The conventional right of retention in judgment no. 16487 of 2024: meanings and legal implications

Judgment no. 16487 of June 13, 2024, issued by the Court of Cassation, offers interesting insights for understanding the conventional right of retention and its functioning within the scope of relations between creditors and debtors. This order clearly highlights the peculiar characteristics of this right, relating it to other forms of security such as pledge.

The conventional right of retention: definition and characteristics

The conventional right of retention is a form of self-help recognized to credit institutions, which allows them to retain an asset until the debt is satisfied. However, as clarified by the judgment in question, this right has significant limitations:

• Merely inter partes effect: the right of retention has no effect on third parties, not blocking the circulation of the asset.
• Absence of privilege: the holder of the right of retention has no rights over the forced sale of the asset and cannot proceed with a direct sale.
• Limitation to the right of refusal: the right of retention only allows refusal to return the asset, without other forms of protection.

Comparison with pledge

This order highlights the fundamental differences between the conventional right of retention and pledge. While pledge grants the creditor a real security interest in the asset, and therefore a right of pre-emption and the possibility of proceeding with forced sales, the conventional right of retention is limited to a mere power to retain the asset. The maxim of the judgment reads:

In general. The conventional right of retention is a form of self-help for the credit institution with a merely inter partes effect (between debtor and holder of the right of retention), with the consequence that, unlike the right of pledge – which grants a real security interest to the pledge creditor – it does not create any blocking effect on the circulation of the asset, nor an impediment to enforcement action exercised by a third-party creditor, and furthermore, it does not grant the holder of the right of retention a privilege on the forced sale of the asset or the right to proceed with a direct sale, but only the right to refuse the restitution due.

Conclusions

Judgment no. 16487 of 2024, therefore, represents an important clarification regarding the conventional right of retention, highlighting its limitations and differences compared to other forms of security. Understanding these distinctions is fundamental, both for legal professionals and for individuals, in order to correctly manage credit relationships and minimize legal risks. It is essential for those involved in such dynamics to have a clear awareness of their rights and duties, so that they can act in an informed and conscious manner.