n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - A critical evaluation of the nature and operation of liens in South African law in comparison with Dutch law : analysis

Volume 26, Issue 2
  • ISSN : 1015-0099
  • E-ISSN: 1996-2185



Virtually everyone who has reached the age of majority has encountered the legal phenomenon of a 'lien' at one time or another. For example, when someone takes his motor vehicle to a mechanic for repairs, the mechanic has the right to retain the motor vehicle until the person (the debtor) has remunerated him for his services; a person who takes his coat to a dry-cleaner cannot demand his coat back before he has paid the dry-cleaner for his services; an accountant has the right to withhold the financial statements he has drawn up for a business until the business has paid him for his services. It is apparent from this that the man in the street encounters liens in a variety of situations. It is quite possible that there are many cases where a person is entitled to retain a thing on which he has spent money or expended labour but is not aware of the fact. A lien is an immediate form of security for the creditor. No protracted court procedures or legal costs are required. A lien arises as of right and clothes the holder thereof with a passive form of security in terms of which he can simply remain in control of the thing until his outstanding claim (the debt) has been satisfied. Because access to the courts in South Africa is both time-consuming and expensive, this form of security is very valuable. It enables the lien holder simply to remain in control of the thing, thereby securing payment of his claim.

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