Mortgage bond

Mortgage bond of CHF 1000 from Art. Institut Orell Fuessli dated October 1, 1900

A Hypothekarobligation is in the Swiss private law a unilaterally established mortgages prescription to secure a requirement . The mortgage obligation is not expressly regulated in Swiss law.

It is made up of the mortgage as a synonym for mortgage and the obligation (claim) and is referred to as a mortgage bond , also a bearer or name bond with mortgage or mortgage note .

The legal practice in Switzerland is due to the gem. Type 793 CC applicable numerus clausus principle to only exceptionally that such causal of debt (confessions) in the form of a security to be dressed and secured by means of mortgages prescription. The so-called document of evidence is the norm.

The security can in principle be created in the name or in the name of the holder.

In the acknowledgment of debt , the debtor promises to perform only upon presentation of the document.

The practice of setting up mortgage bonds is not without controversy in Switzerland , for example the limits that some Swiss cantons have set for mortgage notes in accordance with Art. 843 of the Civil Code. This load limit with regard to the mortgage note can also be found in Liechtenstein property law (Art 320 SR).

literature

Urs Emch, Hugo Renz, Reto Arpagaus (eds.): The Swiss banking business. 7th edition, Schulthess 2011. VII Loan protection, p. 387 ff.
Antonius Opilio : " Working Commentary on Liechtenstein Property Law ", Volume II, Art 297, 2010, Edition Europa Verlag. ISBN 978-3-901924-23-1

Web links

Wolfgang Wiegand, Christoph Brunner: Suggestions for the design of the mortgage note as a paperless register deposit library for the Zeitschrift für Schweizerisches Recht, supplement 39, Helbing Lichtenhahn Verlag (no year)

Individual evidence

↑ See decision of the Swiss Federal Supreme Court in BGE 93 II 82, 86; 121 III 97, 100.
↑ Bond with a lien on property Bürgi / Nägeli Rechtsanwälte, website accessed on October 6, 2018
↑ See recognized for the first time by the decision of the Swiss Federal Supreme Court in BGE 49 II 19 and subsequent decisions by BGE 77 II 364, 84 II 353, 93 II 85 and 100 II 319.
↑ As far as can be seen, the majority of Swiss land registry offices refuse to register a mortgage bond because either there is no legal basis for this in the relevant canton or the still uncertain legal situation with regard to mortgage bonds, especially in the sensitive area of land register law, is not to be supported.
↑ Abstract promises of debt (acknowledgments of debt) are not known to the Austrian ABGB , the Liechtenstein FL-ABGB and property law (SR) and the Swiss civil code (ZGB) in this context. The reason for the obligation ( causa ) must be derived from the obligation (see also § 937 ö ABGB and FL-ABGB : " General, indefinite waiver of objections to the validity of a contract are ineffective .")
↑ Securities are documents in which a right is evidenced in such a way that it can neither be used, asserted nor transferred to others without the document.

↑ Decision of the Swiss Federal Court in BGE 100 II 319 ff, 322

↑ No embodiment in a security Bürgi / Nägeli Rechtsanwälte, website accessed on October 6, 2018

↑ In the case of securities that are designed as bearer securities , this promise is automatically fulfilled, since every holder of the paper can request fulfillment from the debtor upon presentation of the document. Therefore, a special mention of the acknowledgment of guilt in the document is generally not required.

↑ See for many: Statement by Federal Councilor Ruth Metzler (minutes of the meeting of the National Council on March 20, 2001; Amtl Bull Nationalrat: AB 2001 N 290-291).

^ See Antonius Opilio , " Working Commentary on Liechtenstein Property Law ", Volume II, 2010, Edition Europa Verlag, ISBN 978-3-901924-23-1 ; Comments on Art 320 SR.

[1] See decision of the Swiss Federal Supreme Court in BGE 93 II 82, 86; 121 III 97, 100.

[2] Bond with a lien on property Bürgi / Nägeli Rechtsanwälte, website accessed on October 6, 2018

[3] See recognized for the first time by the decision of the Swiss Federal Supreme Court in BGE 49 II 19 and subsequent decisions by BGE 77 II 364, 84 II 353, 93 II 85 and 100 II 319.

[4] As far as can be seen, the majority of Swiss land registry offices refuse to register a mortgage bond because either there is no legal basis for this in the relevant canton or the still uncertain legal situation with regard to mortgage bonds, especially in the sensitive area of land register law, is not to be supported.

[5] Abstract promises of debt (acknowledgments of debt) are not known to the Austrian ABGB , the Liechtenstein FL-ABGB and property law (SR) and the Swiss civil code (ZGB) in this context. The reason for the obligation ( causa ) must be derived from the obligation (see also § 937 ö ABGB and FL-ABGB : " General, indefinite waiver of objections to the validity of a contract are ineffective .")

[6] Securities are documents in which a right is evidenced in such a way that it can neither be used, asserted nor transferred to others without the document.

[7] Decision of the Swiss Federal Court in BGE 100 II 319 ff, 322

[8] No embodiment in a security Bürgi / Nägeli Rechtsanwälte, website accessed on October 6, 2018

[9] In the case of securities that are designed as bearer securities , this promise is automatically fulfilled, since every holder of the paper can request fulfillment from the debtor upon presentation of the document. Therefore, a special mention of the acknowledgment of guilt in the document is generally not required.

[10] See for many: Statement by Federal Councilor Ruth Metzler (minutes of the meeting of the National Council on March 20, 2001; Amtl Bull Nationalrat: AB 2001 N 290-291).

[11] See Antonius Opilio , " Working Commentary on Liechtenstein Property Law ", Volume II, 2010, Edition Europa Verlag, ISBN 978-3-901924-23-1 ; Comments on Art 320 SR.