Mortgage (England and Wales)
The Mortgage (from French mort gage , "eternal statute," literally means "dead pledge") is in the English property law an accessory , mortgage real security that a non-possessory chattels - or mortgage burden of collateral (so-called mortgage object.). It is used exclusively to secure a claim (especially a loan claim ) and is not issued as a security . The Mortgage should the non-accessory mortgage ( English land charge ) and annuities ( English rent charge ) can be distinguished.
The mortgage can be paid on properties , but also on chattels , i. H. on movable property ( English chattels personal ) and on rights equivalent to real property ( English chattels real ). A distinction is made between formal - legal - and non-formal - equitable - mortgages. The pledged property, especially a pledged property, does not need to be the property of the debtor .
Legal history
Because of the ecclesiastical ban on usury in the Anglo-Saxon period, only the interest-free mortgage form of property pledge (also called pledge lapel, English wadset ) was known, in which the pledge was clad in a purchase contract : the pledgee received the pledge in a purchase deed like a buyer for property; in a counter-document, the reverse or reverse letter, he assured the seller (= debtor) that he would return the pledge to the seller if the purchase price was repaid. The repurchase was made more difficult by the fact that it had to be done within the set deadline and from your own resources.
The Norman conquest of England introduced the so-called "older statute" ( English gage of land ), with two types, the dead gage ( English living gage , French vif-gage ) and the eternal statute ( English dead gage , French mort-gage ) to distinguish. In the case of death, the yield on the pledge was relatively high and the creditor therefore only used it for a short time before it fell back to the debtor. The perpetual statute, on the other hand, provided the creditor with an indefinite period of time, i.e. H. until his claim has been paid, the full return on the pledge. However, the pledge statute was not profitable for most of the creditors and consequently unattractive. Moreover, the legal process was closed because the creditor neither Gewere yet therefore one possesions entitled to collect trespass suit had.
Legal comparison
The historical, "classic" type of mortgage, whose legal character corresponded to the assignment of property as well as movables as security , was legally replaced in the 20th century by the mortgage ( English mortgage by legal charge ). In contrast, a distinction is made between two main lien regions in the United States : The mortgage rules in half of the states ( English lien-theory states ), while the rest (so-called English title-theory states ) is dominated by the transfer of property as security. (Title deeds; In addition, the American Mortgage, regardless of the type, a marketable security is English mortgage note ) issued, and therefore better suited to the Swiss-legal mortgage note .
The mortgage assigned by way of security regularly fulfills the economic functions of a mortgage and a Swiss mortgage , but has to be distinguished from these in terms of its legal structure. In the case of a mortgage, the security provider ( English mortgagor ) transfers to the security buyer ( English mortgagee ) a right in rem ( English security interest ) with the condition of retransfer after the claim has expired.
literature
- Carsten Hofmann: Mortgage and Charge: Design options in English loan security law . Duncker & Humblot, Berlin 2002, ISBN 978-3-428-10800-8 .
- Wayne Clark and Mary Hyland: Fisher and Lightwood's Law of Mortgage . 13th edition. Butterworths Law, London 2010, ISBN 978-1-4057-4807-0 .
- Christopher McNall: Mortgage: English Common Law . In: Stanle N. Katz (ed.): Oxford International Encyclopedia of Legal History , 2nd volume Oxford University Press, Oxford 2009.
