Dissertation on the concept and formation of the mortgage
“Credit is based on trust and only serious guarantees can generate it1”. This
Didier Martin’s adage, illustrates the role that securities can play in strengthening
financial relations between the parties. These securities represent all the mechanisms
aimed at protecting the creditor against the risk of non-performance, by his debtor, of his
obligations, in fact, the risk that every creditor fears is the possible insolvency of his
debtor. It is clear that the creditor’s prospect of payment is closely linked to the
value of his debtor’s assets which fluctuates according to the states of his assets and liabilities and this
when the value of the liabilities exceeds that of the assets, the debtor therefore becomes insolvent.
Security has a double major interest, that is to offer security of payment to
creditors and to facilitate credit financing of debtors within the framework of the contract
containing payment obligations deferred over time, hence the adage “securities
are the girls of credit2 »
Classically, securities are presented as forming two main categories,
personal security and real security. If personal securities are mechanisms
which will allow the substitution of a third party for the defaulting debtor, the real security as to
they consist of the allocation of property, belonging to the debtor, to the payment of his debt
in the event of a failure. There are different types of real security, the pledge being the
agreement by which the grantor grants a creditor the right to be paid by
preference to his other creditors on tangible movable property, present or future. THE
pledge which consists of the assignment as security of an obligation, of movable property
intangible property or a set of intangible movable property, present or future. The pledge
real estate (antichresis) which is a mortgage with possession, it is a variety
of mortgage which resides in the dispossession of the grantor. The beneficiary has no
only a right of preference and a right of resale but also the ability to use
and enjoy the property for the duration of the performance of the guaranteed obligation. The privilege which is a
right of preference that the law grants over the debtor’s property due to the cause of the
debt. Indeed, the privileged claim is preferred to all other claims, even
mortgage. The mortgage for its part represents real estate security, by virtue of
which the mortgagee has the option, in the event of default by his debtor,
either to have the encumbered property sold to be paid in priority over the price, or to become the
owner of the building. So this security offers particular facilities, firstly for the
debtor who is not relinquished from his immovable (of which he retains the use, enjoyment and
right of alienation) and can obtain, through one or more successive mortgages, a
capital representing all or part of its value, for the creditor not paid when due who has
the right to seize the building in whatever hand it is in (droit de suite) and to be paid
on the price before other creditors (right of preference).
1MARTIN DIDIER: Business law, ed. Al Madariss, 3rd ed., Casablanca, 2017
2Michel CABRILLAC: Security law, Paris, Litec, 1990
