Мүлік немесе қарыз бойынша кепілдік құқығы

Security on property or debt

A lien ('/l//iː//n/ or '/l//iː//ən/) is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. The owner of the property, who grants the lien, is referred to as the lienee and the person who has the benefit of the lien is referred to as the lienor or lien holder. The etymological root is Anglo French lien or loyen, meaning "bond", "restraint", from the Latin ligamen, from ligare "to bind". In the United States, the term lien generally refers to a wide range of encumbrances and would include other forms of mortgage or charge. In the US, a lien characteristically refers to nonpossessory security interests (see generally: ). In other common law countries, the term lien refers to a very specific type of security interest, being a passive right to retain (but not sell) property until the debt or other obligation is discharged. In contrast to the usage of the term in the US, in other countries it refers to a purely possessory form of security interest; indeed, when possession of the property is lost, the lien is released. However, common law countries also recognize a slightly anomalous form of security interest called an "equitable lien", which arises in certain rare instances. Despite their differences in terminology and application, there are some similarities between liens in the US and elsewhere in the common law world.

Movers are typically entitled to a mover's lien under UCC § 7 307/308 to withhold a customer's goods to secure payment. This is a possessory lien and is the nonconsensual type of lien (because it exists automatically under a statute instead of being affirmatively agreed upon). However, the concept of a mover's lien is often abused in a moving scam known as a hostage load, whereby the moving company will extort money not owed by the customer by refusing to deliver the goods unless the customer pays money inflated beyond the contractual estimate. Because the customer is interested in obtaining their goods, they are under duress to pay the ransom. Hostage loads in at least the interstate context are illegal under 49 USC 13905. The Federal Motor Carrier Safety Administration (FMCSA) regulates the moving industry and sometimes takes enforcement action by fining and delicensing offending moving companies. Moving companies that deliberately engage in hostage loading may also be considered to be engaging in racketeering in violation of the Racketeer Influenced and Corrupt Organizations Act. Disputes between legitimate lienholding of chattels versus hostage loading can sometimes be averted by the customer, including an advanced (before the fact) consensual waiver of the mover's right to a lien in the written contract, obligating the moving company to deliver the goods with reasonable dispatch regardless of payment disputes. Failure to do so would constitute conversion or trespass to chattels.

Outside the US, a common law lien may be defined as a passive right to retain a chattel (and, sometimes, documentary intangibles and papers) conferred by law. Modern law has generally left the legal lien to cases where it has been historically established without any real effort to make it applicable to current conditions. In Tappenden v Artus [1964] 2 QB 185, Diplock LJ referred to a lien as a "self help" remedy, like "other primitive remedies such as abatement of a nuisance, self defence or ejection of trespassers to land". Equitable liens are an unusual species of property right, usually considered sui generis.

Common law liens are divided into special liens and general liens. A special lien, the more common kind, requires a close connection between the property and the service rendered. A special lien can only be exercised regarding fees relating to the instant transaction; the lienor cannot use the property held as security for past debts. A general lien affects all of the property of the lienee in the possession of the lienor and stands as security for all of the debts of the lienee to the lienor. A special lien can be extended to a general lien by contract, which is commonly done in the case of carriers. A common law lien only gives a passive right to retain; there is no power of sale which arises at common law, although some statutes have also conferred an additional power of sale, and it is possible to confer a separate power of sale by contract. The common law liens are closely aligned to the so called "common callings" but are not co extensive with them. A common law lien is a very limited type of security interest. Apart from the fact that it only amounts to a passive right to retain, a lien cannot be transferred; it cannot be asserted by a third party to whom possession of the goods is given to perform the same services that the original party should have performed; and if the chattel is surrendered to the lienor, the lien entitlement is lost forever (except for where the parties agree that the lien shall survive a temporary re possession by the lienor). A lienee who sells the chattel unlawfully may be liable for conversion and surrendering the lien.

In common law countries, equitable liens give rise to unique and complex issues. An equitable lien is a nonpossessory security right conferred by operation of law, which is similar in effect to an equitable charge. It differs from a charge in that it is nonconsensual. It is conferred only in very limited circumstances, the most common (and least ambiguous) concerning the sale of land; an unpaid vendor has an equitable lien over the land for the purchase price, notwithstanding that the purchaser has gone into occupation of the property. It is seen as a counterweight to the equitable rule, which confers a beneficial interest in the land on the purchaser once contracts are exchanged for purchase. It is a matter of conjecture how far equitable liens extend outside the unpaid vendor's lien. Equitable liens have been held to exist in several cases involving choses in action, but not yet concerning chattels. The Australian courts have been the most receptive towards equitable liens concerning personal property (see Hewett v Court (1983) 57 ALJR 211), but a review of the cases still leaves a lack of clarity concerning the principles upon which an equitable lien will be imposed. In Re Stucley [1906] 1 Ch 67, a vendor of a reversionary interest in a trust fund sold the interest to the trustee and was held to have an equitable lien in the subject matter. However, it was personalty and not realty. In Barker v Cox (1876) 4 Ch D 464, the purchaser of property that was included in a marital settlement paid the price in advance to one of the trustees, and the purchaser was held to have an equitable lien in investments which the trustees subsequently acquired with the purchase price. In Langen and Wing v Bell [1972] Ch 685, a director's service agreement required him to assign his shares in the company if he was terminated, and he was to receive a price calculated at a later date when the annual accounts were available; he was held to have an equitable lien over the transferred shares to secure the payment of the eventual purchase price. In Lord Napier and Ettrick v Hunter [1993] 2 WLR 42, it was held that an indemnity insurer's subrogation rights concerning funds improperly paid directly to the insured were subject to an equitable lien. But overall, there is still a lack of central nexus.

Although arguably not liens as such, two other forms of encumbrance are sometimes referred to as liens.

Certain statutes provide a passive right to retain property against its owner as security for obligations. For example, section 88 of the Civil Aviation Act 1982 of the United Kingdom permits an airport to detain aircraft for unpaid airport charges and aviation fuel. Although this right has been treated as a lien under UK insolvency law, it has been argued that such statutory rights are not in fact liens, but rights analogous to liens, although an argument may be made that this is a distinction without a difference.