Have you delivered goods to an international customer only to find out they have been declared bankrupt? Has your invoice remained unpaid because of this? Do you know what options are available to you as a supplier and if it is possible to retrieve your goods back?
The options available to you will greatly depend on the country of residence of your customer. Our insolvency lawyers can advise your best course of action, if and how you can retrieve your goods and where possible, they can assist you in getting back what you are entitled to.
Retention of Title
A retention of title provides security for your company against a buyer’s non-payment or insolvency. As a supplier, you can make a supply agreement which contains a retention of title clause (also called: Romalpa clause). This means that the supplier retains legal ownership of the goods until the buyer has paid for them. Only when payment has been made in full, does the buyer become the owner of the goods. With a retention of title clause, you can retrieve your goods in case of non-payment, so long as you are still the legal owner of the goods.
Retention of Title clause in international contracts
The retention of title clause is used in many European countries, but legislation is different for each country. If you want to use a Retention of Title clause in your international contract, then you need to keep in mind the variances in each country including:
Location:
The location of your bankrupt business partner and the location of the goods is important. If your business partner resides in Spain but your goods have been distributed to Belgium then it is not always clear which country's bankruptcy law applies.
Types of Retention of Title Clauses:
German law uses a more extensive Retention of Title clause than Dutch law. The Dutch clause does not allow you to retrieve your goods if they have been processed into another product. For example, if delivered wood has been processed into a table. The extensive German retention of title clause, however, allows you to retrieve the wooden table in case of non-payment.
Formal Requirements:
In some European countries, like Spain and the United Kingdom, the Retention of Title clause needs to be incorporated in the terms and conditions or another written contract. In other countries, such as Italy, the retention of title clause also must be stated on every single invoice. Whilst in other countries, it is mandatory that the retention of title is registered at a public register otherwise it is not valid e.g. Switzerland.
Negotiating with a liquidator
If you have established a Retention of Title, you can take back your goods under certain conditions. In practice, however, it is common for suppliers to invoke the Retention of Title, but there is then a discussion with the liquidator about whether a valid Retention of Title has been established. This often results in the liquidator arguing that this is not the case. In this case you must prove that there is indeed a valid Retention of Title in place. We can help. We help you with the retrieval of your goods and enter into discussions with the liquidator on your behalf. We have regularly acted as liquidator in the Netherlands, and therefore know the process and legalities from both sides. We are a formidable opponent.
Dutch bankrupt customer?
In the Netherlands, if no Retention of Title has been agreed, you may be able to appeal to the Right to Reclaim (Recht van Reclame). This is a legal possibility for your goods to be returned within a certain period after the bankruptcy has been filed or after the invoice has been sent. We have many years’ experience with this procedure and can ensure that your case is legally strong.
Act quickly for a successful result
When it comes to recovering your goods and invoking the Retention of Title clause, it is very important to act quickly as the terms for recovering goods are very short and they can still be sold. If you have a bankrupt customer, contact us immediately. We will have the greatest chance of successfully recovering your goods at the moment you are notified of the bankruptcy.
As well as retrieving your goods and negotiating with the bankruptcy trustee, we can also assist you in the following situations:
- Advice on current agreements with your bankrupt customer;
- Advice on your rights as a landlord of a business building or movable property;
- The liability of board members or management in case of serious personal reproach;
- Advice to limit your risks in the event of bankruptcy;
- The preparation of securities such as pledge, bail or retention of title to prevent damage if a customer goes bankrupt.
Advice about a bankrupt customer abroad
Has your foreign customer, supplier or tenant been declared bankrupt by the court and do you want to know what your legal possibilities are? Contact us today. Our insolvency lawyers can advise on your options and where possible, can ensure that the damage to your organisation remains limited.
