Bankruptcy Law

Where the property of the owner making the claim is in the hands of a third party who is holding it on his own behalf, the third party may rely on the provisions of Article 2276(1) of the Civil Code, which provides that in the case of movables, possession is equivalent to title, in order to oppose the claim.
Thus, a pledgee who is presumed to be in possession of the goods in good faith and who is  …

Third party holder

Where the property of the owner making the claim is in the hands of a third party who is holding it on his own behalf, the third party may rely on the provisions of Article 2276(1) of the Civil Code, which provides that in the case of movables, possession is equivalent to title, in order to oppose the claim.

Thus, a pledgee who is presumed to be in possession of the goods in good faith and who is not obliged to check, at the time the pledge is constituted, that the goods held by the debtor are not encumbered by a retention of title clause, may rely on his right of retention against the seller with retention of title in order to prevent his action to reclaim the goods . Whenever the third party holder is considered to be in good faith, the owner is deprived of the right to claim his property, provided that the provisions of Article L. 624-16, applicable to the receivership procedure by reference from Article L. 631-18, do not derogate from those set out in Article 2276 of the Civil Code .

On the other hand, if the third party does not hold the goods in good faith, the owner may base his claim on paragraph 2 of Article 2276, which allows him to bring an action for reclaiming the goods for three years from the date of the loss or theft, against the person in whose hands he finds them, unless the latter brings an action against the person from whom he received them. Since the owner of goods sold subject to retention of title bases his claim on the provisions of Article 2276 of the Civil Code and not on those of Article L. 624-16 of the Commercial Code , there is no need to investigate whether the goods are in kind in the assets of the sub-purchaser when his insolvency procedure is opened, but only to verify whether he came into possession of them in bad faith . A claim by a bank subrogated to the rights of a seller with reservation of title in respect of goods transferred to the debtor, against a sub-purchaser who was aware that the goods had previously been in the possession of a person who did not own them, is admissible as only possession free of defects by the sub-purchaser himself or by another person can prevent the claim from being asserted .

Article 2286 of the Civil Code also establishes a right of retention in favor of the person to whom the thing has been delivered until payment of his claim, or whose unpaid claim results from the contract which obliges him to deliver it, or whose unpaid claim arose during the holding of the thing or of the person who benefits from a pledge without dispossession. A right in rem, enforceable against all persons, including third parties not liable for the debt, the right of retention in Article 2286 enables the holders of property belonging to the debtor, the sale price of which has not been paid in full by the debtor, to legitimately oppose the return of the disputed equipment, until they have been paid in full their claim for occupation indemnity arising from the holding of this equipment .

Cass. com., 26 May 2010, LawLex202100001720JBJ (LJ) ; 11 September 2012, LawLex202100003381JBJ (LJ) ; 3 October 1989, LawLex202100003380JBJ (LJ).

Cass. com., 19 May 1987, LawLex202100001716JBJ (LJ).

Applicable on reference from art. L. 631-18.

Cass. com., 17 November 2021, LawLex202200000405JBJ, LawLex202200000610JBJ, LawLex202200000609JBJ (LJ).

Cass. com., 5 March 1996, LawLex202100001721JBJ (LJ).

Cass. 1re civ., 20 December 2017, LawLex202100003438JBJ (LJ).

Bankruptcy Law

525. Third party holder

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525. Third party holder

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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