Liens: a Closer Look at Some Conceptual Foundations

Abstract

Liens are classified differently in diverse legal systems. The classification of a lien points towards the specific operation thereof. In South African law we distinguish between enrichment liens (real liens) which are regarded as real rights and debtor-creditor liens which are regarded as personal rights. The Dutch law, on the other hand, no longer distinguishes between zakenrechtelijke retentierechten (real liens) and verbintenisrechtelijke retentierechten (debtor-creditor liens). All liens are classified as opschortingsrechten with real operation. Scots law distinguishes between general and special liens and all liens are classified as real rights. A lien is an important and powerful legal remedy and a form of security. Liens are very important in modern day South Africa where access to courts are expensive and time consuming. In this article I look at certain conceptual foundations of liens in South African law, Dutch law and Scots law.