Requirements retrieval of delivered goods
A number of requirements must be met for a successful exercise of the right to complain or invoke retention of title.
First of all, the movable property must have been sold and delivered. In addition, you as the buyer must be in default of its (payment) obligations. This means that you have not yet paid the purchase price (in full).
Also, to invoke the right of complaint, the unpaid goods must not have been degraded or altered; they must be in the same condition as when they were delivered to the buyer. If a supplied raw material has been incorporated into the finished product, the right of claim is extinguished.
The latter also applies to retention of title: through processing, in the legal sense through accession, property formation or mixing, the supplied raw material can lose its independence and thus the right of retention of title lapses.
Whether this occurs in your production process, and if so, at what point, is of course highly case-specific. If the delivered products are still in your storage and have not yet been used for the purpose of the production process, your defense will not easily succeed.
How can you prevent it?
An open door, of course, is paying your creditors on time. But there are other options as well.
1. Negotiating the terms of procurement
Waiver of rights
First, by negotiating more critically with your suppliers; not only on price and payment terms, but also on these types of contractual or legal rights. In negotiations, you can stipulate that these types of rights be waived.
The statutory right of complaint can also be waived contractually in conjunction with waiver of the right of rescission. However, if you do not include anything about it in your purchase contract, the seller has this right by operation of law. So sitting still is not recommended!
Prohibit rights transfers
You can also agree, for example, that the receivables a supplier has against you may not be assigned and may not be pledged to your supplier's lender. After all, should you ever get into an argument with your supplier or fall behind in payments toward that supplier, you would rather engage with that supplier, who is and may want to remain your supply chain partner - now and in the future - than with a funder who has no interest in a good relationship with you in the future.
2. Waiting for the right to complain to expire
A supplier wishing to exercise its right of claim must act quickly. This is because there are two expiration periods for invoking this right. The right to recall lapses when 1) six weeks have elapsed since the purchase price became due and payable (i.e., this period becomes longer if you have negotiated more favorable payment terms (deadlines) for yourself as the buyer) and 2) more than sixty days have elapsed since the day the goods were actually delivered. When both of these time periods have elapsed, the right to complain expires.
