The Legal Nature of Pledge
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Abstract
Civil law classifies individual rights in two ways: the right in rem and rights of obligations. The new Civil Code 2000 as compared to the old 1964 Code considers both forms of pledge i.e. mortgage and pledge of movable property and property rights as rights in rem. Does this choice of the legislature rest on any reasoned foundations? The author presents his own view on this question. He analyses the nature of pledge and gives a range of research opinions on this question. The author recognizes that what should be regarded as rights in rem or rights of obligation is treated differently in different countries, as the bulk of major obligations is aimed at establishing the right in rem, and bases his research on Lithuanian positive law.
The author follows the preponderant theoretical approach that the property right is the broadest in terms of its contents, whereas all the others rights, pledge included, may be evaluated as segmentation of the right of property and evaluates pledge form the point of view of property rights contents and object. Right in rem is an absolute right, therefore its features in pledge are discussed. The author has also distinguished those features of pledge, which show its nature in terms of obligations. Having analyzed the nature of legal nature, the author draws a conclusion of a twofold nature of the right of pledge. It bears features of the right in rem and rights of obligations.
The author follows the preponderant theoretical approach that the property right is the broadest in terms of its contents, whereas all the others rights, pledge included, may be evaluated as segmentation of the right of property and evaluates pledge form the point of view of property rights contents and object. Right in rem is an absolute right, therefore its features in pledge are discussed. The author has also distinguished those features of pledge, which show its nature in terms of obligations. Having analyzed the nature of legal nature, the author draws a conclusion of a twofold nature of the right of pledge. It bears features of the right in rem and rights of obligations.
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