Mortgage is a real guarantee serving for guaranteeing a debtor’s obligations towards his creditor through an immovable asset from his own patrimony, especially assigned to this purpose by law (mortgage doesn’t imply the debtor’s dispossession of the immovable).
Synthetically, mortgage is a real guarantee, consisting of a real accessory right over the debtor’s immovable asset.
Conditions:
- Mortgage will not be instituted, unless through authentic act
- Mortgaging labels are made at the court of justice or which territorial radius the mortgaged immovable is situated at.
- There can be mortgaged only immovable assets (those lying in the civil circuit), together with their accessories which are immovable by destination.
- Mortgage must be specialized under double aspect: it must be determined regarding the affected immovable, regarding what the payment value is.
Conditions relating to the constituent’s person
The person who constitutes the mortgage must have absolute exercise capacity.
The person who constitutes it must have the quality of actual owner of the mortgaged immovable. Future assets cannot form the object of a mortgage. If the constituent’s property right is under suspense or resolutely condition, the same condition will affect the mortgage also. At the same time, one cannot mortgage another person’s assets, regardless of whether they belong to natural persons or legal persons, unless they offer their express consent.
- Form conditions:
- Mortgage contract is a solemn contract, hence the necessity of an authentic act.
- Publicity conditions:
- These don’t keep to the solemn character of the contract, but to ensure opposability towards third parties and preference grade of the mortgage. Publicity means registering the mortgage in the land book.
Effects:
- A payment right of the creditor is constituted, only over the debtor’s immovable assets.
- The debtor keeps detention over the mortgaged asset, he has the right gather the fruits like any owner and he has the right to estrange the immovable.
- The creditor has surveillance right over the immobile, no matter in whose hands it is. He has a preference right above all other creditors (taking into account the mortgage grades).
- The third parties can purchase the immovable, with the condition of taking it together with the entailed charge.
Advantages:
- The creditor has the right to sue the immovable, wherever it is.
- In case of coerced execution, bankruptcy, the creditors are preferred to the others.
- At falling due, if the debtor doesn’t honor his payment, the creditor can request coerced execution.
- All expenses respecting registering and ensuring the immovable are imputed to the debtor.
Disadvantages:
- Being an accessory of the main guaranteed obligation, mortgage has the same fate as the main one. So, if the main obligation is affected by terms or conditions, so will the mortgage.
- Not respecting publicity formalities is sanctioned with nullity.
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