The legal operation of liens : theory and practice
Abstract
The legal operation of liens has been the source of academic
debates for many years. Liens are traditionally classified as
enrichment liens and debtor-and-creditor liens (contractual
liens). In the instance of an enrichment lien the creditor
(lienholder) has a contract with a non-owner and not with the
owner (debtor) himself. Consequently, the creditor can vest a
lien against the owner of the thing only on the grounds of
unjustified enrichment. Enrichment liens are classified as real
rights. In the instance of a debtor-and-creditor lien (contractual
lien) the creditor (lienholder) has a contract with the owner of the
thing and the contract is the basis for the liability of the owner
(debtor) towards the creditor. Debtor-and-creditor liens are
generally classified as personal rights. This classification causes
confusion regarding the legal operation on the one hand of an
enrichment lien as a real right and on the other hand of a debtorand-
creditor lien (contractual lien) as a personal right. This paper
proposes that the origin of the legal claim for which the lien
serves as security (unjustified enrichment or contractual) merely
determines the debt (expenses) for which a lienholder can vest
his lien and does not determine the classification of a lien as
either a real right or a personal right. A lien can be described as
a defence against the owner's rei vindicatio and is, in principle,
enforceable only against the owner of the thing (security object).
A lien can, however, also be enforced against parties other than
the owner, including the creditors (who, for example, want to
attach the thing subject to the lien) of the owner (debtor) and
other real claimants. The enforcement of a lien against these
parties is referred to as the real operation (third-party action) of
a lien. This paper analyses the legal operation of a lien with
specific reference to the debt (expenses incurred) secured by
the lien, the vesting (existence) of a lien, the real operation (thirdparty
action) of a lien and the preferential position of a lienholder
in the case of the debtor' insolvency.
Collections
- PER: 2021 Volume 24 [71]