hypothecation
n . 担保契约
担保契约
Hypothecation \
Hy *
poth `
e *
ca "
tion \,
n . [
LL .
hypothecatio .]
1 . (
Civ .
Law )
The act or contract by which property is hypothecated ;
a right which a creditor has in or to the property of his debtor ,
in virtue of which he may cause it to be sold and the price appropriated in payment of his debt .
This is a right in the thing ,
or jus in re .
--
Pothier .
B .
R .
Curtis .
[
1913 Webster ]
There are but few cases ,
if any ,
in our law ,
where an hypothecation ,
in the strict sense of the Roman law ,
exists ;
that is a pledge without possession by the pledgee . --
Story .
[
1913 Webster ]
Note :
In the modern civil law ,
this contract has no application to movable property ,
not even to ships ,
to which and their cargoes it is most frequently applied in England and America .
See {
Hypothecate }. --
B .
R .
Curtis .
Domat .
[
1913 Webster ]
2 . (
Law of Shipping )
A contract whereby ,
in consideration of money advanced for the necessities of the ship ,
the vessel ,
freight ,
or cargo is made liable for its repayment ,
provided the ship arrives in safety .
It is usually effected by a bottomry bond .
See {
Bottomry }.
[
1913 Webster ]
Note :
This term is often applied to mortgages of ships .
[
1913 Webster ]
HYPOTHECATION ,
civil law .
This term is used principally in the civil law ;
it is defined to be a right which a creditor has over a thing belonging to another ,
and which consists in the power to cause it to be sold ,
in order to be paid his claim out of the proceeds .
2 .
There are two species of hypothecation ,
one called pledge ,
pignus ,
and ,
the other properly denominated hypothecation .
Pledge is that species ,
of hypothecation which is contracted by the delivery of the debtor to the creditor ,
of the thing hypothecated .
Hypothecation ,
properly so called ,
is that which is contracted without delivery of the thing hypothecated .
2 Bell '
s Com .
25 ,
5th ed .
3 .
Hypothecation is further divided into general and special when the debtor hypothecates to his creditor all his estate and property ,
which he has ,
or may have ,
the hypothecation is general ;
when the hypothecation is confined to a particular estate ,
it is special .
4 .
Hypothecations are also distinguished into conventional ,
legal ,
and tacit .
1 .
Conventional hypothecations are those which arise by the agreement of the parties .
Dig .
20 ,
1 ,
5 .
5 .-
2 .
Legal hypothecation is that which has not been agreed upon by any contract ,
express or implied ;
such as arises from the effect of judgments and executions .
6 .-
3 .
A tacit ,
which is also a legal hypothecation ,
is that which the law gives in certain cases ,
without the consent of the parties ,
to secure the creditor ;
such as ,
1st .
The lien which the public treasury has over the property of public debtors .
Code ,
8 ,
15 ,
1 .
2d .
The landlord has a lien on the goods in the house leased ,
for the payment of his rent .
Dig .
20 ,
2 ,
2 ;
Code ,
8 ,
15 ,
7 ,
3d .
The builder has a lien ,
for his bill ,
on the house he has built .
Dig .
20 ,
1 .
4th ,
The pupil has a lien on the property of the guardian for the balance of his account .
Dig .
46 ,
6 ,
22 ;
Code ,
6 ,
37 ,
20 .
5th .
There is hypothecation of the goods of a testator for the security of a legacy he has given .
Code ,
6 ,
43 ,
1 .
7 .
In the common law ,
cases of hypothecation ,
in the strict sense of the civil law ,
that is ,
of a pledge of a chattel ,
without possession by the pledgee ,
are scarcely to be found ;
cases of bottomry bonds and claims for seamen '
s wages ,
against ships are the nearest approach to it ;
but these are liens and privileges rather than hypothecations .
Story ,
Bailm .
Sec .
288 .
It seems that chattels not in existence ,
though they cannot be pledged ,
can be hypothecated ,
so that the lien will attach ,
as soon as the chattel has been produced .
14 Pick .
R .
497 .
Vide ,
generally ,
Poth .
de l '
Hypoth �
que ;
Poth .
Mar .
Contr .
translated by Cushing ,
note .
26 ,
p .
145 ;
Commercial Code of France ,
translated by Rodman ,
note 52 ,
p .
351 ;
Merl .
R �
pertoire ,
mot Hypoth �
que ,
where the subject is fully considered ;
2 Bro .
Civ .
Law ,
195 ;
Ayl .
Pand .
524 ;
1 Law Tracts ,
224 ;
Dane '
s Ab .
h .
t .;
Abbott on Ship .
Index ,
h .
t .;
13 Ves .
599 ;
Bac .
Ab .
Merchant , &
c .
G ;
Civil Code of Louis .
tit .
22 ,
where this sort of security bears the name of mortgage . (
q .
v .)
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