Real Estate Mortgage On The Common Law Legal System

Mortgage originated from fiducia(the original meaning was trust) of Rome,it required that the legal estate should be vested in the lender.If the repay obligation of contract was fulfilled,the legal estate should be reconveyed to the owner(the borrower).Later,for the conveniency of the application,pignus was designed.It did not require the conveyance of the estate,but pawn the property,that was,the borrower remained the estate.Soon,they created the tool of hypotheca,which looked like pignus.But,the difference was that only when the borrower breached the convenant could the lender control the real estate.When Rome came into debility,the German cultrure fashioned Europe.The Germans acknowledged the concept of gage,meaning property hypothecated.After William conquered England in 1066,the Frenchmen brought in the gage system,calling the security relating no actual conveyance"dead"gage.And because the French word mort means dead,this was naturaly called mort gage or mortgage.In England,morden mortgage developed through three stages:Prior 1926,mortgages were created by conveyancing of the estate.And after 1925,legal mortgages may be created by methods stipulated in LPA,1925,no legal estates were conveyed.If the land was not registered,it is stipulated in LRA,2002, that both the methods of LPA,1925 can be used.But if the land was registered,mortgage can only by created by charge.The security transactions in U.S.A basically resembled those in England,but there were many distinctions.Prior UCC,a wide extension of securities were recognized, accommodating the needs of finance.In U.S.A,UCC was enacted in 1952.It did not make provisions according to the discriminations of traditional security,but conclude the prior lien,plege,chattel mortgage,accounts receivable into secured interests as one whole.As most states applied UCC,chattels security system in the whole of U.S.A were basically united.In most of U.S,the purchaser or the borrower became the owner of the property which the lender helped to buy,while the lender remained the secured rights or interests.So,some states call this title,while others deem it only a lien.Nowadays,almost all of the states consider it a lien according to the most purposes of mortgage.Notwithstanding the distinguishes of title theory and lien theory of the nature of security interests, the general trends is theabolishion of title theory,and remain the lien theory in U.S.But the nature of lien is a security interest.U.S.A is making efforts to unify the statutes,and the American Law Institute enacted the Restatement of the Law-Property(Mortgage),third. Compared with the rules put in practice in England,the mortgage of U.S.A has changed much.In the Special Administration Zone of Hongkong,prior the Conveyancing and Property Ordinance 1984,legal mortgage was created by assignment or sub-demise the land to the mortgagee,subject to the covenant that if the advanced money was repayed,the mortgagee should re-assign or surrender the estate to the mortgager.In Hongkong,the most popular mortgage was created by assignment. According to section 44 of the Conveyancing and Property Ordinance 1984,since 1st of November,1984,the legal mortgage may be created by charge.The legal estate of the mortgaged property would no longer be assigned to the mortgagee,but remaind by the mortgager.So, prior 1st of November,1984,the mortgagee enjoyed the legal estate,the mortgager enjoyed the equity of redemption.After 1st of November,1984,the mortgager would enjoy both the legal estate and the equity of redemption,the mortgagee only enjoys the interests of charge.The formal change of mortgage made the nature approach to the reality.By studying the mortgage system of England,U.S.A ,Hongkong destrict and the maimland of China,we can see clearly,the form and real application of mortgage has been conversing from complexity and fussy to simple and standard. The content has changed from conveyance to charge.In the aspect of function,the legal charge extraordinaryly resembles the hypothecation of the mainland of China.In the aspect of the category of security property,we accepted some implementation practised in England,but the security method and enforcement of the security interests in English countries and districts are closing up with hypothecation. Despite many differences between mortgage or charge and hypothecation of civil law,we may peel off the minor details which are not suitable to the occasion of China,remain the hardcore,and incorporate it into our hypothecating system.