Bankruptcy Law

A retention of title clause allows the owner to claim ownership of a good, provided that it has been agreed between the parties, in accordance with Article L. 624-16(2) of the Commercial Code , at the latest at the time of delivery. Since the text does not require acceptance of the clause to take any particular form, the Court of Cassation accepts that it may take various forms.
A debtor who signe …

Clause agreed to by the parties

A retention of title clause allows the owner to claim ownership of a good, provided that it has been agreed between the parties, in accordance with Article L. 624-16(2) of the Commercial Code , at the latest at the time of delivery. Since the text does not require acceptance of the clause to take any particular form, the Court of Cassation accepts that it may take various forms.

A debtor who signed a customer “account opening” with a tyre supplier, intended to govern all of their commercial relations, to which his general terms and conditions of sale, which contained a retention of title clause, were attached, 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 note, signature and company stamp” and who produces order and delivery slips containing this same clause, demonstrates that the clause was accepted and is the result of a writing drawn up at the latest at the time of delivery .

However, the enforceability of the clause against the debtor does not depend on the debtor's written acceptance of the clause on the delivery notes for the goods . The debtor's signature is not necessary to establish acceptance, since the retention of title 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 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 mean that the purchaser was unaware of it and did not accept it when he performs 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 seller's receipt and acceptance without protest of previous invoices clearly indicating the existence of such a clause . The absence of reservations by the debtor on receipt of a quotation and order form which mention the clause may in fact be interpreted as acceptance of the clause , unless there is a contradiction between the debtor's and the seller's general terms and conditions of purchase and sale, in which case the seller may not rely on the buyer's silence to deduce that it has accepted the retention of title clause .

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

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

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

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).

Bankruptcy Law

532. Clause agreed to by the parties

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532. 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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