Party Autonomy in International Property Law - Peace Palace Library

C. Developments and Prospects in Europe and in European Law Projects
responding retention of title enjoys in the country of importation. This
result is supported by the observation made in the preceding section
(8.2.2 f) that recognition of security rights, in practice, boils down to
conferring those rights to the foreign secured creditor that holders of
the corresponding security rights generally enjoy in the Member State
of importation.
8.2.4. Foreign retentions of title only recognized if formal
requirements of country of importation observed
a) Court decisions
The domestic law of important southern European countries, such as Italy
and Spain, establishes formal requirements unknown in other European
countries. In Italy, a ‘data certa’ of the agreement creating the security
is required, which must be furnished in a public document. 34 In Spain,
a contract of sale providing for deferred payment of the purchase price,
whether with or without a reservation of ownership, must currently be
entered into a register of deferred sales of movable goods. 35
As could be anticipated, these provisions have been applied to imported
goods, and even to foreign automobiles passing through the two countries.
36
b) Compatibility with European Law?
Here again the question arises as to whether this insistence on invoking
domestic law is compatible with the European obligation to recognize
34
CC artt. 1524, 2704.
35
Ordinance for the register of sales with deferred payment of 19 July 1999 (B.O.
no. 172 of 20 July 1999).
36
Cass. 21 June 1974 no. 1860, Riv.dir.int.priv. 1975, 335 (Austrian lorry in
transit); Corte d’appello Milano 6 April 1956, Foro it. 1957 I 1856 (German
lorry, despite dated notarial document); Trib. Latina 19 February 1973, Giur.
it. 1974 I 2, 421 (Greek retention of title in lorry; however, the vehicle documents
designated the buyer as owner). Spain: Audiencia Provincial de Barcelona
13 September 1989, Rev.Esp.Der.Int. 42 (1990) 644 with note Sanchez
Lorenzo (German bus).
176
Ulrich Drobnig
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