After the property is mortgaged in the form of a contract, does the contract have legal effect?

The so-called validity of the contract is also commonly referred to as the legal validity of the contract. The entry into force of a contract is a positive evaluation of the agreement of the parties by the law, and the legal effect expected by the parties has occurred. Therefore, the validity of the contract, that is, the occurrence of the rights and obligations agreed upon by the parties.

A mortgage contract is formed when the parties agree on the mortgage matters, but it does not take effect immediately. The contract will only come into force when the mortgage is registered. First of all, from a legal point of view, a real estate mortgage contract is only a creditor's rights and debts contract between the parties that creates a mortgage on the mortgage, and when it is established or even takes effect, the mortgage right has not yet arisen, and the conclusion of the mortgage contract is a kind of creditor's right behavior.

The performance of the mortgage contract, that is, the mortgagor actually creates a mortgage right to register the mortgage, is the act of the real right; Secondly, when the state handles the registration of real estate mortgages, it resolutely denies the mortgage registration that violates the mandatory and prohibitive norms stipulated by the state, that is, the parties express their true and consistent intentions, and cannot recognize their legal effect, but only if the mortgage meets the requirements of the law is established and registered, and its legal effect is recognized. Legal basis: Article 41 of the Security Law of the People's Republic of China [Registration and Effect of Collateral] If a party mortgages the property specified in Article 42 of this Law, the mortgage shall be registered, and the mortgage contract shall take effect from the date of registration.

Article 44 of the Contract Law of the People's Republic of China [Effectiveness of Contracts] A contract established in accordance with law shall take effect upon its establishment. Where laws and administrative regulations provide that formalities such as approval or registration shall be handled to take effect, follow those provisions.

The mortgage must be registered with the housing management department, otherwise the mortgage will not be effective to the outside world, but the contract will take effect as long as both parties sign.

Legally binding. If the mortgage agreement signed by the two parties is established in accordance with the law, it has legal effect, and after the mortgage agreement takes effect, the mortgage registration needs to be completed before the mortgage right is established.

Validity of the mortgage contractThe mortgage right is the security of the creditor's right, and it only appears when the claim cannot be realized. The validity of the real estate mortgage contract is subordinate, and when the main contract, i.e., the creditor's rights contract, is invalid, the mortgage contract is also invalid. Therefore, it is necessary to clarify the validity of the main contract when signing a mortgage contract.

The validity of the mortgage contract refers to the establishment of the mortgage right created by agreement between the mortgagor and the mortgagee. A mortgage is the intended legal effect of the parties to a contract. Before the contract came into force, although it was stipulated in the contract, it was only a possibility and did not actually exist.

It is only after the mortgage is registered that the mortgage is transformed from a possibility into a reality. If the mortgage contract is an expression of the true intention of the parties, the parties have the capacity for civil conduct, do not violate the mandatory provisions of laws and administrative regulations, and do not violate the public order and good customs, the mortgage contract has legal effect.

1. What are the conditions for a mortgage on a property?

A mortgage evaluates the nature of the house, and in general, it is best not to be more than 15 years old. The following conditions are generally required for the mortgage of a property:

1. A natural person with full capacity for civil conduct shall generally not exceed 65 years old at the time of the maturity date of the loan.

2. Have a legal and valid identity certificate (resident ID card, household registration book or other valid identity certificate) and marital status certificate.

3. Have a good information record and willingness to repay.

4. Have a proper occupation and stable income**, and have the ability to repay the principal and interest of the loan on time.

5. The property rights of the mortgaged houses should be clear, meet the listing and trading conditions stipulated by the state, and can enter the real estate market for circulation, without any other mortgages. The mortgaged house is not included in the local urban reconstruction and demolition plan, and has the real estate certificate and land certificate issued by the real estate department and the land management department.

6. Those who have the ability to pay the down payment for the purchased house and use the newly purchased house as the maximum mortgage must have a legal and valid house purchase contract, the house age is less than 10 years, and the down payment of not less than 30% of the total price of the purchased house is prepared or has been paid, and the original housing mortgage has been repaid for more than one year, the loan balance is less than 60% of the value of the mortgaged house, and the house used as a mortgage has obtained the house ownership certificate, and the age of the house is less than 10 years.

7. The borrower has a legal and valid contract or agreement for the purchase of the house.

8. Have a valid guarantee approved by the lender.

According to the relevant provisions of China's civil code of the wheel model, the mortgage house sales contract has legal effect. During the mortgage period, the mortgagor can transfer the mortgaged property. Where the parties agree otherwise, follow their agreement.

If the mortgaged property is transferred, the mortgage right shall not be affected. Where the mortgagor transfers the mortgaged property, it shall promptly notify the mortgagee. If the mortgagee can prove that the transfer of the mortgaged property may damage the mortgage right, it may request the mortgagor to pay off the debts or deposit the proceeds of the transfer to the mortgagee in advance.

The part of the transfer price that exceeds the amount of the claim shall belong to the mortgagor, and the debtor shall pay off the shortfall.

1. How to transfer the mortgaged property.

If the mortgaged property wants to be transferred, the mortgagee shall be notified in time, and the mortgagee may go to the real estate registration center to handle the transfer registration after agreeing. If the mortgagee can prove that the transfer of the mortgaged property may damage the mortgage right, it may request the mortgagor to pay off the debts or deposit the proceeds of the transfer to the mortgagee in advance.

2. What should be done if the debtor dies and the mortgagor dies.

While the item is still in bondage, the mortgagor can transfer the collateral. If the parties have agreed otherwise, they must abide by their agreement. If the mortgage is transferred, the mortgage right shall not be affected.

If the mortgagor transfers the mortgage, it shall promptly notify the mortgagee. If the mortgagee can prove that the collateral may damage the mortgage, it may require the mortgagor to deposit or repay the debt in advance. If the price of the transfer exceeds the amount of the creditor, the remainder shall belong to the mortgagor.

Civil Code of the People's Republic of China

Article 406:During the mortgage period, the mortgagor may transfer the mortgaged property. Where the parties agree otherwise, follow their agreement. If the mortgaged property is transferred, the mortgage right shall not be affected.

If the mortgagor transfers the mortgaged property, the mortgagor shall promptly notify the mortgagee. If the mortgagee can prove that the transfer of the mortgaged property may damage the mortgage right, it may request the mortgagor to pay off the debts or deposit the proceeds of the transfer to the mortgagee in advance. The part of the transfer price that exceeds the amount of the claim shall belong to the mortgagor, and the debtor shall pay off the shortfall.

The mortgage contract is valid, but the mortgage needs to be registered, and the mortgage is created at the time of mortgage registration. In addition, the property to be mortgaged shall be the property that can be mortgaged according to the law, and the content of the mortgage contract shall not violate the provisions of the law.

1. Does the vehicle mortgage have to be registered to be valid?

If a car is used as collateral, there is no need to go through the mortgage registration, and the failure to go through the mortgage registration will not affect the establishment of the mortgage right, and the mortgage right shall be established when the mortgage contract takes effect; Without registration, it is not allowed to confront a bona fide third party.

A bona fide third party, i.e. a person other than the party to the mortgage. The meaning of this sentence is that a person other than the party buys the mortgaged vehicle without his knowledge, because he does not know that the vehicle has been mortgaged, so his act of purchasing the vehicle is a bona fide acquisition and is protected by law.

2. What does it mean to pre-collateralize a provident fund loan?

The pre-mortgage means that when the buyer signs the purchase contract with the developer and the loan contract with the bank, the pre-mortgage registration will be generated at the housing authority. Because it is an off-plan house that has not been delivered, it cannot be registered as a mortgage, and can only be registered as a pre-mortgage, which is a means for the bank to protect the mortgage rights.

3. Should the ship mortgage have a ship search registration certificate?

If the debtor or a third party mortgages the ship, the registration certificate of the ship shall be pledged. If the debtor fails to perform its obligations, the mortgagee can be repaid in priority in respect of the mortgaged property. In order to establish a mortgage right on a ship, the parties need to go through the mortgage registration and submit the ship registration certificate and other materials; Without registration, they must not confront a bona fide third party.

Article 402 of the Civil Code.

Where the property provided for in items 1 to 3 of the first paragraph of Article 395 of this Law is mortgaged, or the buildings under construction as provided for in item 5 of this Law, the mortgage registration shall be completed. The mortgage is created at the time of registration.

Article 400. To establish a mortgage, the parties shall conclude a mortgage contract in writing.

Mortgage contracts generally include the following clauses:

1) the type and amount of the secured claim;

2) the time limit for the debtor to perform the debt;

3) The name and quantity of the mortgaged property;

4) Scope of Guarantees.

The validity of the contract, that is, the occurrence of the rights and obligations agreed upon by the parties. A mortgage contract is formed when the first party agrees on the mortgage matter, but it does not take effect immediately. The contract will only come into force when the mortgage is registered.

Article 394 of the Civil Code of the People's Republic of China Hu Qinghua Where the debtor or a third party does not transfer the possession of the property and mortgages the property to the creditor in order to guarantee the performance of the debt, the debtor fails to perform the due debt or the mortgage is realized as agreed by the parties, and the creditor has the right to be repaid in priority for the property. The debtor or third party provided for in the preceding paragraph is the mortgagor, the creditor is the mortgagee, and the property provided for by the guarantee is the mortgaged property. Article 395:The following property that the debtor or a third party has the right to dispose of may be mortgaged:

1) Buildings and other land attachments; (B) the right to use construction land; (3) the right to use maritime space; (4) Production equipment, raw materials, semi-finished products and products; (5) Buildings, ships, and aircraft under construction; (6) means of transportation; (7) Other property that is not prohibited by laws or administrative regulations from being mortgaged. The mortgagor may mortgage the property listed in the preceding paragraph.

A secured contract for the sale and purchase of a house is legal. In general, collateral is not required, but when the creditor is unable to repay the debt, the guarantor is required to bear the debt. Therefore, the guarantor has a certain risk as a guarantee guarantee, and when making a guarantee guarantee, it is necessary to confirm that the other party is a person who can be trusted and has a certain ability to repay.

The scope of the guarantee includes the principal claim and its interest, liquidated damages, damages and the cost of realizing the claim.

[Legal basis].Article 699 of the Civil Code.

If there are two or more guarantors for the same debt, the guarantor shall bear the guarantee liability in accordance with the guarantee share agreed in the guarantee contract; If there is no agreement on the guaranteed share, the creditor may request any guarantor to assume the guarantee liability within the scope of the guarantee.

Article 688.

Where the parties stipulate in the guarantee contract that the guarantor and the debtor shall be jointly and severally liable for the debt, it is a joint and several liability guarantee. In the event that the debtor of the joint and several liability guarantee fails to perform the due debts or the circumstances agreed upon by the parties occur, the creditor may request the debtor to perform the debts in a blind manner, and may also request the guarantee and witnesses to bear the guarantee liability within the scope of the guarantee.