Hypothec

Abstract: In this book chapter, we argue that the distinction between "structure" and "style" is important in understanding the similarities and dissimilarities in common and civil law property. Structure is the functional form the law employs to protect people’s use interests, whereas style is a manner of delineating entitlements that is characteristic of a particular legal culture. The same structure of property can be implemented in a number of styles. For transaction costs reasons, property systems under the two traditions (common and civil laws) are similar and have to be similar. Their styles today, as is well known, are quite different, due to their different histories and path dependence.To underpin our point that it is critical to look beyond property styles to understand the economic nature of property, we closely examine mortgage (called hypothec in civil law countries). The styles of mortgage/hypothec cannot be more different. Several countries consider mortgage a property right; several others delineate it as a contract; while some others view it as neither property nor contract. We demonstrate that mortgage/hypothec, like other, uncontroversial property interests, contains the three essential elements of property. Thus, in terms of structure, mortgage/hypothec is a property right in all jurisdictions, despite the wide variety of styles in the civil and common law systems.

Abstract: Moschis, a debtress to the fiscus whom Paulus mentions in a case in his Decreta (D. 49,14,47pr.), is identified on prosopographic grounds as Numitoria Moschis (CIL 14.3626). In the case mentioned by Paulus, the emperor Septimius Severus introduced the beneficium excussionis (personalis) for third parties who were sued for an outstanding debt to the fiscus on account of their (bonitary) possession of goods sold by the debtor’s heirs. The best explanation is that the fiscus had a general hypothec on the patrimony of Moschis. The emperor’s verdict, that the fiscus ought to sue the principal debtors first, and only afterwards every possessor, is shown to be a singular decision grounded in perceived aequitas.

Abstract: The facts on the field showed that the creditors often conducted public auction without first applying to the Chairman of the District Court, yet directly to the auction office made under article 6 of law number 4 year 1996 about mortgage right upon land and things related to it. The following were the problem formulation of the study; (1) how should the procedure for public auction be made according on the law number 4 year 1996 about mortgage right upon the land and things related to it? (2) Why did the creditors auction the guarantee of the dependent right without experiencing the process of proposing the permit for the auction to the Chairman of the District Court? (3) What would the legal consequences be towards the guarantee of the mortgage right auctioned without the process of getting the permit from the Chairman of the District Court? Method used in this study was adopted from the approach of juridical empirics (empirical legal research). The collected data were processed and verified using descriptive analysis to which it is frequently intended to research for human, condition and other phenomena. Based on the result in this study and the result from discussion about the procedure of public auction towards the guarantee of mortgage rights according to the law Number 4 Year 1996 about mortgage rights upon land and things related to it to which it is arranged in the provision of article 26. It is observed that as long as there is no rules of legislation specifically governs the execution of mortgage rights, the procedure of this execution should comply with hypothec execution as arranged in article 224 in the refurbished Indonesia Regulation (Het Herziene Indonesisch Reglement/HIR). Article 6 of the law Number 4 Year 1996 about mortgage right upon land and things related to it where it gives the right to the creditors holding the first mortgage right to sell the object on his own power, in case, the debtors violates the commitment, became the reasons why they auctioned the guarantee of the right without proposing the permit for the auction to the Chairman of the District Court. The legal consequence towards the guarantee of the mortgage right auctioned without experiencing the process of proposing the permit for the auction to the Chairman of the District Court was null and void. Keywords : Guarantee of Mortgage Right, Public Auction, Chairman of District Court

Abstract: The Dutch mortgage (hypotheek) is a limited real right which gives the creditor a very high rank in the debtor's insolvency and which gives its holder a quick and very practical means of organising a forced sale of the burdened property. The mortgage is in principle accessory to, that is, linked to the secured claim. To give two examples, when the secured claim lapses as a result of payment the mortgage lapses also and when the secured claim is assigned, the mortgage automatically passes to the assignee. This is called the principle of accessoriness. This principle primarily aims at protecting the mortgagor. In order to enhance the mortgagor's protection the assignee of the secured claim cannot rely on the public land register for the existence or amount of the secured claim. If the secured claim had already been repaid before the assignment, but the claim and mortgage are still registered in the land register, the assignee receives neither a claim nor a mortgage. This Dutch system is contrasted with German law which takes a different approach for the Verkehrshypothek. Here German law favours the bona fide assignee over the debtor by enabling the assignee to rely on the public land register. In the past this applied equally to the more common German Grundschuld (land charge), which was always described as non-accessory. As the non-accessory character has recently given rise to misuse by assignees, the German legislator has changed the law (in the so-called Risikobegrenzungsgesetz) to enable the chargor to set up against the assignee any defences which he had against the assignor, for example the defence that the debt had already been redeemed (partly). This change in the rules on the Grundschuld entered into force on the 19th August 2008. The effect is that at the moment of enforcement the Grundschuld is accessory, like the Dutch mortgage. The changes did not affect the German Hypothek so that the Verkehrshypothek is now much less accessory than the German Grundschuld, notably at the time of enforcement. This is a very remarkable change because the German Grundschuld has always been the archetype of a non-accessory mortgage. It no longer is.