ARTICLES and NOTES - Notarius International

240 O. Soergel/O. Stöcker, EU Enlargement and Property Law Notarius International 3-4/2002
Diagram 7: Land Charge (Grundschuld)
same time however the security contract between the
(third-party) provider of the security and the lender taking
the security creates the causa as between these parties
that entitles the lender to keep the security.
Diagram 8: double causation, if security is furnished
by a third party
Although in practice the powers and obligations of the
creditor of the land charge in respect of the land charge
(Grundschuld) are generally governed by a special contract
between the provider of the security and the taker of
the security, the so-called security contract or security
agreement (Sicherungsvertrag) , this does not alter the
non-accessory nature of the land charge. This so-called
security contract has, amongst others, the following functions
in particular in this context:
It describes the security purpose (Sicherungszweck).
Thus it establishes, in relation to the contract partners, the
purposes for which (i.e. for the security of which claims
by the taker of the security or by other creditors) the taker
of the security may use the security. As a result it takes
on a similar function in the property law context to the
role played by the statutory rules on accessoriness in the
case of accessory securities.
In addition, according to a widely held view 6 , it also
contains the causa for the provision of the security. If the
security contract is defined in this way then it contains
the obligation of the provider of the security to give the
agreed security to the taker of the security. If one looks at
the contractual practice of the German banks however,
then such a definition of the security contract is unclear
to say the least, as normally the loan contract itself already
contains the provision that the making of the loan
is dependent upon the provision of a specified security. In
this report therefore the authors start from the assumption
(2.2 above and 3.1, 3.2 below) that the causa for the
provision of the security is contained in the loan contract
and not in the security contract. At the end of the
day the difference between these two points of view does
not matter – at least where the provider of the security
and the borrower are one and the same person; the crucial
thing is that the obligation to provide the security is governed
somewhere in the contractual arrangements between
the borrower and the lender.
In the case where the borrower and the provider of the
security are not one and the same person it is however
clear that in the borrower/lender relationship it is not the
security contract to be entered into between the (thirdparty)
provider of the security and the lender taking the
security that is the causa for the provision of the security
but the loan contract, in which the borrower assumed an
obligation to provide the security to the lender. At the
Unlike the case with accessory security interests therefore,
the provisions contained in the security contract only
create rights and obligations; they do not change the legal
attribution of the security in any way.
Diagram 9: Accessoriness (Akzessorietät)
2.5 Accessoriness in Europe
2.5.1. The different legal systems
If one looks beyond the German legal system then one
finds a large variety of different types of property charges
elsewhere in Europe in which accessoriness is more or
less pronounced depending on the legal system. Very few
legal systems have two such differently structured charges
over property as German law with its Hypothek
(mortgage) and Grundschuld (land charge). The two
poles of the European spectrum, from “closely accessory”
to “non-accessory” are represented on the one side by
France with its mortgage which is closely accessory to
existence and on the other side by Germany with the nonaccessory
Grundschuld (land charge).
6 Cf amongst others MünchKomm-Eickmann, BGB, 3rd Edition 1997,
§ 1191 Rz. 13; Soergel/Konzen, BGB, 13th Edition 2001, § 1191 Rz.
12; Staudinger/Wolfsteiner, BGB, 13. Edition 1996, Preliminary
statements to §§ 1191 onwards Rz. 23.