The establishment and effectiveness of the pledge contract and the mortgage contract

According to the law, both types of contracts take effect at the effective time agreed by both parties, which is generally the time when the contract is signed. However, your question may be to ask: when will the pledge be established and take effect, or under what circumstances will it not be established?

When does the mortgage take effect or under what circumstances does it not?

1.The pledge is established when the pledgor delivers the pledged property. (Article 212 of the Property Law) that means that if it is not delivered, it will not take effect.

2.Mortgage Division:

1) Mortgage of immovable property, the mortgage right shall be established from the time of registration. - Real estate mortgages are not registered and do not take effect.

2) Production equipment, raw materials, products, semi-finished products, or means of transport, or ships or aircraft under construction, or floating charges, the mortgage shall be created from the time the contract comes into force and shall not be used against a bona fide third party without registration. - These things are still valid if they are not registered, but they cannot be effective against bona fide third parties.

The difference between the two is that one is based on delivery as a requirement for validity, and the other is on registration as a requirement for effectiveness or confrontation.

I guess the question you want to ask is more than just the text above.

1. Regardless of the pledge contract or mortgage contract, as long as it does not violate laws and regulations and social interests, the contract will be established and take effect if the two parties reach an agreement. Unless otherwise agreed by you, the conditions or duration of the effect. If there is no agreement, it will take effect when it is established.

Therefore, from a contractual point of view, there is no essential difference between the two.

2. This part is what I speculate you want to ask. When are pledges and mortgages created, what are the differences, and what are their functions.

The contract is formed and takes effect, and the creditor's right arises. It does not directly give rise to a property right.

The establishment of the pledge is established when the pledge is delivered after the contract takes effect. When to deliver, when to set up.

There are two types of mortgages: movable property and immovable property.

In the same way, the premise is a valid contract. A mortgage on movable property, which takes effect at the time the contract comes into force; The mortgage of immovable property is created only at the moment when the mortgage is registered.

The difference, you see. Related, that is, they are all security interests, and they all play a role as security.

There is also a difference, that is, there is a difference between the way of mortgage and pledge. The realization of the mortgage right is subject to the limitation period of the creditor's right. There is no restriction on the pledge.

Let's talk about the specifics.

Both the pledge contract and the mortgage contract are signed for the sake of a certain benefit, so when the interest changes.

Legal analysis: If the parties to a pledge contract enter into a contract in the form of a contract, the contract shall be terminated when both parties sign, seal or press their fingerprints. A contract established in accordance with law shall take effect from the time of its establishment.

Legal basis: Civil Code of the People's Republic of China

Article 490:Where the parties conclude a contract in the form of a written contract, the contract shall be concluded when both parties sign, affix their seals or press their fingerprints. The contract is formed when one of the parties has fulfilled its primary obligations and the other party has accepted it before signing, stamping or fingerprinting.

When laws or administrative regulations stipulate or the parties agree that a contract shall be concluded in written form, and the parties do not use the written form but one party has performed its main obligations and the other party accepts it, the contract shall be established.

Article 502:Contracts of filial piety established in accordance with law shall take effect upon their establishment, except as otherwise provided by law or otherwise agreed by the parties.

In accordance with the provisions of laws and administrative regulations, if the contract shall go through formalities such as approval, follow those provisions. If the failure to go through formalities such as approval affects the effectiveness of the contract, it does not affect the validity of the provisions of the contract on the performance of obligations such as reporting for approval and the validity of the relevant clauses. If a party who should go through formalities such as applying for approval fails to perform its obligations, the other party may request that it bear responsibility for violating such obligations.

Where, in accordance with the provisions of laws and administrative regulations, the modification, transfer, or termination of a contract shall go through formalities such as approval, the provisions of the preceding paragraph shall apply.

The period of mortgage or pledge guarantee stipulated in the guarantee contract is valid, but the period shall be agreed upon by the parties in accordance with law, and shall not expire earlier than or at the same time as the performance period of the principal debt. If there is no agreement between the parties or the agreement is unclear, the guarantee period shall be within six months from the date of expiration of the performance period of the principal obligation.

1. Is there a time limit for the joint and several liability of the guarantor of private loans?

The joint and several liability guarantee has a time limit, and the guarantee period is the period during which the guarantor's guarantee liability is determined, and there is no suspension, interruption or extension.

The creditor and the guarantor may agree on a guarantee period, but if the agreed guarantee period is earlier than or expires at the same time as the performance period of the principal debt, it shall be deemed that there is no agreement; If there is no agreement or the agreement is not clear, the guarantee period shall be six months from the date of expiration of the performance period of the principal debt.

Where the creditor and the debtor have not agreed on the time limit for the performance of the principal debt or the agreement is not clear, the guarantee period shall be calculated from the date of expiration of the grace period for the creditor to request the debtor to perform the debt.

2. How long does it take for the property to be mortgaged.

The term for using real estate as collateral for mortgage shall be agreed upon by the parties, but shall not be earlier than or at the same time as the performance period of the main debt; If there are any of the above-mentioned circumstances, it shall be deemed that there is no agreement, and if the parties have not agreed, the term of the mortgage guarantee shall be six months from the date of expiration of the performance period of the principal debt.

3. The guarantee period of the guarantor of the bank loan.

The term of the guarantee of the bank loan guarantor is generally determined according to the contract, and if there is no agreement in the loan contract, the guarantee period is six months from the date of expiration of the performance period of the main debt. The guarantee period is the period during which the guarantor's liability for the guarantee is determined, and there is no suspension, interruption or extension. The creditor and the guarantor may agree on a guarantee period, but if the agreed guarantee period is earlier than or expires at the same time as the performance period of the main debt, it shall be deemed that there is no agreement; If there is no agreement or the agreement is not clear, the guarantee period shall be six months from the date of expiration of the performance period of the principal debt.

Article 692 of the Civil Code.

The guarantee period is the period during which the guarantor's liability for the guarantee is determined, and there is no suspension, interruption or extension.

The creditor and the guarantor may agree on a guarantee period, but if the agreed guarantee period is earlier than or expires at the same time as the performance period of the principal debt, it shall be deemed that there is no agreement; If there is no agreement or the agreement is not clear, the guarantee period shall be six months from the date of expiration of the performance period of the principal debt.

Where there is no agreement between the creditor and the debtor on the time limit for the performance of the debtor's debts or the agreement is not clear, the guarantee period shall be calculated from the date on which the grace period for the creditor to request the debtor to perform the debts expires.

Article 693.

If the creditor of the general guarantee fails to file a lawsuit or apply for arbitration against the debtor during the guarantee period, the guarantor shall no longer bear the guarantee liability.

If the creditor of the joint and several liability guarantee fails to request the guarantor to bear the guarantee liability during the guarantee period, the guarantor shall no longer bear the guarantee liability.