distraint

　

WordNet

1. levy a distress on
2. confiscate by distress
3. legally take something in place of a debt payment

PrepTutorEJDIC

1. 動産の差し押さえ

Wikipedia preview

出典(authority):フリー百科事典『ウィキペディア（Wikipedia）』「2015/12/10 08:57:31」(JST)

wiki en

[Wiki en表示]

Pfändung by Peter Schwingen

Distraint or distress is "the seizure of someone’s property in order to obtain payment of rent or other money owed", especially in common law countries. Distraint is the act or process "whereby a person (the distrainor), traditionally even without prior court approval, seizes the personal property of another located upon the distrainor's land in satisfaction of a claim, as a pledge for performance of a duty, or in reparation of an injury." Distraint typically involves the seizure of goods (chattels) belonging to the tenant by the landlord to sell the goods for the payment of the rent. In the past, distress was often carried out without court approval. Today, some kind of court action is usually required, the main exception being certain tax authorities, such as HM Revenue and Customs in the United Kingdom and, in the United States, the Internal Revenue Service—agencies that retain the legal power to levy assets (by either seizure or distraint) without a court order.

History

Article 61 of the Magna Carta extended the law of distraint to the monarch's properties. In England in 1267 the Statute of Marlborough was passed making distraint unlawful without a court order.

Chapter 1 (Distress, or Unlawful Distress) of the Statute of Marlborough 1267 provided that: all persons "as well of high as of low estate" were to receive justice in the King's court. No individual was to be entitled to seek "revenge or distress of his own authority" against his neighbour for any damage or injury suffered without first obtaining an award from the court.

Distress in this context was (and still is) a summary remedy designed to secure performance of an obligation or settlement of an outstanding debt. First, it was the bedrock of the notion that all citizens, irrespective of rank, were entitled to seek civil justice through the King's court or courts. Secondly, it laid down a prohibition on individuals taking the law into their own hands and seeking remedies (revenge or distress) without the court's sanction. That prohibition was reinforced with criminal penalties.

Procedure

The goods are held for a given amount of time, and if the rent is not paid, they may be sold. The actual seizure of the goods may be carried out by the landlord, the landlord's agent, or an officer of the government, a bailiff or sheriff officer in the United Kingdom or a sheriff or marshal in the United States.

Certain goods are protected against distraint – these are called "privileged goods". Such goods include, for example, goods belonging to the state, fixtures, goods delivered to the tenant or debtor for business purposes, the goods of a guest, perishable goods (e.g. food), livestock, gas, water, electricity, and tools of the tenant's trade.

Forced entry is usually not permitted by the distraint officer, but in the UK, in the event of entry being refused to the HMRC distraint officer, HM Revenue and Customs can apply for a break open warrant under Section 61(2) of the Taxes Management Act, 1970. This permits forced entry to the debtor's premises by the HMRC distraint officer. Any additional costs incurred from obtaining the warrant are passed onto the debtor and added to the debt to be collected by distraint.

Also in the UK, forced entry is also permitted if the distress warrant is for amounts of a criminal nature; court fines for instance. The use of forced entry for these purposes is covered in the Domestic Violence, Crime and Victims Act 2004.

Reform in the United Kingdom

In the United Kingdom, there have been proposals to reform the remedy of distraint. Concerns have been expressed that the use of the distraint remedy may result in violations of human rights, such as Article 8 of the European Convention on Human Rights, the right to respect for private life. The Lord Chancellor's Department (now the Ministry of Justice) in May 2001 issued the consultation paper Enforcement Review Consultation Paper No. 5: Distress for Rent, which proposes abolishing distraint for residential leases, but retaining it for commercial property subject to certain safeguards to ensure compliance with the Human Rights Act 1998.

It was thought that Distraint would be abolished in the UK when the Tribunals, Courts and Enforcement Act 2007, s.71 came into force, replacing the remedy, solely for leases on commercial property, by a statutory system of Commercial Rent Arrears Recovery (CRAR). (The Tribunals, Courts and Enforcement Act 2007 received Royal Assent July 2007 but no date for implementation was published. The Tribunals, Courts and Enforcement Act 2007 (Commencement No 8) Order 2012 has been introduced. The order brings into force sections 93 and 94 of the Act (on 1 October 2012 and 17 May 2012 respectively), both of which amend the Charging Orders Act 1979.)

Distraint in the United States

Distraint was adopted into the United States common law from England, and it has recently been challenged as a possible violation of due process rights under the Fourteenth Amendment. In decisions like Luria Bros. and Co. v. Allen, 672 F.2d 347 (3d Cir. 1982), however, the courts have upheld the rule because, as a landlord's self-help remedy, distraint involves no state action and thus cannot violate due process rights. In the case of distraint by the federal government for collection of taxes, the power of administrative levy by distraint (distress) dates back to the year 1791, according to the U.S. Supreme Court.

Distraint in Sweden

In Sweden, distraint (Swedish:Utmätning) is performed by the Swedish Enforcement Authority. Bank assets and similar are taken first, but if needed the Enforcement Authority can visit people's homes, assisted by the police. Goods needed for an acceptable standard of living are protected, like clothes, TV-sets and stoves. Protected items that are expensive can be replaced with cheaper, and excess items can be taken. Goods found in the home, but belonging to others, e.g. to the girlfriend, can also be taken unless it is proven who it belongs to. Homes can be forcibly sold (Swedish:exekutiv auktion), and everyone living there might be evicted.

See also

• Attachment (law)
• Collection agency
• Conversion (law)
• Quia Emptores
• Self-help (law)
• Sequestration (law)
• Tax levies
• Theft
• Warrant sale

Notes

English Journal

• [Hypothesis on the reasons and consequences of the inspection of pharmacies and drugstores of Nancy by the Royal College of Medicine of this town on May 1st and 2nd 1787].

• Labrude P.
• Revue d'histoire de la pharmacie.Rev Hist Pharm (Paris).2008 Nov;56(359):275-86.
• On May 1st and 2nd 1787, the commission constituted by the Royal College of Medicine of Nancy proceeded to the inspection of the different pharmacies and drugstores of the town. This was one of its missions in agreement with the L article of its statutes. It appeared that the pharmacies were conveni
• PMID 19230505

Japanese Journal

• ヘンリ三世治世における騎士強制と武装宣誓者

• 史學雜誌 103(4), 559-581, 642-643, 1994-04-20
• NAID 110002367122

Related Links

• Distraint | Define Distraint at Dictionary.com

Father once apologised to me—that was when there was a distraint out against him, if you know what that is—because he wasn't rich. The Story of Louie Oliver Onions Within the twelvemonth, a distraint was levied upon him for . ...

• Distraint - definition of distraint by The Free Dictionary

dis·traint (dĭ-strānt′) n. Law The act or process of distraining; distress. [From distrain (on the model of such pairs as constrain, constraint).] distraint (dɪˈstreɪnt) n 1. (Law) law the act or process of distraining; distress dis•traint

Related Pictures