Liens in Comparative Perspective: South African Law and Dutch Law before and after the Enactment of the Current Burgerlijk Wetboek

Abstract

South African law distinguishes between enrichment liens and debtor and creditor liens. The former are generally classified as real rights and the latter are not. This position is similar to the position in Dutch law before the enactment of the current BW, where retentierechten (liens) were divided into zakenrechtelijke retentierechten and verbintenisrechtelijke retentierechten. The former enjoyed real operation while the latter did not. Even though most authors are of the opinion that neither zakenrechtelijke retentierechten nor verbintenisrechtelijke retentierechten qualified as either real or personal rights, there were some authors who regarded zakenrechtelijke retentierechten as real rights. The current BW did away with the uncertainty regarding the nature of a lien. There is no longer a distinction between different types of lien. Article 3:290–3:295 BW deals with retentierechten and classifies a lien as a verhaalsrecht (right of redress) and a specific opschortingsrecht (right to suspend).