What collateral can a supplier invoke if its customer goes bankrupt? To be considered (among others) is retention of title, a reserved pledge and the right of reclamation. This contribution will discuss the right of reclamation.
The right of reclamation is a legal right to reclaim a movable, non-registered property from the buyer if the purchase price has not been paid in full. Unlike retention of title and reserved pledge, the right of action exists by operation of law. The right of reclamation therefore does not need to be expressly stipulated.
Upon exercising the right of reclamation, the seller dissolves the purchase agreement and may revindicate the transferred goods as the owner, even in case of bankruptcy.
In order to successfully exercise the right of reclamation, a number of conditions must be met. In principle, the supplier must be entitled to claim rescission of the purchase agreement. There must therefore be a shortcoming. The right of reclamation must be invoked in writing and the supplier must comply with certain expiry deadlines: no later than 6 weeks after the claim for payment of the purchase price has become due or 60 days after storage of the item by the buyer, whichever is later. The right of recovery can only be exercised insofar as the delivered goods are still in the same condition as they were delivered.
bankruptcy
In case of bankruptcy, a supplier will be able to save a lot by invoking the right of reclamation, especially if no retention of title has been stipulated or a pledge has been reserved. The bankruptcy trustee will only be able to withhold effect from claims to return the delivered goods by paying - or providing security for - the purchase price within a reasonable period (to be set by the seller).
Failure to respect the right of reclamation may lead to liability of the bankruptcy trustee.