The German Grundschuld
| DOI | 10.3366/elr.2012.0101 |
| Pages | 147-177 |
| Date | 01 May 2012 |
| Published date | 01 May 2012 |
In the European legal tradition, deriving from Roman law, a security right is mostly an accessory right: in principle it exists solely in relation to an obligation, the performance of which it secures. But in Germany, alongside the accessory security, alternative, non-accessory security rights were developed, the
The concept of accessoriness was developed in continental legal science.
It is not well-known in the English-speaking world but see A J M Steven, “Accessoriness and security over land” (2009) 13 EdinLR 387.
It refers to the bond between the security right and the claim (personal right) that it secures. The claim is seen as the main right and the security right is seen as its accessory. The most important aspects of accessoriness are that the security right cannot exist when there is no secured claim: that the security right cannot be enforced when the claim cannot be enforced (accessoriness of defences): that upon enforcement the mortgagee cannot receive more money than the amount of the claim at that time and that upon assignation or any other transfer of the claim the security right is automatically transferred to the new creditorThe concept plays an important role in the discussions about the introduction of the so-called “euromortgage”. The original model of the “euromortgage” was based on the Swiss land charge (
See W Wiegand, “Akzessorietät und Spezialität. Zum Verhältnis zwischen Forderung und Sicherungsgegenstand”, in W Wiegand (ed),
At the end of the 19th century the drafters of the German civil code (BGB) codified three types of security rights on immovables, two types of hypothec, the
This can be found in almost any textbook. See e.g. M Wolff and L Raiser,
For a more nuanced description see:
The origin of the German non-accessory
At the end of the 18th century there was a great demand for credit in the east of Germany, partly as a result of the Seven Years’ War. Many owners of so-called
G Körber, “Das Kreditwesen des ritterschaftlichen Grundbesitzes in Mecklenburg nach dem Siebenjährigen Kriege bis zur Gründung des Ritterschaftlichen Kreditvereins im Jahre 1819”, in
Körber (n 6) at 163–164.
A great obstacle for creditors was the fact that, at that time, the system of land registration was very defective and it was often impossible to find out whether or not a property was burdened with a mortgage. In Mecklenburg,
Körber (n 6) at 177, 180.
for example, registration in a public land register was not required to create a mortgage. In addition, there were various privileges such as “general hypothecs” that took preference but were not registered anywhere.M Weyermann,
Körber (n 6) at 179–194.
Körber (n 6) at 194–200.
As a result of this lack of security, creditors were forced to demand a higher interest rate for their loans. As a consequence, credit was often unavailable on acceptable terms. A second major problem for debtors was that most credit was granted for a very short time, perhaps only half a year, until the next loan expiry date set by the market rules.
Körber (n 6) at 163–164, 175, 210. In Prussia, credit was granted for longer periods but rarely for a term exceeding ten years. Credit exceeding a duration of ten years became common only after the introduction of the 1750 Mortgage Statute (
To make credit available on a larger scale, at lower interest rates and for longer durations, a better system of credit intermediation and more security for lenders were needed. To that end, new legislation on mortgages, bankruptcy and land registration was made and new institutes were founded which acted as intermediaries between the owners of
W von Brünneck,
H Schulin, “Zur Entwicklung des Grundpfandrechts in der Schweiz”, in H Coing und W Wilhelm (eds),
E Klein,
The first
It was established by Frederic the Great by Cabinetts-Ordre of 29 August 1769.
did not give money to members who needed credit butTo continue reading
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