lundi 19 novembre 2007

Le droit de rétention et la fiducie

L'exercice que nous avons est un commentaire comparé d'un arrêt du31 Mai 1994 et du 14 Avril 1992.

Les faits:
Ils sont assez simples.Dans les deux arrêts la société Pegaso à retenu les documents administratifs nécessaires à la circulation du véhicule car la société à qui elle a vendu les véhicules ne l'a pas payé.
C'est donc un droit de rétention qui s'exerce malgré que la personne qui loue(Arrêt de 1994) ou a acheté (Arrêt de 1992) n'était pas au courant du litige et étant en dehors de celui-ci.

Chronologiquement la cour d'Appel dans l'arrêt de 1992 a à la demande de Mr Turpin propriétaire du véhicule consacré le caractère illégal de ce droit exercé.Elle a ordonné sous astreinte la remise des pièces à Mr Turpin.
La Cour de Cassation à elle cassé et annulé l'arrêt en disant que ce droit n'est pas illicite.Cet arrêt consacre le revirement de jurisprudence qui sera consacré dans l'arrêt de 1994.

Dans l'arrêt de 1994,la CA et de Cassation sont d'accords sur le fait que ce droit est licite,justifié car dans cet arrêt un accord avait été prise par les 2sociétés.L'une s'engageait à payer le prix et l'autre restituer les documents administratifs.Celle-ci s'est exécuté mais pas celle qui devait payer le prix.
Ce droit à donc été consacré par la jurisprudence.

Voici le lien pour pouvoir accéder aux arrêts ou pour toute autre recherche :http://www.courdecassation.fr


Plan proposé pour ce commentaire comparé (en t.d)

I ) L'existence d"un droit de rétention licite appartenant à la société Pegaso

A ) le lien de connexité et la particularité sur laquelle s'exerce le droit de rétention

B ) les conditions d'exercices du droit de rétention

II ) L'opposabilité de ce droit au tiers sous-acquéreur du véhicule

A ) le noeud gordien du droit de rétention:la force de cette garantie et les troubles inconstestables causés à ce tiers

B ) la perte du droit de rétention

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