Третий отдел. Право залога или вещественного обеспечения

Chapter one. General types of collateral § 68. The concept of personal and material liability for collection. Assertion of liability on known property. Exclusivity and unconditional property of the mortgage right. Its first form was among the Romans. Its transition to new legislation and its practical significance - as a form of exchange. Mortgage, its distinctive properties and practical significance. Disadvantages of Roman forms of mortgage and their modifications in German law. Current mortgage law. Distinctive property of a manual mortgage. Antichretic law. English pledge forms. Unilateral retention of property as security. Remnants of this right in new legislation Every personal obligation imposes on one party the obligation to fulfill it, and gives the other the right to demand performance. In case of non-compliance voluntary, compulsory execution is carried out. At the request of the party who has the right, recognized as indisputable, the public authority turns the property of the obligated party to satisfy the claim, and only from this moment is known property announced in which the claimant can demand satisfaction. Therefore, in the case of concluding a simple obligation, the creditor intends to receive satisfaction from the entire mass of property owned by the debtor - but does not have direct security in this property, does not acquire any right to this property at the moment of concluding the obligation. His right to the debtor's property can arise only when, upon presentation of a demand, the public authority comes to this property and selects from it an object from the value of which satisfaction must be made. Therefore, here the creditor’s right to certain property arises not from the obligation and demand itself, but only from the verdict of the public authority, and in any case can relate to the available property of the debtor, which will be his at the moment of recovery, so that if at that moment there is no property behind him, then the creditor has nothing to take on and nothing from which to demand satisfaction. He believed the identity of the debtor and acquired the right only to his action, and not to the property. Consequently, the debtor, having issued such an obligation, is not constrained by anything in alienating his property and can sell, donate, etc. everything that was behind him at the moment of concluding the obligation. Moreover, such a creditor does not have any advantage over all similar creditors, even if his debt claim arose much earlier. He and others will have the same indefinite security with the entire mass of the debtor’s property, which will be his at the moment of collection, and if he turns out to be insolvent, then all creditors will suffer a loss in the same proportion. If all creditors were always to be in such an uncertain and uncertain position, then credit between private individuals could never be established on sound foundations. There is only one sure way to confirm this credit: to combine your debt claim with the right to a thing belonging to the debtor, with the right to certain property belonging to him. This firmness is acquired through the right of pledge and mortgage. The right of pledge is a property right, and therefore we consider it decent to talk about it before regarding patrimonial rights. In any case, in the right of pledge we see a link by which the system of personal rights and claims is connected with patrimonial rights. The right of pledge is an independent and unconditional right, because it is valid not only in relation to the debtor, the direct owner of the pledged property, but also in relation to all third parties; and we have seen that such a property is especially a property of property rights. If it acted only in relation to the debtor, it would not give the creditor any special advantage or security, and a simple creditor could in the same way demand satisfaction from all the property that the debtor would own. But the right of pledge turns out to be valid and achieves its goal in those cases where it is necessary to obtain an advantage over all other creditors, to exclude them from the right to satisfaction, or to seize the property that serves as security for the debt from any third party, no matter into whose hands it passes from the debtor. Therefore, the right of pledge receives its true meaning precisely in relation to third parties. But at the same time, the right to a pledge is an additional, auxiliary right, because it serves as a supplement, security for another, personal right under an obligation; therefore, the destruction or repayment of an obligation certainly entails the destruction of the right to a pledge. The concept of property rights is necessarily connected with the concept of collateral. Anyone who pledges his property deprives himself of a significant part of the right of ownership of the property - the right of disposal. He cannot, for example, break down his house, which is subject to collateral, or destroy its value. Anyone who has a lien on the house has the right to prevent this. He cannot sell the mortgaged property. If the property is sold, then its price will go not to the owner, but to the creditor who has the right of pledge. The modern concept of collecting a debt directly from the debtor’s property by the action of an established authority was developed historically in customs and laws. No matter how simple and natural it seems to us now, in the beginning this was not the concept among all peoples; the obligation was represented both in idea and in practice by a personal right to the action of the debtor, the recovery was addressed to the individual, and the transfer of liability to property did not seem, as it is now with us, an indispensable and immediate consequence of personal liability. Such a view was characteristic of the original economic way of life, when the value of things is determined primarily by their cash use, and not by the movement of market turnover, money has not yet acquired the meaning of capital and has not become a common unit for valuing all things included in property, there is no what we now call credit, there is no current variety of movable things and capital quickly circulating on the money and commodity market, and every economy is adjacent to real estate: - in such a state it is very difficult, sometimes even impossible, past a person, to seize his property directly and extract from it the required value, in satisfaction of the collection. In such a state, it is natural for the lender to seize the property of the obligor, known in advance, for his own satisfaction; but for this seizure, at first there is only one means - material retention and appropriation of someone else's property, under the condition of returning it to the previous owner only in the case when it is redeemed in time; those. the recovery was satisfied on time. Thus, the real purpose of the pledge, i.e. securing collection was achieved through a transaction that had an exchange property (Tauschgeshäft), and the primitive form of pledge among all peoples consisted in the actual transfer of property from the debtor to the creditor with full rights of owner. Such was the ancient Roman fiducia. The debtor transferred his property to the creditor in the same strict form in which the property was transferred, alienated his property, but alienated it on faith, precisely on the faith that the creditor would return the property to him upon payment of the debt. In this case, the property was redeemed; otherwise, the creditor received the right to satisfy himself with the value of the collateral, or to turn his property on faith into actual property. This harsh form of pledge was later softened by the fact that with the establishment of the right to pledge they began to connect the concept of the transfer not of property, but only of possession of the pledged property. This possession and use served the creditor instead of interest, and at the same time served as a means to force the debtor to pay the debt as quickly as possible. This is how another form of pledge was formed - pignus (Faustpfand), with which a personal claim was initially connected (in personam actio pignoratitia), but subsequently praetor's law gave this right the meaning of a property claim and the claim - the property of a claim in rem (actio in rem). Thus, in both forms, the creditor’s right to pledge came very close to the right of ownership and, over time, if the debtor failed, it could, by itself or with the assistance of the authorities, turn into the right of full ownership. In addition to the above reason, there was another, economic reason why these forms of collateral were established and lasted for a long time in the new European society. In the Middle Ages, charging interest on loaned capital was considered illegal and prohibited. Only for Jewish lenders was an exception allowed, and therefore the Jews, when collecting interest, usually took a manual mortgage, which more than provided them with the capital amount of the loan. Christians, for whom it was impossible to openly charge interest, had to confirm it on real estate when lending capital, not only for reliable income from capital, but also in order to receive a true reward for the use of capital instead of interest. The following methods were considered at that time: firstly, an annuity agreement; one party, giving capital to the owner of the estate and renouncing unconditionally or conditionally and for a period of time the right to demand capital back, received the right to an annual payment of a certain income or rent from this estate, in whose hands it was; secondly, it was possible to take the estate for capital, and instead of interest, use the income in kind from it. Meanwhile, even in the Roman world, with the development of legal consciousness, the idea arose that in order to achieve the essential goal of a pledge as security, there is no need to provide the pledged property in actual possession to the creditor, and that this goal is achieved by establishing a strong property right to the creditor over the debtor’s real estate. The purpose of this right is to give the creditor not property, not possession, not use, but correct security, independent of the rights that a third party could assert to the pledged property. On this basis, the property, serving as security for the creditor, could remain in the quiet possession of the debtor, who retained the right to use all the material benefits and all the economic forces of the property, as long as the security of the creditor was not reduced. This is a new form of security known as a mortgage. This new form is incomparably more complex than the first, requires a more developed legal consciousness, and corresponds to the highest development of economic life. In it, society receives the best, most perfect instrument of credit; on the other hand, handling this weapon requires more skill, caution, legibility, and technical dexterity. In the first form, the creditor, taking possession of the property, could consider himself completely secured, unconditionally, because he had a pledge in his hands and knew for sure that no one but him had the right to satisfaction from the pledged property. In the latter form, nothing prevented the debtor from using to the last extreme the entire credit of his property, securing his other obligations with it, establishing rights in it for other persons, and, moreover, in such a way that these new rights could conveniently be hidden from the original creditor. This important inconvenience of mortgage was especially noticeable in Roman law. Mortgage law among the Romans did not provide the lender with completely reliable security, because it did not have two necessary qualities: specialty and publicity. Among the Romans, the concept of mortgage was artificially expanded by the fact that it was possible to establish a mortgage on all the property of the debtor, which deprived creditors of strong security. Property is an indefinite concept, and its mass can increase and decrease over time; with each such change, the subject of the pledge should decrease or increase, so that the creditor’s security will essentially extend only to those objects that the debtor finds in foreclosure. And in order for the security to be reliable, it must extend to known, specific property. Moreover, under Roman law, some claims were considered unconditionally privileged; to other requirements, based on the special relationship of the person to the debtor and the special nature of the claim, Roman law, regardless of the contract, gave the force of mortgage law; this was the so-called legal, secret or silent mortgage. As a result, the creditor, when establishing a contractual mortgage on the debtor’s property, could not be sure that this same property was not secured by some other silent demand, which, at the moment of satisfaction, could assert itself, enter into competition with his mortgage right and even receive preference over it. Such shortcomings were very noticeable, but these provisions, together with the entire system of Roman law, for a long time seemed to be inviolable provisions to Western jurists, who had unconditional reverence for Roman law. Even in modern times, when, with the greater development of economic life, these shortcomings turned out to be decisively harmful to credit in practice, legislation could with great difficulty renounce Roman traditions; in other places these legends still hinder the improvement of the mortgage system. Meanwhile, in Germany, regardless of Roman forms, mortgage law began to develop in original forms that corresponded precisely to those qualities that are required for the firmness of this law, i.e. specialty and publicity. In another place mention was made of the ancient German custom of making real estate transactions before the court; According to this custom, transactions to establish a mortgage on property began to be made before the court. The announcement was at first verbal, but little by little in some cities, when, with the strengthening of industry, the need to approve and ensure civil transactions increased, they began to include the right of pledge on real estate in the land registers opened at the courts (ingrossatio). This led to the announcement of mortgage law, and thereby its specialty was established. The place of the note was the court in whose department the property was located, and the note was made not on the person, but on the property, so that by virtue of the note itself, rights and obligations were asserted not on the person with all his property, but on the known property of the person. This marked the beginning of the development of a new European mortgage system in Germany. This development in the 16th century was delayed for a long time by the artificial theory of scientific novelists, but the old German principles did not die out. Legislation, starting from the 18th century, began to gradually return to them, and the newest systems of mortgage law operating in Western Europe are now based for the most part on these sound principles. Mortgage law (Grundschuld, Realobligation) generally refers to real rights established on property. It is true that other views are also expressed that indicate a place for mortgages among personal obligations, since the mortgage lender has no right to own, use the collateral, or convert it to his own satisfaction at his own discretion. But this concept of mortgage has not yet fully justified itself and has not been established in science, in view of the essential properties of a mortgage that it is inextricably linked with the property on which it is established, and is not subject to transfer at the will of the person, but passes along with the property to anyone, no matter who the owner is. These are the main principles of the latest mortgage law, which are generally recognized as the best. 1. Only the person who is listed as its owner in the land mortgage register is authorized to establish a mortgage on his property. Only those mortgages are valid which are recorded in this book, and the rights recorded cannot be modified or violated by rights not recorded. This principle is not recognized with equal force everywhere, but its strict recognition is necessary for the establishment of land credit on solid grounds. Only under this condition does the uncertainty of mortgage law cease and the possibility of a silent right gaining preference over a spoken, written down right is prevented. Consequently, where the above rule is strictly observed, the superiority of one mortgage over another depends solely on the time of the note. Any subsequent claim is entitled to the value of the property on which it is recorded, unless the previous claim is satisfied. The rights written down one after the other do not enter into competition with each other, but are satisfied one after the other, according to the seniority of the note. With seniority comes advantage; therefore, this seniority in itself, regardless of the amount of debt, is of particular value. To ensure that this special value does not go to waste, some legislation allows the debtor himself, the owner of the estate, to acquire this value for his own benefit, to strengthen the credit, in case of voluntary or accidental repayment of the senior claim. When the debtor clears it with payment, or, entering into an inheritance after the creditor, repays the claim with his succession, the law allows the debtor himself to take the senior place of his creditor: the owner of the estate thus receives a ready-made instrument of credit - a mortgage, for which money will be given to him more readily in the senior place, and subsequent creditors have no right to consider themselves offended, for if they gain nothing, then they lose nothing from their original rights. It should be noted, however, that this rule, which is profitable and convenient in one market, may turn out to be inconvenient in another, where there are fewer values ​​and their circulation is not so lively, i.e. where the value of real estate is not certain and is subject to change. Where creditors cannot have a reliable expectation of preserving the original value of the estate during the liquidation of mortgages, there the calculation of the subsequent creditor always includes the chance opportunity to move in the repayment of the senior debt. 2. Any claim secured by a pledge should, if possible, be determined by a known amount. 3. The subject of the mortgage should always be the known, definite property of the debtor, and not the totality of all the property that belongs to him or may still come to him in the future. 4. Legislation strives to facilitate, as far as possible, the establishment of mortgage rights and to free it from restrictive forms. The main basis of the mortgage is the agreement of the parties, which must be recorded in the court record, according to a written or verbal announcement made before the court; and all objections and disputes that may arise from third parties are dealt with immediately in an abbreviated manner. However, the new legislation still struggles with the formalities introduced by the previous law for the execution of mortgage acts. Prussian legislation is the strictest in this regard, obliging strict verification of the formality and legality of acts entered into mortgage books. In France, in order to enter into a mortgage, a preliminary deed must be completed by a notary. 5. A very important subject for a real loan is considered to be every possible reduction in costs and duties associated with mortgage rituals. Experience has shown that these costs always fall on the owner: even if the law, wanting to facilitate the borrower, assigns its fees to the creditor, these fees will certainly fall, although indirectly, on the debtor, and will act to increase the debt interest. 6. When forced to collect debts secured by a pledge, each entire estate, listed on one sheet of the land register, must necessarily constitute a completely separate mass, from which all creditors whose rights are recorded on this estate receive satisfaction in a sequential order. Any deviation from this rule destroys the strength of the security. 7. Mortgage debts recorded on the estate do not prevent its alienation or sale, for the debts recorded on the estate remain on it, no matter in whose hands it is. 8. Based on the value of the estate on which the debt is recorded, it may not be fully satisfied. In this case, the question arises: does the creditor still retain the right to collect the rest personally from the debtor, i.e. from other free property he has? This issue is not resolved in the same way. Other legislation, referring exclusively to the property property of the security, the approval of the debt on the estate, denies the creditor additional recovery; others, bearing in mind the personal nature of the obligation, give room for recovery from the debtor to the end. Where there is no such rule, practice supplements it with custom, and when concluding transactions with mortgage security, creditors negotiate for themselves the right to personally recover the obligation if the estate cannot bear its value. The main difference between mortgage systems depends on the greater or lesser severity in the application of the above principles to the establishment and operation of mortgage law. But there is another difference - in the note system. Many laws, almost all German ones, give the judge or government authority significant participation in the establishment of a mortgage. The law makes him obligated to monitor the protection of the general state principles of land credit, to ensure that the value of the mortgage right does not exceed the value of the property that serves as the subject of the pledge; he is entrusted with preliminary verification of the rights of the pledgor and even verification of the correctness and legality of the transaction concluded by the parties or the obligation given. Naturally, when such a system operates, the mechanism of the note and the structure of its official bodies become significantly more complicated. According to another system adopted in French legislation, the law leaves it to the parties themselves to monitor the protection of their interests, and entrusts the official only with monitoring the authenticity and external correctness of the transaction. Prussian legislation was the first to set an example of the systematic presentation of mortgage laws on German principles of publicity and specialty. The Prussian Mortgage Regulation opens up a number of legislative changes and improvements in mortgage law. But the Prussian system subsequently turned out to be insufficient in many respects, especially in the extreme complexity of the mechanism it established. It was already far ahead of the new systems adopted in other German states. However, in this part, German legislation has recently been subject to revision in general, in accordance with the indications of practice and with the development of science, which is diligently engaged in the development of issues related to mortgages and the organization of the mortgage procedure. In theoretical terms, perhaps the best in development, both in general and in detail, should be recognized as the new Mecklenburg mortgage statute 314. The French system is considered imperfect and insufficient for securing credit. The French Code also maintains the specialization and publicity of mortgages, but these qualities are carried out in it very inconsistently. Along with the rights announced and written down, French law recognizes many rights that are silent and unwritten, suddenly appearing when satisfying the mortgage right and entering into competition with it or eliminating it altogether. These are the so-called privileges, legal mortgages, which are not at all subject to recording and announcement (legal mortgage of a wife on the property of her husband, those under guardianship - on the property of the guardian, etc.). But in addition to the legal mortgage, which rightfully constitutes a feature of the French law, a judicial mortgage is also allowed: every court verdict awarding recovery on any claim (and not only awarding, but simply confirming the validity of the act), itself produces a mortgage, which the interested person has the right to present to the note, so that a simple creditor or claimant, who has no right to a mortgage, by the force of the court the verdict approving his claim becomes one of the creditors who have the right of pledge under the contract, previously recorded in the book. This institution of judicial mortgage constitutes an important drawback of the French system: it significantly harms credit between private individuals and is inconsistent with the specialty necessary for mortgage law, because judicial mortgage, just like legal mortgage, extends not to the known property of the obligor, but to all his property in the aggregate, present and future. Regardless of the mortgage, which gives the creditor the right to things without retaining the thing, the latest legislation allows other forms of pledge, in which the pledged thing passes from the hands of the debtor and is retained by the lender as its security. Manual mortgage (Faustpfand, gage, nantissement), consisting of movable property. Since ancient times, the essence of this right was that the lender took direct possession of the pledged property, and the debtor was deprived of possession, so that without possession there was no mortgage right. Through this, the debtor was deprived of the actual opportunity to use and alienate his property, but regarding this property, a special legal relationship arose between him and the creditor. The creditor was obliged to return the item intact upon payment of the debt, and in case of non-payment, the item was sold at public auction. According to Roman law, the mortgage right came into force with the completion of the contract, but according to the German principle, which is also retained in the latest legislation, the mortgage of movable property is accomplished only by transferring it into the possession of the creditor: a simple mortgage agreement produces only the right to demand a mortgage, and not a real right to a mortgage. The subject of the pledge can even be credit papers, registered and unnamed, even just claims and demands, but in the latter case the person subject to the demand must be notified. In a manual pawn, a thing, according to an inventory that certifies its individuality and price, is transferred into the hands of the lender or a third party, without remaining in the hands of the debtor. The creditor has the right to hold the thing until the debt is paid, and receives the exclusive right to satisfaction from the money received for the thing when it comes to sale, or to take ownership of the thing by assessment, with judicial permission. By virtue of his property right, the creditor has the right to demand the mortgaged property from any third party who may have it. According to French law, a mortgage serves as an indivisible security for the debt, not only in its entirety, but also in each of its parts; so that, having paid, for example, part of the debt, the debtor has no right to demand the release of a certain share of the mortgage or one of its component parts until the entire debt is paid. Another form is a pledge of immovable estate (antichresis), so that the estate itself remains in the hands and use of the creditor until the debt is paid; only this use is necessarily counted towards capital or annual interest. Here, the security for the creditor is the material possession of the estate. The creditor has the right to retain the estate until he receives full satisfaction and security for it, just as with a manual mortgage, inseparably; but he does not have the right to take possession of the property instead of satisfaction, and in the event of the sale of the property for a debt, the creditor under the pledge does not have an exclusive right and advantage over other creditors, unless his pledge is assigned a mortgage right by a note in the books or his claim does not enjoy legal privilege. In English law, a special form of bail prevails, known as a dead lien (mortgage). It consists in the fact that the pledged property comes into conditional possession of the creditor until the debt is paid, so that if within the conditional period (proviso for redemption) the debt is not paid and the property is not redeemed, then it becomes the property of the creditor according to the force of the condition. With the expiration of the period, the right to redeem the estate is terminated in strict legal order; but the possibility remains for another 20 years to ask the Court of Equity for a ransom. The conscientious court even accepts requests to put the mortgaged estate on public sale when there is a fair basis for this, and to equalize values ​​between the parties when the value of the estate significantly exceeds the amount of the debt. This agreement on a dead pledge is a modification of the agreement on the conditional sale of an estate with the right of redemption: - in both cases, the pledgee and the buyer acquire conditional ownership, which can turn into unconditional. In English law, this form of a dead pledge differs from the so-called living pledge (vifgage, vivum vadium), when the creditor receives the mortgaged estate precisely in order to satisfy himself gradually in capital and in interest from the income from the estate, and withholds it until all his claims are fully repaid. But another transaction is also possible (known as Welch gage), according to which the income from the estate goes to repay only the interest, and the value of the estate itself is responsible for the capital. The dominance in English law of these forms of pledge, with which the transfer of the estate into the possession of the lender is connected, is explained by the fact that the Roman institution of mortgage is completely unknown in England. Something similar to the mortgage right of pledge occurs only in cases where a patrimonial deed or a document of ownership is accepted as security for the debt, without transferring the ownership of the estate itself to the debtor. The meaning of so-called privileged rights is also very limited in English law. Regardless of the pledge under the contract (Verpfändung), ancient German law allowed to an extensive extent the right to retain a thing to secure a claim, without the consent of the obligated person. This right flowed from the concept of lynching and defense, which was in connection with the concept of the patrimonial power of the owner within the boundaries of his land. This right subsequently turned out to be incompatible with the developing concepts of the zemstvo world and the correct structure of public administration and had to yield to the general rule that no one should be governed by himself. However, this right was retained in some of its forms; are as follows: the right of the landowner to retain movable property from the tenant of the land and farmer for non-payment of rent money; the right to provide for oneself in a similar manner, negotiated by condition; the right of a landowner to retain someone else's livestock for weeding fields and meadows. The newest law has, for the most part, retained only the last type of retention of someone else’s movable property, but with the requirement that this retention be at the very moment of destruction or damage, within the boundaries of one’s own land, and immediately declared before the court. The purpose of such a lien is to facilitate proof of injury and loss and to ensure satisfaction. German law is limited in that it allows the right of detention only for the above purpose in case of pests and violations of quiet possession in agriculture. In this sense, rules were established in Prussian, Austrian, and Bavarian legislation. But French law allows, in addition to this, other types of retention (for example, the landlord has the right to retain the movable property of a tenant, the hotelier - the movable property of a traveler, etc. See the so-called privilèges sur certains meubles. Code civ. 2102). But in its most extensive form and in a developed system, the English law under the name Distress allows this right. This right (distress) is given to the landowner to ensure himself in collecting overdue rent from the tenant. The subject of seizure can be any movable things, with some exceptions (for example, things for personal direct use, and industrial tools, things subject to damage, etc.). Only things located on the land constituting the subject of the lease agreement are subject to seizure, and it is not even required that the seized thing belong to the debtor himself; someone else's property may also be seized from him on land - in this case, it also serves as security for the claimant, regardless of the rights of a third party, with whom the debtor himself is obliged to deal. Subject to legal forms, it is possible to seize things in the owner’s house, even from locked premises. The seized things must immediately go into the custody of the one who seized them, and remain with him as collateral until satisfaction; but the owner must immediately be notified of the things seized, so that he can, if he wishes, release them on other sure security if he considers himself entitled to dispute the nature of the claim on which the seizure was made. If the owner of the things does not bother to release them or file a dispute within the prescribed period, then the seized things can be sold in accordance with the established procedure to satisfy the collection. In addition, the landowner is allowed to detain other people's livestock on his land for weeding meadows and fields; the owner has a direct right to this when his field was fenced and the cattle crossed the fence; otherwise, capture is allowed only when the cattle spent the whole night in someone else's field, and the owner did not bother to take it from there. The captured cattle must be put in a stall and stored, not used for personal needs, until the owner appears and is satisfied. Moreover, according to English law, the lender, if he has in his hands the property of the debtor who is obliged to pay, has the right to retain it until the debtor pays. This right is called lien and corresponds to a silent mortgage. It is based either on the law or on a special agreement, but in any case, only definitive, clear and revealed, and not only expected recovery, is subject to such security. § 69. Russian law of pledge. Its historical origin and original types. The first value of the mortgage and subsequent changes. a current lien on real estate. What can be the subject of collateral? Pledge of someone else's property and dependent possession. Freedom of the mortgaged estate. The value of the collateral. Law of 1862. Personality qualities. Form of pledge between individuals. Mortgage fortress. Prohibition The right of pledge was formed late in our legislation. This is completely in accordance with the prevailing concept in ancient Russian life about the personal responsibility of the debtor to the lender. By virtue of this concept, the debtor and, in general, the person obligated to act, was liable for the obligation first of all with his person and then with his property. This concept, however, is not exclusively national, characteristic only of Russian life. It is characteristic of any undeveloped civil life. It was also dominant in ancient Rome, and there it was consistent with the essence of obligation as a personal relationship in which one person is given power over another. This power at first was real power, until they came to the realization that an obligation only grants power over a certain action of a person and that it is possible to exercise this right over a person’s action in the right to his property. So, it is not surprising that in our history, until the 18th century, we everywhere encounter the concept of personal responsibility for claims on property: it still held strong among us, while in the West, with the development of civil life and under the influence of developed Roman theory, this concept has long outlived its time. “The debt lies on the entire property of the debtor, collection is made from the debtor’s property” - such a rule now seems to us simple and clear, like an axiom; but we could only develop it historically. It was not at all assumed in the ancient life of our ancestors and was not expressed in our ancient legislation. Perhaps, even at that time it was still possible to imply the direct responsibility of movable property for the debt of the owner, because movable property is free property; But with regard to real estate, this direct responsibility of the property could no longer be assumed by itself, because the full right of ownership of the owner in the real estate was not yet recognized and recognized. That is why we see that even at the end of the 17th century, our main means of satisfying penalties was to apply them not to the property of the debtor, but to his person, i.e. right In this form, the right of the creditor and the plaintiff, on the one hand, seems to be a complete, sharp, definitive right, as power over the person of the debtor or defendant, but, on the other hand, it seems not at all secured in material terms, precisely what should be the essential goal of any recovery. It is clear that the creditor wanted greater security and achieved it through a private agreement with the debtor, an agreement under which the creditor was given the exclusive right to a thing or property. The ancient legal view was not yet able to separate the concept of the right to someone else’s thing from the concept of possession and ownership, and therefore it is not surprising that the right to secure a thing was almost not separated from the right to own a thing. In the series of material provisions, our history first of all presents us with the provision of freedom. Here we see a complete merger of personal law with property law, because the personality of the debtor was likened to a thing, and the property right was exercised in the right to personality. Such agreements are already mentioned by Russkaya Pravda (purchases). This is where mortgages or pawnbrokers subsequently originated, hence indentured servitude, hence the satisfaction of debt through giving to live, and the last type of it - giving to public works, which ceased already in the 18th century. This right to pledge oneself for a debt was in great use, especially, it seems, in the 17th century, and was limited only by the right that the state itself asserted on the person of service and tax people who did not belong exclusively to themselves, but at the same time, and especially, belonged to the state. Around the 15th century, acts appear from which it is clear that the creditor is trying to establish a direct connection between his claim and the property of the debtor: for this purpose, in borrowed acts, the debtor means all or part of his property, recognizing the responsibility of the property for the correct payment of the debt (in silver and in the size of the court, one person); or it is stated that the known property of the debtor serves as a guarantee for the correct payment of money. Such acts do not yet express a specific right to pledge: their direct purpose is to attribute the satisfaction of the debt to the property of the debtor, to indicate the solvency of the borrower or to the property that serves as a guarantee of the good work of the borrower. But the right of pledge is expressed definitively in those acts in which it is specifically indicated that certain property of the debtor is given as security for the debt. By such acts, the parties themselves established for themselves the rules of mutual relations, regardless of the zemstvo law. But from the 16th century, the first decrees on pledge and its legal consequences appeared. With the establishment of a pledge in our country, possession of the pledged property was initially transferred to the pledgee. While there was still no awareness of the difference between possession and property, the pledge came close to the actual alienation of property. A relationship arose between the creditor and the debtor, by virtue of which the former had to return the property to the latter in the event of proper payment of the debt, so that this payment received the value of a ransom. With possession, the use of the pledge, free, characteristic of the full owner, also passed to the pledgee. Even the disposal of the pledged property, its alienation did not contradict the right of pledge: legal consciousness had not yet reached the concept of pledge as a right to someone else’s thing, and therefore the pledged property was not prohibited by the creditor. When the debt was overdue, the pledged property became the full property of the creditor, and its redemption was only allowed for relatives, according to family law. The mortgage, unless otherwise stated, was converted into a deed of sale in arrears, i.e. The mortgaged property was recorded for the creditor in the books of the local order. This is the ancient type of Russian law on pledge. Not before the 18th century, precisely in 1737, our legislation expresses a different, new concept of a pledge, as a means of securing a debt, which should serve only for this purpose. The mortgage was no longer ordered to be converted into a deed. The pledged property, in default, is sold at public auction, and the pledgor is given a grace period for redemption, and the pledgee at the auction is given only the right of first refusal and retention of the property in a claim when the terms of the auction are unfavorable for him. According to this new concept, ownership of mortgaged property cannot in itself become property; the pledge is not an alienation of patrimonial right, but only allows for the possibility of alienation later; is the concept of pledge as a right to someone else’s thing and the prohibition of pledged property. But this new concept of collateral did not appear for long. Under Elizabeth, in 1744, the right of pledge, which was in force during the era of the Code, was restored. The new system was finally established in our legislation not earlier than 1800, with the publication of the Bankruptcy Charter, and the essential rules of this system remain in force to this day. Only property that belongs by right of ownership can be pledged (1629). Giving someone else's property as collateral in one's own name is illegal and invalid. Someone else's property can be pledged for oneself only under an agreement with a third party, the owner of this property (1632, Pol. Treasury Contract., Art. 69) 315. If the property is owned by right of ownership, then there is no obstacle to pledging it, even if it was not in the possession of the mortgagor himself; but it goes without saying that in this case the rights of a third party, who, under an agreement with the owner, is in temporary possession of the property, must remain inviolable. So, the pledged property may not be in the possession of the mortgagor, but it must certainly be at his free disposal: it must be free, no one else’s property right must lie on it. A sign of this property right is the prohibition imposed on the estate. Until 1862, the unconditional rule was in force that a mortgage could not be made on an estate that was under prohibition 316. If this happened, then the real right under which the prohibition was previously imposed would remain in force, and the subsequent pledge would be destroyed, although at the same time the obligation that was secured by the pledge would not be destroyed. Even when there was no prohibition, but there was a mortgage on the estate that was later mortgaged into other hands, only the first of the mortgages remained in force (1630). But in 1862 this was changed, as we will see below. An estate in dependent possession without title is not subject to a lien on the part of the owner. Reserved estates, as constituting the property of the clan, cannot be mortgaged; only income from them is subject to pledge in certain cases (1641, 489). An estate owned for life is subject to pledge only on the basis of a special authorization on the part of the person by whom such ownership was established (1629, paragraph 2). When some property cannot be sold without the permission of the authorities or department, then it cannot be mortgaged without permission (1393, 1638). A pledge, like a deed of sale, may be accompanied by a condition regarding the clearing of the estate, in case the pledged property is subsequently alienated to another. On this basis, a disputed estate can be mortgaged (1631). Only the entire estate or such part that can be separated is subject to pledge. Property that is not subject to fragmentation during alienation is not subject to fragmentation during a pledge (1633–1635), since the pledge already presupposes alienation. In this integral form, the pledged property serves as security for a debt or claim. Even if several separate estates were mortgaged into one hand under one deed, each entire estate must meet only one specific and integral requirement, and therefore the deed must certainly indicate exactly what amount lies on each estate (1644). Until 1862, our law did not allow several joint real rights between private individuals, secured by the same estate, and therefore an estate pledged in one hand could not be pledged in another, even if the value of the estate exceeded the amount of debt to the first mortgagee. But in 1862, the Supreme Council approved on February 12 the opinion of the State Council on certain benefits and provisions for landowners and landowners. This, by name, special and private resolution contains an important change in the general rule regarding the pledge of real estate. Property pledged in credit institutions may, in addition, be pledged to private institutions and persons under mortgages. But, in addition, according to the meaning of paragraphs 2 and 3 of part III of this resolution, it can be concluded that estates pledged in private hands are allowed, with the rest of their value, to be pledged into other hands, subject to the existence of a previous pledge. “Debts to state credit institutions under the original pledge of the estate, liability for copies of certificates issued for pledge in cases with the treasury, and debts secured by mortgages on the same estate, as well as prohibitions on all these debts, do not serve as an obstacle to making a new mortgage” - these are the words of the decree. Only in the new mortgage must all debts previously secured by the same estate be indicated (Civil Law, Art. 16301, 1646). There are different opinions about the meaning of this new law, due to the ambiguity in its wording and the lack of motives. Many believe that allowing new collateral from the prohibition applies especially only to estates pledged in credit institutions. In this sense, the decision of O.S. 1st 3rd D-v 1866–1868 was made for the villages of Rabinovich and Markevich. Wed. Art. 1215 new Est. Court. Gr., which states that foreclosures on the mortgage are paid “according to the seniority of the mortgages.” In the case of Shperling, Citizen. Cass. The Department explained that an estate that is pledged to a private person, even if a loan from a credit institution was not issued as security for it, can be pledged to other hands for a second, third, etc. mortgages under the condition of granting the senior mortgagees the right of priority satisfaction from the mortgaged estate, and that the execution of mortgages with this last condition does not contradict Art. 1630. Zach. Citizen (dec. 1889, No. 88). Personality qualities. Since a pledge presupposes alienation, only the one who can alienate it by sale can pledge real estate (1627). Therefore, minors and those under guardianship cannot be mortgagors. If the mortgaged immovable property is in arrears, it is given into the temporary possession of the mortgagee. Therefore, the acceptance of a pledge is associated with the concept of the personal ability of the pledgee to own the property accepted as pledge. On this basis, only those who by right of fortune can own it can accept property as collateral (1828). Under this general rule, one can, by the way, prohibit, in the law of 1884, persons of Polish origin from accepting estates in the western region, located outside cities and towns, as collateral (Civil Law, Art. 698, note 2, appendix). Although these persons, by decree of December 10, 1865, were prohibited from re-acquiring landowners' estates in that region by any other means than inheritance by law, it was not prohibited to accept such estates as collateral, and this was often used to actually strengthen the mortgaged estate by mortgagees who did not have the right to acquire it legally. The mortgagee of a mortgage can be a legal entity - a noble society (1693). Regarding the right of persons of Polish origin to accept estates in the western region as collateral, Citizen. Cass. Dep. in decision 1882, No. 13, he reasoned that the prohibition on persons of Polish origin from reacquiring landed estates in the western provinces does not extend to accepting such estates as collateral; but when foreclosure on a mortgage, such estates can neither be given into temporary possession to the mortgagee, nor retained by him at auction. – But estates acquired by persons of Russian origin in the western region under the preferential rules of 1864 cannot, within the meaning of the law, be given as collateral to persons of Polish origin and Jews. Pledge form. Between private individuals, a pledge is made in the form of a mortgage fortress, by serfdom, because the pledge is associated with the concept of alienation of property or limitation of property rights (1642, 1643). Two witnesses sign the mortgage (1645). An indispensable consequence of the execution of a mortgage is the imposition of a prohibition on the mortgaged property. The form of this act is strict, and home deeds of pledge and mortgage do not have the effect of a mortgage. Wed. Cass. decide 1875, N 909 and many others. etc. In app. by 1420 Art. (note) it is said that mortgages are drawn up in relation to the form of the deed of sale. Therefore, in the mortgage the description of the mortgaged property and its accessories must be set out as required by the form of the deed of sale. From this, in one case, it was concluded that factories and factories included in the estate are not considered mortgaged if they are not named in the mortgage on the estate (see Cass. decision 1869, No. 1008). Maria Petrovskaya borrowed 2000 rubles from Sofia Topachevskaya. for a period of December 14, 1884, secured by the estate, but the senior notary refused to approve the mortgage on January 28, 1885, among other things, because the loan term had expired; Civil Kassats. Dept. recognized that the right of pledge is an independent right, independent of the loan agreement, the term of which is determined by the contracting parties; To establish this pledge right as a right in rem, the law only requires compliance with well-known rules, which include (Not. Pol., Art. 161) submission of the pledge act for approval to the senior notary of the judicial district where the property is located, within a year, regardless of the loan term, which may be less than a year. Thus, the establishment of this real right of pledge does not depend on the expiration of the loan term, especially since in this circumstance the need for a right of pledge arises for the creditor. For these reasons, the Department recognized that approval of the mortgage by the senior notary may also follow after the expiration of the loan term (dec. 1888, N 59). 1874, No. 139. An agreement to borrow money, with a mortgage or pledge of property, contains, on the one hand, the obligation of the debtor to pay the borrowed amount within a certain period of time, and on the other, the right of the creditors, in case of failure to fulfill this, to receive satisfaction from the known property specified in the agreement. In order for the creditor to exercise this last right, the law requires that the condition of securing the debt with certain property must be made in accordance with certain rules; failure to comply with these rules does not, however, relieve the debtor from the obligation to fulfill the obligation he has assumed - to return the money he has taken, but can only deprive the creditor of the right to demand satisfaction in the manner established by law for the execution of mortgage deeds themselves. 1877, N 59. Based on Art. 1647. X t. 1 h. upon completion of the mortgage, a prohibition is imposed on the mortgaged estate, and if, by virtue of the announcement form attached to Art. 1823, vol. X, part 2 (corresponding appendix to article 10 of the Law. Pol. Execution. Civil.) These announcements are written according to the names of the owners of the estate, however, the very form of the announcements indicates that it is being sealed about the prohibition of estates; In view of this, failure to transfer the prohibition to the new owner does not free the estate from the prohibition that is placed on it. § 70. Effect of pledge. Relations between the parties. Pledgor and mortgagee. Limited disposal of the estate in the person of the mortgagor. Is it possible to mortgage a mortgaged estate? The right of the mortgagee to object to the actions of the mortgagor. Protecting the integrity of the collateral. Transfer of mortgage rights. Someone else's collateral. Termination of mortgage rights. Resolution of collateral by payment. Lifting the ban. Exercising the right to pledge. Giving the estate into temporary possession to the mortgagee. The practical significance of this possession. Owner's responsibility. Deadlines for redemption. Public sale. Right of the mortgagee in a public sale. Exclusivity of the right to pledge The pledge establishes the exclusive right of the pledgee to the pledged estate, although it does not cease to be someone else's estate. The person who has this right is therefore called the pledgee, and the owner, the owner of the estate, is called the pledgor. These are the two persons necessary for any mortgage, between whom a special legal relationship is established through the mortgage. A pledge is usually connected to a personal obligation, and therefore a twofold relationship is established between these two persons: one regarding the obligation, the other regarding the thing, the property that serves as security for the obligation. This is the place to talk about the latter. As soon as the pledgee acquires the right to the pledged property, the right of disposal in that estate for the pledgor-owner is suspended. He cannot sell or transfer this property without the will of the mortgagee. Can't he mortgage the same property into other hands, with the consent of the mortgagee, under another mortgage? The law did not positively prohibit this; but the law understood in a pledge an exclusive right to a thing, belonging to only one person and connected with only one claim. Therefore, if there was a prohibition on an estate in favor of one person, not a single civil chamber (at least until 1862) would have made a mortgage on the same property in favor of another person, even with the consent of the first mortgagee, much less without his consent. To do this, it was necessary to first pay off the first mortgage and remove the prohibition from the estate. But the law of 1862 allows for an additional pledge on an estate that is already under prohibition (see above). By acquiring a real right to property in this way, the pledgee also assumes fear, just as the buyer accepts it upon receiving a serfdom deed from the seller. And therefore, if the pledged property goes bankrupt or burns, the pledgee suffers from this in his security, and has no right to demand from the pledgor that he provide him with other property as security. If, for example, when establishing a pledge, the property was insured, and then the owner ceased insurance, then the pledge holder, unless there was a special condition, cannot force the pledgor to renew the insurance, but can himself surrender the property for insurance, if he wishes, on the basis of special rules contained in the charters of insurance companies. In 1867, on issues that arose regarding mutual zemstvo insurance, it was decided: the mortgagee, whose claim is secured by a mortgage on uninsured real estate, may surrender it for fear not exceeding the amount of the mortgage; but the owner retains the right to insure it for the highest amount. In the event of property burning, the mortgagee is primarily satisfied from the amount of insurance compensation. These rules also apply to the pledge of private property for contracts, supplies and other transactions (see Complete Collection of Laws of 1867, N 45328). 1877, N 253. By virtue of 1630 Art. X t. 1 part. The pledge of property that is prohibited is invalid. The fact that the mortgage was issued by the owner of the estate in exchange for and for the payment of the previous mortgage, made before the imposition of the prohibition, cannot change the fact that the newly issued mortgage was made while the prohibition existed and, therefore, contrary to the literal meaning of Article 1630, which positively prohibits the giving and accepting of property subject to the prohibition as collateral, and does not allow such a replacement of one mortgage with another. 1873, N 600. Under the laws on the procedure for collection of overdue mortgages, the creditor, due to the overdue mortgage, insured the property that was uninsured by the debtor, and then took it into his possession on the basis of Art. 2026. X t. 2 h. (corresponding to Art. 192 Pol. Recovery Civil.), has no right to demand from the debtor compensation for insurance costs either for the time before he took possession of the property, or for the time when he owned it. The law does not provide the mortgagee with a direct right to object to the actions and orders of the mortgagor that are ruinous for the estate until the term of the mortgage has expired and it has not been submitted for collection. But from this moment it is hardly possible to deny such a right (Pol. Exoneration. Civil., Art. 618). The special law of pledge does not provide us with precise definitions of the relationship of the pledgor to the pledgee. The pledgor retains possession of the estate, and this possession is not hindered by anything, except for the prohibition, which makes it impossible to alienate the estate, and under the prohibition it is possible, according to our law, to carry out acts of alienation, for example, use, in person. But while the mortgage is not yet overdue and has not been submitted for collection and the mortgaged estate is under prohibition, in the possession of the mortgagor, the question is: does he have the right to enter into such transactions with third parties on this estate that tend to reduce the essential value of the estate or to restrict the free possession and use of it? Does, for example, the mortgagor have the right to sell the timber from this estate for felling? Do you have the right to give it, as a whole or in parts, for rent and quitrent maintenance to third parties? Although the opinion was expressed above that before the mortgage is overdue, the mortgagee does not have the legal opportunity to stop the actions and orders of the mortgagor that are ruinous for the estate, this does not yet resolve our question; for freedom of action does not yet presuppose the legality and correctness of these actions; on the contrary, it presupposes the personal responsibility of the actor for the consequences of his actions if they violate the legitimate interests of another person. Therefore, it is obvious that the mortgagor is responsible to the mortgagee for his actions and orders regarding the mortgaged estate, since the value of the estate could decrease from them - not, however, the value that the pledgee had in mind when calculating his security in view of the supposed personal insolvency of the debtor (the value of personal considerations), but the value that is actually extracted from the estate when it is turned to satisfy the entire secured penalty (objective value). Consequently, if, before the mortgage was overdue, the mortgagor sold timber from the estate for felling and leased it out, the mortgagee cannot, in this case, demand an appropriate addition to the mortgage; but when, upon satisfaction of the mortgage, it turns out that the value of the collateral was not enough to be fully satisfied, the mortgagee will have the right, regardless of the exhausted value of the collateral, to demand additional satisfaction personally from the mortgagor to the extent that he suffered damage in his security from the personal actions and orders of the mortgagor. But the question appears in another form. The question is: should the mentioned actions and orders of the pledgor on the estate, which is in his patrimonial possession, be recognized as a violation of the real right of the pledgee, and on this basis be recognized as invalid in relation to third parties who entered into a transaction on the estate with the pledgor. For example: should the mortgage be in effect, at the request of the mortgagee, to stop the felling of forests carried out on the estate by a third-party tenant, to stop the lease contract concluded by the mortgagor, and to exile the tenant before the deadline from the leased land? These questions cannot be resolved on the basis of general principles, which, as mentioned above, our law does not indicate and which we do not have the right to borrow from other legislation. The right of the pledgee, although in essence it is real, is still not the right of ownership, and in our system it does not even find a place in the category “on the acquisition and strengthening of property rights”, therefore it is in no way possible to apply the unconditional law of property to it. It is necessary for each case to examine, within the limits of a positive, special law, the content of the right that is alleged to have been violated in order to decide what the consequences of the violation will be, personal or material. Our law tells us the following in these cases. Forest cutting is not prohibited by direct law to the mortgagor in a mortgaged estate (between private individuals). Therefore, the mortgagee, before presenting the mortgage for foreclosure, cannot at all stop the operation of the forest felling agreement or, in general, the lease contract on the mortgaged estate 317. Upon presentation of the mortgage, if it were necessary to bring the mortgagee into possession of the estate, he, according to the previous law of legal proceedings, could only demand the transfer to his name of the rights of the mortgagor in relation to the tenant; but he could not stop the effect of the agreement, because the law did not provide it to him. There was and is no special law limiting the internal possessory right to dispose of the mortgaged estate; The only thing directly prohibited for the pledgor is the alienation of the property by acts of serfdom, and what is not directly prohibited is considered permissible. The measure of restriction of the mortgagor's ownership rights was determined only by the effect of the prohibition on the property; the effect of the prohibition on concluding quitrent contracts was revealed, by the force of the note, to Art. 195 Pol. Collection Civil, exclusively during the public sale of the estate for recovery; therefore, before the public sale, the right of the mortgagee to take possession of the mortgaged estate, in itself, could not destroy the lease and quitrent agreements concluded by the owner. The mortgagee, within the limits of the law, could take possession of the estate in the condition in which it found the estate from the previous owner (cf. Art. 615 Pol. Execution. Civil), i.e. with all the constraints and restrictions, and had to be content with this state, retaining the right of personal claim against the mortgagor for damage in collecting the debt. This represents the legal right of the mortgagee on this subject until 1864; only during the public sale of the estate, in accordance with the above note to Art. 195. Floor. Collection Civil, the validity of lease and quitrent agreements could be destroyed if they were concluded after the imposition of a ban on the estate. Obviously, the purpose of this rule was to protect the value of the estate in case of sale; it is based on the assumption that when concluding the contract, both parties, both the owner and the tenant, had in mind a prohibition - a sign of a foreclosure that has opened or could be opened, therefore the right of both (to receive rent and to use the rented property) in fairness can remain in force only until the moment when the recovery is actually satisfied with all the value extracted from the sale of the estate. With the publication in 1864 of the new Constitution. Court. Citizen a new rule has appeared in the law, which indirectly expands the rights of the mortgagee on this subject (see the discussion about this in Cass. Decision 1880, No. 200). It is in the general rules of the charter on collections from real estate (Articles 1099, 1100) that it is said that agreements on the estate (which is subject to recovery), concluded by the defendant after receiving a summons for execution (not directly recognized as void), can be destroyed by the court at the request of the collector, and in the case of a public sale of the estate - at the request of the buyer, if they tend to the detriment of one or the other. Here, the restriction of the administrative rights of the owner-debtor is based on his awareness of the foreclosure that has actually opened and is falling on a certain estate. But the effect of this article is limited only to those cases in which new statutes of legal proceedings are applied; therefore, if foreclosure on a mortgage is carried out through the court and on the basis of a writ of execution issued by the court, then the mortgagee may, even in the event of temporary possession of the mortgaged property, demand the destruction of contracts on the estate. Installed 1100 st. Est. Gr. Court. the right to demand the destruction of contracts also extends to the case of collection of payments due under the pledge of estates in credit institutions, and the occurrence of delay in payment is equated to the delivery of a summons for execution referred to in this article. Cass. decide 1875, N 541, 542; 1879, N 397; 1881, N 104. The new statutes of legal proceedings also contain an article that expands the meaning of the prohibition imposed on property. In 610 art. it is said that if a ban is imposed on a disputed estate, the owner is prohibited from cutting down forest there for sale. But this article, in its literal meaning, can hardly have application to the present question of the rights of the mortgagee; for, firstly, it is not about prohibition in general, but about the prohibition that is imposed by the court to secure claims and penalties; secondly, this rule applies to the prohibition imposed on a disputed estate in claims for ownership of real estate, therefore there is no reason to apply it to those cases, the subject of which is not the right of ownership, but recovery, even if secured by real estate. The Senate in Cass argues in the same sense. decide 1870, N 1885. The resolution of the dispute about the right of the mortgagor to sell timber for felling from the mortgaged estate depends in each case on the resolution of the question of whether the use of the forest through the sale of it constituted an income item in the mortgaged estate, and whether the sale in this case exceeded the measure of use? If deforestation in one or another amount is attributed to use, then the mortgagor, who retains the use of the estate, acted within the limits of his right; otherwise, he violated the economic integrity of the estate, contrary to the rights of the mortgagee (cf. Cass. decision 1871, N 1034). 1874, N 740. The prohibition imposed upon the execution of a mortgage fortress, and the publication of the submission of a mortgage for foreclosure, with the purpose of preventing the alienation of the mortgaged estate and calling the debtor to take an inventory, cannot constrain the owner in the ways of using and disposing of the estate. 1873, N 998. Art. 310 Set. Cred., ed. 1857 (corresponding to articles 22, 78, 79, 87 section VIII of the Constitution of Credit, edition of 1893) and 1388 and 1393 art. 1 part X t. prohibit the execution of acts on immovable estates pledged in a credit institution, according to which those estates are transferred from one person to another, without the consent of these provisions, but do not prohibit the use of the pledged estate and the extraction of income from it by renting it out, in its entirety or in parts. 1872, N 1209 and 1215. The owner of an estate that is mortgaged or generally subject to prohibition retains the right to own and use it or transfer the use of it to another person, at least for a period longer than the term of the mortgage. If such an agreement is aimed at depriving the creditor of the opportunity to receive satisfaction from the mortgaged estate by reducing its value or profitability, then the creditor has the right to request the destruction of such an agreement by virtue of paragraph 2 of Article 1529. X t. 1 hour 1874, No. 740. The law does not establish such a rule that lease agreements made by the owner lose their force and validity when the mortgaged property enters the temporary possession of the mortgagee; on the contrary, according to Art. 2033. X v. 2 part (corresponding note to Article 195 Pol. Execution. Civil.) contracts concluded by the owner of the estate before the inventory thereof remain in force until the period written in them, and an exception is made only in the case of a public sale, after which only those contracts continue to be valid that were concluded before the ban was imposed on the estate. 1873, N 1224. “From a comparison of Art. 514, 521, vol. X, part 1, 1099 and 1100 Establishment. Gr. Court., explained repeatedly by Rights. Sep. (dec. gr. cass. dep. 1868, N 771, 1869, N 663, 882, 1870, N 1794, etc.), it is clear that agreements on the estate, concluded by the previous owner before receiving a summons to foreclose on this estate, are binding on the buyer and remain in force until the deadlines specified in them, although if these agreements were not known to the buyer when purchasing the estate.” 1873, No. 1451. If it is established in the case that the land pledged by the landowner, remaining behind the peasants' allotment, is shown in the mortgage without marking the boundaries, and in this fortress, completed in the name of the acquirer at public auction, within the same boundaries as the peasant allotment, and that thus the very composition of the mortgaged estate was not determined with due accuracy when mortgaging, then the exchange of the cut-off land for an allotment, made by the landowner with peasants according to the rules of the regulations on peasants, does not constitute prohibited, Art. 1388, vol. X, part 1, alienation of part of the mortgaged estate. Until the debt has been satisfied from the pledged property, it must serve as an integral and indivisible security for the entire obligation and each of its individual parts. The question is: after the repayment of any part of the obligation, does the mortgagor have the right to demand a proportionate reduction of the pledge, as long as any part of the obligation remains unsatisfied? Although our law does not directly resolve this issue, it seems that, on the merits of the law, such a requirement would not be subject to satisfaction unless the contract stipulates a special condition on the separation of the obligation and the corresponding pledge. As long as the interest of the pledge consists solely in security, it is impossible to separate one part from the other and fragment the entire agreement of the parties, especially since the pledge contains not only the material protection of the interest, but also the moral motivation of the obligated person to do good work with the thought that his property is not free. On the contrary, when it comes to foreclosure, there is no doubt about the possibility of selling not the entire pledge, but some part of it, if it can be assumed that it will be sufficient to pay off the foreclosure or the rest of it. 1877, N 133. Arrears in taxes and duties to which the estate located is subject, on the basis of Art. 1129. Est. Gr. Court., in the management and possession of the mortgagee, must be paid by him from the income he receives from this estate, since the payment of any tax is ensured by the very estate that is subject to tax. The debt lying on the estate under a loan made from a credit institution on the security of this estate is in the same way secured by the estate itself and, on the same basis, payments to repay this debt must be made in a timely manner by the mortgagee; failure to fulfill this obligation gives the owner of the estate the right to demand in court to force him to pay arrears. 1875, No. 219. There is no such rule in the law that the arrears of the tax to which the mortgaged estate is subject cannot be collected during the entire time that estate is in the temporary possession of the mortgagee and, since the payment of any tax is ensured by the very estate that is subject to tax, there is no doubt that, receiving income from the mortgaged estate instead of interest on the mortgage, the temporary owner is obligated from these incomes pay the duties that lie on the estate. The pledgee cannot transfer his right during his lifetime to a third party, even with the consent of the pledgor, by means of a simple endorsement 318, much less through a simple transfer as movable property, or on the basis of a letter of trust (Cass. decision 1870, No. 678; 1880, No. 143). For transfer, the strict form only allows for the drawing up of a new deed, the execution of a new mortgage, with the destruction of the old one (Article 1653). In the event of death, the mortgagee may bequeath his mortgage interest or transfer it by law to his direct heirs. On the other hand, the mortgaged estate of the pledgor’s heir continues to serve as the same security for the pledgee’s claim. It is possible for the estate to be transferred during the lifetime of the owner, regardless of his will, precisely because of prescription. The mortgagor may lose his right of ownership of the mortgaged property due to the expiration of prescription, and another person may take ownership of this property through prescription. In this case, the right of the pledgee to the pledge is not reduced in any way, and although the new owner of the estate is not the mortgagor, the estate itself, in the same way as before, continues to serve as security for the obligation assumed by the former owner. This rule is established regarding collateral in a credit institution (Civil Law, Art. 694, note, appendix: Art. 3), but can also be applied to collateral between private individuals. Someone else’s real estate can also be pledged, as stated above, if the owner has given legal authority to do so through a power of attorney. In this case, through the pledge, a relationship arises between three persons: between the owner of the estate, the entrusted mortgagor and the pledgee. 1877, No. 59. The pledgee has the right to seek satisfaction of the debt from the property pledged to him, even if, for some reason, it has become the property of a third party who is not obliged to answer for the debts of the mortgagor. For this purpose, the pledgee is not obliged to begin special proceedings to return the estate to the possession of the mortgagor, since this would sometimes even be contrary to the legal rights of the mortgagor and a third party; thus, the mortgagor may lose his right of ownership of the mortgaged estate by the expiration of prescription, and another person may acquire the right of ownership of this estate by prescription; in this latter case, the mortgagor has lost the right to repossess the estate, and although the new owner of it does not enter into the mortgagor’s duties, nevertheless, the mortgagee’s real right to the pledged estate is not reduced in any way. Termination of pledge. A pledge establishes a property right accompanying a personal obligation and arising in connection with the obligation, as its security. It follows that with the termination of the obligation, the right of pledge also terminates. The method for termination is the fulfillment of the obligation, i.e. payment by a debtor of a debt to a lender. But with this payment the real right of pledge from the property is not yet completely removed. For this purpose, the ban on the estate must also be lifted. For this purpose, the mortgage, with an inscription about payment, is presented to the appropriate public place (the place where the mortgage was made), which, having made an inscription on it, returns it to the pledgor and makes an order to lift the prohibition. The note on the mortgage is also destroyed upon the lender’s application for satisfaction of the mortgage when it is lost and therefore cannot be presented. In the event of the lender's unwillingness to accept payment on time or the absence of him or his attorney, the money can be presented to the relevant office, which takes care of the collection of the mortgage, and issues a receipt to the debtor in payment to resolve the prohibition imposed on it (1650 and note 2 according to Cont. 1893; 1651 according to Cont. 1893; 1652 to Cont. 1893). An inscription about payment made on the mortgage itself is considered necessary to recognize the mortgage as destroyed and to lift the prohibition: this does not exclude, however, the legal possibility of proving payment under the mortgage and payment receipts issued separately (see Cass. decision 1871, No. 390; 1878, No. 95). In 1868, according to the village of Frolova (Cass. Resolution 1871, N 304), the Senate decided that the legal formalities for payment of a mortgage (the lender’s inscription on the mortgage, its presentation in the presence place, its entry into the book with an explanation of the payment, the overseer’s signature, the issuance of the mortgage to the debtor and the lifting of the prohibition) are significantly different from the formalities of payment for borrowed letters. In this case, the original mortgage was lost through no fault of the mortgagee, and collection was carried out according to the serf extract from the mortgage. There was an objection to pay the debt not to the lender himself, but to his spouse. The Senate recognized that in the absence of a genuine mortgage, in the absence of compliance with legal formalities of payment and in the absence of evidence of payment to the lender himself or his authorized representative, the mortgage cannot be considered paid. 1874, N 519. By force of Art. 1649 and 1651, vol. X, part 1, execution of a mortgage fortress is carried out by payment from the debtor to the lender of all money owed under the mortgage within the time limit established by it, or by presenting it to the proper official place; the name of such a place means a judicial one, not a police one - and according to the previous rules of legal proceedings (Article 572 of the Law of the Court. Civil), foreclosure on mortgages on real estate was not among the subjects of the department of police places. Merchant Grigory Chiknavarov borrowed 150 thousand rubles on the security of a plot of land with buildings from the hereditary honorary citizen Yakov Khlytchiev, who, after the expiration of the mortgage, filed for foreclosure. The defendant objected and presented evidence that the mortgage was unfunded; Based on this evidence, the mortgage was recognized by the Tiflis Judicial Chamber as non-monetary, and Khlytchiev’s claim was denied. In the cassation appeal brought by the plaintiff, the question was raised: is the statement about the lack of money of mortgages on real estate, made in accordance with the established procedure, accepted in court with respect? This question is Citizen. Cass. The department allowed it in the affirmative, since the law does not indicate that disputes regarding lack of money against mortgages are not accepted, and therefore the cassation appeal was left without consequences (1888, No. 70). On the other hand, the right of pledge may itself cease without any termination of the personal obligation and liability for the main obligation. For example, in the event of a transaction to terminate the mortgage or when the mortgaged house burns down. Exercising the right to pledge. There are features in the exercise of the right to pledge that indicate its historical significance. When, due to failure to fulfill the main obligation, the mortgage is submitted for collection (Law. Court. Civil., Art. 572), the property is first of all given to the mortgagee for temporary possession, if he has the right to own it by rank (Law. Court. Civil., Art. 615, 621; Establishment of the Court. Gr., Art. 1129, 1130). This possession is important because through it the right is exercised and the debtor is induced to pay promptly. In the proper sense, this is not full ownership, but use of property income instead of interest, use combined with management and subject to reporting to the owner. The temporary owner accepts possession according to the inventory and signs that he will own it, as is typical for a good owner. He should not impose new taxes, should not appropriate everything that belongs to the entire estate, and should not damage land and economic establishments. On this basis, the income comes into his unaccountable ownership and is not counted towards the capital amount (Pol. Recovery Civil., Art. 192). If the mortgagee cannot or does not want to take the property into his possession, then it is left with the mortgagor, but not with full ownership, but also on the books, also according to the inventory and also with the obligation not to reduce anything against the inventory (Law. Court. Civil., Art. 618; Pol. Execution. Civil., Art. 182). From the time of appearance for foreclosure, foreclosure is delayed for a year to give the mortgagor time to find funds to redeem the estate, for which he can sell or re-mortgage it (Law. Court. Civil., Art. 619, 620). If he himself has not redeemed it within a year, then the family estate can be redeemed by relatives, if there are no other penalties other than the mortgage (Law. Court. Civil., Art. 625) 319. However, they are not expected to do this, but after a year the property is again described with an assessment, and depending on this assessment, not the entire property may be assigned for sale, but a part of it equal to the amount of the debt, of course, if it was separated (Law. Court. Civil., Art. 624; Pol. Execution. Civil., Art. 231–240). Upon sale, the debt is paid from the amount received, and the remainder is returned to the mortgagor. But if all the pledged property at its price turned out to be insufficient to satisfy the debt, then the pledgee must be content with what he has and no longer has the right to demand additional satisfaction: its satisfaction is made from the pledged property (even if it passed into other hands: Cass. decision. 1881, No. 65), but only from the pledged property, and from nothing more (Law. Court. Civil., Art. 626; Pol. Recovery. Civil, art. 315). This exclusivity of the pledge extends in all fairness to the recovery of not only capital, but also all its legal increments, for example interest. If you can’t get interest from the collateral, there’s nothing else to look for. But should the same be understood about other penalties arising from the relationship of the parties regarding the pledge, but not constituting a direct increment to the obligation, such as: losses, litigation costs, etc.? It would hardly be fair, since claims of this latter kind do not arise directly from the pledge and do not, without special condition, enter into the original contractual calculation of the security, but arise from the personal actions of the obligated party. An exception from the stated rules was established by law on March 14, 1887 for foreign citizens in the provinces of the western region, Bessarabian, Kingdom of Poland, Courland and Livonia; on the basis of this law, although it is not prohibited for foreigners to accept real estate as collateral, when they foreclose on mortgages, mortgagees - foreigners can neither take possession of these properties nor purchase them at auction (Law. Comp., Art. 1003, note 2, appendix, according to Cont. 1890). Laws passed on March 14, 1892 and March 19, 1895 (Collected Uzak. No. 472), foreign settlers with Russian citizenship and persons migrating from the Privisland provinces, are prohibited in the Volyn province from acquiring immovable estates outside urban settlements, owning and using these estates, and acts and agreements drawn up in bypass the said prohibition was ordered to be declared invalid. Therefore, within the boundaries of the said province, Russian subjects from foreign settlers and settlers from the Kingdom of Poland can neither take possession of the estate by mortgage, nor purchase it at auction. 1884, No. 25. The Lubensky District Court refused to approve for the Jew Golosokhver the estate mortgaged to him by Moiseenko, which remained with him, Golosokhver, at auction, guided by 2 paragraphs of the Highest approved on May 3, 1882, Regulations of the Committee of Ministers, which prohibited the execution of deeds of sale and mortgages on immovable estates outside cities in the name of Jews and shtetls in the provinces of permanent settlement of Jews. This decision was upheld by the Kharkov Judicial Chamber and the Citizens. Kassats. Dept. found to agree with the exact meaning of the above Provision. The entire mortgaged estate is liable under the law, and not any part of it; therefore, splitting the pledge or foreclosure on part of it, at the sole discretion of the pledgee, is not allowed; but when, after the death of the mortgagor, certain parts of the mortgaged estate came into the separate possession of the heirs, it is possible to apply to one or another part of a separate, albeit proportionate, recovery. Cass. decide 1881, N 127. The basis for the right to pledge is a contract; but this agreement also establishes the real right of the pledgee to the pledge. The pledgor is not responsible to the pledgee for the value of the thing accepted as collateral, because the loan is approved, according to the essence of the agreement, on a known thing; but one can hardly doubt that the pledgor is responsible for the identity of the thing and for its integrity. Therefore, if it turned out that the estate that was accepted as collateral in the indicated number of dessiatines did not actually have the full amount, then the pledgee, who did not recover the full value of the debt from the pledged estate, has grounds to personally demand additional satisfaction from the mortgagor according to the calculation (cf. Videnev’s case in Cass. decisions 1869, No. 593 and 1880, No. 187). This basis is the same on which the buyer recovers from the seller for the amount of tithes that is not included in the bill of sale. To Cass. decide 1871, No. 231, the reasoning of the chamber was refuted, as if the penalty to ensure proper payment of the mortgage is subject to recovery only from the property with which the mortgage debt was secured. Cass. by decision (1870, No. 1795) it was recognized that foreclosure on a forfeit note made in addition to the mortgage and as security for the same debt cannot be applied to the mortgaged estate. The special meaning of collateral is in some contracts, in which the collateral, upon conclusion of the contract, is transferred to the party who has to demand performance, so that, in case of failure to perform on time, the party can immediately satisfy itself from this very collateral. For an example, see Cass. decide 1867, N 146. Security deposit deductions from payments due; for an example see 1867, N 401. The mortgagee himself has the right to participate in the auction, and if the estate from the auction remains with him, then he submits his mortgage for payment, which is always accepted instead of cash, in full, without any calculation, even if there were other creditors (Pol. Recovery Civil., Art. 296, 298). But when there are no people willing to bargain, the mortgaged property is finally confirmed to the mortgagee, to his full satisfaction, in the amount in which it was mortgaged, without redemption (Pol. Recovery Civil., Art. 308, 315; Cass. 1875, No. 493). And when only part of the mortgaged property was sold at an assessment (Law. Court. Civil., Art. 624), then in case of no-show, the mortgagee can ask either for approval of this part for him, or for the appointment of a new auction for the estate as a whole (Pol. Recovery. Civil., Art. 309. Compare also Art. 1068, 1187 Establishment of Court. Civil.; Senate. Uk. 1852 P.S. Zak. When no one showed up or only one person showed up, then according to the St. Ed. 1842 (and 1832) Art. 3091, 4029 – the mortgagee had the right to retain the estate for the entire claim, or to ask for a new auction. At the new auction, the mortgagee in any case accepted the estate (if again no one showed up), without taking it into account, in full satisfaction of the mortgage. The regulation on public sale of 1849 changed this procedure in that it is required: the mortgaged property, after the first auction and re-auction, in the event of no-show, finally goes to the plaintiff - without taking into account, according to the assessment, in full satisfaction of the mortgage (Regulation on inventory, etc., 1849 - § 285, 286, 288, 293). Then, with the addition of the law in High. approved Mn. State owls On May 20, 1857, the same rule was left in force, i.e., that the estate, in the absence of those wishing to appear, is confirmed to the mortgagee in the composition as it was sold, in the amount in which it was pledged, without taking into account the valuation; therefore, if the value of the estate is higher than the amount of the mortgage, the excess goes to the satisfaction of the mortgagee, and if lower, the mortgagee has no right to demand additions from the debtor’s other property. In this sense, the issue was resolved in the Lazo case in General. Collection Sep. and State owls For the right of the second mortgagee to request a new auction, see Cass. decide 1881, N 38. In the Kalashnikov case (Cass. decision 1871, No. 994), confusion arose as to whether the procedure for satisfying mortgages during the public sale of estates had not been changed by the rules contained in Art. 1170 - 1182. Est. Gr. Court, and specifically whether the effect of Art. 2148 is limited. 2, part X vol., ed. 1857 about leaving the estate after the first failed auction for the claimant, in the amount of the mortgage? The Senate explained that the effect of this article remained in force. The same decision explains that when the mortgagee, after the first failed auction, did not keep the estate for himself, but asked for a new auction and, having taken part in it, offered a price for the estate higher than the amount of the debt, then in the event of a secondary invalidity of the auction, the estate is left to him not in the amount of the mortgage, but in the amount that he himself offered for the estate at the auction. 1874, N 269. Based on the laws included in Vol. X, Part 2, Art. 1068, 1102, 1117–1123, 1151, 1171, 1177 and 1187 Const. Gr. Court. On November 20, 1864, it should be concluded that neither within the meaning of Art. 2148, vol. X, part 2 to Cont. 1863, below in content Ord. Gr. Court, the mortgagee does not have the right to retain the property pledged to him in satisfaction of the debt under the mortgage if the auction scheduled for the sale of the property, which exceeds the value of the mortgage, did not take place due to the non-appearance of those willing to bargain, and one circumstance is that for a debt of 700 rubles. an estate valued at 1240 rubles, assigned for sale in its entirety, does not yet give, in case of non-appearance at the first auction, the right to the mortgagee who does not want to use the right granted to him by Art. 1171 Set. Gr. Court., to turn the estate into one’s favor without bargaining to satisfy the mortgage debt, especially in view of Art. 1102 and 1117–1123 Const. Gr. Court. 1876, N 118. By virtue of Art. 1129. Est. Gr. Court. the failed first auction for the mortgaged estate, as it did not result in the sale of the estate, cannot have an impact on the right of the mortgagee to manage it and receive income from it; such a right continues to remain inviolable until the second auction, after which the estate must become the property of either the buyer or the creditor. 1874, N 129. Art. 1528 and 1529, vol. X, part 1, invalidate agreements concluded to achieve a goal contrary to the law, i.e. prohibited by law; but such agreements cannot include the obligation of the mortgagor to replenish the borrowed amount from his other property if it is not secured by the sale of the mortgaged property; the law not only does not prohibit such conditions, but even directly establishes that when a loan is secured by shares and interest-bearing securities, the borrower assumes the obligation to additionally pay the missing amount if the entire loaned amount is not obtained through the sale of securities (Article 2168, Vol. X, Part 1); therefore, although the mortgage fortress itself gives the mortgagee the right to satisfaction only from the pledged property (Articles 45 and 2155, vol. X, part 2, ed. 1857), nevertheless, the mortgagor, who freely disposes of his property, can, according to the current legislation, accept satisfaction of the creditor up to the full amount of the loan - in case this amount was not obtained by the sale of the pledged property. 1884, No. 5. The mortgage on the estate issued by Esipov to Myasnikov included the following condition: “if Myasnikov is forced to file this mortgage for collection and, upon the sale of the mortgaged estate, the proceeds at the auction turn out to be insufficient to cover the debt on the mortgage, then he, Myasnikov, has the right to replenish the amount missing to him to cover the debt, to seek it from everything else, Esipov’s property not pledged under this mortgage, at his, Myasnikov’s, discretion.” When selling the property, the proceeds were less, so a claim was brought to collect the missing part of the debt from Esipov’s other property; The Rzhev District Court and the Moscow Judicial Chamber, to which the case was transferred on appeal by Esipova, guardian of her young children, satisfied the plaintiff’s request. Therefore, according to the cassation appeal brought against the decision of the Chamber, Citizen. Kassats. Dep. found that “although the mortgage fortress, in itself, gives the mortgagee the right to satisfaction only from the pledged property (Law. Court. Civil., Art. 37, ed. 1876, corresponding Art. 626, ed. 1893), nevertheless, the mortgagor, who freely disposes of his property, can assume the obligation to satisfy the creditor up to the full amount of the loan, in the event that this amount would not be obtained by selling the mortgaged property. If such an obligation is not at all contrary to the law, then, by virtue of Art. 1530, Zach. Civil., could be included in the mortgage, and therefore, like any other obligation, legally drawn up, was subject to execution, on the exact basis of Articles 569 and 570. Zach. Citizen." 1890 No. 72. – On the question raised in the Borovsky case, whether, according to the general laws on foreclosures, the first mortgagee, after the first failed auction, has the right to retain the mortgaged estate, despite the demand of the second mortgagee to schedule a new auction, Civil. Cass. Dep. reasoned that the general rule of Art. 1171. Est. Citizen Judgment, according to which, if the auction does not take place, the creditors have the right to ask for the production of a new one or to retain the estate for themselves in the amount with which the auction began - when applied to mortgagees, it should be explained in the sense that in the absence of a special agreement, the right to retain the estate for themselves, after the first failed auction, can be recognized for the first mortgagee only in the case when the second mortgagee does not require the appointment of a second bargaining. In any case, the mortgagee has priority and an exclusive right, so that, in the event of the debtor’s insolvency, his pledged property does not go to the estate to be divided among the creditors, but is sold separately, exclusively for the satisfaction of the mortgagee, and only what remains for his final and complete satisfaction is included in the estate (Law. Court. Civil., Art. 507, 510, paragraph 1, 3, 513, paragraph 3, 626. Ord. Torg., ed. 1893, art. 598, 599 p. 3); but the competition has the right of redemption (ibid., Art. 572, 599, paragraph 3. See also 1215 Art. of the Constitution of the Court. Civil.). Until 1862, as stated above, our legislation generally allowed only one entire mortgage right on one estate, and therefore, when collecting from a mortgaged estate, there could be no competition between different rights to the mortgage. But in 1862, it was allowed to mortgage the same property into different hands, and moreover, it was decided that the first mortgage right, when satisfied, has priority over all subsequent ones, so that if an estate pledged in a credit institution is later mortgaged into private hands, then if the mortgage is overdue and the estate is sold, in any case, the debt on the first mortgage is satisfied first of all, and the subsequent ones are satisfied from the remaining value. See Cass. decide 1881, N 38. On the occasion of the liberation of peasants, regarding mortgages made before 1861 on estates being redeemed, it was decided: if the redemption loan, together with the additional payment of the peasants under the redemption transaction, does not fully cover the debt secured by the estate, then the redemption is allowed only with the consent of the creditor, which is then satisfied from the redemption loan; The lands acquired by the peasants are released from the mortgage, and the unpaid amount of the debt is secured by the rest of the mortgaged estate. But even for such mortgages, which were made after the decree of release, the mortgagees have the right to priority satisfaction from the redemption loan (Regulations on redemption, Articles 72, 109 and appendix to it). § 71. Mortgage of movables. The essence of the right to mortgage. Mortgage forms. Action of mortgage. Retention and sale of pledged property. Pawn items. Pledge of debt securities The title of lien applies to real estate; There is a mortgage on movable property. The essence of a pledge also consists in acquiring the exclusive right to the pledged thing; but, by the nature of the property, this security would be incorrect if the thing remained in the hands of the owner - the debtor, for movable property allows free circulation from hand to hand and is not subject to prohibition, and therefore, as a general rule, the pledge is combined with the transfer of the pledged thing into the possession (but not for use) of the lender. Only one’s own property can be mortgaged, and someone else’s only with the permission of the owner (Gr. 1663, 1664, paragraph 1; Cass. decision 1881, No. 75). Therefore, the pledge of government property is invalid; if they are taken as a mortgage from a soldier, the lender is even subject to foreclosure (1664, paragraph 3). The property must be free, not included in the inventory or sequestration due to penalties (1664, paragraph 2). The purpose of the mortgage must not be illegal. The bet on the game or for the game is invalid (1666). It is prohibited in drinking houses to accept clothing, dishes, things and rural works as a pawn for wine (approx. 1665). Icons cannot be pawned; This provision follows both from the prohibition of turning icons into public sale, and from the resolution of the credit charter, according to which salaries from holy icons and in general things with sacred images are not accepted as collateral in loan treasuries (Pol. Recovery of Citizens, Art. 352; Establishment of Credit, ed. 1893, Section IX, Art. 24; cf. Constitution of the Civil Court, Art. 973, paragraph 5). Although the law, when establishing the rule on mortgage, refers primarily to cash items, the subject of the mortgage can also be acts that serve as representatives of values ​​or the basis of a claim, such as: notes of credit institutions, loan letters and bills, shares, etc. Whoever can lend money can also accept it as a mortgage. Churches do not have the right to distribute their capital for mortgages (1665). Form. The pledge is made in the form of a deed drawn up by a notary or serf affairs where new Judicial Statutes have not yet been introduced, or by domestic deed, in which case the deed may not be issued. In the first case, the act is called a mortgage on real estate, in the latter - a house loan letter with a mortgage on movable property (1667–1669, 1673). Both the one and the other act must be written in front of witnesses, to whom the things themselves are presented; of things, an inventory must be drawn up in two copies for both parties, indicating the price of each thing. Immediately these things, under the seals of witnesses and the borrower, are given to the lender (1670, 1671). But according to the charter of the State Bank on June 6, 1894 (Collected Uzak. N 698), the Bank is authorized to leave movable property accepted as security for obligations for the use of borrowers or for storage; in this case, he draws up, in the presence of three witnesses and in the presence of the police, an inventory and imposes visible signs of acceptance of them for mortgage (seals, brands, etc.), if this is possible due to the nature of the thing - otherwise, the mortgage right of the Bank has no force in relation to third parties (Article 8). Wed. cash register decide 1872 N 975 and 991. The law in its definitions refers only to the written form of a pledge, but a pledge is not only possible, but for the most part is accomplished in ordinary life by a single verbal agreement and the transfer of the pledged thing, which, being in the hands of the lender or trustee, in itself already serves as security for him. Cass. D. The Senate in its decisions recognizes the conclusion of a mortgage agreement in written legal form as necessary for the right to satisfaction with the sale of the pledged items. See 1867, No. 212 and many others. etc. Wed. decide 1870, N 813. A simple written agreement, not stated anywhere, about placing the pledged thing directly into the ownership of the creditor for late payment of an obligation does not give the creditor a legal right to the pledge, so the debtor, without being released from the obligation to pay his debt, can demand his thing back. Cass. decide 1868, N 340, 378. 1872, N 991. If the creditor, contrary to 1665–1673 art. X v. 1, leaves the pledged things with the debtor, without attaching seals to them, then his mortgage right does not affect the debtor’s transactions with third parties about this property, unless it is proven that the third party knew about the existence of the mortgage right. To Cass. decide 1872, N 975 The Senate reasoned that there is no legal basis not to recognize as a mortgage agreement a transaction in which the debt is actually secured by a mortgage, the pledged things are clearly and thoroughly indicated in the inventory, according to Art. 1670. 1 h. x t., but, at the request of the creditor, left in the hands of the debtor. Action of mortgage. The lender, having received the pledged thing into his hands, does not own it and does not use it, but only holds it for himself, becomes its guardian, and therefore must keep it intact under his own responsibility. The debtor, upon payment of the debt before the due date, has the right to demand the return of the thing (630 Law. Court. Civil; Law. Gr. 1676). The creditor is responsible to the debtor for its integrity, and can appropriate it to himself only with the permission of the court, as satisfaction for the obligation. If the mortgage is lost from the lender in any way, therefore, even without his fault, then the claim under the obligation itself is destroyed, and if the price of the mortgage exceeds the price of the claim, then the lender must also give the mortgagor additional satisfaction (Gr. 1676). The mortgagee cannot transfer the deed of mortgage by signature (Gr. 1678). Upon presentation of the mortgage deed for foreclosure, the debtor is given two months to redeem. After this period, if the debtor does not satisfy the lender and does not give feedback on the assignment of the thing to him, the thing is given to the lender with a court certificate (Law. Court. Civil., 629, 630, 632). During this time, the debtor himself or his other lenders only have the right to demand that the thing be sold at public auction (Law. Court. Civil., 584, 510, paragraph 4); but in this case, if the price for the thing is less than what is due to the pledgee, the person who demanded the sale must make up for this deficiency (Law. Court. Civil., 634). During the sale, the law does not grant the mortgagee of the movable property a preemptive right to retain the thing: along with other plaintiffs, he can, if those wishing to fail to appear, retain it at the first valuation auction; and on the second - at the last offered price (Pol. Collection. Civil., Art. 364. Compare another 1068 Art. Establishment. Court. Civil.). Termination of the main obligation entails termination of the mortgage right; but, on the contrary, with the cessation of this latter, the effect of the obligation does not always cease. For an example, see Zak. Civil, 1664 Art. clause 1. A mortgage, like a pledge, serves exclusively as a means to satisfy the secured recovery and, in the event of the debtor's insolvency, is not divided among the creditors. However, in this regard, if the debtor is insolvent, the law makes a distinction between movable mortgages and house mortgage letters. The first are among the necessary acts of appearance, therefore, in them the time of their commission, the time of establishment of the mortgage right, is always announced and determined with complete certainty: there can be no doubt about the legality and validity of the time advantage. On the contrary, the latter are written at home, may not be presented for appearance and are carried out in silence, so that an unscrupulous debtor can, to the detriment of his creditors, silently issue backdated mortgage letters on his own behalf in order to reduce the amount of creditor property. To counteract such abuse, it was decided that if the debtor is insolvent, his house mortgage letter, not shown where and properly, therefore, not having a completely firm and reliable number, does not enjoy the right of exclusivity, and the mortgage turns into a mass, and the mortgagee is satisfied even after all the manifested obligations (Gr. 1674, 1677. Law. Court. Civil., Art. 513, paragraph 2, 635). In case of insolvency of the debtor, house mortgages on movable property are inferior to the treasury foreclosure if they are given after the award and publicity in the public places of the treasury foreclosure: they are satisfied after the treasury. Mortgages on real estate are understood differently: here the doubt is resolved according to the time when the prohibition is imposed on the estate (Law. Court. Civil., Art. 513, paragraph 2, 3). When the subject of the mortgage is not a thing, but a credit or debt paper, then, according to the nature of the property, the exercise of the mortgage right should differ in certain features; but our law does not establish special rules on this subject. However, it is difficult to do without special rules here. Debt paper is not a natural thing, therefore the concept of sale as a method of satisfaction does not always apply to it. There may be several cases here. There may be an unnamed debt paper, which, no matter in whose hands it is, serves as a representative of a certain value, for example, an unnamed share, series, etc. There may be a debt document written in the name, and although it also has a certain market value, it requires formal transfer when passing from person to person; for example, registered share, etc. There may be a debt paper containing an obligation between private individuals, based on a personal loan, therefore not having a specific market value, subject to unilateral transfer on the part of the creditor, but also requiring a nominal and formal transfer. Finally, there may be a contract that is subject to even less determinative market valuation, is even more subject to chance and is not subject to unilateral transfer from any of the parties participating in it. Moreover, a debt security can be: perpetual, not losing its strength and value either from the passage of time or from inaction on the part of the holder of the right, for a certain period; urgent, losing force and value with the passage of time and due to inaction. To what extent this or that type of debt paper can serve as the subject of a mortgage between private individuals, what kind of relationship arises between the mortgagee and the pledgor regarding the mortgage, what kind of action it produces, and in what order the mortgage law is exercised, we do not find regulations about this in the laws, and therefore transactions of this kind, although very common in civil life, are left to the silent action of personal will or are made in the form of transfers, under which the mortgage agreement is hidden. The law (Gr. 2168) specifies only the form of lending against shares where there are brokers. The debtor then transfers the shares to the creditor with a letter authorizing him, in the event of a payment failure, to satisfy himself with the exchange value of the shares; and if the shares cannot be transferred without the participation of the company, he also delivers the announcement to the board of the company, and the creditor issues a corresponding obligatory letter on his behalf. There are some regulations on this subject related to pledges under contracts with the treasury (see below). In the Charter of Sudopr. Citizen It was decided that when foreclosure is applied to credit institution notes seized from the debtor, if he does not put an endorsement on them himself, such an endorsement is made by the court (Article 1083). Our legislation does not mention the pledge of a pledge or mortgage at all. This would also be inconsistent with the essence of our mortgage law between private individuals, since until recently we did not allow joint rights of several mortgagees to the same property. 1878, No. 114. An act according to which the debtor of a bill, as security for the creditor, transfers to him a mortgage made by a third party to pledge him, the debtor, a house, cannot be recognized as such an act, the commission of which is prohibited by law, and as an act of security can be drawn up unilaterally and not in a notarial manner. 1875, No. 410. By virtue of § 56 of the charter of the Supremely Approved Society for the mortgage of movable property, only stolen things that will be recognized as such by the court are returned by the company to the owner, i.e. things acquired by the pawnbroker through robbery, robbery, theft and fraud, and not through appropriation and embezzlement, which must be redeemed from society. 1875, No. 658. When performing a pledge act, the application of seals and the transfer of things to the pledgee are actions that cannot be attributed to the execution of the act itself, but they constitute within the meaning of Art. 1671. X t. 1 hour only follow-up actions. Therefore, failure to fulfill them does not deprive the act of pledge of validity, but only affects the accuracy of the security of the pledgee - for example, he cannot find the pledged things from third parties if the things passed to them legally, etc., finally, when executing the pledge, a dispute may arise about the identity of the pledged things. In the case of the tradesman Pavlik Citizen. Cass. Dept. The question was to be resolved: can the pledgor of things accepted by the city public bank as security for a loan issued to him, assign his right to receive those things back to another person, by means of an endorsement on a ticket issued by the bank. The Department found that the closest relation to this issue is Art. 126. regulations on city public banks (P.S.Z. 1883, N 1526), ​​which states: it is not prohibited for the borrower to sell the pledged items, only so that, before returning them to the buyer, the entire borrowed amount is deposited into the bank; within the meaning of this article, the bank releases the pledged items to the buyer not before the payment of the due amount. It follows that the right to the things pledged in the bank can be assigned by the borrower to another person, and if the buyer deposits into the bank the amount that was issued on the security of those things, then the bank does not have the right to refuse to issue them to the buyer, and from this it naturally follows that the transfer of the pledged things and the ticket itself to the buyer of the pledged things and the ticket itself is inevitable, for without the presentation of the latter the bank would not have the right to issue pledged things neither to the borrower nor to his legal successor (1888, No. 30). 1875, N 658. Transaction made in violation of Art. 1667–1673. X v. 1, although it does not retain the meaning of an obligation with a pledge of movable property, but gives the force of 460 art. Est. Gr. Court. the right of the creditor to demand back the money borrowed, and the debtor to demand his things back. 1884, No. 6. In the Savitsky case, the question arose: can the pledge of unnamed interest-bearing notes of a state bank presented to the treasury or to departments protected by treasury law to secure contracts be invalidated, if it then turns out that the ownership of these papers belongs not to the pledgor, but to a third party. On this issue, Citizen. Cass. Dep. expressed the following considerations: “based on 1 clause 1664 art. t. X, part 1, the pledge of someone else's movable property pledged without the permission of its owner is invalid; in this case, it is returned to the latter, and the lender is allowed to collect the money under the mortgage deed from the pawnbroker. This resolution is placed in a number of articles on the pledge of movable property between private individuals, and therefore cannot have direct application to cases of pledge under agreements with the treasury. Regarding the pledge of movable property to the treasury, the rules set out in Articles 1655–1662 of the Law apply. Citizen (corresponding to Articles 77–79 of the Regulations on Treasury Contracts, Edition of 1887 and Article 71 of the Constitution. obrochn.), which determine the conditions under which the treasury accepts various interest-bearing securities as a pledge.” From Art. 1655 (Art. 77 Pol. Kaz. Contract., Ed. 1887) it is clear that bank notes, on the same basis as cash, when presented as collateral, should be considered as property undoubtedly belonging to the pledgor, and therefore, except in cases of their theft, no third party can make claims to return them, even if in a dispute between him and the treasury pledgor it was recognized that the ownership of these tickets belong to the first of them. Of course, the same value of 5% of bank notes with current coin cannot deprive the actual owner of the right to sue for their return from the holder, but the decision taken on such a claim will be binding only in relation to the disputing parties, without in any way violating or derogating the rights of third parties to the same property, and, as a result, the previously committed pledge of these notes must remain in force. 1885, No. 89. The tradesman Bokhan pledged in his own name to Rusetsky the winning tickets of the first and second loans, which belonged to the person under his guardianship, and for this the criminal court was found guilty of embezzlement, and the pledge of other people's tickets was invalid. The Tiflis Judicial Chamber approved the decision of the district court, based on Articles 402 and 1664. Zach. Citizen, but Citizen. Kassats. Dept. found that Art. 1663 and 1664 Zak. Citizens, as based on laws issued before the restoration of special laws on bearer tickets, cannot be applied to these tickets, and that if the pledgee does not know that the tickets presented as pledge were someone else’s property, their pledge cannot be invalidated. Proposed conversions of mortgage rights In the second department of His Majesty's Own Office, a draft regulation was drawn up back in 1859 on securing contracts and obligations by mortgage. This project was subject to consideration in the State Council, from where in 1860 it was submitted for discussion to the commission on the structure of zemstvo banks that was then in St. Petersburg. The commission, after reviewing the project, issued its conclusion on the main principles of a mortgage institution in Russia. Then, in 1861, by Imperial command, a special commission was established to draft laws on securing debts by mortgage, under the supervision of the Secretary of State; Regardless, the Ministry of Internal Affairs arose about the widespread introduction of land registers, and a commission was established to organize the correct registration of land property in Russia. Finally, in December 1867 the whole matter of the mortgage system was transferred to the Ministry of Justice, where a commission on this subject was again formed, which began work in February 1868 and in 1869 drew up a draft charter on strengthening the rights to real estate and ensuring foreclosures through the mortgage procedure. According to this project, it is proposed to establish land registers for patrimonial (see above) and mortgage notes. In necessary connection with this institution lies the complete change in our mortgage law, modeled on the best foreign legislation studied in theory and practice by the drafters of the project. The main features of this project are the following: expansion of credit with the ability to establish several mortgages on one estate; destruction of the system of prohibitions with their replacement by a note of mortgage in the land register and, in appropriate cases, temporary protective marks; full application to the note of the principle of publicity, by virtue of which the written right alone is considered valid in formal legal force, as a right in rem, specialty and seniority; the decisive elimination of general, secret and privileged mortgages; freedom in making mortgage transactions, so that consolidation is not necessary for them, and so that they can be completed by notarial procedure; freedom to transfer mortgages at the discretion of the creditor, and issue certificates of mortgage to the owner, so that they can be converted into mortgages by a notary, at the discretion of the owner; providing the debtor with the opportunity to take advantage of the seniority of his debt under the mortgage when this debt is repaid by his hereditary succession after the creditor; allowing personal liability of the debtor, regardless of the mortgage, only under a special condition with the creditor; the establishment of a new shortened procedure for foreclosure of mortgages, without summoning the defendant to court, replacing the giving of the mortgaged estate for temporary possession to the mortgagee - by giving it, if desired, for temporary, accountable management to the creditor before public sale. Upon careful examination of this project, it turned out that all the improvements and improved forms adopted in the latest legislation, proven by experience, were introduced into it; but since some of these forms and rules, with all their dignity, may not correspond to the degree of development to which the economy has managed to reach in Russia, and the existing everyday conditions of our credit, it was considered necessary to subject the project to a new revision among the same commission in which it was developed (for a detailed presentation of legislative work on this subject, see the article by Mr. Markov, published in the journal Civil and Trade Rights 1872, No. 1 and 2). Currently, the draft on securing contracts and obligations with a mortgage has been prepared in the commission for drawing up the draft civil code, but has not yet received legislative movement. Chapter two. Special types of collateral § 72. Pledge of estates in credit institutions. Its forms, distinctive properties, order of satisfaction. New credit institutions. Zemstvo banks and partnerships. Warrants We differ from the right to a pledge acquired under an agreement between private individuals among themselves, the right to a pledge and mortgage acquired by a credit institution or a government department on the property of a private person, by mutual agreement. Some features of this right are worth mentioning. Although many of the credit institutions mentioned in the XI volume of the Holy Law have already ceased their special activities, the previous pledge obligations in these institutions still exist in full force, and therefore the rules of these institutions still retain their practical significance. Credit institutions, such as the Loan Bank, the Commercial Bank, the Safe Treasury, the Orders of Public Charity and the public Banks, enjoyed the right to distribute their capital on the security of real estate or the pledge of movable property. This right, on the one hand, aims to benefit the institutions themselves, and on the other, the benefits of private credit and industry. The pledge is made directly by the individual's obligation to the bank. The trustworthiness of real estate property is certified by a certificate from a public office or a senior notary; houses and buildings must be insured. Property accepted as collateral is prohibited. Then, without the consent of the bank, no alienation, re-pledge or division, and fragmentation of the collateral is allowed (1329 Art. Civil Law); only expropriation does not require the consent of the bank (Civil Law, 713, note). With any necessary transfer of property, the pledge obligation in the name of the new owner is also renewed. The sale of the estate can be completed with the consent of the bank and with the transfer of debt. The bank's consent in case of alienation is absolutely required. Zach. Civil, 713 and Const. Credit The mortgage of the immovable estate is accompanied by a gradual redemption of it. The loan term can be for 15, 28 years, 33 years, or 28 and 33, or even longer, so that calculated repayment interest is also paid every year. The term is usually indicated on mortgage sheets issued by banks, which are printed in a form approved by the Minister of Finance; however, recently, by the law of May 27, 1891 (collected law No. 688), joint-stock land banks were given the right to issue mortgage notes without indicating a maturity date on them. In a mortgaged estate, another person’s right to security is also allowed. This happens because with pledges of this kind the value of the property is more clearly indicated. If its value exceeds the loan made, then the borrower is issued an additional certificate indicating the amount of the estate pledged to the bank, so that the remaining value of the estate can be presented as collateral for government contracts, supplies and other obligations (see above about the law of 1862). When, with the repayment of a certain part of the debt over time, the amount of debt is reduced to a certain size, it is allowed to bring the debt back to its original level through re-pledge. In addition, property collateral and debt can be transferred from one credit institution to another. The property pledged to serve as the exclusive security of the bank is not used to satisfy other debts; but if the borrower accumulates many other debts and he turns out to be insolvent, then with the consent of the bank, the estate, and despite the correct payment to the bank, can be subjected to public sale with the fact that the debt to the bank, in any case, is satisfied preferentially (cf. many. State Council. February 12, 1862 on benefits and relief for landowners when pledging estates). Default on an obligation between private parties arises, and collection can only be started when the term of the mortgage has passed, and until then there is no need for payment. But for collateral in credit institutions, under special loan conditions, the obligation is fulfilled annually, periodically, and therefore collection can begin before the expiration of the final term of the loan, as soon as periodic payments fail. The bank satisfies itself directly, for it informs itself about the taking of the estate into custody and about the inventory; then, after the expiration of the grace period, he appoints the estate for sale and sells it himself at auction, satisfying himself first of all. Opinion of State. owls On October 22, 1877, it was established that, in the event of a decrease in the value of the mortgaged estate due to the fault of the owner, the credit institution may require the return of a proportionate part of the loan earlier than the originally established period. Therefore, land banks, in the event of depreciation of the mortgaged estate, will owners enter into unfair agreements, have the right to challenge such agreements before the court, in order to ensure their interests. The bank cannot demand the destruction of such agreements if the mortgagor regularly makes his payments, but can ask for these agreements to be declared invalid in the event of the sale of the estate due to a failure in payments. Cass. decide 1881, N 166. In some cities, there are special city auxiliary construction capital, from which, for speedy and proper construction, cash loans are issued to those wishing to build on empty sites, secured by collateral. In 1865, it was decided (V. approved by P. Com. Minister. December 10) to turn all such capital into city banks to strengthen the main fund - but so that the original purpose of this capital was not lost sight of. In 1886, special rules were established on the issuance of cash loans to insufficient fishing producers in the Arkhangelsk province; These loans are secured by the property of the artel and the personal property of the participants, and collection is made first from the artel property, and if it is insufficient, it is applied to the personal property of the artel participants (Vol. XII, 2 parts, Ust. Rural Economics, ed. 1893, Art. 284 app.). In 1859, the acceptance of immovable populated estates as collateral by credit institutions was stopped. In 1860, the State Loan Bank was abolished, and the credit operations of the Orders of Public Charity were transferred to the department of the Ministry of Finance. The operations of only some orders remained in force, for example. Donskoy - see Complete. Collection Zach. 1868, N 46042; Full Collection Zach. 1871, N 50051. A State Bank was established in place of the former Commercial State Bank, with offices and branches, organized on a new basis. Banking operations include the production of loans secured by: 1) interest-bearing and other credit securities; 2) gold and silver and movable property in general; 3) goods, grain cargo, on the basis of special rules on this subject. See Set. State Bank June 6, 1894 Collection. Uzak. N 698. In 1863, a mutual credit society was formed, from which loans are made exclusively to one member of the society against bills, interest-bearing papers, under a mortgage on real estate pledged to the company (Poln. Sobr. Zak., N 39465); subsequently, such societies appeared in many cities, and in 1872 the Minister of Finance was authorized to approve their charters on the model of the Charters of the Penza, Novocherkassk, second Kharkov and Warsaw mutual credit societies (Constitution of Credit, section X, article 27 et seq.). In many cities city public banks have been established, which, according to the general charter issued in 1862 (Credit Ordinance, Sec. XI), have the right to issue loans against various types of collateral and against real estate. When pledging real estate to the bank, documents must be submitted for it, a certificate from a senior notary or the subject local court about the ownership of the estate by the borrower, about its reliability and freedom from government and private penalties, and an insurance policy. Property is assessed by the city government according to special rules and no more than half of the assessed amount is issued as a loan. The mortgage period for buildings, depending on the material and strength, is from 1 year to 8 years, and for land from 1 year to 12 years. A special type of secured loan is a loan from the treasury for the purchase by Russian people of estates belonging to Polish landowners in the western provinces. In some cases, the purchaser of a private estate could receive a loan for this item, in the amount of up to half of the assessed amount, from the Ministry of State Property. According to the rules, such a loan must be repaid with an annual payment of 6%; and until repayment is complete, the estate, being under prohibition, must serve as security for the loan. In other cases, private individuals of Russian origin were allowed to purchase state-owned estates in the western provinces, with the benefit that the entire assessed amount, remaining in debt on the purchased estate, could be repaid with an annual interest fee (Poln. Sobr. Zak. 1864, N 40692). In 1882, on similar grounds, a regulation was issued on the Peasant Land Bank to facilitate the acquisition of land by peasants (Constitution of Credit, ed. 1893, sect. VII), and in 1885 the State Noble Land Bank was established to maintain land ownership of hereditary nobles through loans against their lands for periods ranging from eleven to sixty-seven years. Loans are issued on the security of free and unfree lands under the condition of payment of the debts secured by them from the loan, or when the creditor agrees to issue a loan, giving the bank the right of priority payment from the property accepted as collateral. Estates pledged to private credit institutions are accepted as collateral with the payment of debts to these institutions from the loan. Estates in common ownership are accepted as collateral only with the consent of all co-owners. Borrowers, when mortgaging estates, must submit a valuation inventory, a certificate of pledge, plans and documents for ownership. The loan is issued in an amount of no more than sixty percent of the appraisal; loans in the highest amount can be issued only with the permission of the Minister of Finance. Second and subsequent mortgages on estates pledged to the bank are made only with the knowledge of the bank, and the division and alienation of part of the estate - with its permission. The estates of faulty borrowers are put into public sale, or into trusteeship, at the request of noble guardians. By the law of June 12, 1890, the affairs of the mutual land credit society were transferred to the jurisdiction of the noble bank, with the establishment of a special department for them (Constitution of Credit, ed. 1893, section VI). To help everyone who has an urgent need for money, to save them from covetousness and the oppression of usurers, loan treasuries were established in St. Petersburg and Moscow, which issue loans secured by gold and silver in bullion and in things, precious stones and pearls (Constitution of Credit, ed. 1893, section IX). Secured loans are also issued by joint-stock and commercial banks (ibid., section X). In addition to the general, long-known methods of ensuring the right to a thing, i.e. In addition to collateral, pawn and mortgage, in modern times other methods of security have emerged to facilitate credit associated with patrimonial rights. These methods are connected with institutions brought about by the development of social economy. These are: 1) mortgage insurance societies existing in some German states; 2) the so-called credit societies, the first of which was established in Prussia in 1769, to benefit ruined landowners. Credit societies are societies or companies of landowners, established in order to secure the debts owed by each of the individual members by the mutual guarantee of all members of the society. It happens as follows. Each of the landowners that make up the company can demand that his property, according to certain rules adopted in the company’s charter, be assessed, and for a certain share of the valuation, for example, 1/2 or 2/3, the company opens a loan to him. For this purpose, the company prepares a deed for a commensurate amount, i.e. a mortgage sheet (Pfandbrief) to the bearer, indicating the estate on which the loan is secured, and issues this sheet to the owner of the estate. From this moment on, this sheet serves as a representative of value to the extent of the loan being opened, and the owner disposes of this value at his own will. He turns, for example, to a capitalist and receives money from him as security for a loan expressed in a mortgage note. Then this person becomes the lender and owner of the mortgage note; but his personal debtor becomes not the owner of the estate to which the sheet corresponds, and not the bearer of the sheet who received money against the sheet, but the entire credit society, the entire corporation of landowners. From the cash desk of this company the lender receives interest, and from it he is also satisfied with the capital when he wants to demand it back. The property indicated in the mortgage sheet serves as collateral for it. The company, for its part, takes this capital and this interest from the owner of the estate, who is obliged to pay interest and pay the capital on time; if slowdown or insolvency follows, then the company has the right, without resorting to the assistance of the authorities, to immediately take away the property from the owner for its management, and even, if necessary, put it on sale directly. Thus, mortgage notes are supported by double security: on the one hand, a mortgage right lying on a certain estate, on the other hand, a mutual guarantee of all members of the society. Moreover, they are usually written to the bearer, and, circulating from hand to hand, like any credit paper, they significantly contribute to the expansion of credit associated with real estate. The same value can at the same time in different hands serve as security for different demands. Thus, for example, the owner of a mortgage note can, in turn, transfer it as security to a third party, the third to a fourth, and so on, with each new owner of the note becoming a creditor of the original borrower if the borrower's personal loan directly fails. It is clear what convenience comes from this mobility, which the value of real estate acquires in the form of a mortgage note. This benefit will become even clearer if we compare this form with the well-known form of a pledge certificate on the trustworthiness of real estate, issued by senior notaries and other places to ensure government contracts and supplies. This certificate either has no circulation or has a very weak one and, remaining in the hands of the mortgagee until the end of the contractual performance, lies with him as dead capital without circulation. In recent times, several institutions have arisen in Russia that offer a similar form of property credit. Without touching on the details of this loan, I consider it necessary, just for clarification, to point out the most important of these institutions. As an example, it will be enough to cite here the main principles on which the credit operations of the zemstvo bank of the Kherson province are established (Constitution of May 20, 1864 P.S.Z., N 40898 and additionally in P.S.Z., N 43432). Owners of estates pledged to the bank are recognized as members of the company and are subject to general liability for their land property pledged to the bank for all obligations concluded on behalf of the bank. The estate is primarily responsible for the correct payment of interest and repayment of the loan. Then, if the estate should be subject to circular liability, then this liability, distributed among all estates pledged to the bank, falls on them in proportion to the amount for which each estate remains in debt to the bank at the same time. Loans are assigned no more than the estimated amount. They are issued with interest-bearing securities in the form of mortgage sheets, mortgage notes, etc. Any new owner of a mortgaged estate, with its transfer, becomes a member of the bank. When 1/5 of the loan is repaid correctly, an additional loan can be made against the same estate. The smallest loan amount is 500 rubles. Estates under trusteeship and estates containing in total less than 100 acres of convenient land are not accepted as collateral. For each individual estate, the assessment and loan must be separate. Loans are issued for a term of 34 years and 11 months. The mortgaged estate cannot be fragmented during inheritance beyond the prescribed amount. The bank enjoys an exclusive privilege in collecting debt from the mortgaged estate. This right is second only to the collection of tax arrears and previous debts to credit institutions when settlements with them have not been completed. The loan is issued upon certification of the borrower's patrimonial right and the boundaries of his possession - a senior certificate. notary and upon the assessment carried out by bank agents. Mortgage sheets can be named or unnamed to the bearer. Interest on them is paid by the bank to the bearer. In case of failure in payments, the estate is sold at public auction by the bank itself. On similar grounds, a partnership of acquirers of estates in the western provinces was established in 1866. According to the assumption, as we know, which did not come true (for the partnership was closed in 1867), it was supposed to be composed of purchasers of estates who had received a certificate from the Ministry of State Property for the right to take advantage of a preferential loan for the purchase of estates. These persons become debtors of the partnership, receiving a loan from it either in mortgage notes, or in cash received through the sale of these notes (Poln. Sobr. Zak., N 43547). In recent years, many new private credit institutions have emerged rapidly in Russia. Until 1867, we had only three commercial banks: St. Petersburg Private Commercial (established in 1864), Moscow Merchant (1866) and Riga Exchange (1863). The St. Petersburg Mutual Credit Society was founded in 1863. the same society has existed in Kharkov since 1866. To issue loans secured by real estate, until 1867, there were: Livonia Noble Credit Society (1802), Estland Noble Credit Bank (1802), Ezel Peasant Bank (1826), Zemstvo Credit Society of the Kingdom of Poland (1825), Courland Credit Society (1830), Alexander Noble Bank bank in Nizhny Novgorod (1841), zemsky bank of the Kherson province (1864), mutual land credit society (1866), whose affairs are now transferred to the noble bank, St. Petersburg City Credit Society (1861), Moscow City Credit Society (1862) and Riga City Credit Society (1864); only 16 institutions. Then, from 1867, the number of newly established banks began to increase significantly, and petitions to change the charters of banks that already existed began to be received quite often. Granted to Mr. Fin in 1877. introduce into the charters of land banks, at their request, a rule that in the event of a decrease in the value of the pledged real estate, due to the fault of the owner, the credit institution has the right to demand the return of a proportionate part of the loan and before the expiration of the period initially assigned when pledging the property; if the owner does not satisfy this requirement voluntarily, then the credit institution is allowed to seek from the owner a part of the loan commensurate with such depreciation (Credit Constitution, ed. 1893, section X, art. 54). When an estate that was sold due to the borrower's defect, due to unsuccessful bidding, remains with the bank, the prohibition is not lifted from the estate until the final sale. Then the debt is transferred to the buyer, and if he does not wish and completely buys out the estate, then the bonds for the part of the loan outstanding (with a new debt?) are withdrawn from circulation (ibid., section X, art. 53). In 1882, rules were issued to change the procedure for selling at auction estates pledged to land banks (ibid., section X, article 53, note). Recently, a special form of pledging goods through so-called warrants has come into use. This form has long been used in England, from where it was borrowed from us. There the merchant, having received notice of the arrival of his goods, transfers his invoices, receipts or bills of lading to the dock office, with an order to accept the goods, clear them at duty, place them in warehouses, display samples, make a publication about the sale and, under certain conditions, carry out the sale itself. The warrant he receives for the goods deposited in the warehouse indicates the type of goods, its weight or measure, origin, number, name of the owner, etc. Such a warrant, being a completely reliable bill of exchange in the hands of the merchant, gives him the opportunity, with the help of a simple blank inscription, to pledge it and receive a loan against his goods without the burdensome formalities of inspection, verification and typing of the goods. If a buyer is found, then, having taken the mark of the warrant numbers under which the samples are displayed, he examines them in the exhibition halls, and the transaction ends immediately by means of an endorsement on the warrant. The new owner, if the goods purchased by him are not intended for his own use, leaves them in the same warehouse or forwards them to another destination. In this way, trade and credit operations are greatly simplified, and the same basic value of goods becomes the support and instrument of diverse credit. And we have now established several joint-stock companies for warehouses aimed at similar operations. The company, on commission from the commodity owner, accepts goods and cargo for storage, issuing warrants for them. The warrant indicates: the name of the company and the amount of collected share capital; the place where the warrant was issued; current number, year, month and date of receipt of the goods; type, name and quality of the product, number of places or lots; weight and measure, which warehouse to accept the goods for storage; the period within which the goods must be taken back by the owner; whether the goods are insured, in what amount, for how long and in what company; payment to the company, assessment of the goods made by the board of the company. The warrant may be issued in general or for each party separately; registered or bearer. Warrants can be pledged, and the owner transfers it to the lender with a letter, which provides, in case of non-payment on time, to require the company to sell the goods; and the lender issues a corresponding written certificate to the recipient of the loan. When pledging a registered warrant, a transfer inscription certified in the name of the lender must be made on it, of which the company must be notified; when releasing the warrant from the mortgage, a transfer inscription is made in the same order in the name of the previous owner; the loan transaction must be written on paper prescribed for broker's notes, subject to other formalities. The pledge of a warrant in a credit institution is accomplished by transferring the warrant to this institution, upon the announcement of the owner of the warrant that in case of non-payment, the credit institution has the right to demand from the company that issued the warrant the sale of the goods shown in it. In return for such an announcement, the credit institution is obliged to issue the mortgagor a written certificate, which must indicate which warrant has been accepted as collateral and under what conditions the loan has been issued. Moreover, the company itself can make a cash loan against its warrants, either directly or through special commodity-collateral certificates. In this certificate, the company assumes the obligation to pay, within the legal period, the agreed amount to the person who will receive ownership of the certificate. Upon issuance of the certificate, the goods are considered pledged to the company for the indicated amount. Such a certificate is issued only for goods insured to the extent shown. Certificates are issued for a period of time, they can be named or unnamed, and can be accepted for registration, which does not, however, prevent the owner of the goods from the right to sell his goods by transferring the warrant before the storage period. A loan issued under a warrant or certificate is secured exclusively by goods that are not used to satisfy other claims. In this regard, see the charters of societies, which provide each with a more or less extensive range of action for such operations. These are: Oryol Society of Commodity Warehouses “Podsporie”, Full. Collection Zach. 1871, N 49703. St. Petersburg and Moscow societies of 1871, ibid., N 49887 and 49888. Kharkov-Azov society, ibid., N 49958. Permyak society, ibid., N 49969. Warsaw society "Trust", ibid., N 49979. Moscow society "Employee", ibid., N 50185. Society "Trade Intermediary" (with commodity-collateral certificates), ibid., N 50118. With the same right, the Northern Society of Insurance and Warehouse of Goods was established in 1872; Tambovo-Saratov Society “Union”, ibid., N 50296. § 73. Pledge for contracts and obligations with the treasury. Its form, action, order of satisfaction. Representation of other people's pledges by proxy. Liability of the collateral. The effect of deferment on someone else's collateral. Exercising the right to pledge credit securities The pledge of real estate serves as the main and in many cases the only permissible means of securing agreements between the treasury and private individuals on contracts and supplies, on the content of state quitrent articles, on the maintenance of state estates (Gr. 1588; vol. VIII, part I, ed. 1893, Establishment of Obrochn., Art. 18, 33; Establishment of Treasury. named, art. 80 et seq.). The provisions on the rules of this pledge are very numerous and are placed in the civil laws, but their main purpose is to ensure the satisfaction of the treasury, in all details, and to indicate the rules for officials. They define in detail all the signs and properties of the property, according to which it can be considered completely reliable. Regardless of these purely administrative attributes, which are not directly related to the civil law of pledge, there are, however, some peculiarities in this law. What property is accepted as collateral is specified in Articles 44 and 77. Pos. about the breech. contract. and in 664 et seq. Art. Part IV of the Book. 1 St. Military Fast. To accept real estate as collateral, a certificate from the local authorities (senior notary, and where there is none - serfdom) must be presented about the ownership of the property and its condition regarding penalties and prohibitions (Regulations on Treasury Contracts, 62, 66 et seq.), which is valid for a year from the date of issue (Notary Pol., Art. 1921, note, appendix, Art. 1, according to Cont. 1893). The certificate shows all claims, arrears and prohibitions on the estate (ibid., 65). Parts of houses and buildings are not accepted as collateral (ibid., 63). Pledges are subject to prohibitions (ibid., 73). Structures accepted as collateral must be insured, and the insurance is renewable at the expense of the pledgors or counterparties (ibid., 49–51, 208). Instead of pledges, insured ships for water transportation, horses and carts of cab drivers, and the very things and materials that constitute the subject of the contract are accepted for pledge (St. Military Post. 666). At the very conclusion of the contract, a prohibition on the estate is reported (ibid., 737 and Regulations on Treasury Contracts, 128). Without collateral, only contracts for such items are allowed, for which failure to perform on time does not entail a loss for the treasury, and some other types of contracts, for the special consideration of certain persons and classes (Regulations on Treasury Contracts, 40, 80, paragraph 1, appendix). The total amount of the deposit is considered to be 1/3 of the contractual amount; in some cases it drops to 1/10. In addition, there is a rule that pledges are secured either by earnest money issued from the treasury in advance, or by the proper execution of the contract itself. Earnest money is provided ruble for ruble: deposits of the latter type are equal to the contractual penalty in case of malfunction. According to the rule, the penalty is no more than 25% and no less than 10% of the contract amount (Regulations on Treasury Contracts, Articles 39–43. Cf. St. Military Post. Part IV, Book 1, Articles 652–655, 668–680. Book XVIII). Property that may be pledged is not one’s own, but someone else’s, entrusted from another person under a special agreement - a power of attorney (Regulations on Treasury Contracts, Art. 64, clauses 2, 6; 71, 194). This power of attorney must certainly be urgent (Regulations on Treasury Contract., 71). Such a rule serves to protect, on the one hand, the treasury, and on the other, the pledgers themselves, since a perpetual, and therefore indefinite, power of attorney could be destroyed by the principal, otherwise, i.e. with an indefinite power of attorney, the liability of the pledgors, together with the risk to which their pledges are exposed, would have no limits. – The validity of the pledge and the responsibility resting on it are limited by the term of the power of attorney, therefore, if before the expiration of this period the contractor is not recognized as faulty and a determinative penalty has not been imposed on him from the treasury, the pledge, upon the expiration of the period, is released. Therefore, it has been decided (Regulations on Treasury Contracts, Art. 193) that deferments, for good reasons, in the execution of the contract, are given to the contractor, depending on how much time remains for the pledges, and if the term of the pledges allows. Pledgors are notified of these postponements. Postponement significantly changes the original condition precisely in that the original deadline for execution is postponed, by agreement of the parties; therefore, such renewal of the contract no longer constitutes a violation of the contract - failure to perform the action by the original deadline. When updating the deadline, there might not have been an assumption of a malfunction by this deadline of the contractor, but if he really turned out to be faulty, then this malfunction is covered by a further agreement of the parties on a new deadline, especially since the law itself (Policy on the Treasury, etc., Art. 193) explains the delay with valid reasons for the malfunction, but in practice, the agreement on deferment is explained by the fact that for the government department, in the given circumstances, there is no inconvenience, and sometimes there are even more and convenience to delaying the first terms of the contract or delivery. But as a result of delays, sometimes disputes arise between the treasury and the pledgers, since some departments do not completely agree with the rule of Art. 193 Pos. about Kazen. in a row., ed. 1887, defer the contractor’s performance of the contract beyond the time limit to which other people’s pledges securing performance are limited. Then, when by the expiration of the new period the contractor finds himself in trouble, the mortgagor considers his pledge to be free from liability, and the government department holds him accountable, claiming that at the time when the contractor was given a deferment, he was already out of order for the first terms and only leniency was given to him: the penalty was already on him, but the new period gave him the opportunity to become serviceable without the penalty. Such reasoning is unfounded and does not correspond to the legal meaning of the pledge (Collected Sen. decisions of 1871 and 1872). The pledge serves as a security for the contractor's treasury until the period specified in the power of attorney, and this security is carried out by applying to the pledge for a definitively incurred penalty, to the extent of a definitive defect, since no recovery can be indefinite; therefore, if by the time of the power of attorney the contractor’s malfunction has not been clearly identified, the deposit is released, even if there is still an assumption of a possible malfunction of the contractor. If, at the same time, its serviceability in fulfilling the contract on time remains possible, then there is no recognized defect, and the pledge cannot remain a security for an indefinite recovery when the term of the pledge has expired. 1876, N 408. 1662 art. X Part 1 applies only to pledges that are correctly accepted, and does not in any way restrict Article 1620 (corresponding to Article 71 of the Regulations on Treasury Contracts), according to which no pledge can serve the treasury as security for longer than the period specified in the power of attorney. Remaining under prohibition until final execution under the contract, pledges can be changed, with the consent of the subject department, with other reliable pledges (Policy on Treasury Contracts, Art. 74): and as they are properly executed, they can be released from prohibition either in part of the value that was originally secured, or completely, if several separate pledges were accepted, and after the release of one or more, the others still represent sufficient security. But such a release of liens is generally allowed only if the contractor is in perfect service, and in any case, during the release, the fragmentation of establishments is not allowed. When the same performance is secured in the aggregate by several third-party liens entrusted to the contractor, the question may arise as to which of the liens are primarily subject to release, since the liens that then remain prohibited continue to bear the risk of the enterprise. The law does not provide any rules or guidelines regarding the solution of this issue, which is of significant importance for persons who have entrusted their deposits to the contractor. In this case, it would be fair to release the pledges evenly, distributing the entire released value between them, or to give preference to those of them whose terms expire earlier, but in reality the choice of one or another pledge depends on the will and request of the contractor, sometimes by agreement with some of the pledgers - and to the disadvantage of others. If, according to the value of the property accepted as collateral for a transaction, there is still some free part of it remaining to fully secure this operation, then in this free part the same property can be accepted as collateral in another place for other transactions. For this purpose, additional pledge certificates are issued by senior notaries or serfdoms at the location of the estate, and a ban is imposed on the estate. Certificates for estates pledged in credit institutions are issued only with the consent of these institutions; in such cases, it goes without saying that the remaining value of the estate is accepted as collateral (Pol. on Treasury Contract., Art. 67). Thus, in all transactions of this kind, it is allowed to pledge the same property under different obligations, in different parts of its value (mortgage). Movable property is also accepted as collateral by the treasury, and its types are specified in detail in the law. The law pays special attention to credit securities presented as collateral. Exactly what types of credit securities can be accepted are specified in Article 77. Provisions on Government contracts and in the Credit Charter. Of the movables, the law mentions especially horses and carts, which provide a deposit under contracts between the treasury and cab drivers, and sea and river vessels for sea and river transportation (Regulations on Treasury Contracts, Articles 78, 79). Exercising the right to pledge credit securities does not present any difficulties if they are nameless and can freely pass from hand to hand without inscriptions. But when the papers are registered and their transfer is connected with strict formalities, then in the exercise of the right to a pledge, in case of delay, difficulties may arise for the government department, which the law tries to prevent. Thus, with regard to registered notes of a borrowed bank, safe treasury and orders of public charity, it was decided that they are accepted as collateral with a blank or full endorsement, which authorizes the office, in the event of a malfunction of the pledgor, to receive satisfaction on the ticket from capital and interest (see Full. Collected Laws, legalization of 1831 September 11, N 4796; 1838 Oct. 2, N 11579; Nov. 5, N 11719; Oct. 29, N 21664). In the event of the death of the counterparty himself, without heirs, in the event of his arrest or removal from the execution of the contract due to a defect, his obligation passes to the pledgors: they are notified of this every time; if within 4 months they do not retain the contract, or the need for execution is urgent, then the government department begins to make orders on the account of the pledges (Regulations on Treasury Contracts, Articles 195, 198, 200). By not accepting the fulfillment, the pledgors are deprived of the right to object to the settlement made to them (ibid., Art. 205). When a penalty is imposed on a faulty counterparty under a contract, it is initially applied to himself, and then, due to his lack of assets, to the collateral. Mortgagors have the right, in the case where the recovery is less than the amount of the pledges, to demand that it be carried out in proportion to the pledges of each (cf. St. Military Post. 685), and if more, then they are responsible only for the amount in which their pledges were accepted, with interest calculated a month after notifying them of the contractor’s fault (Regulations on Treasury Contracts, Art. 220–227; Pol. Civil., art. 447–451). In general, interest is not relied upon for penalties and deposits. So, the pledge under contracts with the treasury does not serve, like the pledge between private individuals, as an exclusive means of satisfying the penalty falling on the faulty debtor. He is liable, in addition to the pledge, and all his other free property (cf. Law Court. Civil., Art. 512, 513). In the event of a malfunction of the counterparty under any of the contracts secured by the estimated amount of the same building, its sale is carried out by order of the place in whose department the malfunction was discovered, but if the counterparty acts properly on other contracts, then it is not prevented from fulfilling them; the amount received from the sale of the building, in the amount in which it was accepted as security for all contracts, serves as their total security (Regulations on Treasury Contracts, Art. 64). For contracts of the Military Department, the rules on pledges were established differently than in Part 1 of Vol. St. military post., published especially in 1882. In different places of the Code of Laws there are many different decrees on pledges to ensure relations and actions of national importance. Such are, for example, the decisions on pledges under the drinking and excise regulations; on deposits for the issuance of tobacco parcels (Vol. V, ed. 1893, Statute of the Tobacco Collection, Art. 801); on pledges when purchasing factories from the treasury into private ownership; on pledges made by notaries and bailiffs, etc. In 1874, it was decided, as a temporary measure, to remove government quitrent clauses when leasing in those cases and localities where the minister of land. and State property recognizes it as necessary to accept buildings and other real estate as collateral, allowing only cash and interest on paper (vol. VIII, part I, ed. 1893, Obrochn., art. 33, note 1). 1877, N 41. Established in 1867 Art. X volume 1 part (corresponding to Article 114 of the Regulations on Treasury Contracts, edition of 1887) the subscription in any case must be taken from the one for whom the last price was paid, before submitting to the authorities for approval of the auction; if this is not fulfilled, then the deposit provided by the one who offered the last price cannot be used to replenish the loss of the treasury, if any resulted from his failure to fulfill the terms of the auction. 1878, No. 134. The distinction between pledges in a certain amount of debt to a private person or a credit institution and pledges submitted to the excise department to secure a possible recovery only, does not, in the case of a third party's foreclosure of the mortgaged estate, have any legal significance, because although an excise installment pledge does not secure a debt already incurred, but only a possible recovery, but the amount of this recovery determined, and before the expiration of the contractual period, the foreclosure itself can be opened in full, and the treasury, by virtue of its right of pledge, has the right to turn this foreclosure on the property pledged to it, in accordance with Art. 40 applications to Art. 258 t. V mouth. Oh pit. collection (1876). Therefore, the rights of the excise department, as a mortgagee under the installment plan for excise duty on wine, are essentially the same as the rights of the mortgagee under a loan. 1877, N 147. By virtue of Art. 1999 Vol. X Part I (corresponding to Article 227 of the Regulations on Treasury Contracting, edition of 1887) in the event of the sale of houses or the estate of a faulty contractor under contracts with the treasury, the amount due according to the instructions of Art. 1980 of the same laws; on the basis of paragraph 4 of Art. 1980 (corresponding to Article 208 of the Regulations on Treasury Contracting, edition of 1887), the money used by the treasury to renew the insurance of his collateral is also recovered from the faulty contractor. Consideration of the above legislation shows that when selling the estate of a faulty contractor, insurance money for the benefit of the treasury is recovered from the mortgaged estate, and, moreover, in the same way as the amount in which the estate was pledged to the treasury is generally covered. 1877, No. 327. The omission of the treasury administration when accepting a pledge for a period longer than that appointed by the power of attorney does not give the owner of the pledge the right to demand release from liability for those parts of the obligation, the fulfillment of which must follow before the expiration of the specified period. This does not constitute a violation of the limits of the power of attorney, since this power of attorney was not given to conclude an obligation with the treasury, but only to dispose of the collateral for a certain period, and therefore the pledgor cannot even be recognized as having the right to challenge, on the basis given above, the validity of the obligation concluded by the treasury with the counterparty. This conclusion follows from the exact meaning of Art. 1620. X volume 1 part (corresponding to Article 71 of the Regulations on Treasury Contracting, ed. 1887), according to which the treasury administration only has the right not to accept a pledge that does not provide sufficient contract or delivery for the rest, from the date of submission of the power of attorney, time, but is not obliged to do this without fail under fear of the invalidity of the supply agreement in its entirety and its non-bindingness for the pledgor in relation to the liability of his pledge in general. 1877, No. 327. In determining the liability of the pledge within the term of the power of attorney, what may be important is not the circumstance when the pledge should be levied, but when the contractor’s fault occurred, for the pledge does not ensure recovery from the faulty contractor, but his very obligation to the treasury (Article 1833, Vol. X, Part I, corresponding to Article 39 of the Regulations on the Treasury. Contract., ed. 1887). § 74. Legal right of pledge and its meaning. Privileged claims and penalties. Administrative and judicial support. The right to unauthorized retention of movable things under Russian law In the statutes of treasury administration there are many cases of obligatory, so to speak, administrative pledge. Our legislation does not know the so-called legal right of pledge (hypothèque lègale). In some cases, the law seems to provide security for one or another claim on this or that property (for example, movable property acquired from the seller, but not paid for, is sold in favor of the seller. Law. Civil. 1522. The execution of rental contracts with payment of money in advance for more than a year is secured by the estate leased, for which a prohibition is imposed on this estate - ibid., 1703, 1217. Constitution of the Civil Court, Art. 612). Here we also include those cases in which a prohibition is imposed on an estate to secure someone else’s right or in the case of temporary conditional possession, when it is based on one assumption, when there is still doubt about the right that serves as its basis, in a word, cases of patrimonial security (Law. Court. Civil., Art. 509, Establishment. Civil. Court., Art. 609). But these cases specifically relate to a contractual or obligatory relationship regarding the same property arising between persons, therefore, they do not contain a right of pledge based on one law and necessarily related to the legal relationship of the persons. The measure ordered by the judge in the form of security for recovery: to consider the named estate of the defendant as collateral with the plaintiff - constitutes a type of security that does not correspond to the legal forms of security and pledge, and is therefore illegal. Cass. decide 1867, N 365. According to our law, a find (with the right to a third of the price of what was found) is classified as patrimonial rights to property. By force of Art. 537 the use of movable property constitutes a special right when acquired by discovery. It follows that, upon the owner’s appearance, the finder has the right not to personally collect from him, but to collect from the thing the legal share of its value: therefore, he has the right to retain the thing until payment or redemption, or to demand that the thing itself be put up for sale to satisfy him. In 1522 Art. Zach. Gr. it is said: if the buyer, having accepted the movable property from the seller, does not pay the next price for it, then the property is sold at public auction, and the seller is satisfied with the proceeds. This rule (for the meaning of which see § 43) sometimes gave rise to the judicial interpretation that the sold property serves in this case for the buyer as security for the sale price. But the Senate recognized this interpretation as incorrect and inconsistent with both the essence of the pledge and the essence of the right to movable property acquired by the buyer (Cass. decision 1868, No. 229). In 1882, it was decided, in confirmation of the previous one (see § 70), that the payment of all arrears for state, zemstvo, city and other public duties that may appear on real estate after its transfer from one owner to another lies with the responsibility of the new acquirer of the property. But at the same time, it is taken into account that this rule establishes only liability, but does not provide grounds for withholding the arrears from the purchase price when making a deed or for making payment of money for the property being sold through regulations that carry out or approve serfdom. 1876, N 422. Force of art. 1100 Set. Gr. Court. does not apply to estate agreements entered into by the defendant after receiving a summons to secure the claim. The plaintiff, in order to protect himself from the defendant’s alienation of the estate, must accept the provisions specified in Articles 602 and 616–620. Est. Gr. Court. measures, but if they are not taken by him, then the defendant’s transactions with third parties are obligatory for him. 1875, N 973. By virtue of Art. 1399. X t. 1 h. Only such movable property belonging to the seller, which is subject to arrest or sequestration, cannot be sold. As for the sale of movable property, which constitutes security for any agreement between its owner and another person, the law (X Vol. 1, Part 1667 and 1673 Art.) establishes precise rules, subject to which such security is valid and gives the creditor who accepted the movable property as security a mortgage right to it, which is binding not only for the debtor and his heirs, but also in relation to third parties persons who subsequently entered into a transaction with the debtor regarding the same property. If these rules are not observed, when the creditor leaves the property accepted as security at the disposal of the debtor, and even without any definite signs of his mortgage right to it, the existence of this right remains completely unknown to third parties, who, thus, can enter into a transaction with the owner regarding the acquisition of property, without having any reason to assume that the owner is limited in the right to dispose of the property in his possession. In this case, obviously, the mortgage right, as not strengthened and not protected by the creditor in the proper manner, cannot have an impact on the validity of the transaction of a third party regarding the acquisition of property from the owner, unless it was proven that he knew about the existence of the mortgage right of the creditor to the property he was acquiring. From 934, 968 and 969 art. Est. Gr. Court. It is clear that sending a summons to foreclose on movable property is not equivalent to the imposition of arrest or sequestration, and although from the time of receipt of the summons the debtor is obliged to keep in mind that he has been seized, the disposal of his property, on which an actual seizure has not yet been imposed, cannot be limited until such an order follows. On the contrary, regarding the immovable, in force 1095 - 1097 art. sending a summons has a different meaning, because upon receipt of it, the debtor is prohibited from alienating the property, except in the case of Article 1098. With regard to movable property, it may be possible to replace things, even those indicated in the summons, with others of equal value. In case the debtor had no other movable property other than the one seized, it depends on the claimant, mainly. 969 art. petition for seizure along with sending a summons (Cass. decision 1872, N 983). 1873, No. 421. Seizure of the debtor’s property to secure the claim of one creditor does not deprive other creditors of the right to demand satisfaction from the same property, and the acceptance of property as security for the claim of one creditor does not give him the right to priority satisfaction over other creditors from that property. 1873, No. 244. If a third party from whom the debtor’s movable property is seized declares that he himself has rights to this property, then a claim regarding the ownership of this property by the debtor can be initiated by the creditor only in the event of the declared insolvency of the debtor, otherwise only the debtor has the right to seek. 1873, N 759. 1399 art. X Part 1 prohibits the sale of such movable property, which has been seized in the manner specified in Articles 628 and 968–979. Est. Gr. Court.; Until the formalities established in these laws are completed, the property cannot be considered seized, and its owner cannot be recognized as not having the right to sell it, even if he was aware of the court decision on the seizure. Special types of security for debt on the estate serving as the subject and purpose of the debt a) In estates acquired from the treasury on preferential terms with payment in installments, the regularity of payments until full repayment of the sale amount is ensured on the estate itself, on which the prohibition is imposed. In case of malfunction, the estate is put up for sale at public auction. See, for example, the rules on the sale of government plots to officials in Orenb. edge. Full Collection Zach. 1871, N 49709. b) In factories purchased from the treasury into ownership, with payment in installments. Full Collection Zach. 1871, N 50048. c) Buildings erected on plots allocated from the treasury for temporary use for rent serve in some cases (rules of February 6, 1860 on the distribution of plots in Sokolnichiya Grove) to ensure regular payment. Although the establishment of a legal silent mortgage is condemned by many as injurious to credit and placing known mortgage rights in unforeseen competition with unknown and sudden rights, yet this reasoning is hardly fair to apply to the state of legislation and credit in which we find ourselves. In our country, it seems, on the contrary, the shortcomings of the legislation include the lack of establishing legal security for certain claims on the estate to which they relate. With such a deficiency, it often happens among us that the most urgent, most just demands do not find support for themselves and must give way to secondary and accidental demands, which thus fall into privilege, in violation of justice. Obviously, justice requires, for example, to protect with the privilege of collecting the wasted money of a minor, collecting the wages of a working person, collecting unpaid payment for an estate that has passed into the possession of the buyer, collecting rent from a faulty tenant - to protect with the privilege of recovery on the entire estate of the obligated person, or on that estate of his to which the action that initiates liability relates. But we only have rules protecting the collection of state taxes and fees; there are several cases in which the collection relating to certain property is supposed to be attributed to it: but there is no direct and definitive institution corresponding to the legal mortgage. In case of insolvency of the debtor, our legislation allows for so-called privileged claims, which must be satisfied first of all and in full by separating from the debtor’s property, and not by dividing it among creditors (Ust. Court of Trade, Art. 599). This includes: church money listed on the debtor in the account of church books, government arrears, capital of minors spent by the guardian, salaries of servants and workers for the last 6 months, freight money and expenses of the mass. When paying the contractor's creditors from the sums following him for the contract or delivery from the treasury, the working people and those who supplied him with materials and, in general, the persons who participated in the execution of that contract or delivery (Regulations on Treasury Contracting, Art. 192) have a priority right to satisfaction over all others. But all these privileged claims do not violate the right of pledge and do not compete with this exclusive right. Then, the return of the luggage is nothing more than an action of vindication, i.e. the return of someone else’s thing to which a third party has the right of ownership (see also about the privileges of Art. 401 Pol. Recovery Civil.). A prohibition imposed on an estate by order of a judicial or government authority serves to protect the disputed estate from alienation or to ensure penalties against the estate. Judicial security is accomplished by imposing a ban on real estate or seizing movable property, or withholding monetary valuables. A ban under the general law can be imposed not only by the court in controversial cases, but also by government agencies in undisputed cases; the same was decided on the seizure of movable property (Regulations of Recovery of Citizens, Art. 1, 30). Regarding judicial security, the new Charter of Legal Proceedings (Articles 603–606) specifically stipulates that the prohibition is imposed, upon special request, on the known estate of the defendant, which the plaintiff indicates. Only as an exception was it possible to impose a general prohibition on a person’s estate, no matter where it happened to be, namely in cases of collection of debt obligations, when they were certified in accordance with the established procedure, but now this rule has also been abolished. It is permissible to replace one security with another and to accept under prohibition, instead of one estate, another sufficient one (Articles 613, 614). It is allowed to use several methods of security together, to the extent of collection (608, 615 art.) 320. Movable property is seized, also at the request and direction of the plaintiff, in the hands of the owner himself or third parties. Only known property and in a certain place can be seized: both must be indicated in the court’s ruling itself. The seized property is stored either with the owner himself, according to the inventory and on the answer, or with a third-party custodian (Art. 624–630). Property subject to rapid deterioration is not subject to seizure (Article 625); Some things that constitute an urgent need or personal interest for the owner are not subject to – unconditionally or conditionally – (Article 973, 974). A simple prohibition imposed on an estate by a court or government place to secure collection is significantly different from a prohibition that serves as a sign of a known property right lying on the estate, and therefore one should not be confused with the other. When the need arises to ensure the penalty that has been imposed on me, the prohibition can be imposed on one or another of my estates, as long as it is sufficient - it can be removed from one and transferred to another. But when a certain real right lies on a certain estate, which by its very essence is established on this estate, then the prohibition is inextricably linked exclusively with this estate, and can be imposed not only from the time the collection is opened, but for the sake of the mere possibility of collection, and in general from the moment when the real right is opened and established on the estate. Thus, the prohibition lying, for example, on the estate of a lifelong owner, constituting a sign and accessory of a property right belonging to the future owner-owner, a prohibition by law, etc., is significantly different from the prohibition imposed by a court for recovery. This expresses the difference between property rights and rights based on personal claims. Let's imagine, for example, such a case. The heir under the will is obliged to make annual cash payments in favor of a certain person until an urgent time - from the income of a specifically specified, bequeathed property. The question is: the one to whom the income is provided, what will be the right to receive this income - is it a property right approved on the estate, or a right of personal claim only? In the first case, this person has the right to demand that immediately upon entry into force of the will, a prohibition be imposed on the subject property; in the latter case, a prohibition can be demanded only for the obligated heir’s delay in paying the income amount, and, moreover, the prohibition can also be imposed on any other estate of the obligated person, and not exclusively on the estate specified in the will. That is why it is very necessary that a positive law, establishing a legal relationship with respect to property, defines exactly its content and the characteristics by which it could be given its proper place in the system of real or personal rights; and at the same time, so that it is possible in each individual case to exercise one or another right in accordance with its content. Speaking above, for example, about lifelong ownership under Russian law, we mentioned how vague the rights associated with it are in our country: it is not determined to what extent the right of the lifelong owner to dispose of the estate extends, and therefore it is unknown whether a prohibition should be imposed on the estate at the very beginning of lifelong ownership, and if so, what is its force. A prohibition is imposed on the mortgaged estate, but the law does not say whether the administrative actions of the owner can be stopped by force of the prohibition if they do not directly lead to the alienation of the property. As for the right to unauthorized retention of movable property to ensure recovery and to prove a violation, this right, quite consistent with the natural conditions of rural life, was recognized in our country according to the code of 1649 (X. 208, the right to retain livestock in case of destruction) and remained in force in 1842 with the second edition of the Code of Laws (X t. Art. 537), but when they were published in In 1851, new rules on private remuneration (1 part X t. Art. 609–689), then Article 537 was repealed in the VI continuation, which was very unfavorable for the interests of agriculture. But in 1862, the old rule of the Code was restored in a different form when rules were issued for the protection of meadows and fields from damage and other damage (Vol. IX, special appendix, III, Regulations of the Institution of the Cross, art. 31, note 1, appendix). These rules recognize that everyone has the right to detain someone else's livestock on the land in his possession or use, which causes or may cause grass or other damage on these lands. This right belongs to the household, attorneys and servants of the owner: it aims to provide the victim of injury with a means of both reward and evidence of the responsible person (cf. Cass. decision 1871, N 431; 1872, N 996, 998). The detainee is obliged to feed the animals, and no later than the second day, and at least no further than the third (if he wishes to retain the right to a reward) must announce the detention to the village headman, to notify the owner of the animals. If there is no agreement on remuneration between the parties, then the owner of the cattle is obliged to pay the landowner either a penalty at a special rate or compensation for the loss caused, and the cost of feeding the detained cattle. If payment is not forthcoming or the owner of the animals is unknown (does not appear within 7 days from the notification), then the landowner is remunerated by selling the animals at public auction, from the proceeds. Grazing does not include the case when someone does not arbitrarily use someone else's land, but only grazes a larger number of livestock against what he has the right to. Cass. decide 1879, N 12. 1872, N 1198. The detention of other people's livestock is allowed to the landowner to ensure the right of compensation for weeding and is associated with certain responsibilities; whoever does not want to obey the latter, losing the right to remuneration, has no reason to detain someone else’s cattle, and in relation to him becomes in the position of an illegal owner, liable under Art. 609. X t. 1 hour 1872, N 1060. In case of non-payment of money for the apartment, the tenant’s furniture may be detained without court by the landlord to ensure payment, if this right is stipulated in the contract. § 75. Right of pledge according to local laws of the Baltic provinces. Exclusion law; its history and current significance According to the local laws of the Baltic provinces, mortgage rights are established either with the transfer of ownership or without the transfer of it (mortgage). Before the transformation of the judicial part in the Baltic region, a mortgage could extend to the entire property of the obligated person (general), and sometimes not only to all present, but also to all of his future property, or to special, known property (special); now only the last one has survived (St. local. Civil. Law, art. 1391, note, according to Prod. 1890). Mortgage rights can be established either by the will of private individuals or by judicial determination. Voluntary mortgage rights can be established by a transaction, a will, a household order, or entry into the land registers. The mortgage right is exercised, according to the term, by the sale of the collateral, which depends on the mortgagee himself, if he has negotiated this right for himself, and in this case is responsible for its economic consequences - or is carried out at public auction; if the trading price is unfavorable, the pledgee may request that the pledge be returned to him based on a judicial assessment; but the condition of direct withholding of the mortgage on the property for overdue debt is not allowed (St. Local Law. Civil Art. 1335–1393, 1403–1405, 1412–1445, 1447–1492). In addition, the law of the Baltic provinces distinguishes: 1) Mortgage right to fruit-bearing property, with the right to collect fruits and income from them to the extent of interest, on an account to the mortgagor. 2) The right of ownership is old or hereditary, and new, limited. Local outpost law in the western, southwestern and Baltic provinces differs in some features. The Lithuanian statute recognized the free right of all free people to dispose at their own discretion of all kinds of estates, both hereditary, well-served and acquired. In accordance with this freedom, they were also given the right to pledge their estates, so that the pledgee would take possession of the estate; but the mortgagor in any case had the right to redeem his property from the possession of the mortgagee, and initially this right of redemption was not limited by any prescription. Before the filing of a claim (or call) for the return of the pledge, the pledgee's possession of the estate was considered unaccountable, and from that time on he became responsible for the income and integrity of the estate. Regardless of this, it could be stipulated that the mortgaged estate, for non-redemption on time, becomes the eternal property of the mortgagee; so that the mortgagee was sometimes given, by condition, the right to transform the mortgage contract at any time, during the period of the outpost, into a deed of sale. Thus, the outpost could, in essence, transfer complete patrimonial ownership. In order to prevent the ransom in the zastavny acts, they meant an amount in excess of the actual value; In addition, claims for compensation for expenses spent by the surrogate owner to improve the estate served as a significant difficulty in redemption. According to the existing Polish laws (Lit. Stat. 11 Art. Section VII, Constitutions of 1588 and 1726), the right of settlement in a competition did not enjoy an unconditional advantage, since the distinctive advantage of all claims in general was made dependent not on the type of acts, but on the seniority of their entry into the subject books. Therefore, in the event of a division of the estate between creditors, the surrogate owner had to: either, holding the estate for himself, satisfy all senior debt claims lying on it, or - return the estate to the estate and, having given an account of the income received, at his own satisfaction, become among the other creditors, according to the seniority of his claims (see many. State Council. 1839 and 1854 in the case Rzhevuska). By virtue of these laws, so-called outpost contracts were concluded in the western provinces - some for a period, and others for an indefinite period, until the redemption of the estate. About fixed-term contracts The highest approved opinion of the State Council on June 21, 1815, decided that they should be concluded for no more than 10 years. In 1827, the question came to the State Council about whether the right to conclude outpost agreements should not be limited in general, both for the benefit of the estates themselves, and so that, under the guise of an outpost, estates could be transferred into ownership without collecting serf duties. As a result, on July 14, 1827, it was decided: contracts of this kind should be concluded for the future for periods from one to three years, no longer, with the right to defer the validity of the contract, but no longer than 9 years from the date of execution; previous contracts, written with the condition of deferment from one year to another, can be deferred only for 9 years. These rules are extended to all provinces where outpost law exists, including the Baltic provinces, where this right has long existed. For the western provinces, in 1842, it was decided that any outpost ownership that lasts longer than the period allowed by the decree of 1827 must end either by redemption no later than 2 years, or, after this period, by the public sale of the outpost estate (see many. State pp. 1850 on the village of Romanovsky). In the Baltic region, with a strict legal distinction between estates according to the class of owners, it was especially important that, through the outpost, noble estates could pass into the unconditional ownership of persons belonging to other classes, who, according to the special law of that region, could not own noble property. Meanwhile, under the same law, all classes except Jews were allowed to enter into rental contracts. Therefore, for Courland in particular, in 1830 it was decided that noble estates could be mortgaged to non-nobles for no more than 10 years, and in the event of failure of the mortgagor, the estate should be sold only to the nobleman. In 1841, questions about the outpost law in the Baltic provinces were again raised, as a result of which the Highest approved opinion of the State Council took place that year that estates of all kinds could be given to the outpost to persons of all statuses who have the right to enter into contracts; but noble estates can be given to the outpost for no longer than for a certain period (3 years with the right to a double deferment for the same time); other non-noble estates can be pledged for a long time, up to 99 years. The surrogate owner, upon completion of the contract, takes possession of the estate. The patrimonial owner cannot burden this estate with mortgages after the outpost, cannot redeem it before the deadline, does not interfere in the management of the estate and does not have the right to demand an account of the income from it. The right of ownership can be transferred if the transfer is permitted under the contract. If the debt is overdue, the estate is sold at public auction, respecting the rights assigned to the nobility. In Estland, Courland and Ezel, the right was reserved - not only for the relatives of the patrimonial owner, but for each of the local nobles - to redeem the noble estate from the outpost within the prescribed period from the date of the outpost. Currently, according to the local laws of the Baltic provinces, there are two types of outpost law: one is the law of old agreements concluded before the promulgation of new legislation, or inheritance outpost law; the other is the right of the new law. Both are connected with outpost possession; but in the old law of the outpost, the patrimonial property of the contract is especially clear, and the main purpose of it seems to be complete possession as an owner, and in the new law the main purpose of the contract is security, urgent and conditional, through possession; in the latter case, the redemption of the estate from the outpost is assumed within a certain period according to the force of the contract itself, and in the old order, redemption is the right granted to the mortgagor after the expiration of the outpost period, so that even in the event of non-redemption, the validity of the contract continues, whereas in the new law only a limited deferment of the contract is allowed; and by the deadline, the outpost must be cleared by public sale of the estate. According to the old law, it was possible to place in contracts a condition that the outpost holder is free at any time, without the consent of the other party, to turn his outpost possession into property; The new law does not allow such conditions that would prevent the lender’s freedom of redemption. The scope of rights of the outpost holder to dispose of the owned estate in the old law is much more extensive: under both rights it is connected with the unaccountable use of income, with the obligation to perform all sorts of duties on the estate; but according to the old law, the owner can make all sorts of economic orders and changes in the estate, without answering the bailor for any damage (which the new law does not allow); may oblige the estate not only with mortgages, but also with personal obligations and easements (which is prohibited by the new law); can transfer its right to a third party, unless there is a contrary condition (in a new right, it can transfer in such a case only when this is permitted by the condition). (St. Zak. Local. Civil. art. 1501–1568.) For the study of German rights, Meibom's publication can serve as a guide: Meibom, Deutsches Hypothekenrecht nach Landesgesetzen der grösseren deutschen Staaten. Volume 2 of this edition is devoted to Mecklenburg law. To Cass. decide 1881, No. 121, it is explained that only from the moment the deed of sale is approved by the senior notary, the purchased estate can be pledged by the buyer. When there is a mortgage made on an estate that was under prohibition, and there is no reason to recognize it as invalid for this reason alone: ​​according to the meaning and purpose of the law, the security of the mortgage is deprived only of its exclusivity, and must yield to the recovery secured by the previous prohibition, if this recovery is not repaid. A similar case came before the State. owls in 1850 (Vallieva and Lerch). It is necessary to satisfy from the mortgaged estate - first of all the mortgage - a loan letter secured by a prohibition on the mortgaged estate; Moreover, it is also taken into account that the mortgagee knew about this prohibition when making the mortgage. On the issue of the mortgagor's right to cut down forests, see the Cass decision cited in § 73. 1870, No. 485, in which the discussion relates to this subject indirectly, and then with regard to state support, under an agreement with the treasury. The bankruptcy statute explains this prohibition as follows: “since the borrower (known?) entrusted his property to the (known?) lender.” In the event of the insolvency of the debtor-mortgagor, the sale is in any case carried out without accepting redemption from either the debtor or his relatives (Law. Court. Civil., Art. 510, paragraph 4), and can be made even before the delay (1872, No. 1139). Art. 625 Zak. Court. Civil law, which establishes the material right to redeem the mortgaged estate by the relatives of the mortgagor, does not lose force even after the introduction of the Court. Est. 1864, although the exercise of this right can only follow the procedure specified in the Constitution. Citizen Court.