In this paper, having studied laws and other regulations and also scientific jurisprudence literature, the author researches in all complexity the theoretical and practical matters of law regulations for the relations that arise from the contract for the satisfaction of the mortgagee’s claims.
Particular attention in this paper is paid to the analysis of theoretical views on the legal nature of real estate pledge (mortgage) and contractual mortgage constructions derived from it. Peculiarities were studied of how the rights and legitimate interests are protected in the contract for the satisfaction of the mortgagee’s claims.
Theoretical approaches to the interpretation of the category of «foreclosure» on the subject of a mortgage are revealed. The author’s definition of the concept of «mortgage foreclosure» is formulated: a set of consecutive legally valid actions of the mortgagee, which are carried out under the condition that there is a material, legal or procedural basis for the realization of the subject of the mortgage (an agreement to satisfy the claims of the mortgagee or a court decision, respectively), which establishes the scope and subject of foreclosure, the initial selling price, methods used to sell the pledge’s subject and other tangential conditions. It is proposed to consider the concept of «foreclosure» as the forced sale of the subject of the mortgage and as a method of coercive influence on the debtor, which ensures the satisfaction of the mortgagee’s property interests.
The terminological differentiation of such categories of mortgage law as «foreclosure» in the procedural sense and «the mortgagee’s exercise of the mortgage right» in the material and legal sense is proposed. In accordance with the provisions of the current civil legislation of Ukraine, the mortgagee, in case of violation of their rights by the debtor-mortgagor, has the right to foreclose on the subject of the mortgage. It is substantiated that, taking into account the procedural and legal normative approach, which is based on the preferential use of such a kind of methods of legal regulation as positive obligations, the category «foreclosure» is used within the scope of enforcement proceedings as a procedural form (method) of exercising the mortgagee’s right to appeal to court with a demand addressed to the mortgagor to satisfy property interests. The contract under study contains an agreement between the parties to apply, subject to the occurrence of the circumstances determined by it, an alternative, contractual extra-judicial, purely substantive procedure for satisfying the interests of the mortgagee.
Taking into account the purpose and objectives of the study, the peculiarities of the legal regulation of civil relations under the contract for the satisfaction of the mortgagee’s claims in the modern civil law of Ukraine are characterized. The matter of developing the construction of the contract for the satisfaction of the mortgagee’s claims in the context of the formation of the national civil legislation of Ukraine is analyzed. In the work a study of regulatory legal acts in the field of mortgage relations (collateral law) was carried out in stages, which made it possible to trace the specifics of the development of the mortgage institution and the contract for the satisfaction of the mortgagee’s claims in the civil law of Ukraine. As part of the scientific research, historical aspect of the formation of the idea of taking actions in the interests of another person from the time of Roman private law was characterized, which was accompanied by an uneven ratio of rights and obligations of the mortgagor and the mortgagee in the presence of trust in the relationship between them.
The essence and content of the contract for satisfaction of the mortgagee’s claims are studied. On the basis of the comparative analysis, the peculiarities of the relationship between the contract under study and related contracts, which are regulated by the Civil Code of Ukraine, were revealed. The legal nature, features of concluding, changing and terminating the contract for the satisfaction of the mortgagee’s claims are determined.
The author considered the contract for the satisfaction of the mortgagee’s claims in the context of the division of contracts into main and additional ones. Attention is focused both on the broad and narrow understanding of additionality (accessory nature) of civil law contracts in general and the contract for the satisfaction of the mortgagee’s claims in particular.
