Ở Hoa Kỳ, khi không muốn các chi phí về Design và xây dựng không bị lường gạt hay quịt nợ lẫn nhau, thì LIEN (quyền giữ lại, thế chấp): là một công cụ giúp cho người bị hại, là một công cụ luật pháp giúp ổn định xã hội trong giao dịch kinh tế, thiết kế, xây dựng các công trình.
A lien is the right to retain the lawful possession of another person's property until the owner fulfills a legal duty to the person holding the property.4 min read
A lien is the right to retain the lawful possession of another person's piece of property until the owner fulfills a legal duty to the person holding the property, such as the payment of lawful charges for work done on the property. A mortgage is a common lien.
In its most general meaning, this term includes every case in which real or personal property is charged with the payment of any debt or duty. In a more limited sense it is defined to be a right of detaining the property of another until some claim is satisfied. The right of lien generally arises by operation of law, but in some cases it is created by express contract.
There are two types of liens: particular and general. When a person claims a right to retain property, in respect of money or labor expended on such particular property, this is a particular lien. Liens may arise in three ways:
General liens arise in three ways:
To create a valid lien, it is essential:
Generally, liens properly attach on liquidated demands and not on those resulting from damages. However, through an express contract they may attach in cases where the goods are to be held as an indemnity against a future contingent claim or damages. The claim for which the lien is asserted, must be due to the party claiming it in their own right and not merely as an agent of a third person. It must be a debt or demand due from the very person for whose benefit the party is acting and not from a third person, although the goods may be claimed through them.
A lien may be waived or lost by any act or agreement between the parties by which it is surrendered or becomes inapplicable. It may also be lost by voluntarily parting with the possession of the goods. However, to this rule there are some exceptions, e.g., when a factor by lawful authority sells the goods of his principal and parts with the possession under the sale they are not, by this act, deemed to lose their lien, but it attaches to the proceeds of the sale in the hands of the vendee.
In general, the right of the holder of the lien is confined to the mere right of retainer. However, when the creditor has made advances on the goods of a factor, he is generally invested with the right to sell. In some cases where the lien would not confer power to sell, a court of equity would decree it. And courts of admiralty will decree a sale to satisfy maritime liens.
Judgments rendered in courts of record are generally liens on the real estate of the defendants or parties against whom such judgments are given. Liens are also divided into legal and equitable. The former are those which may be enforced in a court of law and the latter are valid only in a court of equity. The lien which the vendor of real estate has on the estate sold for the purchase money remaining unpaid, is a familiar example of an equitable lien.
By virtue of express statutes in most states, mechanics and material men or persons who furnish materials for the erection of houses or other buildings, are entitled to a lien or preference in the payment of debts out of the houses and buildings so erected and to the land, to a greater or lessor extent, on which they are erected.
The lien generally attaches from the commencement of the work or the furnishing of materials and continues for a limited period of time. In some states, a claim must be filed in the office of the clerk of the court or a suit brought within a limited time. On the sale of the building these liens are to be paid pro rata. In some states no lien is created unless the work done or the goods furnished amount to a certain specified sum, while in others there is no limit to the amount. In general, none but the original contractors can claim under the law; however, sometimes sub-contractors have the same right.
Theo FB Hung Ngoc Tran
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