Background
Keli France engaged Derudder to arrange the transport and customs clearance of goods. Derudder issued invoices totaling €23,744.06 for five import operations performed for Keli, sent a formal demand for payment on October 19, 2017, and then exercised a right of retention on November 9, 2017, over other goods in its possession, even though the transport charges for those goods had already been paid.
Derudder sued Keli for payment on April 25, 2019. The Rouen Court of Appeal ordered Keli to pay the €23,744.06 principal and fixed recovery charges and rejected Keli’s counterclaims. Keli appealed to the Court of Cassation, arguing principally that Derudder’s failure to release the paid-for goods supported a defense of nonperformance that suspended the unpaid invoices’ enforceability and defeated the asserted right of retention.
The Court’s Holding
The Court of Cassation dismissed the appeal. It held that Article L. 132-2 of the Commercial Code automatically grants a transport commission agent a privilege carrying a right to retain goods lawfully received under the commission contract as security for all claims against the principal, including claims arising from earlier transactions. Consequently, the principal cannot defeat that right by invoking nonperformance based on the agent’s refusal to deliver the retained goods.
The appellate court had found that Derudder notified Keli on November 9, 2017, that it was retaining the goods as security for an earlier claim that was due by then and undisputed in principle. It therefore correctly concluded that Keli could not rely on Derudder’s nondelivery of those same goods as a defense. The Court summarily rejected Keli’s remaining arguments as manifestly incapable of supporting reversal, ordered Keli to pay costs, and awarded Derudder €3,000 under Article 700 of the Code of Civil Procedure.
Key Takeaways
- A transport commission agent’s statutory privilege under Article L. 132-2 includes a right to retain goods lawfully received under the commission contract.
- The retained goods may secure the principal’s debts from earlier transactions, including where the transport charges associated with the retained goods themselves have been paid.
- A principal cannot resist the retention by asserting a defense of nonperformance based on the agent’s refusal to deliver the very goods lawfully being retained.
Why It Matters
The ruling confirms the broad, cross-transaction scope of a transport commission agent’s statutory security right. Businesses using such agents cannot assume that paying the charges for a particular shipment guarantees its release while other matured debts to the same agent remain unpaid.
The decision also prevents the defense of nonperformance from becoming circular in this setting: nondelivery resulting from a valid exercise of the statutory right of retention cannot itself be used to suspend the secured debt and invalidate that retention.