The essence of a mortgage as a limited property right. Commentary on the decision of the Civil Chamber of the Supreme Court of 6 June 2019, case file no. II CSK 680/17, and the judgment of 6 June 2019, case file no. II CSK 204/18 Type of commentary: approving

Abstract

The gloss discusses the rulings on the essence and content of a mortgage that break the uniform and well-established line of rulings according to which a mortgage entitles a mortgage creditor to demand payment from the owner of the object encumbered with it as a debtor in rem. In the abovemntioned rulings the Supreme Court accepted without any doubt that a mortgage is executed by monetising the object mortgaged in the course of enforcement proceedings and any other definition of its content contradicts its legal nature as the right in rem. Consequently, the Supreme Court deemed it inadmissible to apply Article 319 the Code of Civil Procedure to decisions regarding satisfaction of a mortgage creditor from the object of a mortgage, which article has been unambiguously classified as applying only to personal liability.

Keywords

• mortgage
• pledge rights
• limited rights in rem
• enforcement proceedings