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In a nutshell, I will explain the retention of title clauses as they exist in Belgium and the United Kingdom (2).
Then a brief overview of the problems faced in these jurisdictions will be dealt with to go on with registration and other contractual mechanisms as a solution (3). This section of the paper will contain a more descriptive overview of the retention of title clause with an emphasis on the validity, construction and effect in the different jurisdictions.
This rule does not however touch on public policy, so the parties are allowed to delay the transfer of property pending the completion of a specified term in the contract or following a fixed trade usage.
This means that the retention of title clauses, constructed in whatever way, will not impede the contract of sale being concluded.
The original opinion, dating from an arrest of the Cour de Cassation of 1933, stated that the retention of title was not opposable to the creditors of the buyer in a situation of concursus.
One of these exceptions is article 20, 5° of the mortgages act, which protects the unpaid seller.
Seen as this article does not protect the unpaid seller in case he wants to rescind the contract or let him exercise the right of recovery (revindication) after concursus, it would be against the pari passu principle to let the parties create their own preferential rights in a contract.
The aim is to research the validity of clauses and the problems faced within these jurisdictions.
More specifically, attention will be paid to the possibility of registration of the clauses and a possible future (and current) harmonization in Europe.