Article 702Prêt hypothécaire, définition

Décisions de la Cour suprême interprétant cette section

1. Arrêt de la Cour suprême n° 8905/2551 (2008) ★ Monument

   A mortgage is an accessory obligation to the principal debt it secures. Where the plaintiff pleads that the defendant borrowed and mortgaged to secure that loan, and the evidence shows he never borrowed, the defendant is not liable on the mortgage either - not because the mortgage is void, but because the principal obligation as pleaded does not exist. And where the mortgage in fact secured a third party interest debt, the burden of proving that principal debt lies on the plaintiff: until its amount is established the court cannot give judgment enforcing the accessory mortgage.

   The plaintiff sued for 3,500,000 baht said to have been lent to the defendant and secured by a registered mortgage. The defendant denied ever borrowing, saying the mortgage secured only the interest a third party owed the plaintiff. The facts found were that the defendant had deposited the title deed and a signed blank transfer to secure that third party unpaid interest and had never borrowed or received the money claimed. The Supreme Court held the loan pleaded was not made out, so no liability arose under it, and that a mortgage being an accessory to the principal debt the defendant was not liable on the mortgage either. As to the debt the mortgage did secure, the burden of proof lay on the plaintiff, who never proved how much interest the third party owed; with no certain principal sum the court could not enforce the accessory mortgage. The Court of Appeal was reversed and the claim dismissed.

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2. Arrêt de la Cour suprême n° 1587/2555 (2012)

   A mortgage extends to all structures existing on the mortgaged land at the time of registration; subsequent separate transfer of the structure does not remove it from the mortgage.

   Under Section 718, a mortgage extends to all things attached to the mortgaged property at the time of registration. A house that was attached to the mortgaged land at the time of registration was included within the mortgage, even though the mortgagor subsequently transferred the house separately.

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Curated decisions with case numbers verified against the Supreme Court database. English renderings are the firm's editorial translation for study.