Thanks for answering my previous question.
Another question that we have in our Shulchan Aruch shiur is the case of a Lien:
We are learning Choshen Mishpat and we are learning Siman 113 that talks about liens.
We were wondering what Halacha would say if someone lends money and has a lien on a car. If the borrower sells the car, can the lender go to the buyer of the car and present his lien? Do we say that there are no liens on Metaltalin? Is a car Metaltilin? What about Dina Demalchusa, that says you can have a lien on a car? Is this against Halacha? In Israel the law is that a person has to have his car registered so one can find out if there is a lien on ones car.
Thanks in Advance.
Answer:
The principle halachah is that an explicit lien on movable items, which is made with the appropriate kinyan, is valid, and the lender would be able to collect his debt from the item even after its sale to a third party. However, Shulchan Aruch rules that in our days, debts are not collected from moveable items that were sold, because of takanas hashuk (market overt).
A car would be considered a moveable item — metaltlin.
it is possible that because of the mandatory registration of cars, which serves to protect buyers from losing out on account of hidden liens, the takanas hashuk would not apply to cars, and the principle halachah, whereby the lien is valid, would return. This is an interesting question, which requires further analysis.
Sources: Takanas hashuk does not apply to documents, because their sale is not common, and Chazal did not see the need to protect the buyer. The same would apply to cars, whose lien must be registered. However, there is room to argue that only those items excluded at the time of the enactment are excluded, whereas all other items are included. Yet, because the enactment whereby liens on moveable items are not valid is a later enactment, it is certainly possible that where there is no need for it, the lien would be valid.
