lundi 19 novembre 2007

Le droit de rétention

Le droit de rétention est un mécanisme de garantie fondé sur la conservation de la possession du bien par le rétenteur. On peut le définir comme la possibilité acordée à un créancier qui détient la chose de son débiteur de lui en refuser la restitution à défault de paiement de l'intégralité de sa créance.
Le législateur l'a généralisé en 2006 en le consacrant légalement à l'article 2286 du code civil.
Les conditions: il necessite l'existance d'une créance impayée, que le créancier detienne légitimement la chose et enfin que soit établi un lien de connexité entre la créance et la chose, qui peut etre juridique, matérielle ou conventionnelle.
Les effets/: Le rétenteur à le droit de ne pas restituer la chose mais il a le devoir de conserver la chose et n'a aucun droit sur la valeur d la chose, il n'a pas le pouvoir de solliciter la réalisation du bien, qu'il s'agisse de sa vente forcée, ou de son attribution, judiciaire ou conventionnelle, en propriété.
De même le créancier n'a pas de droit de droit de suite sur la chose, son doit étant perdu dès son déssaisissement volontaire.
Le droit de rétention est opposable aux tiers erga omnes qu'il s'agisse des autres créanciers en général, ou du tiers propriétaire du bien en particulier.

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