In RFP, there were 3 main types of collateral: feduciary collateral (feducia), manual mortgage (pugnus) and mortgage (hypotheca). These are the main types, but not all.

Feducius - Institute of Archaic Law of Ancient Rome. Within the framework of the federation, the pledgor transferred the thing not only into the possession, but also into the ownership of the creditor. At the same time, he secured a promise (on parole) of the creditor that he would return the pledged thing to him if the debtor duly fulfilled the main obligation, the main contract. That is, if the amount was returned on time, the item was returned.

This type of pledge was extremely burdensome for the debtor, since if the creditor violated his word of honor, the debtor did not have a claim to claim the thing. That is, the thing remains with the lender. The only defense in archaic law is to try to declare a dishonest person. But he could not claim the item itself.

In praetor law, the situation is changing. The praetors considered such a situation unfair, but the praetors could not help to take away the thing, since the creditor became the owner of the thing. Therefore, the praetor adds a tort claim to the share infanio - that is, it was possible to recover the value of the thing from the creditor. But he still cannot claim the thing itself.

In Justinian's legislation, finally, this type of pledge was prohibited as unduly burdensome for the debtor. This type of pledge is unknown to modern law. Directly, at least, it is not provided for in the legislation.

Why is feducius not a limited property right? The reason is that the thing was transferred to the creditor not on a limited property right, but into ownership. The lender was the owner, not the subject of the OCP. He already had the right of ownership.

Manual pawn (pignus) - this is a pledge of movable property with the transfer of the thing into the possession of the pledgee (creditor).

In this case, the thing was transferred only into the possession, but not into the ownership of the creditor. This is already the "classic" form of collateral used today. The mortgagor remained the owner of the thing.

Therefore, if the pledger duly performed the main contract, and the creditor did not return the thing, the pledgor could claim his thing with the help of a special claim.

Initially, pygnus was exclusively an institution of law of obligations. Initially, the creditor had only an obligation or personal right to a thing. Therefore, if the subject of pledge was stolen, the creditor did not have the means to reclaim this thing from a third party - because he did not have the owner. The third party did not have a claim for claiming the thing. It was necessary to ask the pledger to apply a vending claim, claim the item, and then transfer it back from the creditor. It was possible to defend oneself only from the mortgagor himself, the protection of the creditor was not absolute, but relative.

Therefore, when the institution of mortgage appeared in the RPP (and it arose immediately as an OVP - this was associated with the means of protecting the mortgage), the means of protecting the mortgage by a special law were extended to the manual mortgage. A pledge was accepted, according to which the lender in the pygnus can be protected by the same means as the mortgage lender.

From that moment on, the pygnus turned into an institution of limited property rights.

There were two remedies:

The suit of the praetor Servius (actioserviana) ... He protected the mortgagee from third parties. If, within the framework of the pygnus, he gave a thing, it was stolen, it could be reclaimed from any third party. This is a lawsuit that almost coincides in subject matter with the vendical one. This lawsuit was invented for a mortgage lender, but later provided to the lender under the Pignus. Requires the restoration of things from a third party.

Interdict of Praetor Salvius (interdictumsalvianum) ... He defended the creditor from the owner - if the thing was stolen and it returned to the owner, it was impossible to reclaim it from him, since he had more rights during the production of "in yus" and he could defend himself with a negative claim. Therefore, it was advisable to conduct a dispute according to the system of facts - it was necessary to prove only the fact of the lost ownership.

From the moment when these remedies were provided to the lender in the pygnus, the manual mortgage was transformed into an OCP.

Mortgage- this is the most difficult type of collateral. Appeared only in classical Roman law, in the classical period. The term is of Greek origin.

Mortgage- this is a pledge of movable and immovable things without transferring the thing to the possession of the creditor. Unlike pignus, things remain not only in the ownership, but also in the possession of the debtor. The debtor remains not only the owner, but also the owner of the thing.

Due to this feature, a mortgage is characterized by two features that distinguish it from pignus and fedutia:

The subject of the pledge does not drop out of the property turnover. If a manual pledge, a thing has been pledged while the pledge is in effect, this thing cannot be used by the pledgor, and the pledgee is legally prohibited from using it. If a mortgage is used, the thing continues to be used, it remains in economic circulation. And within the framework of the pigment, it does not drop out. That is, it is easier to pay off the lender - you mortgaged the land to the lender, and you continue to process it.

For the first time, it becomes possible to re-pledge - that is, the simultaneous pledge of the same thing to several creditors. Within the framework of pignus and feducius, this was not the case. For the re-mortgage, two conditions were necessary:

1. Each new pledgee needs to warn the pledgee that the thing is already pledged by other persons (warn about the encumbrance of the thing).

   Previous agreements (agreement) on the mortgage do not contain a direct prohibition on re-mortgage.

In connection with re-pledge, a conflict of claims of creditors becomes possible - when the amount received from the sale is not enough to cover the amount for all creditors. In this case, the senior mortgage lender has priority - the one who accepted the thing in the mortgage earlier. Then the calculation takes place with the next, and so on.

The first pledger has priority in a conflict of claims, but also has the so-called mortgage seniority... This means that only he has the right to organize auctions for the sale of things.

That is, if he does not urgently need money, he may not organize the auction, and the lower-level creditors will have to wait. Downline creditors won't get anything until the senior arranges a bid.

It turns out that the interests of subordinate creditors are under threat. Such a problem arose, therefore, in connection with the mortgage seniority, another institution arose - mortgage succession... This was invented to protect the rights of subordinate creditors.

If the subordinate creditor needed money, he could unilaterally pay the debt to the superior creditor for the debtor. He could not refuse. And then the mortgage seniority passed to him - this was called mortgage succession. The new superior creditor organized the auction, where he compensated two amounts - what he paid for the debtor and what he was owed.

The mortgage lender was defended by Servius 'claim and Salvius' interdict. At the same time, these remedies were the initial ones for the mortgage. The claim was used when the site, for example, was sold, then the site was reclaimed from a third person. If the owner did not give up, claim by interdict.

In addition, there were two more special types of collateral in Rome. it pledge of goods in the shop and pledge of rights(see in fat Novitsky).

Pledge of goods in the shop. As a general rule, only individually definite things are the subject of pledge. This is the only type of pledge when the subject of pledge is things determined by generic characteristics. Hence - other features. This collateral is not an OCP, it is an exclusively legal institution.

Pledge of rights. Here the special subject is not things, but property rights. But not any, but only obligatory (personal), with some exceptions. Obligatory rights of a personal nature could not be the subject of pledge. These are, for example, alimony rights or the right to compensation for harm caused to life and health (but not property). If a person has the right to receive alimony, this right could not be pledged. But if a chariot of such value was destroyed, it could be pledged.

Why isn't it ORP? The object of OVP is only things, here the object is law. All this has been preserved in modern law. Only the "pledge of goods in the shop" is called "pledge of goods in circulation", and the pledge of rights is called so.

Introduction 3

Chapter I. The concept and types of ways to ensure the execution of civil contracts 6

1.1. Methods of ensuring the execution of a civil law contract: general characteristics 6

1.2. Collateral concept. Pledge agreement 7

Chapter II. Features of certain types of collateral 12

2.1. Features of the pledge of goods in circulation 12

2.2. Features of the pledge of things in a pawnshop (a type of mortgage) 13

2.3. Features of the pledge of rights 14

2.4. Features of mortgage of real estate (mortgage agreement) 15

2.5. Features of the sale of property pledged under a mortgage agreement 22

Conclusion 25

List of used normative legal acts and literature 27

Introduction

To date, the dependence of economic processes on the norms of civil legislation has become a regularity. The basis or foundation of entrepreneurship is a contractual relationship, the exact implementation of which depends on the commercial well-being of an organization or an entrepreneur. Violation of the terms of the agreement in whole or in part can lead to undesirable consequences in the form of incurring losses, loss of trust on the part of partners and even the beginning of bankruptcy proceedings.

The reasons for non-fulfillment of the contract may be: force majeure, which made it impossible to carry out certain actions; non-fulfillment of obligations by a third party; lack of interest of the obligated party to fulfill the obligations imposed by the contract, as well as the profitability of the delay in their execution.

For example, if the service rendered in accordance with the terms of the contract is not paid or is paid out of time, then the creditor (the person who received the service and who is in this case the obligated person) has the opportunity to use the unpaid, therefore, essentially additional working capital for gaining benefits. In this case, the lender incurs losses, both direct and indirect.

To correct or eliminate such a situation initially, the civil legislation is called upon, containing norms on how to ensure the fulfillment of obligations.

“Ensuring the fulfillment of obligations in general and methods of ensuring the fulfillment of obligations in the civil law of Russia occupy a special place in the analysis of the effectiveness of civil law norms and their impact on economic relations. Enforcement of obligations is one of the traditional and rather detailed areas of civil law of states of both continental and Anglo-American systems of law. The market economy requires new and effective incentives to fulfill contractual obligations ”.

Methods of ensuring the fulfillment of obligations are economic incentives that induce the parties of obligations to perform them properly.

The analysis of the arbitration practice shows that the pledge has a special efficiency among all the classical methods of security. In Russia, elementary methods of ensuring the fulfillment of obligations in the form of a mortgage were known back in the 19th century, which originate from Roman law. The general concept of pledge law is one of the most controversial points of modern jurisprudence. Despite the fact that the fundamental source of pledge law is the Civil Code of the Russian Federation (§ 3 Ch. 23), other norms of other federal laws are also associated with the right of pledge.

For example, as Z. Tsyblenko notes, “the significance of the Federal Law of July 16, 1998" On Mortgages (Pledge of Real Estate) "in a market economy is due to the fact that such a pledge is one of the most reliable instruments that ensure the fulfillment of obligations by all participants in civil circulation ... First, when pledging, specific real estate is allocated in advance, the value of which exceeds the amount of the debt, which guarantees its repayment after the sale of the property in case of violation of the obligation by the debtor; secondly, the parties are aware of this already at the moment the obligation arises; thirdly, the pledgee creditor has, according to the law, the right to obtain satisfaction of his monetary claims against the debtor mainly to other creditors of the pledger at the expense of the pledged property for the exemptions provided for by federal laws (Article 334 of the Civil Code of the Russian Federation, paragraph 1 of Article 1 of the Law on Mortgages) ; fourthly, in addition to significant value, such property usually plays an important role in the life of the mortgagor and he will try not to lose it (land plot, enterprise, residential building, apartment, summer residence, etc.) ”.

The collateral can be divided into separate types based on various criteria. Article 338 of the Civil Code distinguishes two main types of collateral: with the abandonment of the mortgaged property with the mortgagor and with its transfer to the mortgagee (mortgage). As a general rule, the pledged property remains with the mortgagor, in connection with which he retains the rights to own and use it. However, in accordance with the terms of the agreement, the pledged item can be transferred to the pledgee or to a third party; left with the pledger under the lock and seal of the pledgee, with the imposition of signs indicating the pledge (firm pledge), which makes it impossible to use the pledged property. Real estate and goods in circulation by virtue of the direct instructions of paragraph 1 of Art. 338 of the Civil Code cannot be transferred to the mortgagee.

Depending on the subject matter, the pledge is divided into special types that have features in legal regulation. These include real estate pledge (mortgage), pledge of goods in circulation, pledge of things in a pawnshop, pledge of rights.

Different types of collateral, distinguished by the type of property used for collateral, have their own specifics.

Thus, the purpose of my coursework is to characterize the different types of collateral.

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3. Types of collateral

The institution of pledge in the Russian Federation can be classified on various grounds. The most common in theory is the classification of the pledge depending on who has its subject. On this basis, a distinction is made between a pledge with the transfer of the pledged property to the pledgee (mortgage), as well as a pledge without transfer of the pledged property.

The Civil Code of the Russian Federation refers to the pledge of property without transferring it to the pledgee of the pledge of real estate (mortgage) and the pledge of goods in circulation. The types of pledging property without transferring it to the pledgee include leaving the pledged property with the pledger under a lock and seal, as well as a firm pledge, i.e. leaving the subject of pledge with the pledger by means of imposing signs that indicate the pledge.

Legislation of the Soviet period in Article 92 of the Civil Code of the RSFSR of 1922 enshrined the transfer of the pledged property to the mortgagee without fail. However, in the case of a pledge of an individually defined thing, it was indicated that it could be left in the possession of the pledger by means of the imposition of signs indicating the pledge.

It is worth noting that at the beginning of the development of the pledge law in the economic turnover, pledge with the transfer of the pledged property to the pledgee was widely used. However, now the most widespread is the pledge with the abandonment of its subject with the pledger. By and large, this is due to the fact that gradually the pledge relationship is moving away from its material essence, more and more approaching the law of obligations. Another explanation for the spread of a pledge without transferring the pledged thing to the pledgee is the fact that not all property can be transferred to the pledgee. First of all, such property is real estate and goods in circulation.

Speaking about the pledge with the transfer of the pledged property to the pledgee, it is necessary to note its peculiarities. First, the debtor for the entire period of the pledge agreement gives the pledged thing to the creditor in possession, and at the same time he himself loses the opportunity to exercise his powers of the owner. Secondly, the creditor, if it is directly indicated in the pledge agreement, can use the pledged property transferred to him in possession. "Since the subject of the pledge is withdrawn from the economic circulation of the pledger, and he is deprived of the opportunity to use it, the pledge is used in most cases in relations between citizens or with the participation of citizens, for example, this type of pledge is widespread in the issuance of loans by pawnshops" Khruleva ZV Decree. op. - S. 45.

There are other classifications of collateral. So, for example, depending on what is the subject of the pledge, some authors distinguish:

· Pledge of things;

· Pledge of securities;

· Mixed collateral (things and securities are the subject at the same time);

· Pledge of movable property;

· Mortgage of real estate;

· Pledge of property rights.

The following classification is based on the degree of liquidity of the pledged property. So, according to this classification, one can distinguish:

· Pledge of highly liquid property and property rights (the subject of such a pledge is currency, securities, jewelry, precious metals, jewelry);

· Pledge of property with an average level of liquidity (subject - household appliances, goods in circulation, products in processing, etc.);

· Pledge of low-liquid property (subject - real estate).

The Civil Code of the Russian Federation in paragraph 3 of Chapter 23 considers certain types of pledge, namely: pledge of things in a pawnshop, pledge of goods in circulation, pledge of obligations, pledge of exclusive rights, pledge of rights under a bank account agreement, pledge of securities, pledge of rights of participants in legal entities.

Let us dwell in more detail on the subspecies of the pledge with the abandonment of the pledged property with the pledger.

One of the most common types of collateral is a mortgage.

I must say that the general rules on mortgage apply to mortgages, but there are also peculiarities of the legal regulation of real estate mortgages. So, for example, with a mortgage, the principle of following the land to the structure located on it operates. Therefore, a pledge of a building or structure is allowed only with a simultaneous pledge under the same agreement of a land plot or part of it, which functionally ensures the pledged object. In this case, the mortgage of land is allowed separately from the mortgage of the object located on it. In the event of foreclosure on a land plot, the mortgagor retains the right to such an object, and he receives the right of limited use (easement) of a separate part of the plot necessary for the operation of a building or structure in accordance with its purpose. The rules for the use of such a part of the land plot must be fixed in an agreement between the mortgagor and the mortgagee. However, this provision raises some questions for civil scientists. "After all, the ownership of the mortgaged land plot when foreclosure is transferred not to the mortgagee, but to the acquirer of the land as a result of its sale (sale) ... Therefore, it would be more logical to envisage the conclusion of an agreement on determining the volume of the specified easement with the acquirer of the mortgaged land plot." A. Decree. op. - S. 52.

Considering the features of the mortgage of residential premises, it can be noted that a mortgage agreement for such real estate cannot be concluded by a representative of the owner. "A feature of the mortgage of a residential house or apartment and an important provision aimed at protecting the rights of citizens - the owners of these objects, is the rule that such an agreement cannot be concluded through a representative, except for cases of registration by a guardian or a trustee with the prior permission of the guardianship and trusteeship body" Tsybulenko Z. Pledge of residential apartments and houses // Civil law. - 2006. - No. 4. - P. 25..

The mortgage of residential buildings and apartments has several distinctive features:

1) the rules on the mortgage of such immovable property apply only to multi-apartment and individual residential buildings intended for permanent residence and owned by citizens or legal entities by right of ownership;

2) a mortgage agreement for such real estate cannot be concluded through a representative, except in cases of guardianship and trusteeship;

3) the norms that ensure the protection of the constitutional rights of citizens to housing are specifically provided for by the Federal Law "On Mortgage" See: Svit Yu. P. Peculiarities of mortgage of residential premises // Laws of Russia: experience, analysis, practice. - 2012. - No. 5. - P. 34..

Mortgage is a very important economic and legal institution and performs a number of important functions: “a mechanism for creating and attracting additional financial resources for the maintenance and development of material production; an additional tool for ensuring the turnover and redistribution of property in the case when the use of other mechanisms of turnover is legally impossible or economically inexpedient ”A. Smolyannikov. Mortgage: theory through the prism of lawmaking // Voprosy ekonomiki. - 1997. - No. 7. - P. 112..

Another subtype of pledge with the abandonment of its subject at the pledger is the pledge of goods in circulation. This type of pledge is "practically the only named method of security, which is designed for use in commercial (trade) obligations" Novikova A. A. Pledge of goods in circulation: issues of law enforcement // Laws of Russia. - 2012. - No. 5. - P. 19.. It represents a pledge of goods, leaving such goods with the pledger and “with the granting of the pledger the right to change the composition and natural form of the pledged property (stocks, raw materials, materials, semi-finished products, finished products, etc.), provided that their total value is not becomes less than the one specified in the pledge agreement ”Civil Code of the Russian Federation (part one) of November 30, 1994 (as amended on January 31, 2016) [Electronic resource]. Access from the reference legal system "ConsultantPlus". ...

Despite the fact that this method of security is called a pledge in the law, it is largely obligatory in nature and is not very similar to a classical pledge, and it is precisely such a pledge that does not have the features of a genuine real right See: Insolvency (bankruptcy): Scientific and practical commentary short stories of legislation and practice of its application / V. V. Vitryansky, V. V. Batsiev, A. V. Egorov and others. Ed. V.V. Vitryansky. -M .: Statut, 2010 .-- S. 65. However, the pledge of goods in circulation, like any other pledge, has its own characteristics:

1) the subject of pledge is not individually defined, but generic things intended for sale or exchange;

2) such a pledge does not have the right to follow the goods that are removed from the pledged item as a result of transactions made by the pledger and other actions to order them See: A. A. Novikova, Decree. op. - S. 22., i.e. goods in circulation cease to be a subject of pledge from the moment of their alienation by the pledger;

3) within the framework of the agreement, the pledger may change the composition and natural form of the property that constitutes the subject of the pledge, in other words, the subject of pledge is not the property itself, but its value, which may vary in proportion to the change in the value of the main obligation fulfilled.

Thus, the pledge of goods in circulation has both advantages and disadvantages. The main advantage of such a pledge is that it helps the pledger to carry out entrepreneurial activities without significant changes, which increases the possibility of fulfilling the main obligation. On the other hand, the pledge of goods in circulation is more of an obligation than a property in nature, and this brings it closer to other methods of securing the fulfillment of obligations, which are based on the creditor's personal confidence in the debtor.

Choosing a pledge with the transfer of the pledged property to the pledgee, it is necessary to compare the mortgage and the firm pledge. Thus, the latter does not provide for the transfer of the pledged item to the pledgee, but leaves it with the pledger under lock and key and sealed by the pledgee. If individually defined things are transferred as a pledge, then signs are superimposed on them that indicate the pledge. With a firm pledge, its subject remains with the debtor, but he cannot use it, although he has actual control over the pledged property.

Mortgage and hard pledge have some things in common. So, when using any of these subspecies of collateral, the property is actually transferred to the mortgagee, and the mortgagor also loses the opportunity to use such property.

In the case of a firm pledge, its subject remains with the pledger, and all measures for its preservation are assigned to him. When pledging, the thing is actually transferred to the pledgee, and he has additional obligations (to insure the pledged property at his own expense, to take certain measures to ensure the safety of the pledged property, etc.).

Consider such types of collateral with the transfer of property to the mortgagee, such as a pledge of securities and a pledge of things in a pawnshop.

Pledge of securities is one of the most demanded types of pledge at the present time. “Securities are one of the few types of property on the security of which a citizen or legal entity can get a loan from a bank. But at the same time, there is an obvious need to improve the legal regulation of such pledged legal relations in connection with the presence of serious gaps in the current legislation "Kharin N. A. Some problems of pledge of securities // Lawyer. - 2004. - No. 9. - S. 15..

Despite the insufficient legal regulation of the pledge of securities, the widespread use of this type of pledge is due to the fact that securities have such important advantages as “the objective possibility of establishing a weighted average estimate of the value of securities, their high liquidity, efficiency of transactions with them” Kuzmina M. H. Securities in the Russian Federation: Legal regulation of the issue and circulation. - M .: Jurlitinform, 2005 .-- S. 187.

An equally common form of pledge with the transfer of the pledged property to the pledgee is the pledge of things in a pawnshop. Its widespread use is associated, first of all, with “the low standard of living and income of the bulk of the population of our country, which predetermines the frequent shortage of cash for many citizens, and, secondly, the norm of“ life on debt ”cultivated with the help of the mass media. »» Tsakharias AS Features of the pledge of things in the pawnshop // Law: modern trends: materials of the international. scientific conference - Ufa, 2012 .-- P. 34.

The considered type of pledge combines both consumer character, since the pledgers in such a pledge are always citizens, and entrepreneurial features, because the activity of pawnshops is an independent type of entrepreneurial activity.

The pledge of things in a pawnshop has the following features:

· Special subject composition, since only citizens can be pledgers, and pawnshops can be pledgees;

· The subject of pledge is movable things that belong to the borrower and are intended for personal consumption (except for things withdrawn from circulation and things on the circulation of which restrictions are established by Russian legislation);

· Short-term loans (no more than 1 year) are provided as a pledge of things in a pawnshop;

· The pledged item is always transferred to the pawnshop;

· Such a pledge secures only the obligations of the pledger himself, i.e. the identity of the borrower and the pledgor when pledging things in a pawnshop always coincides.

Summing up, it should be noted that in the system of methods of securing the fulfillment of obligations, the pledge has a number of advantages over other methods. Thus, the pledgee under the pledge agreement acquires the right to satisfy his claims primarily to the rest of the pledger's creditors. Also, the actual risk of loss of the pledged property by the debtor in the event of failure to fulfill his obligations stimulates him to properly fulfill all obligations under the contract.

In the legal literature, there are two grounds for the emergence of a mortgage relationship: the contract and the law. However, in practice, most often, the pledge arises on the basis of a contract.

The most common division of a pledge into types is a subdivision into a pledge with the transfer of the pledged property to a creditor under a pledge agreement and a pledge with the debtor retaining its subject. In modern conditions, this type of collateral, such as real estate mortgage (mortgage), is increasingly common.

The main features of the collateral and the grounds for its occurrence. Types of collateral and scope of its application. Essential terms of the pledge agreement. Foreclosure on real estate. The rights and obligations of the parties under the contract. Realization of mortgaged property.
Brief content of the material:

Posted on

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Introduction

1. The concept of pledge

1.1 General concept of collateral

2. General characteristics of the pledge

2.1 Pledge subject

2.2 Terms of the pledge agreement

2.3 Rights and obligations of the parties under the pledge agreement

2.4 Foreclosure on mortgaged property

2.5 Sale of mortgaged property

Conclusion

Bibliography

Introduction

Entering into a particular legal relationship, the subject must be sure that the other party will perform its duties properly. Therefore, there must be measures according to which each of the parties would fulfill their obligations in an appropriate manner.

Now, in conditions of low contractual discipline, unreliability and simply bad faith of counterparties, various ways of ensuring the fulfillment of obligations should be increasingly developed.

In accordance with paragraph 1 of Art. 329 of the Civil Code of the Russian Federation, the fulfillment of obligations may be secured by a forfeit, a pledge, retention of the debtor's property, a surety, a bank guarantee, a deposit and other methods provided for by law or contract.

Methods for ensuring the fulfillment of obligations are of a property nature and are established in the interests of the creditor. One of these means is a pledge, which compels the debtor to fulfill the obligation, and if it is not fulfilled, it protects the interests of the creditor by allowing satisfaction at the expense of the property owned by the debtor.

The pledge has been known since the time of Roman law, in which the interests of the creditor were considered priority. Roman law provided for three main types of collateral: fiduciary transactions, manual mortgages, and mortgages. In more detail: Roman private law / Ed. I. Novitsky and I. Peretersky. Among the Russian civil scientists of the pre-revolutionary period, there was no unified view of the nature of the pledge, which was largely due to the imperfection of the legislation on pledge that was in force at that time. At that time, there was not only a single point of view on the legal nature of the pledge, but it seemed rather difficult to establish the very definition of the pledge.

The mortgage of the pre-revolutionary period was differentiated into the mortgage of movable and immovable property. Its forms largely depended on the object (real estate - a mortgage fortress; movable - an act on the transfer of movable property) and on who acted as the subject of the pledge (church, treasury, etc.). In addition, property re-mortgage was allowed.

With the abolition of the NEP by the Soviet regime, including private capital, in the late 1920s and early 1930s, pledge relations lost their significance. Suffice it to say that pledge legal norms were represented by only 11 articles of the Civil Code of the RSFSR of 1964, the provisions that were traditionally contained in the Instruction of the State Bank of the USSR regulating the procedure for lending to enterprises and economic organizations, as well as the provisions of the Model Charter of a pawnshop approved by the Resolution of the Council of Ministers of the RSFSR dated June 7, 1968. It should be noted that these acts had many gaps and contained rather outdated norms. Zavidov B.D. Analysis of the pledge in the civil law of Russia.

The very life in Russia with its spontaneous market laws forced the legislator to issue a whole package of legal documents regulating the pledge. At the beginning of 1992, the Law "On Pledge" was adopted Vedomosti of the Congress of People's Deputies of the RSFSR and the Supreme Soviet of the RSFSR, 1992. No. 23. p. 1239, then in Chapter 23 of the first part of the Civil Code of the Russian Federation, paragraph 3 appeared under the title "Pledge", and, finally, on July 22, 1998, the Federal Law "On Mortgages (Real Estate Pledges)" of July 16, 1998, No. 102-FZ, came into force. Russian newspaper dated July 22, 1998.

Pledge is one of the most important tools in the legal regulation of market relations. It is also important because otherwise it is closely related to the issues of ownership, the means of possible, and perhaps the initial, protection of the entrepreneur from an unscrupulous counterparty. In mortgage relations, the creditor acts on the principle “I believe not a person, but things”.

The object of research is the concept of pledge, in turn the subject of the general characteristics of the pledge.

The purpose of this work is to study the pledge as an institution of civil law.

1. Describe the main features of the pledge;

2. Expand the concept and grounds for the occurrence of a pledge;

3. Determine the types of collateral and the scope of its application;

4. Consider the rights and obligations of the parties under the pledge agreement.

Work structure. The work consists of an introduction, two chapters, a conclusion, a list of references.

1. The concept of pledge

1.1 General concept of collateral

The pledge is a legal relationship by virtue of which the creditor under the obligation secured by the pledge (the pledgee) has the right, in the event of the debtor's failure to fulfill this obligation, to receive satisfaction from the value of the pledged property, mainly to other creditors of the person who owns this property (the pledger), with the exceptions established by law. Gros L. Pledge: issues of civil law and civil process // Economy and law. - 2008. - No. 2. - from. 69

The establishment of a special right to the property of the pledger, combined with the right to the right to foreclose on the subject of the pledge over other creditors of the pledger, make the pledge one of the most reliable ways to ensure the fulfillment of obligations. It should also be borne in mind that privatized housing in market conditions is often the only sufficiently valuable property, pledging which a citizen can receive initial capital for entrepreneurial activity. In addition, obtaining a loan for the purchase of housing with the subsequent pledge of this housing is one of the real ways to solve the housing problem.

According to clause 1 of article 334 of the Civil Code, the pledgee has the right to receive, on the same basis, satisfaction from insurance compensation for the loss or damage of the pledged property, regardless of whose benefit it is insured, unless the loss or damage has occurred for reasons for which the pledgee is responsible ...

It can be said that a pledge secures the fulfillment of obligations through two functions:

1. The pledge stimulates the debtor to perform his duties, since undesirable consequences may occur for him: the collection will be levied on the subject of the pledge (stimulating function).

2. If the debtor fails to fulfill his obligations, the possibility of foreclosure on the pledged property is realized in order to compensate for all the creditor's losses (compensation function).

The pledgee gets satisfaction from the pledged property mainly to other creditors. This means if the pledgor is a debtor on two or more obligations and has not fulfilled them, then the interests of the pledged creditor are satisfied at the expense of the pledged property.

1.2 Grounds for the origination of the pledge

The legal basis for a pledge relationship can be a contract and a law. Most often, the collateral arises by virtue of the contract. According to paragraph 1 of Art. 339 of the Civil Code for the recognition of such an agreement as concluded, it must contain all the essential conditions: the subject of the pledge; its cost; the nature, size and term of performance of the main obligation secured by the pledge; as well as an indication of which of the parties to the contract will have the pledged property. In the absence of any of these conditions in the agreement, or if there is insufficient clarity of their definition, the pledge agreement is considered not concluded.

The pledge may also arise on the basis of the law upon the occurrence of the circumstances specified in it.

1.3 Types of collateral and scope of its application

The collateral can be divided into separate types based on various criteria.

Article 338 of the Civil Code distinguishes two main types of collateral: with the abandonment of the mortgaged property with the mortgagor and with its transfer to the mortgagee (mortgage). As a general rule, the pledged property remains with the mortgagor, in connection with which he retains the rights to own and use it. However, in accordance with the terms of the agreement, the pledged item can be transferred to the pledgee or to a third party; left with the pledger under the lock and seal of the pledgee, with the imposition of signs indicating the pledge (firm pledge), which makes it impossible to use the pledged property.

The scope of the pledge is directly indicated in Art. 4 of the Law "On Pledge" Law of the Russian Federation of May 29, 1992 No. 2872-1 "On Pledge" .. This article lists four points or types of areas of application of the pledge:

1. A pledge may secure a valid claim, in particular, arising from a loan agreement, including a bank loan, sales and purchase agreements, property lease, carriage of goods and other agreements.

2. The subject of a pledge may be things, securities, other property and property rights. The subject of a pledge cannot be claims of a personal nature, as well as other claims, the pledge of which is prohibited.

3. A pledge may be established in relation to claims that have arisen ...

Other files:

General characteristics of the pledge in modern Russian legislation. The concept of a pledge as the main method of securing the fulfillment of obligations. Yes ...

Characterization of the pledge as a way to ensure the fulfillment of obligations. Types of collateral, the content of the mortgage obligation. Conclusion of a mortgage agreement ...

Development of the institution of pledge in foreign and Russian civil law. Pledge agreement. Conditions, form of contract, parties to the contract: their rights and obligations ...

The concept of real estate, the legal field in the field of real estate pledge. The main stages and methods of real estate appraisal for mortgage purposes. Market assessment ...

The pledge may arise by virtue of a contract or on the basis of law upon the occurrence of the circumstances specified in it. The pledge agreement is concluded in writing. (Clause 2, Article 334 of the Civil Code). A characteristic feature of a pledge is that the property on which the creditor has the right to foreclose in the event of default by the debtor is predetermined.

Parties: the pledger - the debtor or a third person who is the owner of the thing, or a person who owns the property on the basis of the right of economic management; pledgee - a person who has received property as a pledge (creditor).

The essential terms of the pledge agreement are: the subject of the pledge, its assessment, the nature, size and time of performance of the obligation secured by the pledge, as well as the condition on which of the parties has the pledged property (clause 1, article 339 of the Civil Code of the Russian Federation). Pledging is not allowed:

a) property withdrawn from circulation (clause 1 of article 336, clause 2 of article 129 of the Civil Code);

b) claims inextricably linked with the personality of the creditor, in particular, claims for alimony, for compensation for harm caused to life or health, and other rights, the assignment of which to another person is prohibited by law (clause 1 of article 336 of the Civil Code);

c) certain types of property in cases provided for by law (clause 2 of article 336 of the Civil Code). For example, land plots that are in state or municipal ownership are not subject to mortgage.

Types of collateral:

Without transferring property to the mortgagee. (1. Mortgage. 2. Pledge of goods in circulation.)

With the transfer of property to the mortgagee; (The main example of a pledge with the transfer of pledged property is called a pledge, in other words, a pawnshop.) The pledge law presupposes two types of mortgage - actually 3. mortgage and 4. firm mortgage. The latter does not provide for the actual transfer of the mortgaged property to the mortgagee, but leaving it with the mortgagor under lock and key and the mortgagee's seal.

1. Mortgages. The Federal Law of the Russian Federation of July 16, 1998 “On Mortgages” indicates that the general rules on mortgage apply to the mortgage of immovable property, unless the Civil Code of the Russian Federation or this law provides otherwise.

required documents: 1) application of the pledger; 2) a notarized mortgage agreement and a copy thereof; 3) documents named in the mortgage agreement as annexes; 4) a receipt for payment of the state duty; 5) the main contract signed and certified by the parties.

a number of basic provisions of the mortgage of residential buildings and apartments: 1) the rules on the mortgage of this type of real estate apply only to individual and multi-apartment residential buildings and apartments intended for permanent residence and owned by citizens and legal entities. 2) an agreement on the mortgage of a residential building or apartment cannot be concluded through a representative, except in cases of guardianship and trusteeship. 3) it should be noted that the legislator has specifically provided for in the law a norm ensuring the protection of the constitutional rights of citizens to housing (Article 78 of the Law on Mortgages).

2. Pledge of goods in circulation. According to Art. 357 of the Civil Code of the Russian Federation, “a pledge of goods in circulation is recognized as a pledge of goods, leaving them with the pledgor and with the granting of the pledger the right to change the composition and natural form of pledged property (stocks, raw materials, materials, semi-finished products, finished products, etc.) in turnover is as follows: 1) the pledger has the right to change, within the framework of the contract, the composition and natural form of the pledged property, i.e., strictly speaking, the subject of pledge in this case is not so much the property itself, but its value.

2) The property pledged in this way does not have a very important right for the pledge - the “right of succession”.

Goods in circulation, alienated by the pledger, cease to be the subject of pledge from the moment the acquirer acquires ownership, economic management or operational management of them. 3) The goods acquired by the pledgor that meet the conditions listed in the pledge agreement become the subject of pledge at the time of their acquisition by the pledgor into ownership or economic management without concluding any additional special agreement. essential terms of a pledge agreement of this type: 1) type of pledged property, other generic characteristics thereof;

2) the total value of the pledged item; 3) the place where the pledged item is located; 4) types of goods for which the pledged item can be replaced.

3. Some types of mortgage: 1. Securities pledge “Securities are often characterized as one of the optimal” mortgage items. They are quite liquid, do not require large storage facilities for storage, they can be kept in the safes of the pledgee bank or in the custody of a third party - in the deposit of a notary office ”. 2. Pledge of things in a pawnshop. According to Art. 358 of the Civil Code of the Russian Federation specifically provides for a pledge of things in a pawnshop. This type of pledge is characterized by a specific set of features related to the parties to the pledge transaction, its terms, the subject of the pledge, the form of the contract. Not any property can also be used as a subject of pledge. The Civil Code of the Russian Federation indicates that property should be, firstly, movable, and secondly, intended for personal consumption. In addition, the parties are not entitled to assess the property pledged as collateral at their own discretion. In addition, the law assigns a specific range of responsibilities to the pledgee. 1), Art. 358 of the Civil Code of the Russian Federation, in addition to the general provisions of Art. 343, it is indicated that the pawnshop is obliged to insure in favor of the pledger at its own expense the things accepted as pledge in the full amount of their assessment, established in accordance with the prices for things of this kind and quality, usually set in trade at the time of their acceptance as pledge. 2), an imperative rule is established, according to which the pawnshop is not entitled to use and dispose of the pledged things. 3), the pawnshop is liable in the event of loss or damage to the things transferred to the pawnshop as a subject of pledge, the only basis for exemption from which is the loss or damage to property due to force majeure.