THE RIGHT OF RETENTION OF THE SELLER OF MOVEABLES IN QUEBEC

Abstract

The right of retention under articles 1496 and 1497 C.C.L.C. permits a seller of moveables to withhold delivery of them if he has reason to believe that he will not be paid the purchase price upon delivery or upon expiration of any term granted for payment. This right enables the seller to stop the process of delivery and, if necessary, to re-acquire custody of goods at any time until the buyer has participated in the process for the specific purpose of accepting delivery. Despite its traditional classification as a contractual remedy, the seller's right of retention is a hybrid personal and real right, theoretically enforceable against all competing unsecured, secured and preferred creditors of the buyer. Doctrinal and judicial uncertainty regarding the enforceability of possessory, secured rights in Quebec make the seller's right of retention unreliable vis-à-vis competing claims. Nevertheless, the remedy is an essential link to other non-consensual remedies of the seller of moveables in Quebec.