Party Autonomy in International Property Law - Peace Palace Library

8. European Conflict Rules for the Mutual Recognition of Security Rights in Goods
b) France
One French case dealt with an involved arrangement between two Dutch
companies and a French company: The basic transaction was, in essence,
a purely Dutch security transfer of ownership – hidden under a contract
of sale of equipment to a bank combined with a rehire-purchase contract
to the seller – between two Dutch companies. The Dutch hire-purchaser
brought the material to France, where a French creditor of that company
sought to bring execution into the material. The Dutch owner’s attempt
to oppose that execution failed: the Dutch contract was analysed as being
in reality a non-possessory security of a type unknown to French law and
therefore void. 52
8.3.4. Conclusion
Despite the broad variety of security rights other than retention of title,
to be found in the Member States, the courts are willing to recognize
and adapt these security rights. This is remarkable for two reasons: first,
the European legislator does not apply any pressure in this field; second,
the transformation of foreign security rights of a nature unknown to the
respective lex fori and their translation into and adaptation to the latter
appear to be difficult. However, this burden of translation into and
adaptation to the lex fori is facilitated by the fact that most legal systems
dispose of only one major and basic non-possessory security device other
than retention of title.
8.4. Results
A. An exporter’s retention of title in goods for exportation is, as a rule,
subject to the law of the country of importation.
B. For all other cases of retention of title – except with regard to automobiles,
cf. infra D – the two-step procedure of recognition is necessary:
first, it has to be ascertained whether an effective retention of title had
been created in the Member State of exportation; second, if there is a
52
Cass. 3 May 1973, Rev.crit.d.i.p. 1974, 100 with note Mezger, J.D.I. (Clunet)
1975, 74 with note Fouchard.
Ulrich Drobnig
183
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