Withholding vehicle

Oryx

Hypothetically speaking, can a garage hold on to a customers vehicle until all repairs are paid for, even if the value of the vehicle is far in excess of the money owing?

seamus

No.

Quite simply. Retailers and any other services providers are not permitted to hold any of your property as a bond or collateral for monies owed to them. They are obliged to release your vehicle and they have two options;
1. Undo what they've done (which includes replacing any parts they removed)
2. Wait for you to pay and/or chase you for it in court.

Registered moneylenders (i.e. banks) have different rules about this, but your local garage is not a moneylender.

dermot_sheehan

Yes they could I thought, a mechanic holding on to a car in satisfaction of a debt is a classic example of a lien.

seamus wrote:

No.

Quite simply. Retailers and any other services providers are not permitted to hold any of your property as a bond or collateral for monies owed to them. They are obliged to release your vehicle and they have two options;
1. Undo what they've done (which includes replacing any parts they removed)
2. Wait for you to pay and/or chase you for it in court.

Registered moneylenders (i.e. banks) have different rules about this, but your local garage is not a moneylender.

Lplated

(Not legal advice) I also respectfully disagree with the 'Super Moderators' opinion - repairs to a car are one of the few clear examples in Irish law of a 'lien' - which here means the garage can hold on to the car until the cost of repairs has been paid for.

Another example of a 'lien' is a clients file with a Solicitor - until any fees due on the file are paid, the Solicitor can, if he chooses, refuse to hand the file over to another Solicitor (at the clients request) or to the Client. The only way of getting over this would be to make an application to get a court order that the file be handed over.

seamus

OK, I'm going to check this out. I was basing my post on a similar thing which happened a few years back to my Mum; She got a repair and wasn't happy with the work, telling the guy that he wasn't getting paid, and she was bringing it elsewhere to be sorted. He flipped the lid and refused to hand the keys over. So we called the Gardai (I was with her at the time) who arrived and forced him to release the vehicle.

In terms of the solicitor scenario, I still think that's a different case - the file was never the client's property.

seamus

OK, a cursory glance over the statute book doesn't change my position. It would appear that a 'lien' is only written in law specifically for solicitors, moneylenders and hoteliers (who may hold onto you possessions until you pay them, believe it or not).

While I didn't find anything which specifically excluded other companies from this right, I didn't find anything which guaranteed it. I'd be interested if anyone else has any Irish links for this info.

dermot_sheehan

seamus wrote:

OK, a cursory glance over the statute book doesn't change my position. It would appear that a 'lien' is only written in law specifically for solicitors, moneylenders and hoteliers (who may hold onto you possessions until you pay them, believe it or not).

While I didn't find anything which specifically excluded other companies from this right, I didn't find anything which guaranteed it. I'd be interested if anyone else has any Irish links for this info.

A lien is a common law defence for an action for detinue (civil claim for unlawfully holding personal property). I'm not sure i'd see it mentioned in any statutes.

Mechanic in that situation would have been perfectly within his rights to tell the guards to go to hell.

seamus

Does common law apply here though? That is, is there a precedent of common law being used successfully in this country?

hullaballoo

gabhain, is a lien not an equitable remedy? I'm studying commercial law at the moment for my exams, and I'm pretty damn good at it, and I'm pretty sure that the "mechanic's lien" is an equitable remedy in this jurisdiction. It's a common law remedy in the US because they don't have equity.

The other option is that it could potentially be argued that it's a contract for the sale of goods (if the contract was substantially for goods as opposed to services), then the unpaid seller's lien under s 39 of the Sale of Goods Act 1893 applies.

I'll have to look into it further tomorrow.

dermot_sheehan

hullaballoo wrote:

gabhain, is a lien not an equitable remedy? I'm studying commercial law at the moment for my exams, and I'm pretty damn good at it, and I'm pretty sure that the "mechanic's lien" is an equitable remedy in this jurisdiction. It's a common law remedy in the US because they don't have equity.

The other option is that it could potentially be argued that it's a contract for the sale of goods (if the contract was substantially for goods as opposed to services), then the unpaid seller's lien under s 39 of the Sale of Goods Act 1893 applies.

I'll have to look into it further tomorrow.

I'm not sure if it was common law or equity based, I meant in the term "common law" as it was created by courts through the action of precedence throughout the years and not created by statute (OP had a look at irishstatutebook.ie and couldnt find much on it).

hullaballoo

Ok, well if it's an equitable remedy, then it's entirely discretionary. In such a case then, the courts will look at the circumstances inolved, and will do what is most fair - thus "equity". Or thereabouts.

dermot_sheehan

hullaballoo wrote:

Ok, well if it's an equitable remedy, then it's entirely discretionary. In such a case then, the courts will look at the circumstances inolved, and will do what is most fair - thus "equity". Or thereabouts.

I must admit i have not much expertise in this area, but my understanding is since it's a defence to a tort (detinue), there is no discretion in applying it.

Maybe equity might act to create an equitable proprietry right in the object? I'm not sure.

dermot_sheehan

seamus wrote:

Does common law apply here though? That is, is there a precedent of common law being used successfully in this country?

We have a common law legal system, crimes such as manslaughter are common law offences. Torts are based on common law concepts such as negligence and trespass. Mortgages are based on the equitable right to redeem created by the old courts of chancery, injunctions too are not a product of statute.

Much of our legal system was created not by act of parliament but by precedent.

Oryx

Thanks guys, for all the replies. Dont come at this from a legal background, but my thinking on it was that if a garage cannot hold a vehicle pending payment, what incentive or pressure is there on any customer to ever pay a bill?

Eru

gabhain7 wrote:

We have a common law legal system, crimes such as manslaughter are common law offences. Torts are based on common law concepts such as negligence and trespass. Mortgages are based on the equitable right to redeem created by the old courts of chancery, injunctions too are not a product of statute.

Much of our legal system was created not by act of parliament but by precedent.

Im not advising one way or the other on the actual case scenario but this should be corrected.

Manslaughter is not common law, its clearly covered under the Non fatal offences against the person Act 1997. Common law is something that dates back further than statute or case law and has never been replaced by either. As a result manslaughter is not common law. My power to search you after arrest is common law too give an example.

Hagar

Karlitosway1978 wrote:

Manslaughter is not common law, its clearly covered under the Non fatal offences against the person Act 1997.

Non Fatal Manslaughter? I thought I was keeping up until I read that.

Lplated

Re Karlito's message -
Where in the Non Fatal Act did you find an offence of 'manslaughter'? The clue is in the title 'non-fatal' - manslaughter is, (in so far as it was not incohate) a fatal offence.

There are many definitions of what the 'common law' is, but perhaps a good lay mans version is that it is that body of law not contained in legislative provisions but rather law 'as found' by a court.

Eru

Lplated wrote:

Re Karlito's message -
Where in the Non Fatal Act did you find an offence of 'manslaughter'? The clue is in the title 'non-fatal' - manslaughter is, (in so far as it was not incohate) a fatal offence.

There are many definitions of what the 'common law' is, but perhaps a good lay mans version is that it is that body of law not contained in legislative provisions but rather law 'as found' by a court.

Hagar wrote:

Non Fatal Manslaughter? I thought I was keeping up until I read that.

Well smart ass's, try looking under Section 29 or even Section 4 of said act or finding the Act you believe it falls under. I didnt name it nor did I write it.

And common law is NOT law as found by the court. what kind of a definition is that?

Hagar

Section 4:

4.—(1) A person who intentionally or recklessly causes serious harm to another shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for life or to both.

No manslaughter there.

Section 29:

29.—Section 9 of the Criminal Law Act, 1997, is hereby amended by the substitution for paragraph (a) of subsection (2) of the following paragraph:
"(a) manslaughter, or causing serious harm with intent to do so, or".

Specifies a change to another act not the "Non Fatal Offences"

I'm still puzzled.

Please note I'm looking for enlightenment, not to take the proverbial.

maidhc

Karlitosway1978 wrote:

Manslaughter is not common law, its clearly covered under the Non fatal offences against the person Act 1997.

How did I ever manage to scrape through criminal law in undergrad, and pass a blackhall FE1 in the same subject without knowing this!

Eru

Oh god I give up, I really do. Look it up for youselves and then go back to topic, Im not derailing a topic over this.

Hint: No one found the crime of manslaughter in any other legislation.

RuggieBear

seamus wrote:

OK, a cursory glance over the statute book doesn't change my position. It would appear that a 'lien' is only written in law specifically for solicitors, moneylenders and hoteliers (who may hold onto you possessions until you pay them, believe it or not).
.

was actually going to mention this as I'm working in the "Hospitality" industry. A good few time we've had to "look after" a guest's property till they have paid us what is owed. Usually luggage but we've held a car once or twice.:eek:

maidhc

Karlitosway1978 wrote:

Hint: No one found the crime of manslaughter in any other legislation.

Cause it ain't there and is a construct of the (Judge made) common law

(I think the LRC made recommendations it should be codified a few years ago, but this could be my imagination.)

I'm surprised no one has mentioned Sale of Goods Act 1893 (Restatement: http://tinyurl.com/lzdj3). Part IV allows any unpaid seller to retain a lien on any goods upaid for.

hullaballoo

Ok, I'm going to tidy this up a bit.

Common law in simple terms refers to judge-made law. That is law that is based on decisions made by judges in the past. These precedents are referred to in court by way of citing old cases. There are a few famous cases in each area of law e.g., Donoghue v Stevenson was the bedrock case in the law of Torts. It dates back to the feudal court system, and has been retained in many areas. However, it has sometimes been changed by statute, and overruled over the years by the superior courts (which created new common law, as it were). Thus, Karlitos definition is a misinformed one.

Manslaughter was originally a common law offence, but has been codified by statute. I can't find the section at the moment, but I think Karlitos has the right act. I'll check tomorrow.

Another common law offence is endangerment.

Now, back on topic, or else start a new thread.

hullaballoo

maidhc wrote:

Cause it ain't there and is a construct of the (Judge made) common law

(I think the LRC made recommendations it should be codified a few years ago, but this could be my imagination.)

I'm surprised no one has mentioned Sale of Goods Act 1893 (Restatement: http://tinyurl.com/lzdj3). Part IV allows any unpaid seller to retain a lien on any goods upaid for.

I did mention it. I then went on to say that it probably doesn't cover this situation because the act only covers contracts for the sale of goods. A car mechanic doing repairs on a car is a contract for the sale of services.

http://www.boards.ie/vbulletin/showthread.php?t=2054926065#9.

maidhc

hullaballoo wrote:

I did mention it. I then went on to say that it probably doesn't cover this situation because the act only covers contracts for the sale of goods. A car mechanic doing repairs on a car is a contract for the sale of services.

http://www.boards.ie/vbulletin/showthread.php?t=2054926065#9.

My apologies, I didn't see it.

A garage could still use it though in the form of a retention of title clause over the spare parts fitted (does Hendy lennox sound familiar??)

I think though it is generally accepted a garage has an equitable lien over a car until repair work is paid for, but I don't know of any authority for that

hullaballoo

Hendy Lennox was a retention of title clause around engines that had been previously incorporated into generator sets. That was specifically for the sale of goods (i.e. The engines). I don't think the facts are comparible in the lease.

Anyway, this hasn't got anything to do with retention of title - this is a possessory security measure.

He can sue under ordinary contract law to recover his debt, but I can't identify any special lien. There certainly isn't anything under the 1893 Act unless he can show that the contract was more for the sale of goods, than for the work he put in. He'd have to rely on one of Clay v Yates, Lee v Griffin or Robinson v Graves. It depends on what the courts view as being the main object of the contract (goods, or services).

maidhc

It is actually one of a few common law liens in this jurisdiction which an "improver" who carries out work on goods with posession can invoke. According to Courtney's book on company (p1228) the most common example is of a mechanic, but still even he refuses to give authority other than suggesting to read an book called "Bell, Modern law of personal property in England and Ireland"

What happens though when a mechanic screws up, like in Seamus' case?

hullaballoo

I'd say there'd be an action in quantum meruit. But by the same token, it would have to remove any right to a lien of the goods. Would he have to pay for the repair to the damage he did? Would he also have to pay for the original work to be completed?

Victor

KatieK wrote:

Thanks guys, for all the replies. Dont come at this from a legal background, but my thinking on it was that if a garage cannot hold a vehicle pending payment, what incentive or pressure is there on any customer to ever pay a bill?

Do you want you brakes to work?

Oryx

Victor wrote:

Do you want you brakes to work?

Thats a whole other legal issue.
OT, is that post count for real?:D

hullaballoo

KatieK wrote:

Thats a whole other legal issue.
OT, is that post count for real?:D

Meh, 4,000 posts a year? Easy.

Victor

KatieK wrote:

Thats a whole other legal issue.

Sorry, I didn't realise it was your brakes were being done.

I was suggesting that if you didn't pay, that you brakes might suddenly stop working.

hullaballoo

Lol.

Oryx

Victor wrote:

Sorry, I didn't realise it was your brakes were being done.

I was suggesting that if you didn't pay, that you brakes might suddenly stop working.

Can you recommend a symbol to denote irony?;) My brakes are fine, so far:eek: I wont go into the detail of why Im asking, hullaballoo will descend on me and remove my priveleges if I do.:D

Victor

KatieK wrote:

Can you recommend a symbol to denote irony?;)

I used ":p" to indicate I was being cheeky.

Oryx

Well, thanks for all the feedback, consensus seems to be that yes, a garage can keep your car until you pay up!

Understood ya Victor.