Party Autonomy in International Property Law - Peace Palace Library

C. Developments and Prospects in Europe and in European Law Projects
Retention of title is defined by Article 2 no. 3 as meaning:
‘… the contractual agreement according to which the seller retains
title to the goods in question until the price has been paid in full.’
And the purpose of the provision is set out in consid. (21):
‘It is desirable to ensure that creditors are in a position to exercise a
retention of title on a non-discriminatory basis throughout the Community
if the retention of title clause is valid under the applicable
national provisions designated by private international law.’
Remarkably, this provision does not seem to play any role in practice,
since it has not been mentioned in any specific case. However, in effect
the courts in most countries act in conformity with that rule, as the following
brief survey illustrates.
Instead of on the basis of alphabetically arranged national reports country
by country, it is more helpful for the conclusions to be drawn from the
survey to group the reports by the results achieved. A first group comprises
those countries that in practice achieve full recognition of retentions of
title created abroad (infra 8.2.2). Into a second group fall those countries
that, while basically recognizing foreign retentions of title, exclude specific
types of this security (infra 8.2.2.3). Finally, a third group covers those
countries that in practice exclude all foreign-created retentions of title,
unless a specific aspect of these is adapted to the legal system of the state
of importation (infra 8.2.2.4).
8.2.2. Foreign retentions of title fully recognized
a) Austria
Simple reservations of title that had been created validly in Germany 9
and in Italy 10 have been recognized by the Austrian Supreme Court. In
the earliest German-Austrian case, the Supreme Court gave the following
reasons:
9
S.Ct. 19 January 1989, IPRE 3 (1988-1990) no. 97; S.Ct. 31 March 1989, ibid.
no. 98; S.Ct. 29 May 1990, SZ 63 no. 85 and IPRE 3 (1988-1990) no. 99.
10
S.Ct. 30 August 2002, ÖBA 2003, 536, 537 (recognition implied).
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Ulrich Drobnig
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