SOBRE LA CESIÓN DE LOS CRÉDITOS HIPOTECARIOS.

Abstract

Assignments of mortgage credit mainly follow the same general scheme as all credit assignments, though mortgage collateral does have, despite its accessory nature, a sharp influence on the assignment of mortgage credit: The rules in article 1,526 et seq. of the Civil Code are followed, but the entire general theory of the assignment of mortgage credit is coloured by the principle of the accessoriness of mortgages. Furthermore, assignment must be differentiated from other institutions akin to it in which there is also some transfer of debt, be it by virtue of a law or by court decision. In addition, despite the general rules covering the assignability of mortgage credit, there are some exceptions in which mortgage credit cannot be assigned, stemming from some legal prohibition, conventional exclusion or the specific nature of the credit; the issue of the admissibility of the pactum de non cedendo and its registration has particularly been raised, in view of articles 26 and 27 of the Mortgage Act. For mortgage credit to be assigned, a series of personal and formal require ments must be met, whose scope is the object of this paper: The consent of assignor and assignee, the recording of the assignment in a notarial deed, the debtor's notification and the registration of the assignment. Also analysed are the partial assignment of mortgage credit, especially the assignment of interest on mortgage credit, and the effects of assigning mortgage credit vis-à-vis the direct parties to the assignment (assignor and assignee), vis-à-vis the debtor and vis-àvis third parties, especially in the case where the assigned credit has already been paid off. Lastly, apart from regular or nominative mortgage credit, there are certain special classes of assignment when the assigned mortgage credit is embodied in an endorsable or bearer document, or in the assignment of debt secured with a statutory mortgage. The assignment of debt secured with a security mortgage and the specific case of mortgage as collateral security up to a given sum are not really special classes, but they do display certain unique features due to their nature.