Enforcing retention of title in the UK
In England, the retention of title clause can be extended by a so-called all monies clause. This clause allows the seller to reclaim all items still identifiable and present with the buyer, regardless of whether these items relate to paid or unpaid invoices. However, the seller and buyer must agree this before delivery of the goods. Essential here is that the seller can prove that the buyer has accepted the terms of sale and delivery (including the retention of title), preferably in writing. This can be done, for example, with an order confirmation, with the terms of sale and delivery on the back.
Whether - in case of bankruptcy of the buyer or in case the buyer has been granted suspension of payments - the retention of title can be invoked depends on the wording of the clause. For example, in some cases, a retention of title clause that serves as security for all claims is void. The same applies to a retention of title that also relates to goods being worked or processed or that also relates to the proceeds on resale.
Enforcing retention of title in Belgium
In Belgium, only a simple retention of title can be validly agreed. The clause to be used by the seller is as follows: 'Ownership of the goods delivered will only pass upon full payment of the price.' Translated into French, this is: 'La propriété des biens délivrés ne sera transférée qu'au moment du paiement intégral du prix.'
This retention of title can be stipulated by including it in the delivery terms and/or invoice terms. Despite the fact that most case law does not require it, it is still advisable to agree on retention of title already prior to or at the latest upon delivery.
In France, retention of title can also be invoked against third parties. Think of a receiver or administrator, in case of bankruptcy of the buyer or in case the buyer has been granted suspension of payment. However, retention of title must be invoked before the 'Proces-Verbal van Nazicht van Schuldvorderingen', approximately one month after the declaration of bankruptcy. If, before this date, there is no express agreement from the receiver for the recovery of the goods, legal proceedings should be initiated.
If the buyer has been granted suspension of payments and you wish to invoke the retention of title against the administrator, the administrator may choose to return or retain the items. In the latter case, the administrator should take full payment for those items into account in the recovery plan.
Enforcing retention of title in Germany
Germany has several variants of retention of title.
- Einfacher Eigentumsvorbehalt
Under this retention of title, the delivered goods remain the property of the supplier as long as the purchase price has not been paid. This applies insofar as the goods have not been processed or treated, and the goods in question are still in the possession of the buyer or are under his control. - Verlängerter Eigentumsvorbehalt
Under the 'extended' retention of title, the supplier retains not only ownership of the delivered goods, but also (co-)ownership from those goods resulting from treatment or processing. - Erweiterter Eigentumsvorbehalt
With the 'extended' retention of title, the seller retains ownership of the delivered goods until the buyer has fulfilled all his financial obligations towards the seller. It therefore applies not only to the purchase price of the delivered goods, but also to all debts of the buyer to the seller that are not a direct consequence of the contract relating to the delivered goods. - Konzernvorbehalt
The Konzernvorbehalt is the most comprehensive form of an Erweiterter Eigentumsvorbehalt. It extends to all claims of buyer-related companies (including subsidiaries and sister companies) against the seller. This clause, when included in standard terms and conditions, is usually not accepted as legally valid.
Of all the forms described above, the extended and extended retention of title offers the supplier the most security. Which form you should or can apply in a specific case largely depends on, among other things, the product you supply, your marketing policy and the customs in your industry.
Receive a sample text?
Would you like to receive a sample text of a retention of title including an 'all monies' clause? Or a sample text of an extended and extended retention of title, which is in line with current legal opinion in Germany? If so, please contact us via info@xolv.nl or 073-820 02 95. If you wish to include this clause in your terms and conditions, we recommend that you seek legal advice.
