Special moveable liens are a discreet but powerful category of security for creditors. Unlike conventional securities such as pledges, they are created directly by law to protect certain claims deemed to be particularly legitimate. They are an essential component of the legal arsenal of movable securitiesThe debtor's right of first refusal, offering a preferential right over the value of specific movable assets of the debtor. In the context of strategies for securing receivablesTheir mastery is an asset, although their legal status, particularly since reform and rationalisation of liens on movable property by the order of 15 September 2021, requires a detailed analysis to understand its scope and limits.
Introduction to special moveable liens: a security interest in specific assets
French security law traditionally distinguishes between two main types of movable property lien. General liens cover all of the debtor's movable assets, while special liens cover only certain movable assets, expressly designated by law. This distinction is fundamental, as it defines the basis on which the creditor can exercise his preferential right.
Definition and distinction of movable liens (general vs. special)
A lien is a right that the quality of the claim confers on a creditor to be paid before others, including mortgagees. Its source is always the law; it cannot be created by contract. A lien is said to be general when it allows the creditor (for example, the tax authorities for certain taxes) to be paid from the proceeds of the sale of any movable property belonging to the debtor. Conversely, a special lien gives a preferential right only over one or more specific items of property. For example, the lien of the seller of furniture applies only to the item sold and not to the buyer's other assets.
Hidden nature and absence of general resale rights
One of the major characteristics of movable liens, whether general or special, is their hidden nature. With rare exceptions, they are not publicised in any way. This secrecy makes them dangerous for third parties who contract with the debtor, believing his assets to be free of any encumbrance. The direct consequence of this lack of publicity is the paralysis of the droit de suite. Under article 2276 of the Civil Code, which states that "in respect of movables, possession is equivalent to title", if the debtor sells the encumbered asset to a bona fide purchaser, the latter is protected. The preferential creditor then loses its security over the property, which is no longer part of the debtor's estate. This fragility clearly distinguishes the movable lien from published security interests such as mortgages.
Privileges based on the idea of tacit pledge
Some special liens are based on a legal fiction: the law presumes that the debtor has tacitly pledged an asset to the creditor. Although this asset remains in the physical possession of the debtor, it is regarded as security for the claim. This construction justifies the creditor having a particularly strong preferential right over the asset in question.
The building lessor's lien on the furnishings of the rented premises
The most emblematic lien in this category is that granted to the lessor of a building, whether for residential or commercial use. To guarantee the payment of rents and charges, article 2332, 1° of the Civil Code grants the lessor a preferential right over all movable property in the rented premises. This guarantee extends to rents that have fallen due and, if the lease has a date certain (for example, a notarised or registered lease), to rents yet to fall due. The lessor may exercise his right even over property that does not belong to the lessee, provided that he was unaware, at the time the property was brought into the premises, that the lessee did not own it. This privilege is reinforced by a time-limited right of pursuit, known as seizure and reclamation, which enables the landlord to have furniture removed without the tenant's consent.
Hotel and carrier privileges
In the same way, the law protects other creditors whose situation is similar to that of the lessor. Hoteliers have a lien on the belongings (luggage, personal items) brought by travellers to their establishment, to guarantee payment for overnight stays and ancillary services. The land carrier, on the other hand, has a lien on the goods transported to guarantee payment of transport costs. In both cases, the law considers that the physical possession of the goods by the debtor on the creditor's premises (the hotel) or their delivery for performance of the contract (the transport) amounts to a tacit pledge.
Other liens treated as tacit pledges
The logic of the tacit pledge extends to more specific situations. This is the case, for example, with a lien guaranteeing repayment of a guarantee given for the performance of certain duties or responsibilities. The sum or securities deposited as security are considered to be pledged in favour of the organisation receiving the guarantee. Although these cases are rarer, they illustrate the legislator's desire to protect a creditor who indirectly or symbolically holds property belonging to his debtor as security for his claim.
Liens based on the enrichment of the debtor
Another category of special privileges is based on a logic of equity: the creditor who has contributed to enriching the debtor's assets, either by adding new value or by preserving existing value, must be paid in priority from the added value he has generated. Without his intervention, the other creditors would not have been able to rely on this asset.
Furniture vendor's lien (conditions, loss, conversion, resolutory action)
The lien of the seller of unpaid furniture, provided for in article 2332, 4° of the Civil Code, is an essential guarantee in commercial relations. It enables the seller to obtain payment by preference from the price of the item sold, for as long as the item remains in the buyer's possession. For this lien to be exercised, several conditions must be met: the sale must be complete, the price must be due, and the item must still exist in kind in the debtor's assets. The lien is lost if the thing is transformed to the point where it can no longer be identified (wheat transformed into flour), if it is incorporated into a building (becoming a building by destination), or if it is resold to a third party in good faith. In addition to this privilege, unpaid sellers still have a formidable weapon: the resolutory action, which allows them to apply to the courts to have the sale annulled and recover ownership of their property.
Lien for the cost of preserving the item (conditions, scope)
This privilege, referred to in article 2332, 3° of the Civil Code, protects anyone who has incurred expenses for the conservation of a movable asset belonging to someone else. The most common example is that of a garage owner carrying out repairs on a vehicle. The costs incurred have made it possible to maintain or increase the value of the property, thereby preserving the common pledge of creditors. It is therefore fair that the conservator should be paid in preference to the value of the thing he has safeguarded. This preferential right only covers costs that are essential to the survival of the property, to the exclusion of unnecessary improvement costs. This preferential right is accompanied by a very effective right of retention, allowing the conservator to refuse to return the property until it has been paid.
Conflicts and classification of special moveable liens
The multiplicity of liens and their hidden nature mean that disputes between creditors are frequent and their resolution complex. The law establishes a hierarchy that depends on the nature of the liens involved and the factual circumstances.
Hierarchy between special liens and general movable liens
The general principle is that special privileges take precedence over general privileges. This rule, often summarised by the Latin adage *specialia generalibus derogant*, means that the creditor whose security relates to an identified asset will be preferred to the creditor whose right is exercised over an indeterminate mass of assets. In this way, the vendor's lien on a specific machine will take precedence over the general lien of the Treasury. There are, however, some notable exceptions to this principle, notably for legal costs, the super-privilege of employees and certain particularly protected tax claims.
Conflicts between several special privileges
When the same movable property is encumbered by several special liens, their classification follows a logic dictated by the basis of each security. The conservator's lien (conservation costs) is often considered to be the most powerful, because its intervention has benefited all other creditors. It therefore generally takes precedence over other special liens, including the vendor's or lessor's lien. The conflict between the lessor's lien and the vendor's lien is more delicate. In principle, a lessor who was unaware that the furniture did not belong to his lessee can exercise his lien and take precedence over the seller. The solution will often depend on the good or bad faith of the parties and the time at which each right was acquired.
Impact of insolvency proceedings on special movable property liens
The opening of safeguard, reorganisation or liquidation proceedings against the debtor disrupts the exercise of creditors' rights, including those holding special privileges. Collective discipline imposes severe constraints that may neutralise or destroy these guarantees.
Retention or loss of lien
The fate of a special lien depends on its nature. Liens which, like the conservator's lien, are accompanied by an effective right of retention, are the most resistant. The liquidator cannot seize the property without paying off the retaining creditor, whose right is transferred to the sale price. On the other hand, liens without such control, such as the vendor's lien, are more fragile. The seller must make a claim within a very short period of three months from the date of the opening judgment, or risk losing his right and being treated as a mere unsecured creditor.
Relationship with the suspect period and nullities
The suspect period, which extends from the date of cessation of payments to the opening judgment, is a danger zone for acts carried out by the debtor. Conventional securities set up during this period to guarantee an earlier debt are often cancelled. Privileges, being of legal origin, are not 'constituted' by the debtor and therefore escape this nullity. However, the underlying transaction that gave rise to the preferential claim (the sale, the repair) could be examined. If it was entered into in fraud of the rights of other creditors, it could be called into question, indirectly affecting the resulting preferential claim.
The complexity of special moveable liens and the way they relate to other security interests, particularly in the context of business difficulties, makes in-depth legal analysis essential. To secure your claims and defend your rights effectively, the assistance of a lawyer who is an expert in the field is essential. Do not hesitate to contact our firm for an assessment of your situation.
Sources
- Civil Code
- Commercial code
- Code of civil enforcement procedures
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