Bankruptcy Law

In accordance with Article L. 624-16(2) of the Commercial Code , a retention-of-title clause enables the owner to reclaim ownership of a good, provided it has been agreed between the parties at the latest at the time of delivery. Since the text does not require that acceptance of the clause be subject to any particular formal requirement, the Court of Cassation has accepted that it may take variou …

Clause accepted by the parties

In accordance with Article L. 624-16(2) of the Commercial Code , a retention-of-title clause enables the owner to reclaim ownership of a good, provided it has been agreed between the parties at the latest at the time of delivery. Since the text does not require that acceptance of the clause be subject to any particular formal requirement, the Court of Cassation has accepted that it may take various forms.

A debtor who has signed a customer “account opening application to open an account” with a tire supplier, intended to govern all their commercial relations, to which the general terms and conditions of sale were attached, and which contained a retention of title clause, 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, have been accepted by the debtor “by handwritten notice, signature and company stamp”, and who produces order and delivery slips containing the same clause, demonstrates that the clause has been 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 is not conditional on the debtor's written acceptance of the clause on the goods delivery notes . The debtor's signature is not required 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 debtor's service provider, who is not an agent of the debtor, cannot be set up against the debtor .

Acceptance of the clause may be tacit, and can be inferred from the debtor's behavior. This is the case of a person who invoices the seller for goods purchased on behalf of a final customer, and who ratifies 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 purchaser was unaware of it and did not accept it, when he knowingly performed the contract . In the absence of a framework contract, acceptance of the retention-of-title clause by the debtor 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 legibly mentioning the existence of such a clause . The absence of reservations on the part of the debtor on receipt of a quotation and order form mentioning 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 conditions of purchase and sale, in which case the latter cannot rely on the buyer's silence to deduce that he has accepted the retention of title clause .

Applicable to the court-supervised liquidation procedure pursuant to art. L. 641-14 C. com.

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

870. Clause accepted by the parties

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870. Clause accepted by the parties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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