The right of retention is a creditor’s power to withhold delivery of goods in its possession until its claim is satisfied. It is a special form of suspension with effect against third parties.
Legal basis
Article 3:290 of the Dutch Civil Code gives the definition. It requires the creditor to have actual possession of the goods, sufficient connection between the claim and the obligation to deliver, and a claim that is due. Article 3:291 sets out the effect against third parties: against a third party with an older right, the retention only works where the claim arises from a contract the debtor was entitled to conclude, or where the creditor had no reason to doubt that entitlement. Article 3:292 gives priority in recovery against the goods. For immovable property the right can be registered in the public registers, which makes it a powerful tool for contractors.
How it works in practice
It is used above all by garages, repairers, storage businesses and building contractors. For a contractor, actual control of the site is required: it must genuinely be closed off and it must be clear that the right is being exercised, for instance with fencing and signage. Without that visibility the right does not hold.
Where it goes wrong
The creditor releases the goods anyway in the hope of payment and thereby loses the right; returning them does not restore it. A second error is exercising it for a claim unrelated to the goods, so that the connection is missing. Third, on building sites actual control is lacking, and the owner obtains an order for possession in summary proceedings.
Related terms
Retention connects to the right of suspension, to retention of title and to the construction contract.
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