There were 3 main types of collateral in the RFA: feduciary collateral (feducia), manual mortgage (pugnus) and mortgage (hypotheca). These are the main types, but not all.
Feducius – Institute of Archaic Law of Ancient Rome. Within the framework of federation, the pledgor transferred the thing not only into possession, but also into the ownership of the creditor. At the same time, he secured a promise (on his word of honor) of the creditor that he would return the pledged item to him if the debtor properly fulfilled the main obligation, the main contract. That is, if the amount was returned on time, the item was returned.
This type of pledge was extremely burdensome for the debtor, since if the creditor violated his word of honor, the debtor did not have a claim to recover the thing. That is, the item remains with the lender. The only way to defend yourself in archaic law is to try to declare a dishonorable person. But he could not claim the thing itself.
In praetor's law the situation changes. The praetors considered this situation unfair, but the praetors could not help take away the thing, since the creditor became the owner of the thing. Therefore, the praetor adds a tort claim to the accio infanio - that is, it was possible to claim the value of the thing from the creditor. But he still cannot claim the thing itself.
In Justinian's legislation, this type of pledge was finally prohibited as being excessively burdensome for the debtor. This type of pledge is unknown to modern law. At least, it is not directly provided for in the legislation.
Why is feducium not a limited property right? The reason is that the thing was transferred to the creditor not under a limited property right, but into ownership. The creditor was the owner, and not the subject of the OVP. He already had the right of ownership.
Manual mortgage (pignus) – this is a pledge of movable property with the transfer of the thing into the possession of the pledgee (creditor).
In this case, the thing was transferred only into possession, but not into the ownership of the creditor. This is already a “classical” form of collateral used today. The pledgor remained the owner of the thing.
Therefore, if the pledgor properly fulfilled the main contract, but the creditor did not return the thing, the pledgor could claim his thing with the help of a special claim.
Initially, the pignus was exclusively an institution of the law of obligations. Initially, the creditor had only an obligatory, or personal right to the thing. Therefore, if the collateral was stolen, the creditor did not have the means to claim this thing from a third party - because he was not the owner. The third party did not have a claim to claim the property. It was necessary to ask the pledgor to apply a vendication action, reclaim the thing, and then transfer it back from the creditor. It was possible to protect oneself only from the mortgagor himself; the protection of the creditor was not absolute, but relative.
Therefore, when the institution of mortgage appeared in the RPE (and it arose immediately as the OVP - this was associated with the means of protecting the mortgage), the means of protecting the mortgage by a special law were extended to a manual mortgage. A pledge was adopted whereby a creditor in pignus could be protected by the same means as a mortgagee.
From that moment on, the pignus turned into an institution of limited property rights.
There were two means of protection:
Lawsuit of Praetor Servius (actioserviana) . He protected the mortgagee from third parties. If, within the framework of the pignus, a thing was given, it was stolen; it could be reclaimed from any third party. This is a claim whose subject matter is almost identical to that of a vendetta. This claim was invented for the mortgage lender, but was later provided to the lender as part of the pignus. Requires restoration of the item from a third party.
Interdict of Praetor Salviussalvianum) . He protected the creditor from the owner - if the thing was stolen, and it returned to the owner, it was impossible to reclaim it from him, since in the case of “in jus” he had more rights, and he could defend himself with a negative claim. Therefore, it was advisable to conduct a dispute using the in factum system - it was necessary to prove only the fact of lost possession.
From the moment the lender in pignus was given these protections, the manual mortgage was transformed into an OVP.
Mortgage– This is the most complex type of collateral. Appeared only in classical Roman law, during the classical period. The term is of Greek origin.
Mortgage- This is a pledge of movable and immovable things without transferring the thing into the possession of the creditor. Unlike pignus, things remain not only in the property, but also in the possession of the debtor. The debtor remains not only the owner, but also the possessor of the thing.
Due to this feature, mortgage is characterized by two features that distinguish it from pignus and feducia:
Each new pledgee must be warned by the pledgee that the thing is already pledged to other persons (warn about the encumbrance of the thing).
Previous mortgage agreements (agreements) do not contain a direct prohibition on remortgage.
The subject of the pledge is not removed from property circulation. If a personal pledge or a thing is pledged while the pledge is in effect, the pledgor cannot use this thing, and the pledge holder is legally prohibited from using it. If, under mortgage, the thing continues to be used, it remains in economic circulation. And within the framework of the pignus, he does not drop out. That is, it is easier to pay off the creditor - you pledged the land to the creditor, and you continue to cultivate it.
For the first time, re-pledge becomes possible - that is, the simultaneous pledge of the same thing to several creditors. This was not the case within the framework of pignus and feducia. For remortgage two conditions were necessary:
In connection with remortgage, a conflict of claims by creditors becomes possible - when the amount of proceeds from the sale is not enough to cover the amount for all creditors. In this case, the senior mortgage lender – the one who accepted the mortgage first – has priority. Then the calculation occurs with the next one, and so on.
The first mortgagee has priority in the event of a conflict of claims, but also has the so-called mortgage seniority. This means that only he has the right to organize auctions for the sale of things.
That is, if he does not urgently need money, he may not organize auctions, and lower-ranking creditors will have to wait. Subordinate creditors will receive nothing until the senior creditor organizes a tender.
It turns out that the interests of lower-ranking creditors are at risk. Such a problem arose, therefore, in connection with mortgage seniority, another institution arose - mortgage succession. This was invented to protect the rights of lower-ranking creditors.
If a lower creditor needed money, he could unilaterally pay the debt to the higher creditor for the debtor. He couldn't refuse. And then mortgage seniority passed to him - this was called mortgage succession. The new higher-ranking creditor organized an auction, where he compensated for two amounts - what he paid for the debtor and what he was owed.
The mortgage lender was defended by the claim of Servius and the interdict of Salvius. Moreover, these protections were original to the mortgage. The claim was used when, for example, a plot was sold, then the plot was reclaimed from a third party. If the owner did not give it up, demand it by interdict.
In addition, in Rome there were two more special types of pledge. This pledge of goods in a shop And pledge of rights(look at thick Novitsky).
Pledge of goods in a store. As a general rule, only individually defined things are the subject of pledge. This is the only type of pledge when the subject of the pledge is things determined by generic characteristics. Hence the other features. This pledge is not a legal obligation, it is exclusively an institution of the law of obligations.
Pledge of rights. The special subject here is not things, but property rights. But not any, but only obligatory (personal), with some exceptions. Obligatory rights of a personal nature could not be the subject of pledge. These are, for example, alimony rights or the right to compensation for harm caused to life and health (but not to property). If a person has the right to receive alimony, this right could not be pledged. But if a chariot of such value was destroyed, it could be pawned.
Why is this not ORP? The object of OVP is only things, here the object is law. All this has been preserved in modern law. Only a “pledge of goods in a shop” is called a “pledge of goods in circulation,” and a pledge of rights is called that.
Pledge is one of the types of reservation of the debtor’s property, through which the fulfillment of the main obligation can be achieved. According to Art. 334 of the Civil Code, the creditor (mortgagee) acquires the right, in the event of failure of the debtor (mortgagor) to fulfill the obligation, to receive satisfaction through the sale of the pledged property, preferentially before other creditors in the order of priority prescribed by law. The grounds for the emergence of a pledge are provided for in clause 3 of Art. 334: · by virtue of a contract; · by force of law. Subjects of the pledge agreement. According to Art. 335 of the Civil Code, the pledgor is the person who provides the corresponding right as pledge - the debtor under the main obligation or a third party. Pledgors can only be the holders of the corresponding pledged rights, as well as persons who have consent to pledge the corresponding right on the part of its owner. Pledgee - a person who has the right to compulsory satisfaction of claims through the sale of pledged property - a creditor under the main obligation. Object of the pledge agreement: · According to Art. 336 of the Civil Code, the right of ownership of the mortgaged property; · According to Art. 337 of the Civil Code a pledged right of claim from an obligation. General rules for possession of the subject of pledge are established by Art. 338 of the Civil Code: · the subject of pledge remains with the pledgor (unless otherwise provided by the agreement); · real estate and goods in circulation remain with the pledgor in any case; · the collateral transferred by the pledgor to a third party is considered to be left with the pledgor; · when pledging, the collateral is removed from the pledgor’s economic circulation by: transferring it to the pledgee, leaving it with the pledgor under lock and key and the seal of the pledgee, imposing on it signs indicating its pledge - “hard pledge”; · the security certifying the pledged right is transferred to the pledgee or to the deposit of a notary (unless otherwise provided by the agreement). According to Art. 336 of the Civil Code, the subject of the pledge can be any property and property rights, with the exception of: · property withdrawn from civil circulation; · rights inextricably linked with the personality of their owner. According to Art. 339 of the Civil Code, a pledge agreement can be: · part of a general agreement; · an independent contract, while the main obligation must contain a pledge clause. The pledge agreement is made only in writing. If the main agreement is subject to notarization, the pledge agreement is also subject to it, incl. mortgage. If the pledged property is subject to state registration, transactions with it are also registered, incl. h. deposit. According to Art. 340 of the Civil Code, the right of pledge over a thing extends to its accessories, but not to products, fruits and income from the use of the thing, unless otherwise provided by the contract. A pledge of a building or structure is allowed only with a simultaneous pledge of the right to a land plot that functionally secures it. The pledge of rights to a land plot may not extend to the buildings and structures located on it. In case of foreclosure on a mortgaged land plot: · if these buildings and structures belong to the mortgagor, he retains an easement (limited use right) to the land plot; · if these buildings and structures belong to other persons, the rights and obligations of the mortgagor in relation to these persons are transferred to the acquirer of the land plot. The right of pledge of an enterprise extends to all property included in it, including rights of claim, exclusive rights, including those acquired during the mortgage, unless otherwise provided by law or contract. A pledge agreement may provide for a pledge of rights that the mortgagor will acquire in the future, a loan for a house under construction, royalties, inheritance, etc. The valuation of the pledged property must be no less than the volume of claims secured by the pledge. According to Art. 342 of the Civil Code, if the value of the pledged property significantly exceeds the volume of claims, its subsequent re-pledge is allowed with the consent of the pledgor. The pledge can be: · with the transfer of property into the possession of the pledgee (mortgage); · leaving the property in the possession of the mortgagor. The obligations of the owner of the collateral are established by Art. 343 of the Civil Code: · insure, at the expense of the pledgor, the pledged property against the risks of loss and damage in an amount not less than the amount of the claim on the main obligation; · take measures to preserve the pledged property, including to protect it from attacks and claims from third parties; · if there is a threat of loss or damage to property, immediately notify the other party to the contract; · the pledgor has the right to demand termination of the pledge if, as a result of a gross violation of the obligations of the pledgee during the pledge, there is a threat of loss or damage to the pledged item. According to Art. 344 of the Civil Code, the risk of accidental loss or damage to the subject of pledge is borne by its owner-mortgagor, unless otherwise provided by the agreement. The pledgor has the right to unilaterally replace the disposed collateral with an equivalent one (restore the damaged one) within a reasonable time (unless otherwise provided by the contract). The pledgor in a mortgage is liable for the loss or damage to the subject of pledge in the amount of actual damage, and in cases provided for by the contract - and other losses in the presence of his fault, the entrepreneur - regardless of guilt, unless otherwise established by law or contract. The pledgor's claim for damages may be offset against the main obligation. In accordance with Art. 345 of the Civil Code, replacement of the subject of pledge is allowed with the consent of the pledgee, unless otherwise provided by law or agreement. If the pledged item is destroyed or damaged, or the right of ownership to it or the right of economic management is terminated on the grounds established by law, the pledgor has the right to restore the pledged item within a reasonable time or replace it with other equivalent property, unless otherwise provided by the agreement. Article 346 of the Civil Code establishes the right to use and dispose of the subject of pledge. The pledgor has the right, unless otherwise provided by the agreement and does not follow from the essence of the pledge, to use the subject of the pledge in accordance with its purpose, including extracting fruits and income from it. Unless otherwise provided by law or agreement and does not follow from the essence of the pledge, the pledgor has the right to alienate the subject of the pledge, transfer it for rent or free use to another person, or otherwise dispose of it only with the consent of the pledgee. An agreement limiting the mortgagor’s right to bequeath the pledged property is void. The pledgee has the right to use the collateral transferred to him only in cases provided for by the agreement, regularly submitting a report on use to the pledgor. Under the agreement, the pledgee may be obligated to extract fruits and income from the pledged property in order to repay the main obligation or in the interests of the pledgor. According to Art. 347 of the Civil Code, the pledgee who had or should have had the pledged property has the right to reclaim it from someone else’s illegal possession, including from the possession of the pledgor (Articles 301, 302, 305 of the Civil Code). In cases where, under the terms of the agreement, the pledgee is granted the right to use the pledged item transferred to him, he may demand from other persons, including the pledgor, to eliminate any violations of his right, even if these violations were not associated with deprivation of possession (Article 304 , 305 Civil Code). According to Art. 349 of the Civil Code, when real estate is pledged, the pledgee’s claims are satisfied from its value by court decision. After the fact of failure to fulfill the main obligation, the parties have the right to enter into a notarized agreement on an out-of-court settlement of claims from the mortgaged real estate, which will have legal force for the authorities registering real estate transactions. Each party has the right to appeal such an agreement in court. When pledging movable property, the pledgee's claim is satisfied from its value by a court decision (unless otherwise provided by agreement of the parties). Exclusively in court, foreclosure is applied to the subject of the pledge when: · the pledge agreement was concluded with the consent or decision of another person (guardian) or body; · the pledgor is unknown; · the subject of the pledge is cultural property. Sale of pledged property in accordance with Art. 350 of the Civil Code, regardless of the judicial or extrajudicial procedure for foreclosure, is carried out by selling it at public auction in the manner established by the Civil Procedure Code, unless a different procedure is established by law. The initial selling price is determined by the court, and in out-of-court cases - by agreement of the parties. The property is sold to the person who offers the highest price for it. The difference between the proceeds and the creditor's claims is taken into account in the settlement between the parties. In this case, the creditor's requirements include: · principal debt + penalty; · interest on the use of funds; · expenses of the lender for maintaining the collateral; · expenses for organizing a public sale of the pledged item; · other losses of the creditor under the main obligation secured by the pledge. If a public auction is declared invalid, the parties have the right to enter into a transaction on the acquisition by the pledgee of the pledged item with his claims offset against the purchase price. If the repeated auction is declared invalid, the pledge holder has the right to retain the pledged item with an assessment of it in the amount of at least 90 percent of the initial sale price of the repeated auction. This right is valid for 1 month, after which the pledge is terminated. The debtor (mortgagor) has the right at any time before the sale of the pledged property to stop foreclosure and its sale by fulfilling the main obligation or its overdue part. According to Art. 351 of the Civil Code, the pledgee has the right to demand early fulfillment of the obligation secured by the pledge in the following cases: · if the subject of the pledge has left the possession of the pledgor with whom it was left, not in accordance with the terms of the pledge agreement; · violation by the pledgor of the rules on replacing the subject of pledge (Article 345); · loss of the pledged item due to circumstances for which the pledgee is not responsible, if the pledgor did not exercise the right provided for in paragraph 2 of Article 345 of the Civil Code. The pledgee has the right to demand early fulfillment of the obligation secured by the pledge, and if his demand is not satisfied, to foreclose on the pledged item in the following cases: · violation by the pledgor of the rules on subsequent pledge (Art. 342 Civil Code); · violation by the mortgagor of the rules on the disposal of pledged property. In accordance with Art. 352 of the Civil Code, the pledge obligation is terminated: · with the termination of the main obligation; · when transferring the debt under the main obligation to another person; · in case of threat of loss (damage) of the pledged item due to the fault of the pledgee; · in case of loss of the collateral or the impossibility of its sale when collecting the debt under the main obligation; · upon termination of the pledged right without replacing the collateral, including in the event of forced seizure of the collateral for various reasons. Upon termination of the pledge due to termination of the main obligation, as well as at the request of the pledgor to terminate the pledge (clause 3 of Article 343 of the Civil Code), the pledgee is obliged to immediately return the subject of the pledge to the pledgor. According to Art. 353 of the Civil Code, upon alienation of the subject of pledge, or universal legal succession, the legal successor of the pledgor takes his place and bears all his obligations, unless otherwise provided by the agreement. If there are several legal successors, each of them becomes a shared mortgagor, and if they have common ownership of the pledged item, a joint mortgagor. In accordance with Art. 355 of the Civil Code, the assignment of the rights of the pledgee to another person is permitted when the rights of claim under the main obligation are assigned to the same person in compliance with the general rules on the assignment of rights of claim. In the case of a mortgage, such assignment of rights is presumed. According to Art. 356 of the Civil Code, when a debt under the main obligation is transferred to another person, the pledge is terminated unless the pledgor agrees to answer with his collateral for the new debtor. Article 357 of the Civil Code regulates the procedure for pledging goods in circulation and processing. Such collateral is used in business practice to secure loans issued by banks to replenish working capital. Its features: · subject of pledge - generic items; · all or part of the goods currently in the ownership (economic management) of the pledgor are considered pledged; after the pledgor loses the right of ownership to them, they cease to be the subject of pledge; · the main condition of the pledge: the total value of goods of a given type should not decrease, except for its decrease in proportion to the fulfillment of the main obligation, unless otherwise provided by the contract; · replacement of the subject of pledge with goods of a different type, as well as a list of such goods must be provided for in the contract; otherwise, the creditor has the right to demand early fulfillment of the obligation; · if the pledgor violates the conditions for pledging goods in circulation, the pledge holder has the right to suspend operations with them until the violation is eliminated by applying his signs and seals to the pledged property; · the pledgor himself maintains a book of pledge of goods, in which he enters all information about the pledge and movement on it; in this case, the location of the goods is of significant importance. Article 358 of the Civil Code regulates the procedure for pledging things in a pawnshop. A pawnshop is a specialized organization licensed to accept short-term loans of movable property intended for personal consumption from citizens as security. Features of pledging things in a pawnshop: · the agreement is formalized by the pawnshop issuing a pawn ticket; · the pawned items remain in the possession of the pawnshop; · the pawnshop has no right to use and dispose of the pledged item; · insurance of the pledged item is carried out at the expense of the pawnshop in favor of the pledgor; · the responsibility of the pawnshop, as a professional custodian, for the safety of the pledged item is increased and is based on the principles of risk, not guilt; · extrajudicial procedure for foreclosure on the subject of pledge: the pawnshop has the right to sell the pledged property on the basis of a notary’s writ of execution after the expiration of the grace period (1 month) for repaying the loan; in this case, the pawnshop's claims are repaid in full regardless of the proceeds. A mortgage is a security against real estate. This type of pledge is regulated by the Federal Law “On Mortgage.” Mortgage of objects directly related to land is allowed only together with the mortgage of rights to the corresponding land plot. The mortgage agreement comes into force from the moment of its state registration at the location of the real estate. The essential terms of the agreement are the subject of the mortgage, its estimated value, as well as the essence, size and deadline for fulfillment of the main obligation. An item is identified by indicating its name, location and a description sufficient for identification. The right by virtue of which the pledged item belongs to the pledgor is indicated. The assessment of the item is carried out by agreement of the parties or with the involvement of professional appraisers; the land plot is valued not lower than its standard value. The subject of the mortgage is considered pledged as a whole: an apartment in a residential building is considered pledged together with the corresponding share in the common ownership of the residential building. An independent subject of a mortgage cannot be a part of an indivisible thing. A participant in shared ownership has the right to pledge his share without the consent of other co-owners. A participant in joint ownership has the right to pledge the common property if there is a notarized consent of all co-owners. Mortgage is not allowed: property withdrawn from circulation, such as subsoil plots, specially protected natural areas; property that cannot be foreclosed on; residential premises in state or municipal ownership; property not subject to privatization. Foreclosure of mortgaged property is carried out by court decision. When foreclosure is applied to residential premises, the persons living in them are not subject to eviction, except in cases of a mortgage against a loan through which the mortgagor purchased the housing.Article 334. Concept of pledge
1. By virtue of a pledge, a creditor under an obligation secured by a pledge (pledgee) has the right, in the event of non-fulfillment or improper performance by the debtor of this obligation, to receive satisfaction from the value of the pledged property (the subject of the pledge) preferentially before other creditors of the person who owns the pledged property (the pledgor).
In cases and in the manner provided by law, the pledgee's demand may be satisfied by transferring the pledged item to the pledgee (retaining it with the pledgee).
2. The pledgee, in preference to other creditors of the pledgor, has the right to obtain satisfaction of the claim secured by the pledge also at the expense of:
insurance compensation for loss or damage to the pledged property, regardless of whose benefit it is insured, unless the loss or damage did not occur for reasons for which the pledgee is responsible;
compensation due to the pledgor provided in exchange for the pledged property, in particular if the pledgor's ownership of the property that is the subject of the pledge is terminated on the grounds and in the manner established by law, due to seizure (redemption) for state or municipal needs, requisition or nationalization, as well as in other cases provided by law;
income due to the pledgor or pledgee from the use of the pledged property by third parties;
property due to the pledgor upon the fulfillment by a third party of an obligation, the right to demand the fulfillment of which is the subject of the pledge.
In the cases specified in paragraphs two to five of this paragraph, the pledgee has the right to demand the amount of money or other property due to him directly from the obligated person, unless otherwise provided by law or agreement.
3. Unless otherwise provided by law or contract, if the amount received as a result of foreclosure on the pledged property is insufficient to repay the claim, the pledgee has the right to satisfy his claim in the outstanding part at the expense of other property of the debtor, without taking advantage of the advantage based on the pledge.
If the amount received as a result of foreclosure on the pledged property exceeds the amount of the pledgee's claim secured by the pledge, the difference is returned to the pledgor. The agreement on the mortgagor’s renunciation of the right to receive the specified difference is void.
4. General provisions on pledge apply to certain types of pledge (Articles 357 - 358.17), unless otherwise provided by the rules of this Code on these types of pledge.
The rules of this Code on real rights are applied to the pledge of real estate (mortgage), and to the extent not regulated by these rules and the law on mortgage, the general provisions on pledge.
5. Unless otherwise follows from the essence of the pledge relationship, a creditor or other authorized person in whose interests a ban on the disposal of property was imposed (Article 174.1) has the rights and obligations of the pledgee in relation to this property from the moment the court decision by which the requirements come into force such creditor or other authorized person has been satisfied. The order of satisfaction of these requirements is determined in accordance with the provisions of Article 342.1 of this Code according to the date on which the corresponding prohibition is considered to have arisen.
2. Certain types of collateral
1) Pledge of goods in circulation;
2) Pledge of things in a pawnshop.
Depending on the subject:
Pledge of obligatory rights;
Pledge of rights under a bank account agreement;
Pledge of rights of participants of legal entities;
Pledge of securities;
Pledge of exclusive rights.
Article 335. Pledgor
1. The pledgor can be either the debtor himself or a third party.
In the case where the pledgor is a third party, the rules of Articles 364 - 367 of this Code apply to the relations between the pledgor, debtor and pledgee, unless otherwise provided by law or agreement between the relevant persons.
2. The right to pledge a thing belongs to the owner of the thing. A person who has another property right may pledge a thing in cases provided for by this Code.
If a thing was pledged to the pledgee by a person who was not its owner or was otherwise not duly authorized to dispose of the property, about which the pledgee did not know and should not have known (a bona fide pledgee), the owner of the pledged property has the rights and bears the obligations of the pledgor provided for by this Code, other laws and the pledge agreement.
The rules provided for in paragraph two of this paragraph do not apply if the thing pledged was previously lost by the owner or the person to whom the thing was transferred by the owner into possession, or was stolen from one or the other, or left their possession in some other way other than their will.
3. If the subject of the pledge is property, the alienation of which requires the consent or permission of another person or an authorized body, the same consent or the same permission is necessary to transfer this property as pledge, except for cases where the pledge arises by force of law.
4. If the property of the pledgor, which is the subject of a pledge, has been transferred by succession to several persons, each of the legal successors (purchasers of property) shall bear the consequences arising from the pledge of failure to fulfill the obligation secured by the pledge in proportion to the part of the specified property transferred to it. If the subject of the pledge is indivisible or for other reasons remains in the common property of the legal successors, they become solidary co-mortgagors.
Article 336. Subject of pledge
1. The subject of a pledge may be any property, including things and property rights, with the exception of property on which foreclosure is not permitted, claims inextricably linked with the personality of the creditor, in particular claims for alimony, compensation for harm caused to life or health , and other rights, the assignment of which to another person is prohibited by law.
Pledge of certain types of property may be limited or prohibited by law.
2. A pledge agreement or in relation to a pledge arising on the basis of law, the law may provide for a pledge of property that the pledgor will acquire in the future.
3. The pledge extends to the fruits, products and income obtained as a result of the use of the pledged property in cases provided for by law or agreement.
4. When concluding a pledge agreement, the pledgor is obliged to warn the pledgee in writing about all the rights of third parties to the subject of pledge known to him at the time of concluding the agreement (real rights, rights arising from lease agreements, loans, etc.). If the pledgor fails to fulfill this obligation, the pledgee has the right to demand early fulfillment of the obligation secured by the pledge or a change in the terms of the pledge agreement, unless otherwise provided by law or agreement.
The main features of a pledge and the grounds for its occurrence. Types of collateral and scope of its application. Essential terms of the pledge agreement. Foreclosure of real estate. Rights and obligations of the parties under the contract. Sale of pledged property.
Brief summary of the material:
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Introduction
1. The concept of collateral
1.1 General concept of collateral
2. General characteristics of the collateral
2.1 Subject of pledge
2.2 Terms of the pledge agreement
2.3 Rights and obligations of the parties under the pledge agreement
2.4 Foreclosure of pledged property
2.5 Sale of pledged property
Conclusion
Bibliography
Introduction
When entering into a particular legal relationship, the subject must be sure that the other party will fulfill its obligations properly. Therefore, there must be measures according to which each party fulfills its obligations properly.
Now, in conditions of low contractual discipline, unreliability and simply dishonesty of counterparties, various methods of ensuring the fulfillment of obligations should be increasingly developed.
In accordance with paragraph 1 of Art. 329 of the Civil Code of the Russian Federation, the fulfillment of obligations can be ensured by a penalty, a pledge, retention of the debtor’s property, a surety, a bank guarantee, a deposit and other methods provided for by law or contract.
Methods to ensure the fulfillment of obligations are of a proprietary nature and are established in the interests of the creditor. One of these means is a pledge, which forces the debtor to fulfill an obligation, and in case of non-fulfillment, protects the interests of the creditor by allowing satisfaction at the expense of property owned by the debtor.
Pledge has been known since Roman law, in which the interests of the creditor were considered priority. Roman law provided for three main types of collateral: fiduciary transactions, manual pledge, and mortgage. In more detail: Roman private law / Ed. I. Novitsky and I. Peretersky. Among Russian civil law scholars of the pre-revolutionary period, there was no common view on the nature of pledge, which was largely explained by the imperfection of the legislation on pledge that was in force at that time. At that time, there was not only no single point of view on the legal nature of a pledge, but it also seemed quite difficult to establish the very definition of a pledge.
The mortgage of the pre-revolutionary period was differentiated into collateral of movable and immovable property. Its forms largely depended on the object (real estate - a mortgage fortress; movable - an act of transfer of movable property) and on who acted as the subject of the pledge (church, treasury, etc.). In addition, remortgage of property was allowed.
With the abolition of the NEP by the Soviet government, including private capital, in the late 20s and early 30s, collateral legal relations lost their significance. Suffice it to say that collateral legal norms were represented by only 11 articles of the Civil Code of the RSFSR of 1964, provisions that were traditionally contained in the Instructions of the State Bank of the USSR regulating the procedure for lending to enterprises and business organizations, as well as the provisions of the Model Charter of a pawnshop, approved by the Resolution of the Council of Ministers of the RSFSR dated June 7, 1968. It should be noted that these acts had many gaps and contained rather outdated norms. Zavidov B.D. Analysis of pledge in Russian civil law.
Life itself in Russia, with its spontaneous laws of the market, forced the legislator to issue a whole package of legal documents regulating collateral. At the beginning of 1992, the Law “On Pledge” was adopted, Gazette of the Congress of People's Deputies of the RSFSR and the Supreme Soviet of the RSFSR, 1992. No. 23. p. 1239, then in Chapter 23 of the first part of the Civil Code of the Russian Federation, paragraph 3 appeared under the title “Pledge”, and, finally, on July 22, 1998, the Federal Law “On Mortgage (Pledge of Real Estate)” dated July 16, 1998 No. 102-FZ came into force. Russian newspaper dated July 22, 1998.
Pledge is one of the most important tools in the legal regulation of market relations. It is also important because it is otherwise closely related to issues of property, a means of possible, and perhaps even initial, protection of the entrepreneur from an unscrupulous counterparty. In collateral legal relations, the creditor acts on the principle of “I believe not the person, but the thing.”
The object of study is the concept of collateral, in turn, the subject is the general characteristics of collateral.
The purpose of this work is to study pledge as an institution of civil law.
1. Characterize the main features of collateral;
2. Explain the concept and grounds for the emergence of collateral;
3. Determine the types of collateral and the scope of its application;
4. Consider the rights and obligations of the parties under the pledge agreement.
Work structure. The work consists of an introduction, two chapters, a conclusion, and a list of references.
1. The concept of collateral
1.1 General concept of collateral
A pledge is a legal relationship by virtue of which a creditor under an obligation secured by a pledge (pledgee) has the right, in the event of failure by the debtor to fulfill this obligation, to receive satisfaction from the value of the pledged property, preferentially before other creditors of the person who owns this property (the pledgor), with exceptions established by law. Gros L. Pledge: issues of civil law and civil procedure // Economy and law. - 2008. - No. 2. - With. 69
The establishment of a special right to the mortgagor’s property, combined with the right to a priority right over other creditors of the mortgagor to foreclose on the pledged property, makes collateral one of the most reliable ways to ensure the fulfillment of obligations. It should also be taken into account that privatized housing in market conditions is often the only sufficiently valuable property, by mortgaging which a citizen can obtain initial capital for entrepreneurial activity. In addition, obtaining a loan to purchase housing with subsequent collateral for this housing is one of the real ways to solve the housing problem.
According to clause 1 of Article 334 of the Civil Code, the pledgee has the right to receive, on the same basis, satisfaction from the insurance compensation for loss or damage to the pledged property, regardless of for whose benefit it is insured, unless the loss or damage occurred for reasons for which the pledgee is responsible .
It can be said that the pledge ensures the fulfillment of obligations through two functions:
1. The pledge stimulates the debtor to fulfill his duties, since undesirable consequences may occur for him: foreclosure will be applied to the subject of the pledge (stimulating function).
2. If the debtor fails to fulfill his obligations, the possibility of foreclosure on the pledged property is realized in order to compensate for all losses of the creditor (compensatory function).
The pledgee receives satisfaction from the pledged property preferentially before other creditors. This means that if the pledgor is a debtor for two or more obligations and has not fulfilled them, then the interests of the creditor-pledgee are satisfied first of all at the expense of the pledged property.
1.2 Grounds for the emergence of a pledge
The legal basis for collateral relations can be contract and law. Most often, a pledge arises by virtue of a contract. According to paragraph 1 of Art. 339 of the Civil Code, in order to recognize such an agreement as concluded, it must contain all the essential conditions: the subject of the pledge; its cost; the essence, size and period of fulfillment of the main obligation secured by the pledge; as well as an indication of which of the parties to the agreement will have the pledged property. If any of these conditions are absent in the agreement or if their definition is insufficiently clear, the pledge agreement is considered not concluded.
A pledge may also arise on the basis of law upon the occurrence of the circumstances specified therein.
1.3 Types of collateral and scope of its application
Collateral can be divided into separate types based on various criteria.
Article 338 of the Civil Code distinguishes two main types of pledge: with the pledged property remaining with the pledgor and with its transfer to the pledgee (mortgage). As a general rule, the pledged property remains with the pledgor, and therefore he retains the rights to own and use it. However, in accordance with the terms of the agreement, the pledged item may be transferred to the pledgee or a third party; left with the pledgor under lock and key and the seal of the pledgee, with the imposition of signs indicating a pledge (hard pledge), which makes it impossible to use the pledged property.
The scope of application of the pledge is expressly stated in Art. 4 of the Law “On Pledge” Law of the Russian Federation of May 29, 1992 No. 2872-1 “On Pledge”. This article lists four points or types of areas of application of pledge:
1. The collateral can be used to secure a valid claim, in particular, arising from a loan agreement, including a bank loan, purchase and sale agreements, lease of property, transportation of goods and other agreements.
2. The subject of the pledge may be things, securities, other property and property rights. The subject of the pledge cannot be claims of a personal nature, as well as other claims the pledge of which is prohibited.
3. Bail may be established in respect of claims that arose...
Other files:
General characteristics of collateral in modern Russian legislation. The concept of collateral as the main way to ensure the fulfillment of obligations. Exist...
Characteristics of collateral as a way to ensure the fulfillment of obligations. Types of collateral, content of mortgage obligation. Conclusion of a mortgage agreement...
Development of the institution of pledge in foreign and Russian civil law. Pledge agreement. Conditions, form of agreement, parties to the agreement: their rights and obligations...
The concept of real estate, the legal field in the field of collateral of real estate. Main stages and methods of real estate valuation for collateral purposes. Market assessment...
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3. Types of collateral
The institution of pledge in the Russian Federation can be classified on various grounds. The most common classification of collateral in theory is depending on who has the subject. On this basis, a distinction is made between a pledge with the transfer of the pledged property to the pledgee (mortgage), as well as a pledge without the transfer of the pledged property.
The Civil Code of the Russian Federation classifies as a pledge of property without transferring it to the pledgee a pledge of real estate (mortgage) and a pledge of goods in circulation. Types of pledging property without transferring it to the pledgee include leaving the pledged property with the mortgagor under lock and seal, as well as a firm pledge, i.e. leaving the subject of pledge with the pledgor by imposing signs that indicate the pledge.
The legislation of the Soviet period in Article 92 of the Civil Code of the RSFSR of 1922 established the mandatory transfer of pledged property to the pledgee. However, in the case of a pledge of an individually defined thing, it was indicated that it could be left in the possession of the pledgor by imposing signs indicating the pledge.
It is worth noting that at the beginning of the development of collateral law in economic circulation, collateral with the transfer of the pledged property to the pledgee was widely used. However, now the most widespread is the pledge with the subject remaining with the pledgor. By and large, this is due to the fact that the collateral legal relationship is gradually moving away from its real essence, becoming more and more close to the law of obligations. Another explanation for the extension of a pledge without transferring the pledged item to the pledgee is the fact that not all property can be transferred to the pledgee. First of all, such property is real estate and goods in circulation.
Speaking about a pledge with the transfer of the pledged property to the pledgee, it is necessary to note its features. Firstly, the debtor gives possession of the pledged item to the creditor for the entire period of validity of the pledge agreement, and at the same time he himself loses the opportunity to exercise his powers as an owner. Secondly, the creditor, if this is expressly stated in the pledge agreement, can use the pledged property transferred to his possession. “Since the subject of the pledge is withdrawn from the economic circulation of the pledgor, and he is deprived of the opportunity to use it, the pledge is used in most cases in relations between citizens or with the participation of citizens, for example, this type of pledge is widespread when issuing loans by pawnshops” Khruleva Z. V. Decree. op. - P. 45. .
There are other classifications of collateral. So, for example, depending on what is the subject of the pledge, some authors distinguish:
· pledge of things;
· pledge of securities;
· mixed pledge (the subject is both things and securities);
· pledge of movable property;
· pledge of real estate;
· pledge of property rights.
The following classification is based on the degree of liquidity of the pledged property. So, according to this classification we can distinguish:
· pledge of highly liquid property and property rights (the subject of such pledge is currency, securities, jewelry, precious metals, jewelry);
· pledge of property with an average level of liquidity (item - household appliances, goods in circulation, products in processing, etc.);
· pledge of low-liquidity property (subject - real estate).
The Civil Code of the Russian Federation in paragraph 3 of Chapter 23 considers certain types of pledge, namely: pledge of things in a pawnshop, pledge of goods in circulation, pledge of obligatory rights, pledge of exclusive rights, pledge of rights under a bank account agreement, pledge of securities, pledge of rights of participants in legal entities.
Let us dwell in more detail on the subtypes of collateral with the pledged property remaining with the mortgagor.
One of the most common types of collateral is a mortgage.
It must be said that the general rules on collateral apply to mortgages, but there are also specific features of the legal regulation of real estate collateral. So, for example, with a mortgage, the principle of the land following the building located on it applies. Therefore, a pledge of a building or structure is allowed only with a simultaneous pledge under the same agreement of a land plot or part thereof, which functionally provides the pledged object. In this case, it is allowed to pledge the land separately from the pledge of the object located on it. In the event of foreclosure on a land plot, the mortgagor retains the right to such an object, and he receives the right of limited use (easement) of a separate part of the plot necessary for the operation of the building or structure according to its purpose. The rules for the use of such part of the land plot must be enshrined in an agreement between the mortgagor and the mortgagee. However, this provision raises some questions among civil society scholars. “After all, ownership of a mortgaged land plot upon foreclosure passes not to the mortgagee, but to the acquirer of the plot as a result of its sale (sale) ... Therefore, it would be more logical to provide for the conclusion of an agreement on determining the scope of the specified easement with the acquirer of the mortgaged land plot” Vishnevsky A. A. Decree. op. - P. 52. .
Considering the features of a residential mortgage, it can be noted that an agreement on the mortgage of such real estate cannot be concluded by a representative of the owner. “A feature of the mortgage of a residential building or apartment and an important provision aimed at protecting the rights of citizens - owners of these objects, is the rule that this kind of agreement cannot be concluded through a representative, except in cases of registration by a guardian or trustee with the prior permission of the guardianship and trusteeship authority” Tsybulenko Z. Pledge of residential apartments and houses // Civil law. - 2006. - No. 4. - P. 25. .
Mortgages for residential buildings and apartments have several distinctive features:
1) the rules on the mortgage of such real estate apply only to multi-apartment and individual residential buildings intended for permanent residence and owned by citizens or legal entities;
2) an agreement on the mortgage of such real estate cannot be concluded through a representative, except in cases of guardianship and trusteeship;
3) norms ensuring the protection of citizens’ constitutional rights to housing are specifically provided for by the Federal Law “On Mortgage” See: Yu. P. Sweet, Features of collateral for residential premises // Laws of Russia: experience, analysis, practice. - 2012. - No. 5. - P. 34. .
Mortgage is a very important economic and legal institution and performs a number of important functions: “a mechanism for creating and attracting additional financial resources to maintain and develop material production; an additional tool to ensure the turnover and redistribution of property in cases where the use of other turnover mechanisms is legally impossible or economically inexpedient" Smolyannikov A. Mortgage: theory through the prism of lawmaking // Questions of Economics. - 1997. - No. 7. - P. 112. .
Another subtype of pledge with the subject remaining with the pledgor is the pledge of goods in circulation. This type of pledge is “practically the only named method of security, which is designed for use specifically in commercial (trade) obligations” Novikova A. A. Pledge of goods in circulation: issues of law enforcement // Laws of Russia. - 2012. - No. 5. - P. 19. . It represents a pledge of goods with the retention of such goods with the pledgor and “with the provision to the pledgor of the right to change the composition and natural form of the pledged property (inventory, raw materials, materials, semi-finished products, finished products, etc.) provided that their total value does not becomes less than that specified in the pledge agreement" Civil Code of the Russian Federation (part one) dated November 30, 1994 (as amended on January 31, 2016) [Electronic resource]. Access from the reference and legal system "ConsultantPlus". .
Despite the fact that this method of security is called a pledge in the law, it is by and large of an obligatory nature and is not much similar to a classic pledge, and it is this kind of pledge that does not have the features of a genuine property right See: Insolvency (bankruptcy): Scientific and practical commentary novels of legislation and practice of its application / V. V. Vitryansky, V. V. Batsiev, A. V. Egorov and others. Ed. V.V. Vitryansky. -M.: Statute, 2010. - P. 65. . However, the pledge of goods in circulation, like any other pledge, has its own characteristics:
1) the subject of the pledge is not individually defined, but generic things intended for sale or exchange;
2) such a pledge does not have the right to follow the goods that are removed from the subject of the pledge as a result of transactions performed by the pledgor and other actions at his disposal See: Novikova A. A. Decree. op. - P. 22., i.e. goods in circulation cease to be the subject of pledge from the moment of their alienation by the pledgor;
3) within the framework of the agreement, the pledgor can change the composition and natural form of the property constituting the subject of the pledge, in other words, the subject of the pledge is not the property itself, but its value, which can change in proportion to the change in the value of the fulfilled main obligation.
Thus, pledging goods in circulation has both its advantages and disadvantages. The main advantage of such a pledge is that it helps the pledgor carry out business activities without significant changes, which increases the possibility of fulfilling the main obligation. On the other hand, the pledge of goods in circulation has more of an obligatory than a proprietary nature, and this brings it closer to other methods of ensuring the fulfillment of obligations, which are based on the personal trust of the creditor in the debtor.
When focusing on a pledge with the transfer of the pledged property to the pledgee, it is necessary to compare the pledge and the firm pledge. Thus, the latter does not provide for the transfer of the subject of pledge to the pledgee, but leaves it with the pledgor under lock and key and the seal of the pledgee. If individually defined things are pledged, then signs are placed on them that indicate the pledge. With a firm pledge, the object of the pledge remains with the debtor, but he cannot use it, although he has actual control over the pledged property.
A mortgage and a hard lien share some common features. Thus, when using any of these subtypes of collateral, the property is actually transferred to the pledgee, and the mortgagor also loses the opportunity to use such property.
In the case of a firm pledge, its object remains with the pledgor, and all measures for its preservation are assigned to him. When pledging, the thing is actually transferred to the pledgee, and he has additional responsibilities (insure the pledged property at his own expense, take certain measures to ensure the safety of the pledged property, etc.).
Let's consider such types of pledge with the transfer of property to the pledgee as pledge of securities and pledge of things in a pawnshop.
Pledge of securities is one of the most popular types of collateral at present. “Securities are one of the few types of property against which a citizen or legal entity can obtain a loan from a bank. But at the same time, there is an obvious need to improve the legal regulation of such collateral legal relations due to the presence of serious gaps in the current legislation." Kharin N. A. Some problems of pledging securities // Lawyer. - 2004. - No. 9. - P. 15. .
Despite the insufficient legal regulation of the pledge of securities, the widespread use of this type of pledge is due to the fact that securities have such important advantages as “the objective possibility of establishing a weighted average assessment of the value of securities, their high liquidity, and the speed of transactions with them” Kuzmina M. N. Securities in the Russian Federation: Legal regulation of issue and circulation. - M.: Yurlitinform, 2005. - P. 187. .
An equally common form of pledge with the transfer of the pledged property to the pledgee is the pledge of things in a pawnshop. Its widespread use is associated, first of all, with the “low standard of living and income of the main part of the population of our country, which predetermines the frequent shortage of cash among many citizens, and, secondly, with the norm of “living on debt” cultivated with the help of the media »» Tsakharias A. S. Features of pledging things in a pawnshop // Law: modern trends: materials of the international. scientific conference - Ufa, 2012. - P. 34. .
The type of pledge under consideration combines both a consumer nature, since citizens are always the pledgors in such a pledge, and entrepreneurial characteristics, since Pawnshop activities are an independent type of business activity.
Pawning things in a pawnshop has the following features:
· special subject composition, because only citizens can be pledgors, and pawnshops can be pawnbrokers;
· the subject of the pledge are movable things that belong to the borrower and are intended for personal consumption (except for things withdrawn from circulation and things on the circulation of which restrictions are established by Russian legislation);
· short-term loans (no more than 1 year) are secured as collateral for items in a pawnshop;
· the pawned item is always transferred to the pawnshop;
· such a pledge secures only the obligations of the pledgor himself, i.e. The identity of the borrower and the pledgor when pledging things in a pawnshop always coincide.
To summarize, it should be noted that in the system of methods for ensuring the fulfillment of obligations, collateral has a number of advantages compared to other methods. Thus, the pledgee under the pledge agreement has the right to satisfy his claims primarily before the other creditors of the pledgor. Also, the actual risk of loss of the pledged property by the debtor in case of failure to fulfill his obligations stimulates him to properly fulfill all obligations under the contract.
In the legal literature, two grounds for the emergence of collateral legal relations are identified: contract and law. However, most often in practice, a pledge arises on the basis of an agreement.
The most common division of pledge into types is the division into a pledge with the transfer of the pledged property to the creditor under a pledge agreement and a pledge with the retention of its subject matter by the debtor. In modern conditions, such a type of collateral as collateral of real estate (mortgage) is becoming increasingly common.