Other common-law countries Lien

1 other common-law countries

1.1 common-law lien
1.2 equitable lien
1.3 statutory liens , contractual liens

1.3.1 statutory liens
1.3.2 contractual liens

other common-law countries

outside of usa, common-law lien may defined in general terms passive right retain chattel (and, in cases, documentary intangibles , papers) conferred law. modern law has left legal lien cases has been historically established without real effort being made make applicable modern conditions. in tappenden v artus [1964] 2 qb 185 diplock lj referred lien self remedy, other primitive remedies such abatement of nuisance, self-defence or ejection of trespassers land . equitable liens unusual species of property right, considered sui generis.

common-law lien

common-law liens divided special liens , general liens. special lien, more common kind, requires close connection between property , service rendered. special lien can exercised in respect of fees relating instant transaction; lienor cannot use property held security past debts well. general lien affects of property of lienee in possession of lienor, , stands security of debts of lienee lienor. special lien can extended general lien contract, , commonly done in case of carriers. common-law lien gives passive right retain; there no power of sale arises @ common law, although statutes have conferred additional power of sale, , possible confer separate power of sale contract.

the common-law liens closely aligned so-called common callings , not co-extensive them.

a common-law lien limited type of security interest. apart fact amounts passive right retain, lien cannot transferred; cannot asserted third party whom possession of goods given perform same services original party should have performed; , if chattel surrendered lienor, lien entitlement lost forever (except parties agree lien shall survive temporary re-possession lienor). lienee sells chattel unlawfully may liable in conversion surrendering lien.

equitable lien

in common-law countries, equitable liens give rise unique , difficult issues. equitable lien non-possessory security right conferred operation of law, similar in effect equitable charge. differs charge in non-consensual. conferred in limited circumstances, common (and least ambiguous) of in relation sale of land; unpaid vendor has equitable lien on land purchase price, notwithstanding purchaser has gone occupation of property. seen counterweight equitable rule confers beneficial interest in land on purchaser once contracts exchanged purchase.

it matter of conjecture how far equitable liens extend outside of unpaid vendor s lien. equitable liens have been held exist in number of cases involving choses in action, not yet in relation chattels. australian courts have been receptive towards equitable liens in relation personal property (see hewett v court (1983) 57 aljr 211, review of cases still leaves lack of clarity in relation principles upon equitable lien imposed.

in re stucley [1906] 1 ch 67 vendor of reversionary interest in trust fund, sold interest trustee, held have equitable lien in subject matter, although personalty , not realty.
in barker v cox (1876) 4 ch d 464 purchaser of property included in matrimonial settlement paid price in advance 1 of trustees, , purchaser held have equitable lien in investments trustees subsequently acquired purchase price.
in langen , wing v bell [1972] ch 685 director s service agreement required him assign shares in company if terminated, , receive price calculated @ later date when annual accounts available; held have equitable lien on transferred shares secure payment of eventual purchase price.
in lord napier & etterick v hunter [1993] 2 wlr 42 held indemnity insurer s subrogation rights in relation funds improperly paid directly insured subject equitable lien.

but overall, there still perceived lack of central nexus.

statutory liens , contractual liens

although arguably not liens such, 2 other forms of encumbrance referred liens.

statutory liens

certain statutes provide passive right retain property against owner security obligations. example, section 88 of civil aviation act 1982 of united kingdom permits airport detain aircraft unpaid airport charges , aviation fuel. although right has been treated lien under uk insolvency law, has been argued such statutory rights not in fact liens, rights analogous liens, although might distinction without difference.

contractual liens

it has been argued agreement contract 1 party may retain goods of party until paid not lien, under common law, liens non-consensual. however, appears under insolvency law, such rights treated liens if not expressed liens.