Flemming wrote:
>
> Jeg kender - som det måske fremgår af ovenstående - ikke meget til
> liens, men har brug for at lære mere om begrebet. Skal bestemt ikke
> afvise, at ovenstående forsøg på at beskrive liens er forkert. Er der
> nogle, der kender til det, eller kender til steder, hvor det er
> beskrevet.
>
> Flemming
http://www.xrefer.com/results.jsp?new_meta=1&shelf=business+%26+law&term=lien&Sub
mit.x=11&Submit.y=16
Forskellige former for liens
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http://www.xrefer.com/entry.jsp?xrefid=588958&secid=.-&hh=1
The legal right of a creditor to sell mortgaged assets when the debtor is unable
or unwilling to meet requirements of a loan agreement. A lien makes a
bondholder's claim more secure.
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http://www.xrefer.com/entry.jsp?xrefid=164496&secid=.-&hh=1
The right of one person to retain possession of goods owned by another until the
possessor's claims against the owner have been satisfied. In a general lien, the
goods are held as security for all the outstanding debts of the owner, whereas in
a particular lien only the claims of the possessor in respect of the goods held
must be satisfied. Thus an unpaid seller may in some contracts be entitled to
retain the goods until receiving the price, a carrier may have a lien over goods
being transported, and a repairer over goods being repaired. Whether a lien
arises or not depends on the terms of the contract and usual trade practice. This
type of lien is a possessory lien, but sometimes actual possession of the goods
is not necessary. In an equitable lien, for example, the claim exists
independently of possession. If a purchaser of the property involved is given
notice of the lien it binds him; otherwise he will not be bound. Similarly a
maritime lien, which binds a ship or cargo in connection with some maritime
liability, does not depend on possession and can be enforced by arrest and sale
(unless security is given). Examples of maritime liens are the lien of a salvor,
those of seamen for their wages and of masters for their wages and outgoings,
that of a bottomry or respondentia bondholder (See hypothecation), and that over
a ship at fault in a collision in which property has been damaged.
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http://www.constitution.org/bouv/bouvier_l.htm (fra 1856)
LIEN, contracts. In its most extensive signification, this term includes every
case in which real or personal property is charged with the payment of any debt
or duty; every such charge being denominated a lien on the property. In a more
limited sense it is defined to be a right of detaining the property of another
until some claim be satisfied. 2 East 235; 6 East 25; 2 Campb. 579; 2 Meriv. 494;
2 Rose, 357; 1 Dall. R. 345.
2. The right of lien generally arises by operation of law, but in some cases it
is created by express contract.
3. There are two kinds of lien; namely, particular and general. When a person
claims a right to retain property, in respect of money or labor expended on such
particular property, this is a particular lien. Liens may arise in three ways:
1st. By express contract. 2d. From implied contract, as from general or
particular usage of trade. 3d. By legal relation between the parties, which may
be created in three ways; When the law casts an obligation on a party to do a
particular act, and in return for which, to secure him payment, it gives him such
lien; 1 Esp. R. 109; 6 East, 519; 2 Ld. Raym. 866; common carriers and inn
keepers are among this number. 2. When goods are delivered to a tradesman or any
other, to expend his labor upon, he is entitled to detain those goods until he is
remunerated for the labor which he so expends. 2 Roll. Ab. 92; 3 M. & S. 167; 14
Pick. 332; 3 Bouv. Inst. n. 2514. 3. When goods have been saved from the perils
of the sea, the salvor may detain them until his claim for salvage is satisfied;
but in no other case has the finder of goods, a lien. 2 Salk. 654; 5 Burr. 2732;
3 Bouv. Inst. n. 2518. General liens arise in three ways; 1. By the agreement of
the parties. 6 T. R.14; 3 Bos. & Pull. 42. 2. By the general usage of trade. 3.
By particular usage of trade. Whitaker on Liens 35; Prec. Ch. 580; 1 Atk. 235; 6
T. R. 19.
4. It may be proper to consider a few, general principles: 1. As to the manner in
which a lien may be acquired. 2. To what claims liens properly attach. 3. How
they may be lost. 4. Their effect.
5. - 1. How liens may be acquired. To create a valid lien, it is essential, 1st.
That the party to whom or by whom it is acquired should have the absolute
property or ownership of the thing, or, at least, a right to vest it. 2d. That
the party claiminig the lien should have an actual or constructive, possession,
with the assent of the party against whom the claim is made. 3 Chit. Com. Law,
547; Paley on Ag. by Lloyd, 137; 17 Mass. R. 197; 4 Campb. R. 291; 3 T. R. 119
and 783; 1 East, R. 4; 7 East, R. 5; 1 Stark. R. 123; 3 Rose, R. 955; 3 Price, R.
547; 5 Binn. R. 392. 3d. That the lien should arise upon an agreement, express or
implied, and not be for a limited or specific purpose inconsistent with the
express terms, or the clear, intent of the contract; 2 Stark. R. 272; 6 T. R.
258; 7 Taunt. 278;. 5 M. & S. 180; 15 Mass. 389, 397; as, for example, when goods
are deposited to be delivered to a third person, or to be transported to another
place. Pal. on Ag. by Lloyd, 140.
6. - 2. The debts or claims to which liens properly attach. 1st. In general,
liens properly attach on liquidated demands, and not on those which sound only in
damages; 3 Chit. Com. Law, 548; though by an express contract they may attach
even in such a case as, where the goods are to be held as an indemnity against a
future contingent claim or damages. Ibid. 2d. The claim for which the lien is
asserted, must he due to the party claiming it in his own right, and not merely
as agent of a third person. It must be a debt or demand due from the very person
for whose benefit the party is acting, and not from a third person, although the
goods may be claimed through him. Pal. Ag. by Lloyd, 132.
7. - 3. How a lien may be lost. 1st. It may be waived or lost by any act or
agreement between the parties, by which it is surrendered, or becomes
inaplicable. 2d. It may also be lost by voluntarily parting with the possession
of the goods. But to this rule there are some exceptions; for example, when a
factor by lawful authority sells the goods of his principal, and parts with the
possession under the sale he is not, by this act, deemed to lose his lien, but it
attaches to the proceeds of the sale in the hands of hte vendee.
8. - 4. The effect of liens. In general, the right of the holder of the lien is
confined to the mere right of retainer. But when the creditor has made advances
on the goods of a factor, he is generally invested with the right to sell. Holt's
N P. Rep. 383; 3 Chit. Com. Law, 551; 2 Liverm. Ag. 103; 2 Kent's Com. 642, 3d
ed. In some cases where the lien would not confer power to sell, a court of
equity would decree it. 1 Story Eq. Jur. §566; 2 Story, Eq. Jur. §1216; Story Ag.
§371. And courts of admiralty will deeree a sale to satisfy maritime liens. Abb.
Ship. pt. 3, c10. §2; Story, Ag. §371.
9. Judgments rendered in courts of record are generally liens on the real estate
of the defendants or parties against whom such judgments are given. In Alabama,
Georgia and Indiana, judgment is a lien; in the last mentioned state, it
continues for ten years from January 1, 1826, if it was rendered from that time;
if, after ten years from the rendition of the judgment, and when the proceedings
are stayed by order of the court, or by an agreement recorded, the time of its
suspension is not reckoned in the ten years. A judgment does not bind lands in
Kentucky, the lien commences by the delivery of execution to the sheriff, or
officer. 4 Pet. R. 366; 1 Dane's R. 360. The law seems to be the same in
Mississippi. 2 Hill. Ab. c. 46, s. 6., In New Jersey, the judgments take priority
among themselves in the order the executions on them have been issued. The lien
of a judgment and the decree of a court of chancery continue a lien in New York
for ten years, and bind after acquired lands. N. Y. Stat. part 3, t. 4, s. 3. It
seems that a judgment is a lien in North Carolina, if an elegit has been sued
out, but this is perhaps not settled. 2 Murph. R. 43. The lien of a judgment in
Ohio is confined to the county, and continues only for one year, unless revived.
It does not, per se, bind after acquired lands. In Pennsylvania, it commences
with the rendering of judgment, and continues five years from the return day of
that term. It does not, per se, bind after acquired lands. It may be revived by
scire facias, or an agreement of the parties, and terre tenants, written and
filed. In South CaroIina and Tennessee a judgment is also a lien. In the New
England states, lands are attached by mesne process or on the writ, and a lien is
thereby created. See 2 Hill. Ab. c. 46.
10. Liens are also divided into legal and equitable. The former are those which
may be enforeed iu a court of law; the latter are valid only in a court of
equity. The lien which the vendor of real estate has on the estate sold, for the
purchase money remaining unpaid, is a familiar example of an equitable lien.
Math. on Pres. 392. Vide Purchase money. Vide, generally, Yelv. 67, a; 2 Kent,
Com. 495; Pal Ag. 107; Whit. on Liens; Story on Ag. ch. 14, §351, et seq: Hov.
Fr. 35.
11. Lien of mechanics and material men. By virtue of express statutes in several
of the states, mechanics and material men, or persons who furnish materials for
the erection of houses or other buildings, are entitled to a lien or preference
in the payment of debts out of the houses and buildings so erected, and to the
land, to a greater or lessor extent, on which they are erected. A considerable
similarity exists in the laws of the different states which have legislated on
this subject.
12. The lien generally attaches from the commencement of the work or the
furnishing of materials, and continues for a limited period of time. In some
states, a claim must be filed in the office of the clerk or prothonotary of the
court, or a suit brought within a limited time. On the sale of the building these
liens are to be paid pro rata. In some states no lien is created unless the work
done or the goods furnished amount to a certain specified sum, while in others
there is no limit to the amount. In general, none but the original contractors
can claim under the law; sometimes, however, sub-coutractors have the same right.
13. The remedy is various; in some states, it is by scire facias on the lien, in
others, it is by petition to the court for an order of sale: in some, the
property is subject to foreclosure, as on a mortgage; in others, by a common
action. See 1 Hill. Ab. ch. 40, p. 354, where will be found an abstract of the
laws of the several states, except the state of Louisiana; for the laws of that
state, see Civ. Code of Louis. art. 2727 to 2748. See generally, 5 Binn. 585; 2
Browne, R. 229, n. 275; 2 Rawle R. 316; Id. 343; 3 Rawle, R. 492; 5 Rawle R. 291;
2 Whart. R. 223; 2 S. & R. 138; 14 S. & R. 32; 12 S. & R. 301; 3 Watts, R. 140,
141; Id. 301; 5 Watts, R. 487; 14 Pick. P,. 49; Serg. on Mech. Liens.