Bankruptcy Law

The retention of title clause allows the owner to claim a good, the ownership of which is reserved to him, provided that it has been agreed between the parties, in accordance with Article L. 624-16, paragraph 2, of the Commercial Code, at the latest at the time of delivery. Since the text does not require that the acceptance of the clause be subject to any particular formalism, the Court of Cassat …

Clause agreed to by the parties

The retention of title clause allows the owner to claim a good, the ownership of which is reserved to him, provided that it has been agreed between the parties, in accordance with Article L. 624-16, paragraph 2, of the Commercial Code, at the latest at the time of delivery. Since the text does not require that the acceptance of the clause be subject to any particular formalism, the Court of Cassation admits that it may be materialized in different forms.

A debtor who signed a customer “account opening” with a tire supplier, intended to govern all of their commercial relations, to which its general terms and conditions of sale, which contained a retention of title clause, were annexed, is deemed to have accepted the latter . Similarly, an owner who establishes that his general terms and conditions of sale, including a retention of title clause, were accepted by the debtor “by handwritten notation, signature and company stamp” and who produces purchase orders and delivery slips containing that same clause, demonstrates that the clause was accepted and is the result of a writing drawn up no later than at the time of delivery .

But the enforceability of the clause against the debtor is not conditional on his written acceptance of the clause on the delivery notes for the goods . The debtor's signature is not necessary to establish his acceptance, as long as the title retention clause appears in full on the back of each delivery note issued at the time of each sale . On the other hand, a retention of title clause signed by a service provider of the debtor, who is not an agent of the debtor, is not enforceable against the debtor .

Acceptance of the clause may be merely tacit, and may be inferred from the debtor's conduct. This is the case of a person who invoices the seller for goods purchased on behalf of a final customer, who has ratified the delivery notes mentioning the clause, which were sent to him in copy . Similarly, the fact that the clause is only mentioned on the back of the delivery notes does not imply that the buyer was unaware of it and did not accept it when he performed the contract with full knowledge of the facts . In the absence of a framework agreement, the debtor's acceptance of the retention of title clause is assessed on a sale-by-sale basis and may be inferred from the existence of business relations with the seller and from the latter's receipt and acceptance without protest of previous invoices clearly mentioning the existence of such a clause . The absence of reservations by the debtor upon receipt of a quotation and purchase order that mention the clause may indeed be interpreted as acceptance of the clause , unless there is a contradiction between the debtor's and the seller's general conditions of purchase and sale, in which case the latter cannot rely on the silence kept by the buyer to deduce that it has accepted the retention of title clause . 

CA Toulouse, 22 November 2017, LawLex202200003456JBJ (LJ).

Cass. com., 13 April 1999, LawLex202100003403JBJ (LJ).

Cass. com., 13 October 1998, LawLex202100003379JBJ (LJ).

Cass. com., 17 March 1998, LawLex202200003890JBJ (RJ).

Cass. com., 24 April 2007, LawLex202200003891JBJ (LJ).

Cass. com., 27 June 1989, LawLex202100003644JBJ (LJ).

Cass. com., 31 January 2012, LawLex202100001651JBJ (LJ).

Cass. com., 3 January 1995, LawLex202100001726JBJ (RJ) ; 2 November 2016, LawLex202100001661JBJ (LJ).

Cass. com., 10 January 2012, LawLex202200003893JBJ (RJ).

Bankruptcy Law

230. Clause agreed to by the parties

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230. Clause agreed to by the parties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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