mortgage

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A mortgage ( ancient Greek ὑποθήκη hypothḗkē "pledge") is a mortgage that is used as a charge on a piece of land or a right as security for a loan or as security for another claim .

General

In finance and, above all, in banking , the mortgage serves as credit security for loans . Internationally, it is strictly dependent on the existence of the loans ( accessory ). As collateral object for mortgages come in the mortgage lending exclusively real estate ( residential or commercial properties ) in question. Your mortgage lending value has an impact on the possible size of the mortgage loan .

The total or partial breach of contract (eg arrears ) entitles the mortgagee (Mortgage), from the proceeds that runs through foreclosure or receivership to satisfy possible to achieve the land affected by the mortgage lending object. What claims he is entitled to against the debtor is contractually regulated in the declaration of purpose . The real value or income value of the property is pledged to the creditor through the mortgage . If there are multiple mortgages on one property, these have a fixed rank according to which the mortgage creditors are satisfied in the event of an enforcement. The debtor can prevent enforcement by paying the obligee ( Section 1142 BGB ).

Even if the claim to which the mortgage relates has been repaid by the owner, the mortgage will still be entered in the land register. By issuing a delete-capable acknowledgment (see deletion of approval ), in which the bank confirms that the underlying claim by the owner was repaid, the owner has the option, currently registered covert owner mortgage through a notary at the Land Registry to convert to an open ownership mortgage.

Outside of legal jargon, not only the real estate lien itself, but also the loan (mortgage loan) associated with it is often referred to as a mortgage .

history

The word mortgage contains the word components for “under” ( ancient Greek ὑπο hypo ) and “to lay” ( ancient Greek τιθέναι tithénai ), combined they mean a base for a loan. The mortgage is probably an invention of Attic moneylenders. As a pledgee, you received a pledge without possession on the debtor's property . If the debtor could not repay the loan secured by the mortgage, his property fell to the pledgee; their publicity was established there by setting up pillars. Solon spoke in a poem about the fact that he tore out mortgage marker stones ( ancient Greek ὄροι hóroi ) in Attica , which indicated the encumbrance of a property with a mortgage around 600  BC . They included the names of the debtor, the creditor and the mortgage amount. Reports from the 4th century BC Chr. Told of 21 Attic plots encumbered with mortgages, which had an average encumbrance of about 26  mines . Strangers were allowed to take out mortgages for the first time in Athens at the time of the Dekeleischen War . Aristotle later reported that a law of the Eleans forbade mortgaging the earth. The Greek lien knew the sale of a property to the pledgee with the right of repurchase or the mortgage, which was the only of the two to gain in importance. The Greek land and mortgage transactions were rather informal, there were only a few land registers in Tenos or Chios .

The mortgage was initially unknown in ancient Roman law . Under Emperor Julian (360–363 AD ), the non-possessory lien came from Greece to Italy ( Latin hypotheca ) from the Roman eastern provinces . Ulpian made a clear distinction between the property pledge ( Latin pignus ) and the non- property pledge “ hypotheca ”. From Italy, this credit security spread across Europe, although it changed its Greek name only slightly ( French hypotheque , Spanish hipoteca , German  mortgage , Dutch hypotheek ). It can be seen that it first appeared in Flemish in 1563 before it appeared in Austria in 1616 as “hypotheca” .

The Prussian Mortgage and Bankruptcy Code of April 14, 1722 regulated the mortgage system for the first time. It stipulated that a complete land and mortgage book was to be set up at every court dealing with the mortgage system, which should contain all the properties in the district with precise names and numbers. The mortgage only became widespread when the administration deemed the establishment of mortgage books necessary, which began in May 1742. In 1762, Johann August von Hellfeld defined the “mortgage books” as “certain public books produced by the authorities”. The General Prussian Land Law (APL) of June 1794 generally referred to the "pledge right" as the right in rem that someone "is granted to someone else's thing to secure his claim" (I 20, § 1 APL). When registering land, "the creditor has the right to the mortgage" (I 20, § 8 APL). The Saxon "Law on the Land and Mortgage Books and the Mortgage System" of November 1843 stipulated that mortgages could only be ordered on land and rights equivalent to land for which a land or mortgage book was created (Section 29).

Legal situation in individual countries

  • Germany: see mortgage (Germany)
  • England and Wales: see Mortgage (England and Wales) . This mortgage fulfills the function of a land charge in economic terms, even if it is legally different from it.
  • In Switzerland the mortgage law does not exist and is only commonly used for the corresponding loans. This “ mortgage loan ” secured by real estate is usually notarized in a mortgage note in accordance with Art. 842 ZGB . The mortgage reference interest rate (“mortgage interest rate ”) can, depending on the rental agreement, also be decisive for the calculation of the rent . The types known are the mortgage bond, the mortgage bond and the validity - no longer possible since January 2012 . The mortgage note not only secures a claim, it justifies it. It only establishes personal liability if the owner is also the debtor of the claim to be secured ( Art. 842 ZGB, Art. 845 ZGB). It corresponds to the German mortgage. The validity was comparable to the land charge. The mortgage is established for a claim as a lien through registration.
  • In Austria , the mortgage is the only real property lien that arises in accordance with Section 448 of the Austrian Civil Code through a contract and “incorporation” ( entry ) in the land register .
  • In France , the Hypothèque rechargeable is a mortgage, but “refillable”, i.e. revaluable , which corresponds economically to the security mortgage .
  • In the country of origin Greece , the mortgage is known as the real right to a property to secure a claim through preferential satisfaction of the obligee from the matter in the form of the security mortgage (Art. 1257 ZGB).

Others

In a figurative sense, the word mortgage is used for the loan itself or as a metaphor for a particular burden. For example, the crimes of the Nazi era after the war were seen as a heavy burden for the young Federal Republic of Germany .

literature

  • Oleksiy Feliv: The mortgage in German and Ukrainian law: the systematic comparison of mortgage law in Germany and Ukraine, including the legal theoretical principles and the outlook for the common European mortgage law . Lang, Frankfurt am Main / Berlin / Bern / Vienna a. a. 2009, ISBN 978-3-631-58989-2 (Studies by the Institute for Eastern Law Munich; Simultaneously Regensburg, Univ., Diss., 2007).
  • Steffen Kircher: Real estate liens in Europe: Considerations on the harmonization of real estate liens with special attention to the German, French and English legal systems . Duncker & Humblot, Berlin 2004, ISBN 978-3-428-11452-8 (publications on international law, Volume 144; also: Freiburg (Breisgau), Univ., Diss., 2003).
  • Jong-Chan Park: Structural Differences Between German and Korean Mortgage Law: An Economic Analysis of Korean Mortgage Law Reform . Tübingen 1988 (dissertation Tübingen 1988).
  • Hongliang Wang: Property liens in Germany and China . Lang, Frankfurt am Main 2005, ISBN 3-631-53286-5 (European university publications : series 2, law; volume 4151; additional dissertation Freiburg (Breisgau) 2004).

Web links

Wiktionary: mortgage  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Friedrich Kluge: Etymological dictionary of the German language . 1989, p. 323
  2. ^ Justus Hermann Lipsius: The Attic law and legal process . 1905, p. 694
  3. ^ Beat Näf: History of antiquity . 2006, p. 108
  4. ^ Moritz Hermann, Eduard Meier, Georg Friedrich Schömann: The Attic Process . 1824, p. 506
  5. ^ Georg Busolt: Greek political science . 1979, p. 180, FN 1
  6. ^ Max Weber : On the social and economic history of antiquity . Volume 6. 2006, p. 512
  7. ^ Aristotle, Politik , VII, 2
  8. ^ Max Weber : On the social and economic history of antiquity . Volume 6. 2006, p. 513
  9. ^ Herbert Hausmaninger, Walter Selb: Roman private law . 2001, p. 181
  10. ↑ Ulpian, Digesten , 13, 7, 9, 2
  11. ^ Country table of the Archduchy of Austria ob der Enns, 1616, III 28 § 31
  12. ^ Paul Parey: The organization of the authorities and the general state administration of Prussia . VI 2, 1894, p. 493
  13. ↑ Johann August von Hellfeld: Complete collection of all common and usable rights in salvation. Roman Empires , 1762, Volume III, p. 1900
  14. ↑ General Land Law for the Prussian States , Volume 1, 1794, 851
  15. ↑ Herbert Mohr: The Swiss bank bonds excluding Pfandbriefe . 1961, p. 91
  16. ↑ Monika Hinteregger: Security rights to real estate in Europe , 2009, p. 237 f.
  17. ^ Matthias Fervers: Hypothèque rechargeable and Grundschuld . 2013, p. 28
  18. ^ Susanne Frank, Thomas Wachter (ed.): Real estate law in Europe . 2015, p. 432