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 reserved pledge.
The reserved pledge does not arise automatically, but must be expressly stipulated, which also applies to a retention of title.
The reserved pledge and the retention of title are (primarily) aimed at providing security to a supplier. Compared to retention of title, the reserved pledge has a number of advantages, but also disadvantages.
The main advantage is that with a reserved pledge, security can be provided for an unlimited number of claims, whereas with retention of title this is limited. The main disadvantage lies in the formalities of establishment, at least when it is an 'undisclosed' pledge. An undisclosed pledge is established by means of a registered private deed or an authentic deed, while a retention of title can be settled by contract. Another disadvantage concerns the method of enforcement. A pledgee has to comply with execution formalities, whereas with a retention of title, the supplier can easily repossess the delivered goods.
In case of bankruptcy, the supplier with a reserved pledge stands outside the bankruptcy estate. The supplier can exercise its rights as if there was no bankruptcy. Of course, he does have to respect the preferential claim of the tax collector. The bankruptcy trustee will assess whether the establishment formalities have been met, but also whether the claims of the pledgee are sufficiently determinable.
Failure to respect a reserved pledge may lead to liability of the bankruptcy trustee.