Right of retention, creditor company, third-party owner, Court of Cassation, legal connection, claim, detention, opposability, security law, Natixis Lease, Centrale Solaire, SDF
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Abstract
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Abstract
Court of Cassation ruling on the opposability of the right of retention to a third-party company, owner of the held thing, and the conditions for exercising this right.
Extract
[...] Is it sufficient for the fact of contracting with a party that has proven to be in default to deprive the company of its property? Through games of opposability, effectiveness, paralysis, the law and jurisprudence try to face different interests and stakes: on the one hand, the effectiveness of claims for creditors, with different securities and guarantees in order to obtain an order of creditors; and on the other hand, the interests of debtors, particularly in the context of collective proceedings, when it comes to maintaining employment and restoring activity. [...]
[...] Then, the enforceable nature of the claim is also required (Cass., Com July 1997). The creditor must be entitled to demand payment in order to be able to retain the thing of the debtor. Finally, the liquidity of the claim is not required, as evidenced by the judgment of the third civil chamber of the Court of Cassation dated 23 April 1974; a judicial decision can make the claim liquid. These three characteristics of the claim are not in doubt in the facts of the case, the claim for restitution of the advance paid being certain and enforceable. [...]
[...] The claim meets the characteristics of the legal connection of article 2286-2°. The claim of the company Centrale solaire holds a claim, for the non-execution of the works, under a contract concluded with the bailleur company. The Court of Cassation highlights this link of legal connection, between the right of retention of the hydraulic drill and the claim for restitution of the advance payment made for the execution of the works. The link of connection between the claim and the retained thing is an essential element of the regime of the right of retention. [...]
[...] The Court of Cassation has had to ask itself whether there was a link of connection between the claim for repayment of an advance payment for a service and the detention of a machine leased by a third-party lessor, justifying the opposability of the exercise of the right of retention against it. The Court of Cassation responds positively and rejects the appeal of the lessor. It characterizes the legal connection existing between the right of retention on the drill and the execution of the unexecuted works. [...]
[...] Finally, the legal link of connection is consecrated at article 2286-2°, whenthe unpaid claim results from the contract that obliges it to deliver ». In this context, the creditor can retain a thing as long as the debtor's obligation, resulting from a contract, has not been executed. The Court of Cassation, in its solution, characterizes the legal link of connection that justifies the right of retention. In fact, it renews the motivation of the court of appeal according to whichthe unpaid claim on which the company Centrale solaire relied resulted from the contract that obliged it to return the drill to its co-contractor ». [...]
