Right of retention: the juge-commissaire has no power to rule

The juge-commissaire (judge overseeing insolvency proceedings) cannot rule on the existence of a right of retention (droit de rétention) invoked by a creditor. The commercial chamber holds that this right is not a real security (sûreté réelle): its holder need not file it and it falls outside the claims verification and admission procedure. An application seeking recognition of a right of retention in that framework is inadmissible.

Key points

• A right of retention is not a real security: the party invoking it need not file it in a compulsory liquidation (liquidation judiciaire).
• A right of retention falls outside the claims verification and admission procedure.
• The juge-commissaire has no power to rule on the existence of a right of retention, whether to uphold it or to reject it.
• A creditor's application for recognition of a right of retention, brought within the admission of claims, is inadmissible.
• The decision rules neither on the validity nor on the effectiveness of the contractual right of retention invoked over a bank account balance.

A right of retention invoked during the admission of claims

The juge-commissaire cannot decide whether a right of retention invoked by a creditor exists. The commercial chamber (Com., 4 March 2026, No. 24-20.020) ruled on a bank loan secured by a pledge over the current account which the borrowing company held with the bank. The debtor company was placed into compulsory liquidation. The bank filed its claim and applied for admission as a preferential claim. It relied on the account pledge, but also on a contractual right of retention, which was contested.

The juge-commissaire admitted the claim in a given amount and its preferential status under the account pledge, but rejected the bank's right of retention over the credit balance of the account existing when the compulsory liquidation was opened. The bank appealed against that head alone. The court of appeal (CA Angers, 25 June 2024, No. 23/00911) held that the bank did have a right of retention over that credit balance.

The commercial chamber quashes that decision in all its provisions: since the right of retention is not a real security, it falls outside the verification of claims, so that the juge-commissaire cannot rule on its existence. The Court raises this ground of appeal of its own motion, on the basis of Article L. 624-2 of the French Commercial Code. It rules on the merits without remittal and declares inadmissible the bank's application seeking recognition of that right of retention (free translation).

A right of retention, which is not a real security, need not be filed by the party invoking it, and does not fall within the claims verification and admission procedure, so that the juge-commissaire, ruling in that matter, has no power to rule on the existence of that right.

What consequences for the creditor and the liquidator?

A creditor should not seek recognition of its right of retention within the admission of claims. The creditor files its claim and may apply for admission as a preferential claim on the basis of the security it holds. The right of retention lies outside that framework. The creditor therefore loses nothing by not mentioning it, since that right need not be filed by the party invoking it.

A creditor who nevertheless brings such an application before the juge-commissaire obtains nothing useful. The application is inadmissible, and the creditor bears the cost of that detour: in the case decided, the bank was ordered to pay the court costs and an award of legal fees. A favourable decision obtained in that framework also remains fragile, since it is given by a judge with no power to rule on the existence of the right.

The liquidator, for their part, has a simple and self-standing argument. They do not need to challenge the validity of the contractual right of retention invoked, nor the assets it covers. It is enough for them to object that the judge hearing the verification of claims cannot entertain that question. The argument concerns the judge's powers, not the substance of the right invoked.

The scope of the ruling on the powers of the juge-commissaire

The decision delimits the field of intervention of the juge-commissaire: claims and their security, to the exclusion of the right of retention. The commercial chamber ties that limit to the very nature of the right of retention, which is not a real security. The consequence is twofold: no filing is required on that basis, and no debate on the existence of the right can be decided in the admission proceedings.

The solution works both ways. The juge-commissaire can no more reject the right of retention than uphold it. The order rejecting it was overturned on that point, without any gain for the creditor: its application was declared inadmissible. As the Court ruled on the merits without remittal, the dispute between the parties is closed on that head.

Several questions remain outside the scope of the decision. The commercial chamber does not say before which court, or by which route, the existence of the right of retention may be discussed. Nor does it rule on the validity of a contractual right of retention over the credit balance of a bank account, or on its effects in a compulsory liquidation. These points remain open as matters stand after this decision of 4 March 2026.

What steps should a creditor holding a right of retention take?

The exact characterisation of the security invoked determines the framework in which it may be discussed. A pledge, a pledge over tangible property (gage) or a preferential right (privilège) belong to the security a creditor relies on when its claim is admitted. The right of retention follows a different logic: it rests on possession, and the decision discussed here refuses to treat it as a real security. Confusing the two leads to bringing a claim before a judge with no power to decide it.

The creditor therefore has an interest in keeping its claims separate. The filing of the claim and the application for admission concern the claim and the security. The argument based on retention is preserved, without any need to include it in that framework. Multiplying grounds within a single application exposes the creditor to inadmissibility, without improving its position in the insolvency proceedings.

The liquidator, symmetrically, is well advised to examine first the powers of the judge before whom the matter is brought. A challenge based on the absence of power is dealt with before the merits. It avoids a technical debate on the scope of a contractual retention clause, whose outcome remains uncertain. In the case decided, that question of power was enough to deprive of effect the favourable decision obtained by the creditor before the court of appeal.

The checks to make before applying to the juge-commissaire

• Identify the nature of each security invoked: a real security falling within the admission of claims, or a right of retention which need not be filed.
• Confine the filing of the claim and the application for admission to the claim and the security, without including an application for recognition of a right of retention.
• Document separately the contractual basis of a right of retention and the assets it would cover.
• Anticipate, on the creditor's side, the cost of an inadmissible application and, on the liquidator's side, the advantage of raising at the outset the absence of power of the judge before whom the matter is brought.