Research On The Pledge In Retention Of Title

The system of retention of ownership refers to that in a sales contract,although the seller has delivered the subject matter to the buyer first,and the subject matter is owned,used and benefited by the buyer,the seller still retains the ownership of the subject matter or its processed goods and resale income before the specific conditions agreed by both parties(usually a part or all of the price)are fulfilled.The system of transferring ownership to the buyer after the conditions are fulfilled.The purpose of the retention of title system is to guarantee the payment of the seller's value claim,which is different from the traditional way of Chattel Security:The retention of title system takes the ownership of the subject matter of the sales contract as the security without the buyer looking for another collateral.Before the transfer of ownership,the buyer occupies and uses the subject matter,which has the efficiency of making the best use of it.Moreover,the setting and realization procedures of ownership retention are simple and convenient.In the context of credit economy,the realization of the interests of both parties to the transaction has a sequence,that is,there is a time difference between the realization of the interests of both parties to the transaction,and the retention of ownership system effectively guarantees the supply and demand of credit.Therefore,the retention of ownership system,which takes into account the safety of the transaction and the rapidity of the transaction,has certain advantages.But at the same time,because of the unique system design of the separation of possession,use,income and ownership of the subject matter,the ownership retention system has its particularity in the right structure;coupled with the absence of ownership reservation in the external publicity before,is very easy to produce the right conflict between the buyer and the seller of ownership reservation and the third party in practice.From the perspective of whether the seller or the buyer can establish the pledge right for the third party after retention of title sale,this paper observes the ownership reservation system and the rights conflict between the parties.First,when the seller of title retention provides the chattel pledge for the third party,the seller of title retention has the ownership of the subject matter of the retention of Title sale,but does not have the ownership function of the ownership.After the retention of title sale takes effect,without the consent of the buyer of title retention,the seller of title retention has no right to dispose of the subject matter.(1)When the buyer of title retention agrees that the seller shall establish the pledge for the third party,the seller of title retention shall have indirect possession of the subject matter,and the seller may direct the way of delivery to establish the pledge for the third party.And the fact that the pledgee entrusts the buyer to take auxiliary possession of the subject matter does not negate the establishment of the chattel pledge or determine the extinction of the chattel pledge.The establishment or extinction of the chattel pledge depends on whether the pledgee loses the control over the subject matter.(2)When the buyer of title retention does not agree that the seller establishes the pledge right for the third party,the seller of title retention can deliver the subject matter to the third party by means of actual delivery.When the public way of ownership reservation adopts registration antagonism,registration is a reference element to judge whether the third party is in good faith or not.If the third party is in good faith,that is,when the ownership reservation is not registered and the third party does not know that the pledged property is the subject matter of the ownership reservation,the third party can obtain the chattel pledge in good faith;When the pledgee is malicious or the ownership reservation is registered,the pledgee can still acquire the pledge,but in this case,the pledge is inferior in effect than the buyer's expectation right.Second,when the buyer of title retention provides the pledge for the third party,the buyer with retention of ownership does not have the ownership of the subject matter of retention of ownership but has the expectant right.The expectant right has the effect of disposition as a right,so the expectant right can be pledged.(1)the buyer of title retention actually occupies the subject matter of the sale with retention of ownership.When the seller of title retention agrees that the buyer sets up the chattel pledge right for the third party on the subject matter with retention of ownership,the buyer of title retention can certainly set up the pledge right for the third party in the delivery mode other than possession alteration.(2)In the case where the buyer of title retention has no right to establish the pledge right for the third party.If the third party is in good faith,the third party can obtain the pledge right in good faith.When the third party acquires the pledge of the subject matter in good faith,the creditor's rights of the third party may be paid in priority to the seller's price creditor's rights.(3)In the case where the buyer of title retention has no right to establish the pledge right for the third party.If the third party is malicious,the third party may not obtain the pledge in good faith.At this time,the establishment of chattel pledge is invalid.Through the supplementary interpretation of the intention expression of the parties,the pledge of the invalid property can be transformed,so that the third party can obtain the status of "pledge" of the expectant right,but the guarantee effect of the "pledge" to the third party is only within the scope of the agreement between the buyer with retention of ownership and the third party,and it shall not bind the seller of title retention.Finally,when the seller of title retention establishes the pledge right for the third party with the consent of the buyer and the buyer of title retention establishes the pledge right for the other third party without the consent of the seller.‘Judgment is as follows: First of all,the establishment of the pledge right according to the pledge contract,the acquisition of the pledge right in good faith or the acquisition of the "pledge right" status of the expectation right are all based on the delivery,and the discussion of this paper does not involve the transfer of the pledge.Therefore,when both the seller and the buyer establish the pledge right for the third party,only one pledge right is established successfully.Secondly,it determines whether the seller of title retention successfully establishes the pledge right for the third party based on whether the third party obtains the control of the subject matter.Finally,the third party's acquisition in good faith and the buyer's pledge rules on expectant right is still applicable in this legal relationship when the buyer of title retention provides the pledge for the third party.