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The detainer rights/ the right of retention in private law

According to Article 1732 of the Civil Law, obligation rights, like all other private rights, shall be protected only through the courts; therefore no one may seek their rights by arbitrary and forcible means. Article 1733 of the Civil Law provide that detainer rights and distress is permitted self-help in obligation rights. On the basis of detainer rights a person who is in possession of certain property may keep it until his or her own claim is satisfied. The detainer rights are established in:

  • Article 1735 of the Civil Law - belong to the lessor of a fruit-bearing parcel of land;

  • Article 1736 of the Civil Law - belong to the person who rents out a building or premises therein;

  • Article 399 of the Commercial law - belong to the merchant in a commercial transaction;

  • Articles 131 and 212 of the Maritime Code - belong to the carrier.

The detainer rights in the Civil Law Article 1735 of the Civil law installs that detainer rights belong to the lessor of a fruit-bearing parcel of land in regard to production from the parcel of land and to the movable property of the lessee located there, because of a late payment under the lease, as well as all other claims that might arise against a lessee on the basis of a lease. The lessor shall also have the same right against a sub-lessee to whom the lessee has sub-leased his or her lessee rights. For the exercise of the detainer rights it does not matter whether the lessee actually uses the land to extract the fruit. A fruit – bearing parcel of land are every benefit, which may be obtained through the use of a principal property (Article 855 of the Civil Law). Article 1736 of the Civil Law determines that detainer rights belong to the person who rents out a building or premises therein, or an open lot not meant for fruit production, and these rights shall be applicable to property of the tenant which the tenant has brought into the building or onto the lot for use or storage, including goods, but not intangible property and claims of the tenant, even if documents regarding such were brought there; these detainer rights belong on the basis of claims arising from the rental contract. If a tenant further sublets the building or the lot, then the property brought there by the sub-tenant shall also be liable to the claims of the original landlord, insofar as the sub-tenant shall be liable to their landlord. This shall not restrict the right of the tenant to freely use his or her property as long as the landlord has not detained it. The detainer rights in Civil Law can be characterized by:

  • the person detaining has gained possession of a property by lawful means;

  • the property detained belongs to the debtor;

  • the obligation is already due to be performed;

  • is neither restricted by a condition nor by a term;

  • the claim against the opposite party concerns the detained property.

A possession exists where tangible property is actually under the total control of a person and, in addition thereto, this person demonstrates an intention to act with the property similarly as would an owner. The connection of the right to claim with the detained property shall be recognised: 1) when the possessor has incurred expenditures with respect to such property, which the opposing party must reimburse; 2) when the claim of the possessor has arisen from the same transaction in relation to which he or she is being requested to return the property; 3) when a debt must be paid from the detained property; 4) when someone has suffered a loss from the property of another, and the owner must compensate for it; 5) when the property must be returned in exchange for a certain counter-performance; in such case the property may be detained while the promised counter-performance has not occurred. The person detaining shall keep the property with the same care as is applicable regarding a possessory pledge and he or she shall not have the right to discharge his or her claim by alienating the property or otherwise expending it. Moreover, detainer rights shall terminate when a counterclaim is discharged, or when the possessor surrenders possession of the property without exercising the detainer rights; however, the possessor shall not thereby lose the right to claim.

The right of retention in the Commercial Law Article 399 of the Commercial Law prescribes that a merchant is entitled to retain movable property and securities owned by another merchant and possessed by him or her, which pursuant to the will of the other merchant have come in the possession of the retainer on the basis of a commercial transaction, and not to release this property and securities as long as the money claim of the retainer arising from the commercial transaction entered into between them against another merchant is not satisfied. In order to achieve the satisfaction of such claim, the merchant may retain also such objects which he or she has obtained in the ownership from another merchant or a third party, however, in favour of the other merchant, and which the retainer has an obligation to hand over in the ownership of the other merchant. Preconditions for exercising the right of retention:

  • A creditor and a debtor have to be a merchant;

  • Retained can be movable property and securities owned or possessed by a debtor, as well as refusal to release a property and securities;

  • A creditor has to have a possession over movable property and securities;

  • It has to be the money claim;

  • The obligation has to be due and not limited either by conditions or time period.

Article 1 of the Commercial Law defines that a merchant is a natural person (sole proprietorship) or a commercial company (partnership and capital company) registered with the Commercial Register. A possession should be understood as the total control and an intention to act with the property similarly as would an owner. The right to retainer is not effective against the third party who has obtained the right of commercial pledge for the retained object. A merchant is not entitled to retain objects with which he or she has an obligation to act in a specific way on the basis of an obligation, which the merchant has undertaken in relation to another merchant. Additionally, Article 400 of the Commercial law provide that a retainer is entitled to satisfy his or her claim against another merchant by selling the retained objects in an auction with the intermediation of the court, if they have not definitely agreed that the retainer has the right to sell the retained objects for a free price.

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