With a valid retention of title clause, you as a supplier can remain the owner of delivered goods until the agreed payment conditions have been met. In the event of non-payment, this can support a claim for the return of the goods. The clause must, however, have been agreed in good time, the goods must still be covered by the retention of title, and you may not take the goods back through self-help.
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Written by Onur Arslan, attorney at Arslan Advocaten. Registered in the specialisation register of the Netherlands Bar for employment law and personal injury. Last updated: 17 September 2026.
For wholesalers, suppliers and SMEs, this can make a significant difference. Without security, a bankruptcy often leaves you with nothing more than an unsecured claim. A valid and enforceable retention of title can put you in a different position. Even so, the single sentence “all goods remain our property” on an invoice does not offer complete protection.
This article concerns business deliveries of movable goods under Dutch law. In international deliveries, the applicable property law, the location of the goods and foreign insolvency rules may be decisive. Have that situation assessed separately.
What does a retention of title clause provide?
Article 3:92 of the Dutch Civil Code (BW) allows delivery subject to retention of title within statutory limits. The transfer of ownership is then linked to the fulfilment of a condition, usually payment of certain claims. The buyer has already physically received the goods, but the legal ownership position is still conditional.
A clause may cover more than just the price of one individual delivery, provided it stays within the statutory categories. Think of certain consideration for goods delivered or to be delivered, related work, and claims arising from a failure to perform such agreements. Not every arbitrary debt can be included without limit.
The exact wording is therefore important. A narrow clause and a broader clause can have different consequences as soon as some of the invoices are paid. Have a template tailored to your delivery process and your records.
Agree on the retention of title properly before delivery
The clause must become part of the agreement. Include it in the quotation or the agreement and make sure that any applicable general terms and conditions are made available in good time. Keep evidence of the acceptance and of the version provided.
A reference at the bottom of an invoice that is only sent after the agreement has been concluded is often too late for this purpose. By then, the buyer may already have accepted an agreement without that retention of title. A later addition requires its own legal basis and does not automatically change the earlier delivery.
With regular customers, it is equally unwise to rely solely on established practice. Check whether earlier terms apply, whether a new version has been accepted and whether the customer has used its own purchasing terms. See general terms and conditions for the self-employed and SMEs.
Your records must make the goods identifiable
A legally sound clause is of less help if you cannot prove which goods you delivered. Record article codes, quantities, serial numbers, batch numbers, delivery dates and locations. Keep signed delivery notes and, where necessary, photographs.
This is particularly important where identical stock comes from different suppliers. A box without identifiable features in a large warehouse can be difficult to link to your delivery. Arrangements on separate storage and marking can be useful, but they must also be observed in practice.
Update your records for returns, partial deliveries, replacements and partial payments. An old stock list can give an inaccurate picture. In a dispute, you want to be able to show, batch by batch, why those particular goods are still covered by your retention of title.
What if the buyer has already paid?
With a simple retention of title that only covers the price of the goods concerned, payment of that price can fulfil the condition. With a legally valid extended retention of title, the situation may be different as long as other secured claims remain outstanding. The content of the clause and the allocation of payments are therefore important.
You cannot simply claim that all stock remains your property because an unrelated invoice is still outstanding somewhere. Investigate whether that invoice falls within the statutory and contractual scope. A separate advisory fee or damages claim may call for a different analysis.
If a payment is disputed, ask for bank records and compare them with the outstanding items. An administrative error does not justify reclaiming goods whose ownership has already passed. Correct such errors before you announce any measures.
Resale can change your position
Many buyers are resellers. The contract may allow them to resell goods in the ordinary course of business. Investigate, therefore, whether that power exists and on what conditions. A standard clause must match the actual business model.
In a sale to a third party, rules on the power of disposal and the protection of third parties may play a role. In that case, you cannot simply reclaim your original goods from every subsequent buyer. Nor does a retention of title over the sale proceeds arise automatically because your goods have been resold.
If you want security over receivables or proceeds, a separate legal arrangement may be required. Do not let a retention of title clause be presented as a universal right of pledge over all of the customer’s income. These are different forms of security with different requirements.
Processing, commingling and accession
Delivered goods can lose their independent existence. Materials are processed into a new product, liquids are mixed, or components become part of another item. As a result, the ownership position may change, even though your invoice has not yet been paid.
A contractual provision stating that your ownership always continues does not override property law without limit. The nature of the material, the processing and the statutory rules are decisive. For building materials and production processes, this is an important limitation.
Map out in advance, therefore, how quickly goods are processed after delivery. Shorter payment terms, advance payment or additional security may be needed. A clause that is only invoked when all materials have already been incorporated into a building may offer far less protection than you expected.
Non-payment does not always mean immediate return
Check which event under the contract gives rise to a claim for return and which legal step is required for it. The payment arrears, any cure period and the relationship with performance or termination must be assessed.
Ownership and the right to immediate surrender are not the same question in every situation. The buyer may hold the goods under an agreement that is still in force. Have the retention of title, the termination or dissolution and the settlement considered together.
Send a clear letter in which you identify the goods, cite the clause and explain why you demand surrender. If a notice of default is required first, that step must be taken with care. A template for a business notice of default helps with the structure, but does not replace an assessment of your right to reclaim the goods.
You may not simply enter the warehouse
Even if you have remained the owner, you cannot simply enter closed premises or remove goods by force. Ask for voluntary cooperation and record a collection arrangement in writing. A contractual access clause does not automatically give you unlimited authority to disregard any objection.
If the buyer refuses, proceedings for surrender may be necessary. Depending on the situation, an attachment for the purpose of surrender or urgent proceedings may be considered. This requires an appropriate legal route and enforcement by authorised persons.
In the case of voluntary surrender, draw up an inventory stating quantities, features, condition and date. Have it clearly recorded whether the return is subject to a further settlement. Prevent the collection receipt from being read unintentionally as a full discharge of all debts.
How does the financial settlement work?
The return of goods does not automatically mean that all invoices lapse, nor that you can continue to claim the full purchase price on top of that without limit. The agreement, any termination and the rules on damages and restitution determine the settlement.
Investigate the value and condition of the goods taken back, payments already received and costs incurred. Avoid double compensation. If you resell the goods, the proceeds may be relevant to the final calculation.
Make sure your accounts and VAT treatment match the legal solution chosen. A return, termination, price reduction and recovery of damages can have different consequences. Only issue a credit note once it is clear what it is meant to correct.
What changes in a bankruptcy?
Notify the bankruptcy trustee (curator) of the retention of title immediately. Enclose the agreement, the terms and conditions, proof that they were provided, invoices, delivery notes and a specific list of goods. Ask whether the goods are still present and identifiable and how an inspection can take place.
The trustee is entitled to assess your claim. A statement that you are the owner is not sufficient if the clause or the identification is missing. Conversely, a valid ownership position should not be treated as an ordinary unsecured payment claim without investigation.
A cooling-off period can temporarily restrict the exercise of certain rights. The trustee may also, in certain circumstances, set a deadline or propose a practical arrangement. Have the consequences assessed in good time; waiting can make your position more difficult.
Difference from the right of reclamation
The right of reclamation (recht van reclame) is a separate statutory remedy in the sale of movable goods. Subject to conditions, a seller can reclaim an unpaid item by means of a written declaration. This does not require the same contractual retention of title to have been agreed.
This right is subject to strict conditions and short time limits. Article 7:44 of the Dutch Civil Code provides that it lapses once both six weeks have passed since the purchase price became due and sixty days have passed since the goods were stored with the buyer or someone on the buyer’s behalf. The exact calculation and the other conditions must be checked.
Do not, therefore, wait for a lengthy collection process if reclaiming the goods may be urgent. Retention of title and the right of reclamation are different routes; they must not be used as synonyms. Have both assessed if you have delivered goods and the customer runs into financial difficulties.
Example of an initial claim letter
The example below is a request for acknowledgement and cooperation. The wording of an actual termination or of the exercise of the right of reclamation requires a separate assessment.
Subject: retention of title on delivery [number]
On [date], our company delivered to you the goods specified in the annex. Article [number] of [agreement or terms and conditions and version] applies to this delivery. It contains an agreed retention of title. According to our records, [amount] of the secured claims remains outstanding.
We request that you confirm by [date] at the latest which of these goods are still present, where they are located and whether they have been processed, resold or made available to third parties. We expressly reserve our rights under the retention of title.
On the basis of [assessed contractual and legal basis], we request your cooperation in the surrender of [goods]. We propose to discuss the identification and practical arrangements on [date]. We will not enter your premises or collect goods on our own initiative without a written arrangement. The financial settlement will be recorded separately.
Only include information that you can substantiate. A letter with an overly broad list of goods can lead to disputes and a risk of liability. In a bankruptcy, address the request to the trustee and take account of the trustee’s statutory powers.
Fictitious example from a wholesaler
A wholesaler delivers twenty packaged machines under a retention of title that was demonstrably agreed. The customer does not pay. Eight machines are still in the warehouse with their serial numbers, six have been resold and six have been built into other installations.
The supplier cannot treat all twenty machines in the same way. For the stock that is present and identifiable, the clause and the position regarding surrender must be assessed. For the resold machines, issues such as consent and third-party rights come into play. For the processed machines, the property law position is again relevant.
The supplier therefore gathers the status of each machine and has the possible routes compared. The outstanding invoice remains relevant, but the retention of title may not have the same value for every item. The example shows why stock identification must already be organised during ordinary deliveries.
Make payment security part of your sales process
Let sales staff know when terms and conditions must be sent along. Submit deviating purchasing terms and amendments for review. Link delivery notes and serial numbers to invoices, and respond early to arrears.
Where necessary, combine the retention of title with credit limits, advance payment, guarantees or other appropriate security. Which combination makes sense depends on the product, the customer and the processing risk. A legal clause works best when commercial and administrative practice is aligned with it.
Through corporate law for entrepreneurs, you can have both your terms of delivery and a specific reclaim assessed. In an existing dispute, also provide the current location and condition of the goods. This partly determines whether acting quickly can still make a difference.
A delivery process that supports the clause
Make retention of title a checkpoint before the first acceptance. The sales employee sends the correct terms and conditions, the customer accepts the quotation and the administration keeps both documents with the order. If the customer sends back its own purchasing terms, that deviation must be assessed before the delivery proceeds as an ordinary standard order.
Then link each relevant article or serial number to a delivery note and an invoice. With partial deliveries, it must remain visible which part was received on which date. A consolidated invoice without underlying delivery records can cause a great deal of investigative work in a bankruptcy.
Agree internally when payment arrears will trigger an investigation. If goods are processed or resold within a few days, waiting for months can greatly reduce the practical value of the retention of title. A credit limit and timely warning signals can therefore be just as important as the legal wording.
Do not record exceptions, such as a sale to a regular customer without the usual documentation, only verbally. Note who authorised the deviation and what protection still exists. A customer relationship may be commercially important, but the file must continue to reflect the choice that was actually made.
Finally, when a collection has been announced, compare the current stock with the original list of goods. Do not take any goods that demonstrably belong to another supplier or owner. Leave doubtful items where they are or make a written arrangement about an investigation; an overly broad collection can give rise to a damages claim of its own.
Frequently asked questions
Is a retention of title clause on my invoice sufficient?
Not automatically. The clause must be part of the agreement. An invoice that is only sent after acceptance may be too late for that purpose. Keep evidence that the correct terms and conditions were provided and accepted in good time.
Do I remain the owner until all of the customer’s debts have been paid?
That depends on the clause and the statutory limits. Article 3:92 of the Dutch Civil Code does not allow an unlimited retention of title for any arbitrary debt. Investigate exactly which claims are covered and how payments have been allocated.
May I collect the goods myself?
If the buyer cooperates voluntarily, a careful collection arrangement can be made. Without cooperation, ownership does not give general permission to enter premises or use force. A court route to surrender or attachment may then be necessary.
What if the goods have already been processed?
Processing, commingling or accession can change the ownership position. A contractual clause does not always prevent this. Have the nature of the goods and the processing assessed before you demand their return.
Does retention of title help in a bankruptcy?
A valid and enforceable retention of title can give you a different position from an ordinary unsecured claim. You must, however, be able to identify the clause and the goods. Report your claim to the trustee immediately and check for any temporary restrictions.
Is the right of reclamation the same thing?
No. It is a separate statutory right to reclaim goods in a sale, with its own conditions and short time limits. It can also be relevant without the same contractual retention of title. For unpaid deliveries, have it investigated in good time which route is appropriate.
Sources and legal basis
- Dutch Civil Code, Book 3: including Articles 84, 86 and 92.
- Dutch Civil Code, Book 5: rules on ownership, component parts, commingling and the creation of new goods.
- Dutch Civil Code, Book 7: Articles 39–44 on the right of reclamation.
- Bankruptcy Act (Faillissementswet): including Articles 63a and 63c.
