In developed market countries, the pledge of real estate (mortgage) and movable property is one of the most reliable ways to ensure that the borrower (legal entity and individual) of their obligations to the bank. This is a kind of tool that stimulates the integrity of the payment. In modern civil legislation of the countries of the Romano-German legal family, the pledge came from Roman law.
Pledge in Roman Law
In the system of Roman law, bail belonged to the category of rights to other people's things. Its main form at the initial stage was fiducation. The bottom line was that the mortgaged thing was sold, but with the right to buy back. However, from the time of purchase, the creditor became the owner of the item and was free to dispose of it. In this regard, the right to repurchase by the borrower could not be realized. As a result, a new form of collateral appeared - pignus, according to which a thing was transferred into possession, and not into ownership.
The concept and types of collateral in Roman law are somewhat different in comparison with the modern classification. So, the most perfect form was a mortgage. As a result, the pledged thing did not become the property, but remained in the possession of the debtor. The word is of Greek origin, and the introduction of this concept into everyday life is associated with Solon, the Athenian legislator and reformer. A pillar with a sign was installed on the border of the pledged land. The inscription on it said that this property is a guarantee of the borrower's obligation to the lender and it is forbidden to take out everything brought, brought or brought from it. This pillar or, in other words, a stand was called a mortgage. In modern legislation of the Russian Federation, the term refers exclusively to the mortgage of real estate, which always remains with the mortgagor.
In domestic law, this institution also went through a long process of evolution. It all started with the Old Russian pledge, in many ways resembling fiducia, to the modern one. The dominant form in this case is that which implies the abandonment of pledged property with the mortgagor.
How does the pledge of the Civil Code of the Russian Federation govern?
Modern Russian legislation regulates this concept in article 334 of the Civil Code. According to it, a pledge is a legal relationship in accordance with which a creditor (or pledge holder) has the right to receive a certificate from the value of the pledged property for improper performance of an obligation with advantages over other creditors, except as otherwise provided by law.
All types of collateral in the civil law of the Russian Federation are accessory. In other words, they can exist exactly as long as the obligation to be secured takes place. But the reverse situation is impossible. Even if the pledge is terminated, the primary obligation is retained.
Collateral must be of a monetary nature. Article 337 of the Civil Code of the Russian Federation establishes that it guarantees a claim to the extent that it exists at the time of satisfaction: damages, forfeit, interest, etc., unless otherwise provided by law. It is most wide when there is a pledge of real estate.
Pledge: grounds for occurrence
The Civil Code of the Russian Federation clearly states that between the mortgagor and the mortgagee, a mortgage can only arise on the basis of an agreement.The exception is cases stipulated by law, according to which it appears subject to the occurrence of specific circumstances specified in the Civil Code of the Russian Federation. In this situation, the parties have the right to conclude an agreement regulating their relationship, to which the same rules apply as to the form of the pledge agreement.
Collateral
It has been established that the pledge of the Civil Code of the Russian Federation defines as the main and most effective way of securing the obligation. In this case, absolutely any property (not only things, but also property rights) can be its subject. However, this statement has its own nuances. Appeal of claims, collection is unacceptable in relation to property inextricably linked with the identity of the creditor, in particular, this relates to alimony, compensation of damage, etc., their assignment to another person is prohibited by law.
Mortgage
Studying the types of collateral in civil law, you need to know that the main criterion for classification is its subject, or rather, the fact who it is. Two forms are legally defined. The first is a mortgage, that is, a pledge with the direct transfer of property to the hands of the pledge holder. The oldest concept in terms of history. The term covers the totality of all types of pledges of movable property with its transfer to the pledge holder. At the same time, he does not acquire and cannot use the thing, but only keeps it, becomes a saver. Therefore, having received a pledge, obligations also appear from him and he must keep the thing intact. In this case, the pledger, after conscientious fulfillment of his obligation, has to demand it back. A similar form is also known as a manual mortgage. Currently, its scope is significantly limited. The need to transfer property is established in dispositive rate Article 338 p. 4 of the Civil Code.
Security without transfer of property
This is the second type and it is dominant in modern Russian legislation. According to the general rule, property is not transferred to the mortgagee and remains with the mortgagor. This can be clearly seen on the example of goods that are in circulation.
All types of pledge in civil law, the subject of which is real estate, exclude the possibility of its transfer to the pledge holder. The legislator regulates these issues in Mortgage Act. Thus, the right to use immovable mortgaged property, according to its purpose, is reserved for the mortgagor. If under the contract mortgages are in relation to this condition with any restrictions, they will automatically be recognized as null and void.
In addition, the classification of types of collateral will be incomplete without their subsequent division into subspecies. The main criterion is the subject. In accordance with it, a mortgage (real estate), a pledge of property rights, securities, etc. are allocated. Classification depending on the specifics of the legal structure of the contract is also quite common. The civil legislation of the Russian Federation recognizes the pledge of things in a pawnshop and goods in circulation as special varieties.
Pledger
The pledger along with the pledge holder is the subject of collateral legal relations. The law defines him as a person who provides property. Not only legal entities, but also individuals can act as both. The pledger may be not only the debtor himself. According to the Civil Code of the Russian Federation (part 1 of article 335), it can be a third party, in this case, a transaction for all types of collateral in civil law should be made on its behalf. But in any case, it must be the owner of the property. The relationship between a third party and the debtor goes beyond collateral and is regulated separately.
It is noteworthy that in cases where the amount of money received from the sale of the pledged thing on the market does not cover all the requirements of the pledge holder, he may receive the missing part from the debtor's other property.In the case of a third party, such a situation is impossible. Since it is not, in fact, a debtor, the pledge holder will be forced to limit the amount received from the sale.
Mortgagee
This subject of collateral relations is defined as the person who accepted the property as a pledge. He and the identity of the creditor always coincide; he can be only one and the same person. This is its difference from the mortgagor, when a third party may enter the “game”.
The right of the pledge holder to any specific property may simultaneously belong to several persons. This is due to the fact that, for example, a pledge of vehicles can be re-issued (the second, third time, etc.). A similar situation is called re-pledge. In this case, the requirements of the mortgagees are satisfied in turn. In this case, the principle of seniority applies. In accordance with it, the right of the previous pledge holder is priority.
In the case when real estate acts as a pledge, the priority shall be established by checking with data from the unified state register of rights to this type of property.
Joint mortgagees
They should be understood as persons who have a share in the pledge of a particular property. In particular, if the obligations were not fulfilled by the debtor, but by his surety, then as a result the rights of the creditor, including as a pledge holder, are transferred to him to the extent that they were initially satisfied by him.
In accordance with the law, they are representatives of one side in a pledged legal relationship, are equivalent and do not have seniority rights. Claims of joint pledge holders are subject to proportional satisfaction in accordance with their shares.
