Business Contracts

While contractors are bound by a certain number of obligations, they also benefit from a right of retention, which they can exercise when the contract for services relates to a movable item and their work has not been paid for by the project owner. 
In the absence of specific provisions governing contracts for services, reference should be made to Article 2286 of the Civil Code, which governs the  …

Right of retention

While contractors are bound by a certain number of obligations, they also benefit from a right of retention, which they can exercise when the contract for services relates to a movable item and their work has not been paid for by the project owner. 

In the absence of specific provisions governing contracts for services, reference should be made to Article 2286 of the Civil Code, which governs the exercise of this right. Under this article, “the following may exercise a right of retention on the thing: 1° The person to whom the thing has been delivered until payment of his claim; 2° The person whose unpaid claim results from the contract which obliges him to deliver it; 3° The person whose unpaid claim arose during the holding of the thing; 4° The person who benefits from a lien without dispossession”, it being specified that this right “is lost by voluntary relinquishment”.

It follows that a garage owner who has a claim that is certain, of a fixed amount, due and payable, arising from a contract for services, and which has not been paid, is entitled to retain the vehicle deposited . Once the garage owner has been given formal notice to collect the vehicle for repair, and has been informed of the onerous nature of the storage service, the garage owner may not only demand payment upon receipt of the formal notice, but also, in accordance with the provisions of Articles 2286 and 1948 of the Civil Code, avail himself of a right to retain the vehicle until full payment has been made . The garage owner, as depositary of a vehicle, is only required to return it to the person who entrusted it to him and therefore validly exercises his right of retention against the depositor, even if the sale of the vehicle has been canceled in the meantime and the latter is no longer the owner . Conversely, the owner of a vehicle deposited for repair with a garage, who has been informed in advance of the rate of storage charges and who, failing to put an end to the deposit or to contest the invoicing of future charges, has accepted them and must pay them, cannot contest the refusal to return his vehicle which he has encountered, as long as it is justified by the garage's right of retention .In addition, the right of retention on the goods delivered under a bailment contract ancillary to a contract for services is a right in rem, enforceable as such against third parties not bound by the obligation, so that the bailee can validly demand payment from the owner of the vehicle, even when the latter is not a party to the contract. Thus, when an undertaking has entrusted a garage operator with the towing of a previously leased vehicle, which has subsequently remained parked in the garage's premises, the garage operator, as creditor of the storage costs incurred in the course of the vehicle's custody, is entitled to exercise his right of retention against the lessor of the vehicle .

On the other hand, where the contract for services relates to a building, the building contractor is not the proprietor of a right in rem over the building which can be set up against other creditors, so that he does not enjoy a right of retention over the property built or over the proceeds of the sale until the payment of the price of the works .

CA Grenoble, 12 May 2014, LawLex202200004558JBJ; CA Toulouse, 28 May 2024, LawLex202400007264JBJ; but see a contrario CA Colmar, 29 January 2024, LawLex202400007263JBJ.

CA Rouen, 5 January 2017, LawLex202200004542JBJ.

CA Toulouse, 17 September 2024, LawLex202400006587JBJ.

CA Bordeaux, 9 November 2020, LawLex202200004516JBJ. 

CA Caen, 18 February 2021, LawLex202200004554JBJ.

Cass. 3e civ, 23 June 1999, LawLex202200009788JBJ, in this case, a contractor in charge of the construction of a building who, shortly before completion of the work and even though the price had not been paid, had registered a temporary court-ordered  mortgage on the land, even though it was already encumbered by fourteen mortgages in favor of various creditors.

Business Contracts

314. Right of retention

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314. Right of retention

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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