The Landlord’s Hypothec in Comparative Perspective

• Jurisdiction: South Africa
• Citation: (2008) 19 Stell LR 278
• Published date: 27 May 2019
• Date: 27 May 2019
• Author: Andrew J M Steven
• Pages: 278-297

278

THE LANDLORD’S HYPOTHEC IN

COMPARATIVE PERSPECTIVE

Andrew J M Steven

LLB PhD Dip LP (Edin) NP

Lecturer in Law, University of Edinburgh*

1 Introduction

“But the hypothec of the landlord in Scotland appears to be of a nature exceedingly strong and very

peculiar, arising from the former state of that country, and from the fact of the landlords having made

the laws, and not the tenants, and still less the traders, who, probably, had no existence at the origin

of the law.”1

So said Lord Brougham and Vaux, in one of his rst cases as Lord Chancellor,

decided in 1830. Although he had spent most of his earlier professional life as

a barr ister in England, he was admitted in 1800 to the Faculty of Advocates

in Edinburgh. Therefore, unlike many of his fellow judges in the House of

Lords i n the ninetee nth ce ntury, he had some knowledge of Scots law from

which to speak.2 The particular focus of the insta nt case was the real effect

of the hypothec and its persistenc e notwithstanding the removal of the goods

in quest ion from the leased premises. In that res pect, the Scott ish hypothec

is more powerful tha n its English equivalent of dist ress for rent3 and might

therefore be regarded as “exceedingly strong”. But the remedy is hardly “very

peculiar”. Many legal systems r ecognise a similar right and therefore give

the landlord a priority over the tenant’s4 other cre ditors in respect of unpaid

rent.

This article examines the historical basis of the hypothec and its English

common law equ ivalent. It then considers its survival or otherwi se in the

modern law in a number of systems. Ow ing to constraints of space, it is

not possible to examine many of the specic aspects of the remedy such as

the amou nt of rent secu red. The th ird part of the article, however, critica lly

evaluates what is perhaps the remed y’s most curious feature: its ability to

affect goods which do not belong to the tenant. Finally, the wider question

of whether the landlord should be entitled to a special right in relation to rent

recovery is considered.

* I am gratefu l to Daniel C arr, John Lovet t, Maire Ni Shuilleabhain, Mathias Siems and Alison S truthers

for their assis tance and to the ano nymous referees for t heir comments.

1 McTavish v Scott (1830) 4 W & S 410 414-415 per Lord Brougham a nd Vaux LC.

2 See genera lly the polemical Dewar G ibb Law from over the Border (1950) chs 3 and 4. Of this Lor d

Chancellor he writes (64): “The tal kative Brough am, who cou ld on occasion say severe things of Sc ots

lawyers, was o n the whole inclined to st and up for them.”

3 In England, the landlord is li mited to a 30 d ay period to pu rsue goods wher e the tenant h as fraudulent ly

or clandesti nely removed the goods to avoid t he distress. See D istress for Rent Act 1737 s 1.

4 The Scottish and Englis h terminology of “land lord” and “tenant ” will be used predomi nantly here. Other

systems, for exa mple, South Afric a and Louisiana, no rmally use the te rms “lessor” and “ lessee”.

(2008) 19 Stell LR 278

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2 Historical background

2 1 Civil law

The land lord’s hypothec (hypothec a) developed as a non-possessory form

of pledge ( pignus).5 In the case of agricultu ral land, a te nant would agree to

pledge c rops as security for the payment of rent; where houses were let, a

similar arrangement could be made as regards the good s brought onto the

premises by the tenant (invecta et illata). The strict effect of these agreements

was that if the rent was not paid, the land lord would be entitled to take pos-

session of the prope rty. Towards the end of the Republic, t he Praetor Salvius

created a means by which the landlord cou ld enforce such entitlement, by

granting him t he inte rdictum Salvianum. Subsequently, the landlord was

granted a n actio in rem, the actio Ser viana. In ad dition to the accepta nce of

the conventional hypothec in later Roman law, the operation of a signicant

number of tacit hypothecs, including that of the landlord, was also recognised.

According to Pomponius:

“In praediis rusticis fructus qui ibi nascuntur tacite intelleguntur pignori esse dominio fundi locati,

etiamsi nominatim id non convenerit. Videndum est, ne non omnia illata vel inducta, sed ea sola, quae,

ut ibi sint, illata fuerint, pignori sint: quod magis est.”6

This ar ea of Roman law, however, remained i ncoherent. The rank ing sys-

tem which was to govern the ordering of claims based on the various tacit

hypothecs, not to mention conventional hypothecs, was not clearly dened. In

short, there were too ma ny tacit hypothecs.7

From the fall of the Roman Empire up to the Middle Ages , specic law

regulating the remedies available to landlords in Europe was insubstantial.8

This can be ascribed to the conclusion of notably few leases due to the fact that

land was being worked by slaves rather than by tenant s. But in later times t he

Roman law was naturally inuential in the ius commune and the codications

of Western European count ries. In Dutch law, the landlord’s hypothec was one

of a number of tacit hypothecs recognised by Grot ius in the early seventeenth

century and Voet at the turn of the eighteenth century.9 Sim ilarly, Pothier

writes of French law in 1763:

“Les coutumes, à l’imitation des lois romaines, ont accordé aux locateurs d’héritages une espèce de

droit de gage sur les fruits et sur les meubles”.10

5 See genera lly Pothie r Contrat de Louage (1763) (tran s Mulliga n 1953) §§ 227-229; Thom as Textbook

of Roman Law (1976) 332-334; Buckland A Textbook of Roman Law from Augustus to Justinian (1921)

472-474; Steven “Rights i n Security over Move ables” in Reid & Zimmer mann (eds) A History of Private

Law in Scotland 1 (2000) 333 345-346.

6 D 20 2 7. “As regards rural land t he crops are impliedly take n to be hypothecated to the own er of the land,

even if not agre ed in so many words. We must see whether every thing brought on to premises is hy poth-

ecated or only wh at is brought on so as to rema in there. The latt er is the better view.” (Trans Watson e t al

1985).

7 Nicholas An Introduction to Roman Law (1962) 152-153.

8 Hunter Landlord and Tena nt 2 4 ed rev G uthrie (1876) 356.

9 De Groot Inl 2 48 17; Voet 20 2.

10 Pothier Contrat de Louage § 228. “ Our Customs , in imitation of the Roman law, have g ranted to less ors

of propertie s a species of right of pledge u pon fruits and mov ables.”

THE LANDLORD’S HYPOTHEC 279

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