Considering mortage as one of the means of securing the execution of obligations recognized in the current Albanian legislation

• Author: Neritan Cena
• Position: Judge in District Court, Tirana, Albania
• Pages: 86-94

Vol. 3 No. 2

July 2017

Academic Journal of Business, Administration, Law and Social Sciences

IIPCCL Publishing, Graz-Austria

ISSN 2410-3918

Acces online at www.iipccl.org

86

Considering mortage as one of the means of securing the execution of obliga-

tions recognized in the current Albanian legislation

LLM Neritan Cena

Judge in District Court, Tirana, Albania

Abstract

The mortgage is one of the safest means to guarantee the execution of obligations. The

defi nition of a mortage is given in the article 560 of the Albanian Civil Code.

A mortgage is a defi ned as concrete right placed on the wealth of a debtor or of a third party,

on behalf of the creditor, in order to accomplish an obligation. Nonetheless, despite this initial

defi nition seems to superfi cially imply that any wealth of the debtor or of a third party can be

placed as a mortgage, this is not true because according to the article 561 of the Civil Code, the

wealth or properties that can be used as mortgage are the following:

Immobile property;

Usufructes of these objects (of immobile property) apart from the legal usufruct of the parents,

as well as other enphiteotic rights over these objects.

In any case, the person who places a mortage on a property must be the owner or when this

person is a third party, consent must be given so that a mortgage can be placed on a property

to guarantee the accomplishment of obligations on behalf of the debtor. A mortgage can be

placed on properties that are already existing at the time of the contract or properties that are

about to exist in the future.

Keywords : The mortgage, Creditor, Debtor, Third Party, Obligation, Public register, Guarantee.

Introduction

The mortgage is one of the safest means to guarantee the execution of obligations.

The mortage is related always to immobile property or mobile property registered in

public registrars and also because the establishment of a mortgage requires a specifi c

formalization which is the registration on public registrars or to be more precise on the

registrars of immobile property. When this particular formalization is not followed

then the mortgage contract becomes invalid because registering is considered as part

of the judicial act and includes not only a notery part but it includes a registration as

well as it stems from teh article 562 of the Civil Code in which it is stipulated that:

“Mortgage is placed on the basis of the contract or the law and registration is required. The

contract needs to be based on a notary act.”

The same conclusion is reached based on the article 570 of the Civil Code, in which it

is stipulated that:

“The mortgage is registered in the registration o ce of the immobile real estate

property where this property is sitauted.” Based on the above-mentioned statements,

one can conclude that not breaching the formality of registering the contract of the