Right of retention (droit de retention) under French law

When a garage refuses to return a vehicle until the repair bill is paid, it exercises one of the most effective enforcement mechanisms in French law: the right of retention (droit de retention). Defined at Article 2286 of the Code civil since the ordonnance of 23 March 2006 and supplemented by the LME law of 4 August 2008, it allows any creditor who legitimately holds property belonging to their debtor to refuse restitution until full payment.

Its power lies in a paradox. The retainer has no active power: they cannot sell the property, hold no preference on the price, and lose the right if they voluntarily relinquish possession. Their weapon is pure inertia. But this inertia is opposable to all – other creditors, third-party purchasers, insolvency practitioners – making it formidably effective. Practitioners call it the “silent super-priority.”

Legal foundation: Article 2286

This architecture creates two fault lines. The first opposes contractual retention (1 and 2) to extra-contractual retention (3). The second, more recent, consecrates at point 4 a fictive retention allowing a pledgee without dispossession – who never physically held the property – to oppose a right of retention to other creditors, including in insolvency. This extension, validated by Cass. com., 17 May 2017 (no. 15-23.413), is one of the most effective tools for financing operating equipment while leaving it with the business.

Four cumulative conditions

Certain and due claim: The claim must be certain in principle and due. It need not be liquid (the exact amount need not yet be fixed).

Material and regular possession: The retainer must exercise actual physical control, acquired lawfully. Possession obtained by force or fraud cannot found retention.

Connection (connexite): An objective link must exist between the claim and the retained property – juridical (same contract), material (claim arose from the thing), or conventional (contractually agreed).

Good faith: The exercise must not be abusive. A creditor invoking never-billed storage fees solely to harm the debtor at a commercially sensitive moment loses the protection.

Effects: passive but universal

Indivisible refusal: Until full payment, the retainer may refuse to return the property regardless of the proportion between its value and the claim. A garage holding a 40,000 euro vehicle for a 3,000 euro bill may retain the entirety until the last euro.

Opposability erga omnes: The right binds everyone – other creditors (even privileged), third-party purchasers, insolvency practitioners. It produces effects without any publicity or registration.

Limits: No preference on sale proceeds (if the retainer sells, they lose retention and become unsecured). No right of pursuit (voluntary relinquishment extinguishes the right immediately and definitively). No judicial attribution. The sole power is refusal to return.

In insolvency proceedings

This is where the right reveals its full power. While most securities see their efficacy degraded by the payment freeze and collective discipline, the retainer maintains their inertia.

Opposability to the liquidator: The insolvency office cannot compel the retainer to relinquish without paying. The administrator or liquidator may, however, request court authorisation to pay the retainer’s claim to recover an asset necessary for continued operations (Articles L. 622-7 II and L. 642-12 Code de commerce).

Transfer to the price: If the property is sold by the liquidator, the retention right transfers by operation of law to the sale price (Article L. 642-20-1). The retainer is paid by priority. This was confirmed for immovable property (Cass. com., 30 January 2019, no. 17-22.223).

Sectoral applications

Unpaid vendor (Article 1612 Code civil); depositary (Article 1948); carrier; garage/repairer; pledgee with dispossession (naturally); pledgee without dispossession (Article 2286, 4 – fictive retention); possessor who incurred conservation expenses; good-faith purchaser of lost or stolen property (Article 2276(2)).

Critical pitfalls

Failure to declare the claim in insolvency: An undeclared claim is treated as extinct, destroying the right of retention – the most frequent trap in practice.

Voluntary relinquishment: Any voluntary surrender, however brief, extinguishes the right definitively. No second chance.

Absence of connexite: Retaining property for an unrelated debt constitutes a wrongful act engaging the retainer’s liability.

Solent Avocats advises creditors on establishing and preserving their right of retention, and defends debtors challenging abusive retention. See our securities guide.