IS IT A LIEN OR NOT?

1 Фев

Статья посвящена институту удержания (залога), характерному для англо-саксонского права и его сравнению с институтом «конверсии» — присвоения чужого движимого имущества. В частности, рассматривается теория о двух видах такого залога (удержания), в особенности, в отношении груза, находящегося во владении перевозчика. Особое внимание уделяется вещам, в состав которых входят права интеллектуальной собственности, титул собственника на которые неясен и т.п. осложненным фактическим составам. Публикация интересна тем, что в ней даются практические рекомендации по использованию таких вещных прав, как: залог и удержание.

The lien is a very useful weapon in the armoury of a service provider but it must be exercised carefully – if the lien is not a lien then any withholding of goods becomes conversion otherwise known as civil theft. There are two generic types of lien known as general and particular. The particular lien is one that relates solely to sums due that are relative to the goods held whilst the general lien is one that relates to all sums due and owing whether they are relative to the goods held or not. Clearly therefore you need to be very clear on which type of lien you have.
How do you identify what type of lien you have? It is either going to be contractual or a common law lien. If contractual then the terms of the contract should make it clear whether the lien is particular or not. Whether or not you have a common law lien depends on the facts and circumstances of what is owed and in respect of what it is owed. For example there is a common law lien on goods that are moved in return for freight payment. Freight is considered earned once the movement is complete and the carrier is expected to be paid and may hold the goods if he is not paid. Common law liens are particular liens and require an order from court in order to be exercised in terms of sale of the goods held in the event of non payment.
If you have the benefit of a contractual lien it should be a general lien and very clearly set out. It should provide for a lien on all goods and documents held by the person who is owed sums – those sums must be due and owing and if there are sums due and owing and unpaid the lien should also provide a right of sale of the goods held on reasonable notice and should also provide that any costs and expenses of exercising the lien (whether by with holding the goods or with holding and then selling the goods) should be included in the sums due. These should include the costs of sale; any legal costs and any storage costs.
If you choose to exercise a lien then you are responsible for the goods you are holding and should therefore ensure that you have all risks cover for any goods held under lien in case they are accidentally lost or damaged whilst you have them in your possession under lien.
It is often the case that those who have the benefit of a lien are reticent in terms of exercising it as it can be seen as an aggressive move against a client from whom they imply want payment and do not want to damage the commercial relationship. However, delay may be problematic, particularly when the party who owes the sums goes insolvent. A legally operated lien cannot be trumped in an insolvency process but it has to have been exercised in  advance of the insolvency process being instituted. Taking the BIFA 2005 Conditions lien ay clause 8 as an example, how is it exercised? It applies if there are sums that are due and owing you can hold the goods and/or documents and there is no notice requirement but if you wish to exercise the right of sale of the held goods then you need to give 28 day’s notice. That said it is always a good idea to notify rather than just hang on to the goods as the notice will provide good evidence of the exercise of the lien and if you do not give notice that you are exercising the lien the goods owner may claim you were holding them
wrongfully and you would need to produce evidence of sums being due and owing and to attest to the fact that you were holding the goods because of this and not for any other reason. It may be claimed by the goods owner that you were holding the goods improperly and then you would be in dispute. Therefore the clearer you make your position, the easier it will be to show  exercise of the lien on legal grounds. Formal notice should always be given in writing and you need evidence it has been received so deliver by hand or fax (and  ensure the machine is set up to give confirmation of remission) or recorded post by signature on receipt. The contract may provide a specific manner in which notice has to be given so check the contract terms carefully to ensure that  you are complying with any specific terms on how to give notice.
In an insolvency process the liquidator or administrator will have a lot to do and will want evidence of any claimed retention of title whether by lien or otherwise and you need to be able to prove your right of lien quickly. You will only be able to exercise the lien against the owner of the goods or the contracting party if they are authorised by the owner. If not you may have a breach of warranty of authority claim against the contracting party (e.g. see BIFA 2005 Conditions clause 3) but not the contractual right of lien.
If you are a carrier, you are only able to accept instructions from the party (or an authorised representative of theirs) with rights of control over the goods. It may not be clear to you who owns the goods. Therefore if you are not sure if the party you have contracted with owns the goods, any exercise of lien should be made subject to them owning the goods and that if ownership is  disputed they should provide immediate evidence. The goods may have been sold on whilst in transit or may not have been paid for by the consignee and therefore may still be in the ownership of the seller. Ownership is dependent on the contract(s) of sale and purchase which you may not have copies of. The good thing is that you need not release the goods to anyone until you are sure of the party who has rights of control and you are entitled to raise reasonable enquiries in this regard to ensure you identify this party correctly and once you have done so you need to deliver promptly or exercise your lien and if that exercise is made conditional on ownership then you may keep the goods while you ascertain ownership and then the lien incepts seamlessly to continue your right to hold the goods.
If you can prove a lien to an administrator, as administration causes a moratorium to exist in terms of any exercise of security so you will not be able to sell the goods under a lien but the court will not override the lien so if the administrator wants the goods he must pay for them or give suitable security in return for them and if he decides he does not want them he should confirm abandonment of title in which case you will be free to sell the goods unless there is a branding issue.
If goods are branded then they cannot be sold without the authority of the brand owner. In an administration this is likely to be the administrator who may regard the brand as a valuable asset for sale and the buyer may not agree to authorise the sale and may refuse to buy the goods. The administrator is unlikely to agree to the sale of the goods if he is wanting to sell the brand. Removing any branding may be impossible or if possible may lead to damage to the goods and therefore reduction in value but if not, you should be able to persuade a brand owner or the administrator to allow you permission to sell as long as you can satisfy them that you can remove the randing to their satisfaction.
There is a great deal of complexity in terms of the legal operation of liens and problems can escalate very quickly. The goods you decide to hold may be key in terms of a production line that brings the line to a halt and causes considerable losses. These may far outweigh the sums you are seeking to recover. It is often said that operating liens can be a game of bluff but that is a mischaracterisation of the situation. Either the lien is legal or it is not. If you are operating it before you know whether you are entitled to do so or not then you are in danger of being found to be wrongfully holding the goods. If you are operating it correctly then any threats of action to seek delivery up can be suitably dealt with. It may be the case that threats of legal action for delivery up may encourage someone exercising a lien to capitulate and deliver the goods. The sum involved may not warrant the risks involved of a potential finding of conversion. The bottom line is be careful to ensure you know who you may exercise the lien against and if not make the exercise of the lien subject to ownership then if you are still threatened ask for evidence of ownership and make it clear you are only exercising the lien (if title is not clear) subject to ownership. If you get a legal letter, take immediate legal advice or if you do not want to take this step you would be wise to deliver up the goods to avoid the potential finding of conversion.
One final warning – do keep your credit agreements under review. Liens can only be exercised if monies are due and owing and if credit has been agreed the money only becomes due on breach of the credit agreement but this will not affect sums due on following shipments unless the credit terms provide for all and whatever sums to become due and owing on breach of the credit terms, however small the breach. You may wish to give your client some leeway if they have been good payers but have got into difficulty; but be careful because any waiver of your right to claim a breach may operate as a waiver for all future such breaches – your credit terms should protect against this eventuality. In difficult financial times a first breach of credit terms may be a warning to you of the eventual demise of your client so be vigilant to ensure the debt does not grow and be sure to make the best of any protections you have – if a lien is in fact a lien, it can be invaluable!
Авторы: K. PYSDEN / S. PEREZ-GOLDZVEIG / E. DURAN SASTRE
http://www.pysdens.com/v2/letters.asp  http://www.thehouseofbranchofgold.com/

Источник:http://www.pysdens.com/v2/uploads/110.pdf