A pledge is a way to ensure the fulfillment of a certain obligation that is assigned to an individual or legal entity. Types of pledge are methods of regulating such legal relations that differ in terms of disposing of property.
It is known that the institution of collateral is quite ancient. Even the lawyers of ancient Rome mentioned him in the annals. At the moment, all legal systems in one way or another use collateral. In our country, this issue has been studied for a long time. At the moment, the institution of collateral in the Russian Federation is fully formed.
The history of the establishment of the pledge institution
Despite the close attention of Russian civilians to the study of the institution of collateral, there is still debate about the interpretation of this concept itself. There are many definitions that sometimes contradict each other. This is primarily due to the breadth of scope of the security law.
Many researchers have devoted their work to this issue. In particular, the concept and types of collateral were studied by such civilists of the 19th century, as D.I. Meyer, I.A. Bazanov, N.L. Duvernois, L.A. Casso, V.A. Udintsev. Five theories of the implementation of civil law are associated with these names, which were formulated by the above scientists and in parallel existed in the first half of the 20th century. They reflect the essence of the Old Russian voice. L.A. Casso singled out as the main feature the finality and irrevocability of the acquisition by the holder of the right to a thing if a citizen cannot fulfill his obligations to pay. V.A. Udintsev insisted on a different version. He believed that initially the pledge was a simple guarantee, a kind of permission for the creditor to direct collection to a particular object.
The problem of organizing relations between a lender and a borrower secured by real estate (mortgage) began to be dealt with even in the days of pre-revolutionary Russia. But these relations were considered in the context of patrimonial law. The main theoretical idea of that time in matters of collateral activity is reflected in the draft Votchinny 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 the so-called mortgage bonds, performing the role of bearer securities. They could pay creditors, sell them on exchanges, receiving money in return. Thus, the mortgage sheets were a means of calculation.
From the foregoing, we can conclude that certain types of collateral were known back in the 19th century.
The role of collateral in the performance of obligations
As a way of fulfilling obligations, a pledge is characterized by the presence of its holder the right to satisfy claims based on the value of the pledged property, in case the debtor has not fulfilled this obligation. He also has the right to receive insurance payments in case of loss or damage to property. An exception is cases where the causes of the incident are related to the will or intentional actions of the pledge holder.
Civil law of the Russian Federation interprets that the occurrence of a pledge is connected with the entry into force of the contract, as well as with the onset of the circumstances specified in it. The proof of this is the norm of paragraph 5 of Art. 488 of the Civil Code of the Russian Federation. According to this paragraph, when concluding a contract of sale for a loan product, the purchase item is pledged at the store (seller) until the buyer pays its full price. This ensures the buyer's obligation to pay for a particular product.
A court decision or an act of authority may also become the basis for the emergence of a pledge relationship. But this is not provided for in the Civil Law of the Russian Federation. But in the legislative acts of many countries of Western Europe there are similar grounds.
A mortgagor is a person who provides property. This may be the debtor himself or another person who allows using his property in order to use someone else's obligation. This may be a person with ownership of the property or one who has the right to conduct business.
Features of collateral relations
Equally important is the nature of ownership of the property. In particular, the types of pledges of property that is in common ownership may be different. In cases of joint ownership, permission must be obtained from all owners. Otherwise, it is impossible to transfer property as collateral. Shared ownership provides for the right of each participant to dispose of its share. Including the transfer of it as a deposit.
The provision of the requirement is carried out within the scope of what is available at the time of its satisfaction. At the same time, the amount of the main debt, interest on the loan, the penalty, as well as the funds spent on compensation for losses associated with the untimely performance of the obligation are summarized.
The main types of collateral
The type of collateral provided in the contract affects the distribution of rights and obligations between the lender and the borrower.
In total, the Russian Federation provides for 2 main types.
- A pledge providing for the transfer of property to a pledge holder (pledge).
- The pledge on 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. He can exercise control over the state and procedure for its use. At the initiative of the pledge holder, the rights of third parties and the borrower proper to this property may be limited .
Clause 1 1 Article 338 of the Civil Code of the Russian Federation establishes the presumption of abandonment of property by the borrower, if the contract does not provide for other conditions. Mortgages and pledges of goods in circulation by default provide for the abandonment of property by the borrower.
Mortgage
Types of real estate collateral (mortgages) are based on the type of ownership of the property. In paragraph 2 of Art. 335 Civil Code and Art. 6 of the Federal Law “On Mortgage”, we are talking about two cases when this type of lending is possible. Firstly, when the mortgagor has the right to own real estate. And secondly, when he is a person with the right to conduct business.
An important characteristic of real estate is a significant cost. In addition, such property meets the sign of connectedness with the land, that is, removing it from the control of the pledge holder is simply impossible. Experts in the field of jurisprudence believe that the decisive qualitative difference that allows the use of real estate as a means of ensuring the sustainability of a mortgage loan is its visibility and not its immediate value.
Types of collateral related to real estate restrict the actions of the owner related to the disposal of property. The essence of these restrictions consists primarily in the fact that he is obliged to preliminarily coordinate with the pledge holder activities related to the alienation of the subject of the mortgage or to providing it for use by third parties.
The basis for a mortgage is the relevant contract. It should be noted that for its entry into legal force, notarization and state registration are required. In addition, the mortgage itself is included in the Unified State Register of Rights to Real Estate as an encumbrance of property rights.
Mortgage Types
A mortgage implies the use of various real estate objects as collateral. These are enterprises, buildings, structures, apartments. It is important that the mortgage of a building or structure is permissible only on the condition that the land on which it is located is also secured. Moreover, these relations are governed by the same contract.
Mortgage of a land plot, on the contrary, does not mean that the right of pledge applies to buildings erected on this land.
P. 2, Art. 340 of the Civil Code of the Russian Federation the following norm is established. As a pledge, an enterprise considered as a property complex may be used. In this case, a necessary condition is to obtain the appropriate permission from the owner of the property. Types of collateral in this situation are 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 compiled only on the basis of inventory acts. An integral part of the contract is also a balance sheet, an
audit report reflecting the value of the property, and an independent appraiser.
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 disposal of a person acting as a creditor. Their turnover is controlled by a representative of the other side of these relations. He (the mortgagor) disposes of them, that is, has the right to change them, making appropriate adjustments to inventories, raw materials, finished products, etc. At the same time, it is important that the cost does not decrease, compared with that indicated in the contract.
When the goods are sold (that is, transferred to the possession and use of the acquirer), they are no longer subject to pledge. And vice versa. When a borrower purchases goods, they are treated as collateral. The starting point for this is the emergence of property rights or economic ownership of goods.
As already mentioned, according to the main classification, the types of collateral differ from each other in which of the parties to the contract has the right to dispose of them. But the type in question (goods in circulation) has an essential feature characteristic only for this case. When pledging goods in circulation, the encumbrance does not follow the property upon alienation.
The borrower is obliged to monitor and comply with the terms of the contract, keeping a record of all transactions that may entail a change in the composition or in-kind form of the pledge. To do this, he must necessarily make the necessary information in the Book of pledges.
Mortgage and firm pledge
These are such types of collateral in the civil law of the Russian Federation, in which property is transferred to the possession and disposal of its holder. But these concepts are not identical.
In case of a mortgage, the holder of the mortgage is the subject of the pledge. But a scheme is also possible in which the parties enter into an agreement among themselves, in which special conditions are established. In particular, the subject of the mortgage may actually remain with the pledger, but be, so to speak, “out of use”, that is, “under lock and seal of the opposite side”. In this case, we are talking about a solid pledge.
Rights and obligations of the parties in a mortgage
The types of pledge agreement do not have a strict classification, but the nuances of the content depend on which property acts as a way of fulfilling the obligation and which of the parties actually disposes of it
For example, in a mortgage, the main obligations of a creditor are:
- Insurance of the subject of pledge in the amount of its full value for the funds and in the interests of the borrower.
- Preservation of property intact.
- Immediately informing the mortgagor of a possible threat of loss or damage to property.
- Sending regular reports on the use of the item to the borrower (if appropriate is provided for in the contract).
- Immediate return of the subject of the mortgage when the obligation is fulfilled.
The mortgagee is entitled to:
- Use of the subject of pledge in cases where the contract provides for this. The income received covers the cost of maintaining the item, goes to pay off interest and (or) the amount of the principal debt.
- Early fulfillment of an obligation.
Content of the pledge agreement
What is contained in the pledge agreement:
- information on the subject of the pledge and its assessment;
- information on the nature, amount and term of the debt obligation;
- an indication of which of the parties disposes of the pledged property.
The law provides for the need to conclude pledge agreements in writing. Moreover, non - compliance with the form of the contract leads to its recognition as invalid.
Cases in which recovery is applied only by court order:
- the conclusion of the contract requires the consent or permission of a third party or authority;
- the subject of pledge is such a property that is of value to society;
- absence of the mortgagor and the impossibility of establishing his whereabouts.
Preventive measure in the form of a pledge
The term "pledge", in addition to its use in civil law, is used in the criminal procedure law. 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, the accused or another natural (legal) person contributes money, securities, thus ensuring the appearance (in 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. The lawyer or the detainee himself submits a petition, after which, taking into account all the circumstances, the court takes a positive or negative decision on this issue. The nature and extent of the pledge is primarily affected by the nature of the crime. The personality of the suspect or the accused, his property status also matter. If the crime is of minor or medium gravity, then the court ruling on the application of a preventive measure in the form of a pledge should establish an amount of at least 50,000 rubles, and in cases of serious and especially serious crimes - at least 500,000 rubles.
If the obligations stipulated in the resolution are fulfilled, then the pledge shall be returned to the person who transferred it. But if violations are detected, then the corresponding values, proceeding from the court decision, pass into the state revenue.
Thus, the concept and types of collateral depend on the scope of legal activity in which these terms are applied. But be that as it may, the purpose of such a relationship is to ensure the fulfillment of a certain obligation. For example, types of collateral in a bank - this mortgage, mortgage, hard mortgage, etc. And when this term is applied to ensure the appearance of the alleged offender, the classification is based on the length of time for which it is provided, the amount of the deposit and the method of calculation.