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The Concepts of Lien and Set-Off - Term Paper Example

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The author of the paper states that the concepts of lien and setoff are very old. So, the author explains the concepts of lien and set-off and then proceeds to compare the two concepts and finally stated the restrictions on the applicability of setoff. …
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Download file to see previous pages Liens are now described as legal, non-possessory, equitable, general, particular, statutory, contractual, judicial and sub rogatory lien.3 
English law has made distinctions between a general lien and particular lien and made them applicable as two different categories. A general lien is, in the ordinary course of nature, discouraged as it hinders an equitable disbursement of assets in the case of dissolution or liquidation4. A particular lien is more acceptable and practiced. The broad general categories of the lien are as follows:
Under American law, a lien is defined in a very broad sense, as a claim for a charge on the property as security for the payment of a debt or the fulfillment of some obligation.5 The original, common law understanding of the term lien, which used to signify the right which certain mechanics and artisans had to retain the chattel on which they had performed some labor, or had bestowed some care, at the request of the owner directly or impliedly, until they had been paid for the labor performed. However, this position appears to have changed in the light of more recent cases. Lien was held to be the right to retain the possession of the personal property until some debt due on, or secured by, such property is paid or satisfied.6
It has been held, that under American law the concept of lien is an all-encompassing one, unlike the restricted one under Indian law. Lien, under American law, is taken to be a very wide concept under which mortgage, pledge, and hypothecation falls as special cases.
In every developed legal system, cross-claims existing reciprocally between two parties may be set-off against each other through unilateral declaration, judicial order or ex-lege effect.7 The origins of the law of set-off can be traced back to ancient Roman law.  ...Download file to see next pagesRead More
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