Concept and types of collateral in civil law

A pledge is a way of ensuring the performance of a certain obligation that is imposed on a natural or legal person. The types of collateral are the methods of regulating such legal relations, which differ in terms of property management.

It is known that the institution of collateral is quite old. Even lawyers of Ancient Rome mentioned it in the annals. At the moment, all legal systems in one way or another use collateral. In our country, this issue began to be studied long ago. At the moment, the institution of collateral in the Russian Federation is fully formed.

History of the establishment of the Institute of Pledge

Despite the close attention of Russian civilians to the issues of studying the institution of pledge, disputes still remain about the interpretation of this concept itself. There are many definitions that sometimes contradict each other. This is due primarily to the breadth of the scope of application of the security right.

Many researchers have devoted their works to this issue. In particular, the concept and types of collateral studied by such civilians of the XIX century, as D.I. Meyer, I.A. Bazanov, N. L. Duvernois, L. A. Kasso, V. A. Udintsev. With these names are associated five theories of the implementation of civil law, which were formulated by the above scientists and existed in parallel in the first half of the XX century. They reflect the essence of the Old Russian pledge. L.A. Casso singled out as the main feature the finality and the irrevocability of the holder's acquisition of the right to a thing if the citizen can not fulfill his obligations to pay. V.A. Udintsev insisted on another version. He believed that, initially, the pledge was a simple bail, a kind of permission to the creditor to direct the recovery of a particular object.

The problem of arranging the relationship of the creditor and the borrower on the security of real estate (mortgage) began to be dealt with even in pre-revolutionary Russia. But these relations were considered in the context of patrimonial law. The main theoretical idea of the time in matters of pledge activity is reflected in the draft of the Verkhovna Rada charter, dated 1892.

At the beginning of the last century, the Russian Empire felt quite confident in the world market of land (mortgage) lending. But instead of money, the borrower received so-called mortgage bonds, which act as bearer securities. They could pay off with creditors, sell them on exchanges, getting money in return. Thus, the mortgage sheets were a means of calculation.

From all of the above, we can conclude that some types of bail were known in the XIX century.

The role of pledge in the performance of obligations

As a way of performance of obligations, a pledge is characterized by the availability of its holder's right to satisfy claims based on the value of the pledged property, in the event that the debtor did not fulfill this obligation. He also has the right to receive insurance payments in case of loss or damage to property. Exceptions are cases when the causes of the incident are related to the will or deliberate actions of the pledgee.

The civil law of the Russian Federation treats that the origin of a pledge is connected with the entry into force of the treaty, as well as with the occurrence of the circumstances specified in it. Proof of this is the provision of paragraph 5 of Art. 488 Civil Code of the Russian Federation. According to this clause, when concluding a purchase-sale contract for a credit goods, the subject of purchase is pledged from the store (seller) until the buyer pays its full price. This ensures the buyer's obligation to pay for a particular product.

Judgment or an imperious act can also become the basis for the emergence of a security relationship. But this is not stipulated in the Civil Law of the Russian Federation. But in the legislative acts of many countries of Western Europe there are similar reasons.

The pledger is the person who provides the property. This can be the debtor himself, and another person who allows using his property for the purpose of using someone else's obligation. It can be a person who owns the property or someone who has the right to economic management.

Features of pledge relations

Of no less importance is the nature of property ownership. In particular, types of pledge of property that is in common ownership may be different. In cases of joint ownership, it is necessary to obtain the permission of all owners. Otherwise, it is impossible to transfer property as collateral. The equity ownership provides for the right of each participant to dispose of its shares. Including the transfer of her pledge.

The provision of the demand is carried out within the scope of what is available at the time of its satisfaction. At the same time, the amount of the principal debt, the interest on the loan, the forfeit, as well as the funds spent to recover damages due to the untimely execution of the obligation are summed up.

The main types of collateral

The type of collateral provided for in the contract affects the distribution of rights and obligations between the creditor and the borrower.

In total, there are 2 main types in the Russian Federation.

1. Pledge providing for the transfer of property to the pledgee (mortgage).
2. A pledge by which the property remains with the person who provided it.

In the case of a mortgage, the person who provided the property has the right to own it, and in some cases the right to use it. It can monitor the state and order of its use. At the initiative of the pledgee, the rights of third parties and the borrower proper to this property may be restricted .

Art. 1, 1 st. 338 of the Civil Code establishes the presumption of leaving the property of the borrower, in the event that the contract does not provide for other conditions. Mortgage and pledge of goods in turnover by default provide for the abandonment of the property from the borrower.

Mortgage

Types of mortgages (mortgages) are based on the type of ownership of property. In paragraph 2 of Art. 335 CC and Art. 6 FZ "On Mortgage" we are talking about two cases where such a type of lending is possible. First, when the mortgagor has the right of ownership of real estate. And secondly, when he is a person with the right of economic management.

An important characteristic of real estate is a significant cost. In addition, such property meets the sign of connectedness with the land, that is, it is simply impossible to remove it from the control of the pledge holder. Experts in the field of jurisprudence believe that a decisive qualitative difference that allows using real estate as a means of ensuring the sustainability of a mortgage loan is its appearance, rather than its immediate value.

Types of collateral connected with real estate, limit the actions of the owner, related to the disposal of property. The essence of these restrictions consists primarily in the fact that it is obliged to preliminary coordinate with the pledgee the activity related to the alienation of the subject of the mortgage or the provision of it for use by third parties.

The basis for the emergence of a mortgage is the relevant agreement. It should be noted that for its entry into legal force it is necessary to notarize and state registration. In addition, the Single State Register of Rights to Real Estate introduces the mortgage itself as an encumbrance of property rights.

Types of mortgages

Mortgage means by itself the use of various real estate objects as collateral. These are enterprises, buildings, constructions, apartments. It is important that the mortgage of a building or structure is permissible only on condition that the land on which it is located also falls on bail. And these relations are regulated by the same contract.

The mortgage of the land plot, on the contrary, does not mean that the right of pledge applies to the buildings erected on this plot.

P. 2 tbsp. 340 of the Civil Code of the Russian Federation establishes the following norm. As a pledge, an enterprise considered as a property complex can be used. At the same time, a necessary condition is obtaining a proper permit from the owner of the property. Types of collateral in this situation are the tangible and intangible assets of the enterprise, that is, buildings, structures, available equipment, products, raw materials, rights of claim, exclusive rights. A complete list is made only on the basis of inventory records. Inalienable parts of the contract are also the balance sheet, an audit report reflecting the value of the property, the conclusion of an independent appraiser.

The pledge of goods in circulation

Such types of collateral in the civil law of the Russian Federation, as goods in circulation, are not transferred to the person acting as creditor. Controls their turnover representative of the other side of these relationships. He (the mortgagor) disposes of them, that is, he has the right to change them, introducing appropriate adjustments to the commodity stocks, raw materials, finished products and so on. It is important that the value does not decrease, in comparison with that indicated in the contract.

When the goods are sold (that is, passed to the possession and use of the acquirer), they are no longer the subject of pledge. And vice versa. When a borrower acquires goods, they are treated as a subject of pledge. The starting point for this is the emergence of property rights or economic possession of goods.

As already mentioned, according to the basic classification, the types of collateral differ from each other in that which party to the contract has the right to dispose of them. But the species in question (goods in circulation) has an essentially important feature, characteristic only for this case. When pledging goods in circulation, the encumbrance does not follow the property with alienation.

The Borrower is obliged to monitor and comply with the terms of the contract, keeping records of all transactions that may entail a change in the composition or natural form of the pledge. To do this, he must necessarily make the necessary information in the Book of records of pledges.

Mortgage and hard collateral

These are types of collateral in the civil law of the Russian Federation, under which the property is transferred to the possession and disposal of its holder. But these concepts are not identical.

At the time of pledging, the holder of the collateral owns the collateral. But such a scheme is also possible, according to which the parties conclude an agreement with each other, in which special conditions are established. In particular, the subject of the mortgage can actually remain with the mortgagor, but be, so to speak, "out of use", that is, "under the lock and seal of the opposite side." In this case, we are talking about a solid voice.

Rights and obligations of the parties in case of mortgage

Types of the contract of pledge do not have a rigid classification, but the nuances of the content depend on what kind of property is acting as a way of fulfilling the obligation and which of the parties actually controls it

For example, in the case of a mortgage, the main obligations of the creditor are:

• Insurance of the subject of pledge for the amount of its full value for funds and in the interests of the borrower.
• Preservation of property intact.
• Immediate notification of the mortgagor about a possible threat of loss or damage to property.
• Sending regular reports on the use of the item to the borrower (if appropriate provided for in the contract).
• Immediate return of the subject of mortgage, when the obligation is fulfilled.

The pledgee is entitled to:

1. Use of the subject of pledge in cases where the contract provides for this. The received income covers the expenses for the maintenance of the item, go to repay interest and (or) the amount of the principal debt.
2. Early performance of the obligation.

Content of the pledge agreement

What is contained in the contract of pledge:

- information on the subject of the pledge and its valuation;

- information on the nature, size and timing of the performance of the debt obligation;

- an indication of which party disposes of the pledged property.

The law provides for the conclusion of pledge agreements in writing. In this case, non-observance of the form of the contract leads to its recognition as invalid.

Cases in which the recovery is appealed only by a court decision:

- the conclusion of a contract requires the consent or permission of a third person or body;

- as an object of pledge is a property object that has value for society;

- absence of the pledger and impossibility of establishing its location.

Preventive measure in the form of a security

The term "pledge", in addition to its use in civil law, is applied in the criminal procedure legislation. In this industry, it means a preventive measure that can be applied to a suspect accused of a crime. The essence of the application of this measure is that during the preliminary investigation the suspect, accused or other physical (legal) person contributes money, securities, thus providing a turnout (to the court, inquiry or investigative body). Another purpose of this measure is to prevent the commission of other crimes by the accused or suspect.

The application of a preventive measure in the form of a pledge is carried out only by a court decision. A lawyer or the detainee himself submits a petition, after which, taking into account all available circumstances, the court takes a positive or negative decision on this issue. The nature and nature of the crime affects the appearance and size of the mortgage. Also, the identity of the suspect or the accused, his property status, are important. If the crime is of a small or medium gravity, then the court order to apply a preventive measure in the form of a pledge must establish an amount not less than 50,000 rubles, and in cases of grave and especially serious crimes - not less than 500,000 rubles.

If the obligations provided for in the resolution are fulfilled, then the pledge is returned to the person who transferred it. But if violations are revealed, then the relevant values proceed from the court decision to the state income.

Thus, the concept and types of collateral depend on the scope of legal activity in which these terms are applied. But anyway, the goal of such a relationship is to ensure the fulfillment of a certain obligation. For example, types of collateral in the bank - this mortgage, mortgage, firm mortgage, etc. And when this term is applied to ensuring the appearance of the alleged offender, the classification is based on the length of time for which it is granted, the amount of collateral and the method of calculation.