Retention of Title - A practical guide to legislation in 37 countries

Retention of title clauses are designed to preserve the right of sellers to their goods, often until the purchase price is paid in full, and are frequently included in general conditions of sale. In cross-border transactions, it may be particularly hard to know whether a retention of title clause will be enforceable. Retention of title is embedded in national or property law, as well as security and insolvency law, making it exceedingly difficult to harmonize.

Following upon the success of the previous editions, ICC is pleased to present the third edition of the Retention of Title: A practical ICC guide to legislation in 37 countries, a collection of entries drafted by local experts on the rules governing retention of title in their respective jurisdictions. 

• The guide gives a general overview of the legal framework in each of the countries, with a description of the applicable legal rules.
• It will help parties understand whether the recourse to RT as a tool for protecting the seller in case of non-payment may be an appropriate solution with respect to a given country.
• It provides a number of sample clauses, which are helpful for understanding the usual practice in the respective country.

Countries included in the book:

Austria, Belgium, Brazil, China, Colombia, Croatia, Czech Republic, Denmark, Finland, France, Georgia, Germany, Greece, Guatemala, Hong Kong, Hungary, Ireland, Israel, Italy, Luxembourg, Malaysia, Mexico, Nigeria, Pakistan, Poland, Portugal, Qatar, Russia, Serbia, Slovenia, Spain, Sweden, Thailand, Turkey, UK, and USA. 

WHEN IS RECOURSE TO RETENTION OF TITLE APPROPRIATE?

When dealing with RT, one should begin by considering that the possibility offered to the seller under an RT clause, to reclaim the unpaid goods, does not necessarily amount to an effective means of protection of credit. Whenever recovering the goods does not adequately cover the unpaid amount (e.g. with respect to goods made for a specific buyer which cannot be resold without loss, or seasonal goods) or when the cost of taking back the goods would be disproportionate, the RT is not necessarily the appropriate means for protecting the seller’s credit and the seller should look for other means for warranting payment, such as bank guarantees, letters of credit, advance payment, etc. This means that, before choosing to use this mechanism as a protection against the risk of nonpayment, the seller should verify whether an RT clause is the most effective means, and if not, look for alternative solutions.

THE APPLICABLE LAW

While the validity of the RT clause and its effectiveness between the parties is governed by the law of the contract in which the clause is included, the effectiveness and enforceability of the clause towards third parties (including the case of bankruptcy) shall be governed by the law of the place where the goods are located (lex rei sitae). Consequently, when goods are sold abroad, the seller must ascertain to what extent and under which conditions the RT clause is effective in the buyer’s country and draft the clause in conformity with the requirements of such law as far as possible.

DRAFTING THE RETENTION OF TITLE CLAUSE

It is common practice to include RT clauses in contracts of sale without having analysed their actual effectiveness. This practice is acceptable when the seller simply wishes to have an additional protection without really counting on its effectiveness, since a standard RT clause can be easily included in the general conditions of sale.

However, when the seller needs to be sure that it will be able to recover the unpaid goods, a specific clause, especially adapted to the law of the buyer’s country and to the specific needs of the seller, must be prepared, possibly with the assistance of a local lawyer experienced in this field.

In fact, according to the possible options available under the applicable law, parties may negotiate various types of clauses, from the simple RT clause to more complex clauses which extend the seller’s protection in case of resale of the goods, their incorporation in other products, etc. These clauses, which must respect the options available under the law of the country of the buyer, must be drafted with the utmost attention.

The guide provides a number of sample clauses, which are helpful for understanding the usual practice in the respective country. However, it is recommended not to use them without the advice of a local expert, so that the seller can be confident of their enforceability.