13 Aug Commercial Mortgage And Its Most Important Functions
A Commercial Mortgage is one of the basic contracts in the law, and no legal system, whether Arab or non-Arab, is devoid of this contract because of its importance in protecting rights and diversity. Today we will talk about commercial mortgages, which is an example of types of mortgage related to commercial law and not to civil law.
In this research, we will discuss the definition of commercial mortgages, their types, and methods of proving them, in addition to distinguishing between civil and commercial mortgages, and we will also review the conditions of contracting commercial mortgages in several Arab laws. Stay tuned for the interesting topics that we will present in this article.
The term commercial mortgage may be new to some of our esteemed readers and researchers, but it is an old term known in commercial law,
commercial transactions, and jurisprudence.
Nowadays, it is considered a reservation of a group of mobile funds such as financial bonds and sukuk, or non-mobile funds such as real estate and construction for a specified period, in exchange for a benefit for the other party to the contract.
Thus, it represents a financial value subject to some formal and material conditions that achieve important economic and commercial benefits, and this depends on the positions of the parties in the commercial market, their reputation,
and their relationship with each other.
A commercial mortgage contract represents a legal guarantee for the creditor,
as he can confront the debtor and retain the pledged money,
and remain withheld until the contract is fulfilled and the debt is paid. Therefore,
commercial mortgages play an important role in business and investment development.
What is a Commercial Mortgage in Law?
Commercial mortgages are considered a material and spiritual right and involve both tangible and intangible assets. When the creditor arranges a physical mortgage on the shop to guarantee his debt,
he has the right to recover his debt from the shop in the event of non-compliance with the implementation and payment of the debt.
Commercial mortgage loans have been described as “an agreement made by the debtor in favor of the creditor in exchange for a commercial debt owed by the debtor, and this agreement can be documented with documents or securities, or perhaps property.
Commercial mortgages are subject to the same terms as any contract based on the agreement and consent of the parties,
and therefore it is not considered a formal contract, as the transfer of possession may be part of its consequences, but is not an essential element of it.
How is a commercial mortgage proven?
Commercial mortgages to contractors and others can be proven by any recognized means of proof, regardless of the value of the property mortgaged.
Among these means:
- Show the notarization contract in the commercial register.
- The parties to the contract must keep a copy of the contract and show it when needed.
Types of commercial mortgages
While searching for commercial mortgages, we always realize that it has many branches and the many concepts in the law that arise from it,
First: Commercial insurance mortgage
The laws agreed that commercial mortgages can be either security or possession,
and a security mortgage is a contract that gives the creditor a right to the mortgaged property.
It is a contract concluded by the creditor to secure his debt due on a real estate, whereby he can stand before other creditors who come after him in priority and collect his right from the price of the real estate, regardless of who owns it or who controls it.
We note here an important condition, which is that the mortgagor must necessarily own the mortgaged property so that the mortgagor can claim his right from it, and that the mortgagor can contract.
Second: Commercial Mortgage
Here we find ourselves in a completely different situation. Where the conditions of property commercial mortgages are not limited to approval and acceptance only,
but rather it requires agreement between the two parties and the delivery
of the property to be mortgaged to the mortgagee,
and the obligation of the two parties to a trusted person (a fair person).
and handing over the property to be mortgaged to the mortgagee or some other unfair person, and in addition to that,
the property contract is executed,
otherwise, we will be in front of a promise to make the mortgage only;
It is not a contractual promise.
Possession of commercial mortgages is also a binding contract for both parties
and give rise to obligations on the debtor to maintain and return the mortgaged property upon payment of the debt.
Among the most important conditions of a commercial mortgage are:
- The ability to deliver the mortgaged property.
- The mortgagor hand over the pledged eye to the mortgagee.
- Acceptance of documenting the pledged thing as security for the payment
of the debt that is delivered to the debtor.
Characteristics of a commercial mortgage contract
Commercial contracts are generally considered contracts that depend on approval and agreement,
but there are commercial contracts such as the commercial mortgage contract that include some advantages and require official writing as a prerequisite for them,
as the characteristics of the commercial mortgage contract are limited to the following:
- Commercial mortgages are my right in kind.
- A commercial mortgage is also based solely on movable physical assets,
and a mortgage on intellectual property is also allowed.
- There must be a commercial guarantee for the debt in the trade operations, and it may not be a personal or civil guarantee,
therefore the contract used in this case is considered a civil contract like the common mortgage contract.
Effects of commercial mortgages
If the debtor is unable to pay the debt on time, the creditor must appeal the recovery of his debt from the debtor’s mortgaged asset, and we study from here the effects of commercial mortgages, as follows:
- The process consists in taking the debt from the mortgaged property and executing the conditional contract.
- In the right of priority, the creditor is given preference in benefiting from the property that is mortgaged when compared to any other creditor, and this is determined based on the date recorded in the contract documented in the Commercial Register.
- If a one-day mortgage is between two,
priority will be given to the person who preceded him in registering the mortgage.
- The right of track is a right of the debtor to enforce on the property that has been mortgaged, and based on this right,
he has the right to track this property anywhere,
and no one has the right to prevent him from doing so.
Commercial mortgage jobs
Commercial mortgages perform two functions,
each benefiting from one party, namely:
- It helps provide the necessary financing for individuals and companies to purchase real estate and other fixed assets, which enhances economic activity and promotes economic growth.
- It provides guarantees to lenders, as they can apply for foreclosure on
the property purchased in the event of non-payment of the related loans, thus protecting them from potential financial losses.
- Commercial mortgages are a means of basic immunity for the creditor to ensure the recovery of his financial right and avoid losses resulting from the non-performance of the physical debt by the debtor.
- In this context, the creditor is allowed to take his right from the mortgaged property,
provided that he deals in good faith and preserves it.
- It is important to mention that if the creditor neglects the integrity of the mortgaged property and returns to the debtor to claim the debt,
he has no right to do so.
- The pledged mortgage must be taken care of so that the guarantee does not weaken.
- The mortgage trade is considered a credit to the debtor,
as it allows him to facilitate matters by reviving the pledged thing without selling it, as it is imprisoned for a specified period only.
What is the difference between a commercial and a civil mortgage?
The idea is one of the forms of commercial mortgage and civil mortgage,
but the difference is that commercial mortgages relate to trade, goods,
and activities of a profitable nature,
but a civil mortgage is considered a guarantee provided to secure personal rights or non-commercial and investment interests.
At the end of the article, we would like to remind you that commercial mortgages enjoy great confidence among everyone,
as it enhances the activity of the commercial sector and contributes to controlling losses and achieving profits.