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C. Possible ways towards harmonisation

In the introduction, it has been pointed out that within the EU a pressing need exists for a harmonisation in the field of secured transactions, a need which legitimises some final considerations of possible steps towards this goal. The study has shown that there are only two areas (simple retention of title and leasing) where harmonisation will be comparably easily attainable. Because of the EU’s hitherto fruitless attempts,60 simple retention of title merits some further comments (section I). Beyond retention of title, harmonisation will be a much more complex endeavour. section II will set out the different possibilities.

I. Simple retention of title

Today, all Member States61 should be able to concur that a retention of title clause, mutually agreed by the parties to the contract of sale prior to the delivery of the goods, is valid and enforceable, not only as between the parties but also as against third parties such as the creditors of the buyer in execution and insolvency. A directive along these lines would only lead to minor changes in some of the Member States’ laws: France, Belgium, Luxembourg and Portugal would have to sacrifice the requirement that the agreement be in writing; Italy and Spain would have to abandon the requirement of the certain date which, however, would leave open the possibility to prevent fraudulent antedating by other, less cumbersome means. Spain, in addition, would have to forgo the requirements of registration of the contract of sale in cases which fall under the Act on Instalment Sales (Ley sobre venta a plazos de bienes muebles). Finally, the Nordic countries would have to accept the validity and enforceability of simple retention of title in goods destined to be resold or used in a manufacturing process without requiring the contract to be framed as a commission agreement or credit consignment. For the sake of clarity, the directive could further stipulate that retention of title remains valid even if the sold goods are incorporated into other goods, as long as they remain separable without difficulty or damage. Even without any further harmonisation in the field of property law, such as the rules on bona fide acquisition, specificatio or commingling or

60Cf. Introduction, supra, pp. 22 f.

61See, for Luxembourg, which is not included in the present study: Loi 31 Mar. 2000,

Mémorial, Journal Officiel du Grand Duché de Luxembourg/Amtsblatt des Großherzogtums Luxembourg A-N◦ 32 of 21 Apr. 2000, 814. The new Luxembourg law in this area is practically identical to that of Belgium.