Full Article: PDF
Scientific Object Identifier: http://s-o-i.org/1.1/TAS-05-145-45
DOI: https://dx.doi.org/10.15863/TAS.2025.05.145.45
Language: English
Citation: Rekhviashvili, N. (2025). Disposal of property rights and mortgages. ISJ Theoretical & Applied Science, 05 (145), 369-375. Soi: https://s-o-i.org/1.1/TAS-05-145-45 Doi: https://dx.doi.org/10.15863/TAS.2025.05.145.45 |
Pages: 369-375
Published: 30.05.2025
Abstract: The subject and research topic of the article is to study the dispositive nature of the right of ownership and mortgage. Since mortgage is an accessory right and is related to the main right, that is, the right to demand performance arising from the main obligation. In addition, it is related to the dispositive nature of the right of ownership, since based on the dispositive nature of the right of ownership, the subject has the right to mortgage the property. Accordingly, any interference with the right of mortgage is reflected in the right of ownership. The purpose of the article is precisely this, to discuss the right of ownership in connection with the right of mortgage. A vicious practice in modern Georgia is the conclusion of a purchase agreement with the right to repurchase instead of a mortgage agreement. On July 21, 2018, an amendment was made to the Civil Code of Georgia , which imposed a restriction on the use of collateral for a loan issued to an individual, except for exceptions established by law. As a result of this restriction, we have a practice where, instead of a mortgage agreement , the parties conclude a purchase agreement with the right to repurchase. This type of agreement is more risky for the property owner, since there is a greater risk of losing the property. The imposition of a restriction on the right to mortgage a loan by an individual under the legislation also constitutes a restriction on the right to property, and this article will address this issue. The article also discusses the essence and main characteristics of mortgage as a legal institution. It will also discuss the decision of the First Collegium of the Constitutional Court of Georgia of December 18, 2020 No. 1/4/1380; in the case “Fatman Kvaratskhelia and Kakha Ekhvaia vs. the Parliament of Georgia”, where the Constitutional Court discussed the constitutionality of the aforementioned norm. As a result of the article, the shortcomings of the legislation will be revealed and mechanisms for improving the legislation will be proposed. Scope of application of the results: The above results will be useful for both theorists and practicing lawyers. For theorists, in the sense that the connection of the dispositive nature of property rights with the right of ownership will be obvious, and for practicing lawyers, for example, for lawyers, in the process of dispute resolution, to justify that when interfering with the right of mortgage, there is also interference with the right of ownership.
Key words: Criminal law, Court, Law.
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