Ar įkeitimo teisės akcesoriškumas – dogma?

Abstract

The Lithuanian hypotheque law is accessory, though it is possible to discern a different function of the principle of accessoriness: different types of the dependence of the accessory obligation from the principal obligation, bearer hypotheque/ pledge, maximum hypotheque / pledge, hypotheque / pledge of the third party’s assets. The mortgage right may appear in absence of a concrete obligation that needs to be secured, though the further fate of this right depends on the fate of the concrete obligation, the mortgagor’s right expires with the termination of the principal obligation. In the context of contract law, accessory obligation may not expire where the parties agree on the conditions for the preservation of this right, though the parties to the mortgage relationship do not use this right. Mortgage transactions do not provide for the specifics of the mortgagor’s – a third person’s – liability and often his obligation, upon the application of the principle of accessoriness, depends on the fate of the contractual obligation, a party of which he is. The processes of integration are not likely to reduce the importance of ensuring the principle of accessoriness in the security relations, though there can be expected an increase of such cases where the application of this principle becomes weaker or it ceases to be applied altogether, though the non-application of this principle will be compensated by an agreement concerning the termination of accessory rights and obligations. Such changes in the application of dogmatic principles will also affect the mortgage relationships in Lithuania. Various forms of the dependence of the accessory right on the principal right may appear attractive not only to the creditor but also to the debtor and the mortgagor, however, it is always important to maintain an equal, non-discriminatory balance of the interests of those subjects. The reform of the Lithuanian mortgage law is encouraged by the changing market of mortgage loans and the changes in the real property law where the obvious attempts to unify the information systems on this law are noticed. A way ahead would be opening a window of legal possibility for the use of property for getting credits in different EU states by creating more flexible, simpler and cheaper models for this purpose. An attractive idea would be a possibility of using the EU mortgage models alongside the national mortgage systems.