The right of retention is embodied in the right that arises in the hands of a creditor to retain with him an object of another’s property until his claim is satisfied (Art. 2756 Italian Civil Code).

The exceptional character of the right of retention does not preclude its extensive regulatory provision: in fact, it is used not only in the case of performance of work, but also for self-defense in the case of rights in rem of enjoyment (usufruct or emphyteusis) or security (pledge).
However, the application of this right is evidently limited to the existence of a certain, liquid and collectable claim.

This credit can be established from invoices for works / services on the boat.

While in civil law the right of retention is mainly interpreted as a “right in rem”, thus serving the incentive of the debtor’s satisfaction of the claim by retaining the property, its nature in common law and Chinese law is composite. This is often an overlapping of a dual function of the right of retention : in addition to the real scope of application, in both legal systems “ius retentionis” in fact embodied in a cause of preemption on the claim. (In Chinese law, the letter of art. 237 of the “Law” in Chinese law in fact prescribes that “the debtor may request that the holder of the right of retention exercise this right upon expiry of the term for the fulfillment of the debt: if the right of retention is not exercised by the latter, the debtor can ask the People’s Court for the sale or auction of the asset subject to retention”).

An example of concrete use of the right of retention concerns with its practical application in the world of shipping.
See the following specific case : a company offers services and incurs expenses for the storage of a boat registered in another company’s name. The company issues invoices; however, payment of the claim is made only partially (or not at all).
The service provider company retains the boat with itself by exercising the right of retention, also sends the debtor company a notice of intimation to pay the amount due with the aim of proceeding to the sale of the pledge (Art. 2978 – 2979 Italian Civil Code). The real nature of the right of retention represents a prerequisite for the development of broader forms of self-defense.

In conclusion, note the important practical implications that this right retains from its roots in Roman law to the present day. Its versatility makes it possible to see its application in very different legal situations and makes it an important precept for self-defense from random property situations.

In the world of “common law” through the figure of “bona vacantia” we can also reach the same conclusions.

To know more about this article, you may contact:

Alberto Bardini

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