posession v ownership

Mr.Diagnostic

Hi,

If someone owes a repair bill on something, a car for example, would the legal owner have the right to take possesion of that item without paying the bill first?
For the sake of discussion, imagine the owner was given the key to the car to inspect it but the repairer refuses to allow the owner to take it until the bill is paid.

P.S. this is a general question and something I have often wondered about. I hope this is within the guidelines.

thanks

Stirling

This is in no way to be construed as legal advice or as an interpretation of the law...

Interesting question it must be said! I'm not entirely sure on where the law stands exactly in Ireland on the matter in the hypothetical situation which you've put forward but I think that there may be potential for such action.

A "lien", which I know exists in relation to documents held by certain professionals in this jurisdiction, is similiar to the idea which you've put forward. The concept was first developed in the US where interestingly it applied in the case of mechanics such that it became known as "Mechanic's Lien".


The idea behind it is that where work has been done which without any payment the recipient will receive the benefit of the work without any gain accruing to the person who provided the work and this gain will be automatic upon the receipt.

Therefore the provider of the service would be entitled to hold the property until such time as they received payment and in the meantime the non-payment would amount to a defect in the "Title" or ownership of the property. The difficulty would be making this defect known so that you had the ability to exercise it and in the US this is known as "perfecting the lien".

Again this is just a response to a hypothetical problem but I'm not aware of how "liens" might apply here in the circumstances which you proposed as I am only aware of their operation here in the context of documents.

padser

As Stirling rightly points out the question you are trying to ask is, does a general lien occur in Ireland when someone has possession of property, and is owed money in relation to work done on the property.

I am almost certain that no such lien arises under Irish law (except in specific circumstances that relate AFAIK only to Banks and Solicitors) - (although clamping could be said to be derivation of the general principle).

I have a few of reasons for believing that a lien wouldnt arise. One of the main ones is that there is no need, an individual that is owed a debt is entitled to go into court to recover the debt, at least in theory, there is no need for such a lien.

Secondly the chances of such a lien being completely disproportionate. For example a mechanic withholding the keys to a €30,000 car while awaiting payment of a €100 bill.

Thirdly, the difficulties in allowing the general public to excersise such liens [At the moment Banks and Solicitors would be expected to excerise professionalism with respect to their liens]. For example (to refer back to the mechanic again) I left my car in to be serviced and have a repair job worth €300 done, my mechanic found another problem and informs me that he has performed work costing €2000 on the car. It would be completely unreasonable to allow a lien to occur in such a situation. A lien would end up being uses as a 'security' for disputed debts and this is clearly not allowed in our legal system (look at the difficulties and tests for getting a Mareva injunction).

With all this in mind I dont think any Liens would occur in Ireland, although I dont have any specific cases, or legislation on the issue.

hullaballoo

S. 41 of the Sale of Goods Act 1893 provides rights in lien for the supply of goods.

There are common law remedies for sellers though too. The provision of repair entitles the seller with a particular lien over the buyer's property. That means that the seller can retain possession of the buyer's property until he is paid. He has no right to re-sell the property (it's just a possessory interest in the goods), because he has defective title.

The lien means that a mechanic who has repaired a particular car and is unpaid, can retain the car until he is paid. However, it is not a general lien, so he cannot retain other property belonging to the buyer (i.e. a car he previously repaired and was paid for).

There's an exception where the parties have previously agreed that no lien will operate.

Edit: the DeLorean v Northern Ireland Carriers case is useful to look at here.

Stirling

Probably being a bit pedantic now but just wondering about something! :rolleyes:

The Sale of Goods 1893 and the Sale of Goods and Supply of Services Act 1980 are integrated quite awkwardly so that not all of the provisions are linked i.e. can't use certain of the provisions where there is service provision and can't use certain of the provisions where there is supply of goods.

As far as I rememeber sales law there is a difficulty in working out exactly when something is a sale or a supply of services in situations where it would normally seem obvious so I'm just wondering whether what the OP is suggesting (hypothetically of course! ) would be capable of coming within the terms of s41 of the 1893 Act seeing as it may either be classed as a "Supply of Service" or a "Supply of Services with Sale of Goods" dependant on whether any parts were used or if they were used if they were supplied bt the person making the repair or the recipient.

As far as what Padser said the Solicitor's Lien is what I was thinking of and thats actually included in the Solicitors Act 1954 if I rememeber correctly so much more clear cut scenario than the hypothetical put forward by the OP.

padser

In future I will refrain from attempting to answer questions where I have not studied the subject

I am amazed at that legislation.

Can I ask what happens in the situation where there is a dispute over the bill? I am assuming that in practice this is the situation where the lien would arise most commonly.

So to go back to our mechanic example. I leave in my car, and am told that it will cost €50. I come back and find out it cost €100. There is a dispute over the bill (at least in respect of €50 of it). What happens in this situation, obviously the matter could be settled in court, but pending such action does the lien arise?

hullaballoo

The €50 quote you get is a quote in most cases, so you usually have to be prepared to pay more if there's something further wrong with your car.

If the mechanic says, "I'll cover whatever's wrong with the car for €50", then that's a different story, but that's incredibly unlikely.

As it is, if the initial quote is €50 and the bill transpires to be €100, you can try to rescind the contract, but you have to pay the mechanic quantum meruit for the labour costs - and you can only rescind if the work he's done is reversable.

Otherwise, the lien applies and you have to either go to court to dispute the bill (you'll probably lose), or just pay what the mechanic is due for his work. Obviously the matter changes if there's no justification for the extra charge.

padser

hullaballoo wrote:

The €50 quote you get is a quote in most cases, so you usually have to be prepared to pay more if there's something further wrong with your car.

If the mechanic says, "I'll cover whatever's wrong with the car for €50", then that's a different story, but that's incredibly unlikely.

As it is, if the initial quote is €50 and the bill transpires to be €100, you can try to rescind the contract, but you have to pay the mechanic quantum meruit for the labour costs - and you can only rescind if the work he's done is reversable.

Otherwise, the lien applies and you have to either go to court to dispute the bill (you'll probably lose), or just pay what the mechanic is due for his work. Obviously the matter changes if there's no justification for the extra charge.

I didnt phrase my question perfectly, what I meant was, if there is a bone fide dispute over the bill, will the lien apply in the interm, before the matter has been resolved in court?

Victor

There would also be the matter of theft if the car owner refused to pay.

BostonB

Does there not have to be an agreement either to pay regardless of the cost, or not to proceed if the cost exceeds the quote. If the owner specifically asked to be consulted before working being done, and if no permission was given and then work carried out sans permission. I'd have thought they'd be within their rights not to pay.