged in the agreement to extend the redemption period. |
(5) Where the pawnbroker fails to give a valuation in accordance with section 48(1), or purports to take any profit or charge any fee contrary to section 50(1) —| (a) | the validity of the agreement to extend the redemption period is not thereby affected; but | | (b) | the pawnbroker is not entitled to take any profit on the loan in respect of the extended redemption period. |
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| Division 2 — Redemption of pledges |
| Persons entitled to redeem |
52. The following persons are entitled to redeem a pledge, unless they have assigned or otherwise transferred the right to do so:| (a) | the pawner; | | (b) | a person stated on the pawn ticket as the person on whose behalf the goods are pawned; | | (c) | a person to whom the right of redemption has been assigned or otherwise transferred. |
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| Right to redeem may be freely transferred, etc. |
53.—(1) A pawn ticket, and the right to redeem a pledge, may be assigned or otherwise transferred to any person (including to the pawnbroker who issued the pawn ticket and any other pawnbroker) at any time (including during the redemption period).(2) An agreement is void to the extent that it purports —| (a) | to provide that a pawn ticket, or the right to redeem a pledge, may not be assigned or otherwise transferred; or | | (b) | to place any restriction or condition on that assignment or transfer. |
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(3) In particular, the following terms of an agreement are void:| (a) | a term that requires a person to offer to assign or otherwise transfer a pawn ticket to the pawnbroker that issued the pawn ticket before the person can assign or transfer the pawn ticket to any other person; | | (b) | a term that requires a person to offer to assign or otherwise transfer the right to redeem a pledge to the pawnbroker that issued the pawn ticket before the person can assign or transfer the right to any other person. |
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| Time for redeeming pledge |
54.—(1) A pledge can be redeemed —| (a) | at any time during the redemption period; and | | (b) | at any time after the end of the redemption period but before the pledge is forfeited. |
| (2) Subject to subsection (3), the redemption period is 6 months after the date on which the pledge was made, or any longer period that the parties may agree in the loan agreement or in a subsequent agreement. |
(3) Where the redemption period under subsection (2) ends on a day when the pawnbroker is closed for business —| (a) | the redemption period is extended to the next day the pawnbroker is open for business; and | | (b) | the pawnbroker must not charge any further profit or fee if a pledge is redeemed on the day mentioned in paragraph (a). |
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| Extension of redemption period |
55.—(1) The redemption period may be extended for one or more times by agreement between the pawnbroker and a person entitled to redeem the pledge.| (2) The redemption period may be extended even after it has expired. |
| (3) Section 51 applies to every extension of the redemption period under this section. |
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| How pledge may be redeemed |
56. A person entitled to redeem a pledge may do so by complying with all of the following requirements at any time within the redemption period or before the pledge is forfeited:| (a) | presenting the pawn ticket (including a replacement pawn ticket but excluding any pawn ticket that has been cancelled); | | (b) | repaying the loan and profit secured by the pledge; | | (c) | providing the person’s identification information. |
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| Pawnbroker to allow redemption of pledge except in certain circumstances |
57.—(1) A pawnbroker must allow a person who has complied with section 56 to redeem a pledge, except in the circumstances in subsection (2).(2) A pawnbroker must not allow a person to redeem a pledge in any of the following circumstances:| (a) | the pawnbroker knows that the person presenting the pawn ticket is not a person entitled to redeem the pledge; | | (b) | the pawnbroker has reason to believe that the person presenting the pawn ticket is not a person entitled to redeem the pledge, and continues to have reason to so believe even after taking reasonable steps to ascertain whether the person is entitled to redeem the pledge; | | (c) | the pawn ticket is a replacement pawn ticket issued by the pawnbroker pursuant to an application under section 66, and the pawnbroker, after the application is made, becomes aware or has reason to believe that the matters stated in the application are materially false or incomplete. |
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| Protection from liability when pawnbroker acts according to section 57 |
58.—(1) Subject to subsection (2), a pawnbroker is not liable to any person for any loss or damage suffered as a result of the pawnbroker allowing or refusing, in accordance with section 57, the redemption of a pledge.| (2) Subsection (1) does not exclude a pawnbroker’s liability (if any) to the rightful owner of goods pawned without the owner’s authority, unless the pawnbroker has, before taking possession of the goods as a pledge, taken reasonable steps to satisfy itself that the pawner was the rightful owner of the goods or had the authority to pawn them. |
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| Pawnbroker’s obligations when goods redeemed |
59.—(1) When a pledge is redeemed, a pawnbroker must —| (a) | issue a receipt to the person redeeming the goods; and | | (b) | cancel the pawn ticket. |
| (2) The receipt must be in the form that the Registrar may specify. |
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| Pawnbroker’s liability if unable to produce goods, etc., upon redemption |
60.—(1) This section applies where —| (a) | a pawnbroker is required under section 57 to allow a person to redeem the pledge; but | | (b) | the pawnbroker is unable for any reason to —| (i) | produce the pledge; or | | (ii) | produce the pledge in the physical condition the pledge was in when the pawnbroker first took possession of the pledge. |
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| (2) Where the pawnbroker is unable to produce the pledge, the pawnbroker is liable to compensate the person for the value of the pledge. |
(3) Where the pawnbroker is unable to produce the pledge in the physical condition the pledge was in when the pawnbroker first took possession of the pledge, the person may choose either of the following remedies:| (a) | compensation by the pawnbroker for the value of the pledge; | | (b) | the return of the pledge, and compensation by the pawnbroker for any decrease in the value of the pledge caused by the change in physical condition. |
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| (4) If the person chooses the remedy in subsection (3)(a), the pledge becomes the absolute property of the pawnbroker. |
| (5) For the purposes of this section, the value of the pledge is the value as determined by the valuation provided under section 48(1) when the pawnbroker first took possession of the pledge. |
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| Division 3 — Forfeiture of unredeemed pledges |
61.—(1) A pledge is forfeited one month after the pawnbroker serves a notice of forfeiture in accordance with sections 62 and 63, unless it is earlier redeemed.(2) When a pledge is forfeited —| (a) | the pledge becomes the pawnbroker’s absolute property; and | | (b) | the loan and any profit secured on the pledge are deemed to be fully repaid. |
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62.—(1) A notice of forfeiture must contain the following information:| (a) | the name of the pawnbroker; | | (b) | the pawn ticket number; | | (c) | a statement that the pledge will be forfeited one month after the date on which the notice is served, and that the pledge may be redeemed at any time before it is forfeited; | | (d) | the amount to be paid to redeem the pledge or extend the redemption period; | | (e) | a valuation of the pledge at the time the notice is issued; | | (f) | the address and business hours of the licensed place of business at which the pledge can be redeemed; | | (g) | any other particulars that may be prescribed. |
| (2) A pawnbroker is not liable for any loss or damage suffered (whether by the pawner or by any other person) as a result of relying on a valuation provided under subsection (1)(e), unless the pawnbroker did not act in good faith or take reasonable care in providing the valuation. |
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| Time for, and manner of, serving notice of forfeiture |
63.—(1) A notice of forfeiture must be served —| (a) | within 2 months after the expiry of the redemption period; | | (b) | in the prescribed manner; and | | (c) | at the pawnbroker’s cost. |
| (2) A notice of forfeiture is deemed to be served in any circumstances that may be prescribed. |
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| Forfeiture to be sole remedy of pawnbroker |
64. A pawnbroker —| (a) | cannot sue, in debt or otherwise, for the loan or profit secured by the pledge; and | | (b) | cannot realise the pawnbroker’s security interest in the pledge other than by forfeiture under section 61. |
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| Consequences if pawnbroker purports to realise security interest other than by forfeiture |
65.—(1) Where a pawnbroker purports to realise the pawnbroker’s security interest in a pledge other than by forfeiture under section 61 —| (a) | if the value of the pledge exceeds the loan and profit secured by the pledge, the pawnbroker is liable to the person entitled to redeem the pledge for the surplus; | | (b) | if the value of the pledge is equal to or less than the total amount of the loan and profit secured by the pledge, the loan and profit are extinguished; and | | (c) | the pawnbroker does not thereby acquire any property in the pledge. |
| (2) For the purposes of subsection (1), the value of the pledge is the value as determined by the valuation provided under section 48(1) when the pawnbroker first took possession of the pledge. |
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| Division 4 — Related matters |
| Protection of person entitled to redeem pledge but not having pawn ticket |
66.—(1) This section seeks to protect a person who is entitled to redeem a pledge but does not have a pawn ticket.| (2) A person who claims to be entitled to redeem a pledge, but who does not have a pawn ticket, may make an application to a pawnbroker in accordance with this section. |
(3) An application under this section must state —| (a) | the identification information of the applicant; | | (b) | the grounds on which the applicant claims to be entitled to redeem a pledge; | | (c) | the matters that the applicant relies on in support of paragraph (b); | | (d) | that the applicant has not assigned or otherwise transferred the applicant’s right to redeem the pledge; and | | (e) | any other matters that may be prescribed. |
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| (4) Upon receiving an application under this section and the prescribed fee, the pawnbroker must make reasonable inquiries as to the truth of the matters stated in the application, including inquiries with the pawner. |
| (5) After a pawnbroker has made reasonable inquiries under subsection (4), the pawnbroker must issue a replacement pawn ticket to the applicant and cancel the existing pawn ticket, unless the pawnbroker knows or has any reason to believe that the applicant is not entitled to redeem the pledge. |
| (6) An applicant who has been issued a pawn ticket under subsection (5) has the rights and remedies against the pawnbroker that the pawner would have, and may freely assign or otherwise transfer the pawn ticket. |
| (7) A pawnbroker that, in relation to a pledge, does or omits to do anything in accordance with this section is not liable to any person entitled to redeem the pledge for any loss or damage caused by the act or omission. |
| (8) An application under this section is deemed to be a declaration for the purposes of sections 199 and 200 of the Penal Code 1871. |
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| Protection of rightful owner of goods wrongfully pawned |
67.—(1) This section seeks to protect the rightful owner of goods that are wrongfully pawned.| (2) A person who claims to be the rightful owner of goods that are wrongfully pawned may serve a notice on a pawnbroker in accordance with this section. |
(3) A notice under this section must state —| (a) | the identification information of the person serving the notice; | | (b) | that the person is the owner of goods which have been wrongfully pawned; | | (c) | the matters that the person relies on in support of paragraph (b); and | | (d) | any other information that may be prescribed. |
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(4) Upon receiving a notice under this section and the prescribed fee —| (a) | if there is a court order for the pledge to be disposed or otherwise dealt with — the pawnbroker must deal with the pledge according to the court order; or | | (b) | if there is no court order for the pledge to be disposed or otherwise dealt with — the pawnbroker may refuse to deal with the pledge, including by refusing to allow the pledge to be redeemed —| (i) | for a period of 3 months after the date on which the notice is served on the pawnbroker; or | | (ii) | if an action is commenced in respect of that pledge within the period in sub‑paragraph (i), for so long as that action is pending. |
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| (5) A pawnbroker that, in relation to a pledge, does or omits to do anything in accordance with subsection (4) is not liable to any person for any loss or damage caused by the act or omission. |
| (6) No profit is chargeable on the loan secured on the pledge during the period that the pawnbroker refuses to deal with the pledge under subsection (4)(b). |
| (7) A notice under this section is deemed to be a declaration for the purposes of sections 199 and 200 of the Penal Code 1871. |
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| Preservation of rights and remedies |
| 68. Unless the context otherwise requires, nothing in this Part limits, restricts or otherwise affects any right, title, interest, privilege, obligation or liability of a person. |
| No contracting out of this Part or any rule of law |
| 69. Any term of an agreement, and anything stated on a pawn ticket, is void to the extent that it purports to exclude or modify the operation of this Part or any rule of law relating to the pawning of goods. |
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