La retention of title clause allows the seller to stipulate in the deed of sale that the property sold will remain its property until the buyer has paid the agreed price in full.
The Cour de cassation has handed down a particularly interesting decision concerning the relationship between these clauses and the five-year limitation period.
In this case, the seller of a ship had stipulated a retention of title clause in the deed of sale signed in 2011. Having failed to obtain payment of the sale price, he initiated a precautionary seizure against the buyer in 2018.
On appeal, the seller's claim for the return of the vessel was rejected. The lower courts held that the retention of title clause was an accessory to the debt and that the extinction of the debt therefore entailed the transfer of ownership.
The solution adopted by the Cour de cassation
The high court censured the appeal ruling on the basis of articles 2224 and 2367 of the Civil Code. It justified its reasoning by stating that the action for reclamation by the seller who is the beneficiary of a retention of title clause derives from its ownership of the property, the transfer of which is subject to the condition precedent of payment of the price.
The retention of title clause does not therefore arise from the seller's personal claim against the buyer.
However, the Court of Appeal's reasoning was not unfounded, insofar as Article 2367 states:
" Ownership of an asset may be retained as security by virtue of a retention of title clause, which suspends the transferability of a contract until full payment of the obligation that constitutes the consideration.
The property thus reserved is an accessory to the claim for which it guarantees payment. "
A reading of the first paragraph would seem to confer ownership of the property sold on the seller until the price has been paid. Conversely, the second paragraph suggests that this clause is an accessory to the claim for which it guarantees payment.
It is precisely on this point that the interpretation of the Court of Appeal and that of the Court of Cassation diverge. The first analysed the clause from the perspective of the theory of principal and accessory, in application of the second paragraph of Article 2367 of the Civil Code, while the second focused on the letter of the first paragraph of the same article.
This interpretation by the Cour de cassation appears relevant in that it prevents a debtor in bad faith acquires ownership of a property of which he has no right. not paid the price by the mere fact that the claim is time-barred.
Conversely, the solution adopted by the lower courts would have penalised the creditor wishing to preserve his property rights, by making him bear the serious consequences of his inaction.
As pointed out by the Advocate General of the Cour de cassation, the two paragraphs of article 2367 must be reconciled and may not give rise to differing interpretations depending on the paragraph chosen.
Consequently, the claim remains imprescriptible in accordance with the rules governing the right of ownership, the second paragraph of Article 2367 of the Civil Code, which only states that the retention-of-title clause is intended to follow the claim wherever it is held.
The Cour de cassation had already adopted a similar solution, considering that the extinction of the claim did not amount to its payment, so that the transfer of ownership could not have occurred in favour of the purchaser (Civ 2nd, 27 February 2014, appeal no. 13-10.891).
This means that the retention of title clause is not affected by the limitation period of the claim that it secures.
This ruling preserves the creditor's rights and strengthens the right of ownership in its role of «queen of securities».
Case reference: Cass. com. 19 November 2025, no. 23-12.250
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