«French Civil Code BOOK III. Of The Different Modes Of Acquiring Property. TITLE XVIII. OF PRIVILEGES AND MORTGAGES. Decreed the 19th March, 1 804. ...»
French Civil Code
BOOK III. Of The Different Modes Of Acquiring Property.
OF PRIVILEGES AND MORTGAGES.
Decreed the 19th March, 1 804. Promulgated the 29th of the same Month.
2092. Whosoever binds himself personally, is required to fulfil his engagement out of all
his property moveable and immoveable, present and future.
2093. The goods of the debtor are the common pledge of his creditors; and the Value thereof is equally distributable among them, unless there exist among the creditors lawful causes of preference.
2094. The lawful causes of preference are privileges and mortgages.
2095. Privilege is a right which the quality of his credit confers upon a creditor of being preferred to the others, though mortgage-creditors.
2096. Between privileged creditors, the preference is regulated by the different qualities of the privileges.
2097.Privileged creditors, who are in the same rank, are paid rateably.
2098. Privilege arising from the claims of the public exchequer and the order in which it is exercised, are governed by the laws relating thereto. Nevertheless the exchequer cannot obtain privilege to the prejudice of rights previously acquired by third persons.
2099. Privileges may exist either over moveables or immoveables.
Of Privileges over Moveables.
2100. Privileges are either general, or peculiar to certain moveables.
§ I. Of general Privileges over Moveables.
2101. Privileged creditors over moveables in general are those hereafter expressed, and
are exercised in the following order:
1st. Law expenses;
2d. Funeral expenses ;
3d. Expenses of whatever kind of the last sickness, concurrently among those to whom they are due;
4th. The salaries of persons in service, for the year elapsed, and what is due for the current year;
5th. Supplies afforded for the subsistence of the debtor and his family: that is to say, during the last six months, by retail shopkeepers, such as bakers, butchers, and others;
and during the last year, by masters of boarding houses and wholesale dealers.
§ II. Of Privileges over certain Moveables.
2102. Privileged credits over certain moveables are, 1st. The hire and rents of immoveables, on the fruits of the year's harvest, and on the value of all the stock and furniture of the house and farm, and of all that which serves to the cultivation of the farm; that is to say, to the amount of all which has accrued, or which may hereafter accrue, if the leases are authentic, or if, being under private signature, they have a certain date; and in both cases the other creditors have a right to under-let the house or farm for the remainder of the lease, and to make profit for themselves of the leases and rents, on condition however of paying to the proprietor all which shall still be due to him; And in default of authentic leases, or when being under private signature they have not a certain date, for a year commencing from the expiration of the current year; The same privilege takes place with regard to tenant¹s repairs, and with regard to all which relates to the execution of the lease;
Nevertheless, sums due for seed-corn or for the expenses of the harvest of the year, are paid from the value of the harvest, arid those due for implements, from the value of the implements, with a preference to the proprietor in both cases; The proprietor may seize the moveables which furnish his house or stock his farm when they have been removed without his consent, and he retains his privilege over them, provided he have laid claim to them; that is to say, in the case of moveables, stocking a farm, within an interval of forty days; and within one of fifteen, in the case of moveables furnishing a house; the, stock and furniture of the house and farm, and of all that which serves to the cultivation of the farm; that is to say, to the amount of all which has accrued, or which may hereafter accrue, if the leases are authentic, or if, being under private signature, they have a certain date; and in both cases the other creditors have a right to under-let the house or farm for the remainder of the lease, and to make profit for themselves of the leases and rents, on condition however of paying to the proprietor all which shall still be due to him; And in default of authentic leases, or when being under private signature they have not a certain date, for a year commencing from the expiration of the current year; The same privilege takes place with regard to tenant's repairs, and with regard to all which relates to the execution of the lease;
Nevertheless, sums due for seed-corn or for the expenses of the harvest of the year, are paid from the value of the harvest, arid those due for implements, from the value of the implements, with a preference to the proprietor in both cases; The proprietor may seize the moveables which furnish his house or stock his farm when they have been removed without his consent, and he retains his privilege over them, provided he have laid claim to them; that is to say, in the case of moveables, stocking a farm, within an interval of forty days; and within one of fifteen, in the case of moveables furnishing a house;
2d. The credit upon a pledge of which the creditor has got possession;
3d. The expenses incurred by the preservation of the article;
4th. The price of moveable effects not paid for, if they are still in the possession of the debtor, whether he have purchased them for a term or not; If the sale were made without a term, the seller may himself claim such effects as long as they are in the possession of the buyer, and prevent a resale thereof, provided the claim be made within eight days from the delivery, and that the effects are found in the same state in which such delivery was made; The privilege of the seller is not exercised, however, until after that of the proprietor of the house or of the farm, unless it be proved that the proprietor had knowledge that the moveables and other objects furnishing his house or stocking his farm, did not belong to the occupier; No innovation made upon the laws and usages of commerce with regard to claim;
5th. That which is furnished by an innkeeper, on the effects of the traveller which have been brought into his inn;
6th. Charges of carriage and additional expenses, on the thing conveyed;
7th. Credits resulting from want of integrity, and mistakes committed by public functionaries in the exercise of their functions, on the funds deposited as security, and on the interest which may be due thereon.
Of Privileges over Immoveables.
2103. Creditors having privileges over immoveables are, 1st. The seller, over the immoveables sold, for the payment of its price;
If there be several successive sales, of which the price is due in whole or in part, the first seller is preferred to the second, the second to the third, and so in order;
2d. Those who have supplied money for the acquisition of an immoveable, provided it be authentically verified, by the act of loan, that the sum was designed for such use, and by the acquittance of the seller, that such payment was made with money
3d. Coheirs, over the immoveables of the succession, for the warranty of the distributions made among them, and for the surplus and balance of the lots;
4th. Architects, contractors, masons, and others employed in building, rebuilding, or repairing houses, canals, or any other works whatsoever, provided nevertheless that an estimate have been previously drawn up by a competent person officially nominated by the court of first instance within whose jurisdiction such buildings are situated, for the purpose of verifying the state of the places in relation to the works which the proprietor shall declare he has an intention to form, and that such works have been, within six months from their completion, admitted by a competent person likewise nominated officially; But the amount of the privilege must not exceed the value set forth by the second statement, and it is reduced to the surplus value existing at the period of the alienation of the immoveable, and resulting from the works which have been done therein.
5th. Those who have lent money to pay or reimburse workmen enjoy the same privilege, provided such employment be authentically verified by the act of loan, and by the acquittance of the workmen, in the same manner as has been mentioned above with respect to those who have lent money for the acquisition of an immoveable.
Of Privileges which extend over Moveables as well as Immoveables.
2104. Privileges which extend over moveables and immoveables are those enumerated in article 2101.
2105. When in default of moveables the privileges enumerated in the preceding article are presented for payment from the price of an immoveable in concurrence with creditors having privilege over an immoveable, the payments are made in manner
1st. The law expenses and others enumerated in article 2101;
2d. Credits pointed out in article 2103.
Of the Manner in which Privileges are preserved.
2106. Among creditors, privileges produce no effect with regard to immoveables, except so far as they are made public by enrolment on the registers of the keeper of the mortgages, in the manner regulated by -the law, and computing from the date of such enrolment, subject to those exceptions only which follow.
2107. The credits enumerated in article 2101 are exempted from the formality of enrolment.
2108. The seller having privilege preserves such privilege by the transcription of the title which has passed the property to the purchaser, and which verifies that the whole or part of the price is due to him: in consequence of which, the transcription of the contract made by the purchaser shall be equivalent to inscription on the part of the seller, and on that of the lender who shall have supplied the money paid, and who shall be substituted into the rights of the seller, by the same contract: the keeper of the mortgages shall nevertheless be bound, under pain of all damages towards third persons, to cause an official insertion on his register, of credits resulting from the act conveying the property, as well in favor of the seller as in favor of the lenders, who may also cause to be made, if it have not been already done, a transcription of the contract of sale, for the purpose of acquiring the enrolment of what is due to them from the price.
2109. The coheir or the coparcener retains his privilege over the property of each lot or over the property put up to auction, for the surplus and balance of the lots, or for the price of the auction, by enrolment made at his instance, within sixty days, to be dated from the act of partition or of purchase by auction; during which time no mortgage can take place respecting the property charged with such balance or adjudged by auction, to the prejudice of the creditor of the balance or of the price.
2110. Architects, contractors, masons, and other work-men employed in building, rebuilding, or repairing edifices, canals, or other works, and those who, in order to pay and reimburse them, have lent money, of which the employment has been verified, retain, by the double enrolment made 1st of the statement which verifies the condition of the premises; 2d of the statement of allowance, their privilege at the date of the enrolment of the first statement.
2111. The creditors and legatees who demand a separation of the patrimony of the defunct, conformably to article 878, under the title "Of Successions," retain, with regard to the creditors of the heirs or representatives of the defunct, their privilege over the immoveables of the succession, by the enrolments made respecting each of such goods, within six months, to be computed from the opening of the succession.
Before the expiration of this interval, no mortgage can effectually be established over such property by the heirs and representatives, to the prejudice of those creditors or legatees.
2112. The assignees of these different privileged credits may all exercise the same rights as the parties making cession, in their place and stead.
2113. All privileged credits subjected to the formality of enrolment, in regard to which the conditions above prescribed for retaining privilege have not been complied with, nevertheless do not cease to be hypothecary; but the mortgage takes date with respect to third persons, only from the period of the enrolments which ought to have been made, as shall be hereafter explained.
2114. Mortgage is a real right over immoveables charged with the acquittance of an obligation. It is in its nature indivisible, and subsists in entirety over all the immoveables affected by it, over each and over every portion of such immoveables. It pursues them into whatever bands they may pass.
2115. Mortgage takes place only in the cases and according to the forms authorized by law.
2116. It is either legal, or judicial, or conventional.
2117. Legal mortgage is that resulting from the law. Judicial mortgage is the result of judgments or judicial acts. Conventional mortgage is that which depends on covenants, and on the external form of acts and contracts.
2118. The following only are susceptible of mortgage:
1st. Immoveable goods which relate to commerce, and their appendages reputed immoveable;
2d. The usufruct of the same goods and appendages during the time of its continuance.
2119. Moveables have no liability to mortgage.
2120. No innovation is made by the present code upon the regulations of the maritime laws concerning ships and other vessels.
Of legal Mortgages.
2121. The rights and credits to which legal mortgage is applicable, are, Those of married women, upon the goods of their husband; Those of minors and interdicted persons, upon the goods of their guardians; Those of the nation, of communes, and public establishments, upon the property of receivers, and accountable administrators.