Company refusing to release goods

powerful_Rogue

steampowered wrote: »

They'd only have a lien if there is a lien in their T&Cs.

Not for a legal lien.

Legal Lien. In its primary or legal sense ‘lien’ means a right at common law for a man to retain that which is rightfully and continuously in his possession belonging to another until the present and accrued claims of the person in possession are satisfied, but this is given by law and not by contract. A written agreement to grant a lien is not a bill of sale, for a legal lien does not as a rule arise until possession of the property is obtained. However, in exceptional cases, possession is no essential to constitute a legal lien.

db3582

powerful_Rogue wrote: »

Not for a legal lien.

But can it be said that my bricks being retained "rightfully" when I have been previously asked by the possessor to remove them and when there is no outstanding invoice for these or any other goods/services? Or, indeed later, if any such claims made by the possessor producing an invoice, are disputed?

bingo_bango

Can it be said? Yes.

Will it be said? Who knows. That unfortunately is where paid legal advice is worth its weight in gold. Ultimately only a court could issue a decision in such a case, but hopefully it wouldn't get that far. In the meantime, have you got free legal cover with your home insurance? Might be worth getting an appointment arranged to get a professional opinion before writing your LBA.

steampowered

powerful_Rogue wrote: »

Not for a legal lien.

The extract you posted is from Halsbury's Laws. Scroll down a bit further and it tells you when a legal lien arises:

LEGAL LIEN

(1) NATURE AND ESSENTIALS

716. General Lien. A general lien entitles a person in possession of chattels to retain them until all claims or accounts of the person in possession against the owner of the chattel are satisfied. It can exist (1) as a common law right arising from general usage; or (2) by express agreement. General liens are discouraged because they give special privileges as against other creditors and tend to upset the equitable distribution of assets in bankruptcy. They have been regarded as an encroachment upon the common law. However, where the usage has been frequently recognised the right of lien becomes part of common law and is accepted by the courts without further evidence.

717. Particular Lien. A particular lien at common law is the right to retain goods for which charges have been incurred until those charges have been paid; if the owner of the goods is willing to pay these charges, the goods may not be retained until payment of any general balance due to the person having the particular lien. Jones v Tarleton (1842) 9 M & W 675.

Based on that it seems to me that you can only have a general lien if you can prove "general usage" (which seems to be pretty rare - google returned very few hits) or a general lien in your T&Cs. If the seller did not provide a set of T&Cs containing a general lien, he will only have a 'Particular Lien'.

I think the upshot of that is that if the bricks were not paid for, the supplier can hold onto the bricks. But I don't think he can keep the bricks just because something else was not paid for.

powerful_Rogue

steampowered wrote: »

The extract you posted is from Halsbury's Laws. Scroll down a bit further and it tells you when a legal lien arises:



Based on that it seems to me that you can only have a general lien if you can prove "general usage" (which seems to be pretty rare - google returned very few hits) or a general lien in your T&Cs. If the seller did not provide a set of T&Cs containing a general lien, he will only have a 'Particular Lien'.

I think the upshot of that is that if the bricks were not paid for, the supplier can hold onto the bricks. But I don't think he can keep the bricks just because something else was not paid for.

With a General Lien, they can hold onto any property

A general lien (sometimes referred to as a retaining lien) occurs where there is a right to retain possession of any property of the debtor until all debts due to that person have been paid. General liens are not favoured in law as they give special privilege against other creditors

steampowered

powerful_Rogue wrote: »

With a General Lien, they can hold onto any property

So the question is do they have a general lien?

Halsbury's law says there are two ways a general lien can arise:

It can exist (1) as a common law right arising from general usage; or (2) by express agreement. General liens are discouraged because they give special privileges as against other creditors and tend to upset the equitable distribution of assets in bankruptcy.

If there were no T&Cs, possibility (2) cannot apply. It doesn't sound to me like possibility (1) would apply in the case of a building supplier.

powerful_Rogue

steampowered wrote: »

So the question is do they have a general lien?

Halsbury's law says there are two ways a general lien can arise:


If there were no T&Cs, possibility (2) cannot apply. It doesn't sound to me like possibility (1) would apply in the case of a building supplier.

I personally would think it would apply to a building supplier, the same way it applies to laundrettes, garages etc.

Liens are very complicated subjects, so OP would be best seeking legal advice.

steampowered

powerful_Rogue wrote: »

I personally would think it would apply to a building supplier, the same way it applies to laundrettes, garages etc.

Liens are very complicated subjects, so OP would be best seeking legal advice.

My understanding is that laundrettes/garages have particular liens, not general liens, i.e. they get a lien over the particular item you haven't paid for, not over everything you own for unrelated debts.

I suppose the Op could seek legal advice if it is genuinely felt to be worth it given the amounts involved. Otherwise, threatening and then issuing a small claim is likely to be the cheaper option.

db3582

Thanks guys, I have followed your interpretations of liens with interest and, of course, have formed my own opinion reading around the subject also. My conclusion is that, particularly in the absence of any Ts&Cs, it is highly unlikely that, in law, a general lien exists in this case. Even if a lien can be proved (which I believe it cannot), it is going to relate to the bricks only. I expect a draft court claim form alone to shift the supplier's position and will follow that process through if not. Thanks again.

powerful_Rogue

db3582 wrote: »

Thanks guys, I have followed your interpretations of liens with interest and, of course, have formed my own opinion reading around the subject also. My conclusion is that, particularly in the absence of any Ts&Cs, it is highly unlikely that, in law, a general lien exists in this case. Even if a lien can be proved (which I believe it cannot), it is going to relate to the bricks only. I expect a draft court claim form alone to shift the supplier's position and will follow that process through if not. Thanks again.

Then make sure you do it the right way.

You need to send a Letter Before Action before considering court action.