Īpašumtiesību saglabāšana: kā tā aizsargā jūs kā pārdevēju Nīderlandē?

Retention of title (eigendomsvoorbehoud) lets you, as a seller, remain the owner of goods you have already delivered until the buyer has paid. Under Article 3:92 of the Dutch Civil Code (BW) it keeps the goods out of the buyer’s bankrupt estate, but only if the clause was agreed before or at delivery and the goods are still identifiable and have not been processed into a new item.

Without such a clause you rank as an unsecured creditor in a bankruptcy and often receive little or nothing. With it, you can reclaim your goods, subject to a cooling-off period of up to two months that the bankruptcy judge can impose under Article 63a of the Bankruptcy Act (Faillissementswet).

When does ownership pass under Dutch law?

Ownership passes on delivery, not on payment. Under Dutch law a transfer requires a valid legal basis (such as a purchase agreement), delivery and authority to dispose of the goods; payment of the price is not one of those conditions.

So once you hand the goods to the buyer, the buyer becomes the owner, even if the invoice has a payment term of 30 or 60 days. If the buyer then does not pay, you have only a claim for the price. You cannot simply collect the goods, and in a bankruptcy that claim usually ranks behind the tax authorities and secured creditors.

How does retention of title work?

You agree with the buyer that ownership only passes once the buyer has paid in full. Article 3:92(1) BW presumes that the transfer then takes place under a condition precedent (opschortende voorwaarde): payment of the price.

Until that condition is met, you remain the owner. If the buyer does not pay, you can terminate the agreement and reclaim the goods; if the buyer refuses to cooperate, you can apply for a prejudgment attachment for recovery (revindicatoir beslag) and start proceedings. As soon as the buyer pays in full, ownership passes automatically, without any further act.

Which claims can a retention of title secure?

Only claims connected to the supply of goods. Under Article 3:92(2) BW the clause may cover the price of goods delivered or to be delivered, work done in connection with such deliveries, and claims for failure to perform those agreements.

That makes an extended retention of title (verlengd eigendomsvoorbehoud) possible: you remain owner of everything you delivered until all such invoices are paid, including older deliveries already paid for. A clause that also secures other debts, such as a loan or a rent arrears claim, is void to that extent and is treated as not written.

What happens if the goods are processed or resold?

Your protection usually ends. If the buyer processes your goods into a new item, the new item generally belongs to the maker under the rules on specification (zaaksvorming) in Book 5 BW, and your retention of title does not follow it.

The same applies when the goods become part of another item, for example parts built into a machine or materials incorporated in a building (natrekking). To protect yourself against processing, agree a non-possessory pledge (stil pandrecht) on the new goods or on the buyer’s receivables from resale; retention of title cannot do that job.

Resale is a separate risk. A buyer who is not yet the owner may still be authorised to sell in its ordinary course of business. And a third party who buys for value and in good faith is protected under Article 3:86 BW. That protection can fall away if the third party knew, or should have known, that goods in that sector are commonly delivered under retention of title and that the seller was in financial difficulty.

How do you make the clause effective?

Agree it in writing before or at delivery. A retention of title first mentioned on an invoice sent after delivery comes too late.

The clause is usually included in general terms and conditions. Those terms must then have been declared applicable and made available to the buyer in time, normally before or when the contract is concluded. If both parties refer to their own terms, Dutch law gives priority to the first reference, unless the other party expressly rejects those terms.

Describe the goods so they can be identified, and mark them in practice: a serial number, batch code or label linked to an invoice. A curator in bankruptcy will only release goods that you can show are yours and are still unpaid.

What is hire purchase?

Hire purchase (huurkoop) is an instalment sale in which ownership passes only once the buyer has paid everything owed. It is a form of retention of title with its own mandatory rules in Book 7A of the Dutch Civil Code.

A typical example is buying a car in instalments. The mandatory rules protect the buyer, for example against forfeiting everything already paid if the seller reclaims the goods. Hire purchase does not apply to real estate.

Kas jums kā pārdevējam jāpārbauda?

• Is the retention of title in your offer, order confirmation or general terms, and were those terms provided before the contract was concluded?
• Does the clause cover all deliveries to this buyer, within the limits of Article 3:92(2) BW?
• Do you have a non-possessory pledge for goods the buyer processes or resells?
• Can you identify your goods at the buyer’s premises by serial number, batch or label?
• In a bankruptcy: have you notified the curator in writing and asked for the goods within the reasonable period the curator sets?

Kas jums kā pircējam jāpārbauda?

• Which of the supplier’s goods in your stock are still subject to retention of title?
• May you resell or process the goods in your ordinary course of business under the supplier’s terms?
• Does your financier’s pledge on your stock clash with the supplier’s retention of title?
• Did you reject the supplier’s general terms expressly when you referred to your own?

What can we do for you with retention of title?

mūsu korporatīvie juristi advise suppliers and buyers on securing and enforcing payment.

• We review your general terms and draft a retention of title clause that complies with Article 3:92 BW.
• We add a non-possessory pledge for processed goods and resale receivables.
• We check whether your terms were validly agreed with a specific customer.
• We claim your goods from the curator and handle the cooling-off period with the bankruptcy judge.
• We apply for a prejudgment attachment for recovery and conduct the proceedings.

Kopsavilkums

• Ownership passes on delivery, not on payment, unless retention of title has been agreed.
• Agree the clause in writing before or at delivery; an invoice afterwards is too late.
• Article 3:92(2) BW allows an extended clause covering all supply-related claims, not other debts.
• Processing or good-faith resale usually ends the protection; a pledge fills that gap.
• In a bankruptcy you can reclaim the goods, subject to a cooling-off period of up to two months.

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