Does retention of title survive the buyer bankruptcy?

Yes. If validly agreed, the seller remains owner and can reclaim the unpaid goods from the bankruptcy estate, subject to any rights of the receiver.

What is an extended retention of title clause?

An extended retention of title (verlengd eigendomsvoorbehoud) covers not just the specific goods supplied but all claims the seller has against the buyer from the ongoing commercial relationship, including earlier unpaid invoices.

Can retention of title be lost if the buyer processes the goods?

Yes. If the buyer processes, combines or transforms the delivered goods, the original goods cease to exist as a separate object and the retention of title is extinguished. A well-drafted clause may try to extend ownership to the new product, but this is complex and does not always succeed.

Does retention of title work across international borders?

Not uniformly. Some jurisdictions require public registration for retention of title to be effective against third parties, others do not recognise it at all, and the applicable law is typically that of the country where the goods are located. Suppliers must take local legal advice for each jurisdiction.

Must retention of title be in writing?

Under Dutch law, retention of title must be contractually agreed, which in practice means it must be included in the written contract or in general terms and conditions that have been validly communicated. A verbal reservation is difficult to prove and should not be relied on.

Retention of title

A seller retains ownership of delivered goods until the buyer has paid in full.

Definição

Retention of title (eigendomsvoorbehoud) lets a seller deliver goods while keeping legal ownership until the buyer has paid the agreed price, and often any related claims. It gives the seller a strong position in the buyer insolvency, since the goods can be reclaimed rather than forming part of the bankrupt estate. The clause must be validly agreed before or at delivery and is frequently combined with an extended (chain) reservation.

Exemplo

A supplier delivers machinery under retention of title and reclaims it when the buyer is declared bankrupt before paying.

Porque é um risco para a empresa

A retention of title clause that is not properly incorporated into the contract or the general terms, or that is agreed too late (after delivery), is void. Buyers who commingle delivered goods with their own inventory can extinguish the seller's title. Suppliers operating in multiple jurisdictions need to verify that retention of title is recognised and effective under the applicable law, since not all legal systems give it the same protection.

Como gerir

Ensure the retention of title clause is in your standard terms and is validly communicated to the buyer before or at the time of delivery.
Consider an extended reservation that covers not only the price of the specific goods but also all existing and future claims from the commercial relationship.
Instruct buyers in writing not to process or co-mingle the goods before payment, and include this prohibition in the contract.
In cross-border transactions, verify that retention of title is enforceable under the law of the country where the goods are located.
Track outstanding invoices against identified goods in transit or at the buyer site, so you know which goods you can reclaim if default occurs.

Referências jurídicas

BW 3:92 Dutch Civil Code: retention of title Direito neerlandês

Salvo indicação em contrário, as referências remetem para o direito neerlandês (Burgerlijk Wetboek, o Código Civil neerlandês); os instrumentos da UE, como o RGPD, aplicam-se em toda a UE. Esta é informação geral, não constitui aconselhamento jurídico. Outras jurisdições tratam estes conceitos de forma diferente. Verifique o texto em vigor e a sua situação com um advogado qualificado.

Perguntas frequentes

Questões comuns sobre este termo.