n Stellenbosch Law Review = Stellenbosch Regstydskrif - The landlord's hypothec in comparative perspective

Volume 19, Issue 2
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



The right of a landlord to recover the rent by recourse to the goods on the leased premises, with a preference over the tenant's other creditors, is recognised in many countries. In civilian and mixed systems it is based on the tacit hypothec of Roman law. In common law systems its equivalent is distress for rent, but there was probably some Roman influence here, too. The article considers why some countries have entirely abolished or partially restricted the landlord's right. It focuses also on a remarkable feature of the right : its ability to cover goods which belong to third parties. The proffered justifications for this are set out and criticised. This is followed by an assessment of whether the application to third party goods breaches human rights laws. The article concludes by considering whether the modern landlord deserves any sort of preferential right.

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