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Concept
Hypothec
Summary
Hypothec (haɪˈpɒθɪk,_ˈhaɪpɒθ-; Hypothek, hypothèque, hipoteka, from Lat. hypotheca, from Gk. ὑποθήκη: hypothēkē), sometimes tacit hypothec, is a term used in civil law systems (e.g. the law of all of Continental Europe except Gibraltar) or mixed legal systems (e.g. Scots law, South African law) to refer to a registered non-possessory real security over real estate, but under some jurisdictions it may sometimes also denote security on other collaterals such as securities, intellectual property rights or corporeal movable property, either ships only (ship hypothec) as opposed to other movables covered by a different type of right (pledge) in the legal systems of some countries, or any movables in legal systems of other countries. Common law has two main equivalents to the term: mortgages and non-possessory liens.
Originating in Roman law, a hypotheca was essentially a non-possessory pledge over a person's entire estate, but during the Renaissance the device was revived by civil law legal systems as a hypothecatory security interest taken strictly over immovable property and, like the late medieval obligatio bonorum, running with the land (Latin jus persequendi, French droit de suite, Dutch zaaksgevolg, German Folgerecht). However, under a handful of mixed legal systems, the hypothec was imported as a non-possessory real security over movable property (in opposition to the common-law chattel mortgage). Whereas a pledge operates by bailment and transfers possession on delivery and a chattel mortgage operates by conveyance and transfers title, a hypothec operates by hypothecation and transfers neither possession nor title.
This real right in security operates by way of hypothecation, often arises by operation of law (generally statute), and gives a creditor a preferential right to have claims paid out of the hypothecated property as last recourse when the debtor is in default.
Official source
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