VAN ERP/VAN VLIET based on the new Dutch Civil Code Case aw in regard to the fiducia ban will be re detail in the part on pled Pledge and mortgage(pand'and'hy potheek') 2.l The provisions on pledges and mortgages(Title 9 of Book 3 CC, are structured in the following way: Section 1 contains general provisions on pledge and mortgage, Sections 2 and 3 contain the provisions on pledge and Section 4 the provisions on mortgage. It should also be noticed that the rules of the previous titles of Book 3 might also apply to pledges and mortgages, especally Title l(general provisions), Title 2 juridical acts)and Title 4 (acquisition and loss of property). Title 4 is specifically made applicable mutatis mutandis to the creation, transfer and abandonment of a lim ited real right on such property, unless otherwise provided by law. This means that as to the creation of pledge and mortgage art. 3: 84(1)and (2) applies Necessary are(a )a legalact of creation, (b)pursuant to a valid legal ground, (c)by a person who has the power to dispose of the property. The legalact of creation is a so-called real agreement (goederenrechtelijke overeenkomst)in which the pledgor or mortga gor declares to give a right of pledge or mortgage to the pledgee or ortgagee, and in which the pledgee or mortga gee dechres to accept this interest. 0 he application of the rules as kid down in Title 4 also means that the conditions as to delivery apply mutatis mutandis: for the creation of a mortgage the following requirements have to be fulfilled: I a notarial deed drawn up between the parties i which a mortgage is granted to the creditor, followed by its entry in the pub lic land register. In the case of pledges specialrules apply which will be discussed belot Generally speaking, the following stages are distinguished in the creation of a right of pledge or mortgage: the promise between the future pledgor/mortgagor and pledgee/mortga gee to create such a right(the legal ground ), the agreement by which the pledgor/mortga gor grants a right of mortgage to the pledgee/mortgagee(the real A note as to terminology: we will be us ng pledge to refer t the dutch legal term pand and ortgage to refer to the Dutch legal term hypotheek See P H M. Gerver, Het recht van hypotheek, W.EJ. Teenk Willink, Deventer 2001; WG luigen, commentary on art 3 227 ff, n: JH Nieuwenhuis(et al, eds ) Burgerlifk Wetbock Tekst Commentaar, Kluwer, Deventer 1998; W. Heuff and w.G. Huijgen, Hypo theek, 3rd ed, Kluwer, Deventer 2000: F Molenaar, Algemene bepalingen zekerhedsrechtenop gpederen, 3rd ed, Kluwer, Deventer 1 999 8. The Dutch CC. I divided into books. Each book is divided into chapters (tiles)and subchapters(sections). References to articles must also contain a reference to the book The legal ground will commonly consist in an obligation to grant security laid down n the contract of loan. If the contract of loan which constitutes the legal ground is voi or s avo ded with retroactive effect, the creation of the security interest i vod as well: no such interest has come into being Such a system of creation of limited realrights is called a causal See Hr 29 June 2001, Rvdw 2001, 126. See also L P.w. van vliet Transfer of movables in German, French, Englishand Dutch law, Ars Aequi Libri, Nijmegen 2000, ch 5$2 Art. 3: 89. see also art. 3: 260VAN ERP/VAN VLIET 2 based on the new Dutch Civil Code. Case law in regard to the fiducia ban will be discussed in more detail in the part on pledge. 2 Pledge and mortgage6 (‘pand’ and ‘hypotheek’) 7 2.1 General provisions The provisions on pledges and mortgages (Title 9 of Book 3 C.C.)8 are structured in the following way: Section 1 contains general provisions on pledge and mortgage, Sections 2 and 3 contain the provisions on pledge and Section 4 the provisions on mortgage. It should also be noticed that the rules of the previous titles of Book 3 might also apply to pledges and mortgages, especially Title 1 (general provisions), Title 2 (juridical acts) and Title 4 (acquisition and loss of property). Title 4 is specifically made applicable mutatis mutandis to the creation, transfer and abandonment of a limited real right on such property, unless otherwise provided by law. This means that as to the creation of pledge and mortgage art. 3:84(1) and (2) applies. Necessary are (a) a legal act of creation, (b) pursuant to a valid legal ground,9 (c) by a person who has the power to dispose of the property. The legal act of creation is a so-called real agreement (goederenrechtelijke overeenkomst) in which the pledgor or mortgagor declares to give a right of pledge or mortgage to the pledgee or mortgagee, and in which the pledgee or mortgagee declares to accept this interest.10 The application of the rules as laid down in Title 4 also means that the conditions as to delivery apply mutatis mutandis: for the creation of a mortgage the following requirements have to be fulfilled:11 a notarial deed drawn up between the parties in which a mortgage is granted to the creditor, followed by its entry in the public land register. In the case of pledges special rules apply which will be discussed below. Generally speaking, the following stages are distinguished in the creation of a right of pledge or mortgage: the promise between the future pledgor/mortgagor and pledgee/mortgagee to create such a right (the legal ground), the agreement by which the pledgor/mortgagor grants a right of mortgage to the pledgee/mortgagee (the real 6. A note as to terminology: we will be using ‘pledge’ to refer to the Dutch legal term ‘pand’ and ‘mortgage’ to refer to the Dutch legal term ‘hypotheek’. 7. See P.H.M. Gerver, Het recht van hypotheek, W.E.J. Tjeenk Willink, Deventer 2001; W.G. Huijgen, commentary on art. 3:227 ff., in: J.H. Nieuwenhuis (et al., eds.), Burgerlijk Wetboek Tekst & Commentaar, Kluwer, Deventer 1998; W. Heuff and W.G. Huijgen, Hypotheek, 3rd ed., Kluwer, Deventer 2000; F. Molenaar, Algemene bepalingen zekerheidsrechten op goederen, 3rd ed., Kluwer, Deventer 1999. 8. The Dutch C.C. is divided into books. Each book is divided into chapters (‘titles’) and subchapters (‘sections’). References to articles must also contain a reference to the book. 9. The legal ground will commonly consist in an obligation to grant security laid down in the contract of loan. If the contract of loan which constitutes the legal ground is void or is avoided with retroactive effect, the creation of the security interest is void as well: no such interest has come into being. Such a system of creation of limited real rights is called a causal system. 10. See HR 29 June 2001, RvdW 2001, 126. See also L.P.W. van Vliet, Transfer of movables in German, French, English and Dutch law, Ars Aequi Libri, Nijmegen 2000, ch. 5 § 2. 11. Art. 3:89, see also art. 3:260