Legal Definitions - jus retinendi et insistendi

The Latin term jus retinendi et insistendi, primarily used in Scots law, refers to a powerful dual right. It describes a situation where a party has both:

• The right to retain something, meaning to hold onto an asset or a claim against an asset, often as security.
• And the right to insist on a particular action, typically the payment of a debt or the performance of an obligation, related to that retained item or claim.

Essentially, it allows a party to maintain a hold over something valuable while actively pursuing a demand for what is owed to them.

Examples:

• Construction Contractor and Unpaid Work:

  Imagine a building contractor who has completed a significant renovation project on a client's property, but the client, despite being satisfied with the work, fails to make the final payment as agreed. Under the principle of jus retinendi et insistendi, the contractor might have the right to place a builder's lien on the client's property. This lien acts as a form of retention, securing the contractor's claim against the property itself. Concurrently, the contractor has the right to insist on the outstanding payment, potentially by initiating legal proceedings to recover the debt. This demonstrates the dual nature: holding a claim against an asset and actively pursuing the payment owed.

• Auto Mechanic and Unpaid Repairs:

  Consider a scenario where a car owner brings their vehicle to a mechanic for extensive repairs. The mechanic completes the work, but the owner is unable to pay the repair bill upon collection. The mechanic, exercising jus retinendi et insistendi, could retain physical possession of the vehicle until the repair bill is settled. This act of holding the car is the retention aspect, providing security for the outstanding payment. At the same time, the mechanic has the right to insist on the payment from the owner, which could involve sending demand letters or, if necessary, pursuing the debt through the courts. The mechanic holds the asset while demanding the owed funds.

• Storage Facility and Overdue Rent:

  Suppose a person rents a storage unit for their belongings but falls several months behind on their rental payments. The storage facility, under the principle of jus retinendi et insistendi, would have the right to retain the tenant's stored goods, preventing their removal until the overdue rent is paid. This retention acts as security. Simultaneously, the facility has the right to insist on the payment of the outstanding rent, potentially through late fees, formal demand notices, and ultimately, if permitted by contract and law, by selling the goods to recover the debt. This illustrates the facility's power to hold the property and demand payment.