The retention of title clause in insolvency proceedings

Interest The retention of title clause is a security interest that allows a seller to secure payment for goods delivered when a payment period has been agreed upon, as they retain ownership of the property until full payment.

In case of non-payment, particularly in the event of the debtor's collective proceedings, The retention of title clause allows for the recovery of the good in kind from the buyer..

To be enforceable, the retention of title clause must:

• to be the subject of a written document (framework agreement, quote, general terms and conditions, emails, etc.);
• present an apparent characteristic;
• to be accepted by the debtor no later than the time of delivery.

Any tangible or intangible personal property (patent, goodwill) that exists in kind in the debtor's estate on the day of the opening judgment and is identifiable may be claimed..

• It is possible to claim transformed property that has not changed its nature.;
• it is possible to claim property incorporated into another (movable or immovable) on the condition that separation can be carried out without damage (it is possibly possible to restore the support).;
• Fungible goods (e.g., cereals, building materials, etc.) can be claimed provided that goods of the same kind and quality exist in the debtor's estate.;
• by way of exception, when the asset has been sold but the price has not been paid before the opening judgment, it is possible to claim the resale price from the sub-purchaser;
• if the claimed asset existed on the day of the opening of insolvency proceedings but subsequently disappeared, it is also possible to claim its value.

As a general rule, the claimant must demonstrate that the asset existed in kind on the day the proceedings were opened, unless an inventory was not established or is incomplete. In that case, it is up to the proceedings to demonstrate that the asset no longer existed.

Claim procedure in collective proceedings:

• The claim request must be sent by registered mail with return receipt requested to the administrator (if it exists) with a copy to the authorized representative within 3 months of the judgment's publication in the BODACC,
• Failing agreement within one month, it is necessary to petition the judge-commissioner within one month from the expiry of the response period (i.e., within a maximum of 2 months from the date the request was sent).
  In Alsace-Moselle, representation by a lawyer is mandatory for such proceedings.