Hypothecation

2 definitions found

From The Collaborative International Dictionary of English v.0.48 [gcide]:

  Hypothecation \Hy*poth`e*ca"tion\, n. [LL. hypothecatio.]
     1. (Civ. Law) The act or contract by which property is
        hypothecated; a right which a creditor has in or to the
        property of his debtor, in virtue of which he may cause it
        to be sold and the price appropriated in payment of his
        debt. This is a right in the thing, or jus in re.


        --Pothier. B. R. Curtis.
        [1913 Webster]
  
              There are but few cases, if any, in our law, where
              an hypothecation, in the strict sense of the Roman
              law, exists; that is a pledge without possession by
              the pledgee.                          --Story.
        [1913 Webster]
  
     Note: In the modern civil law, this contract has no
           application to movable property, not even to ships, to
           which and their cargoes it is most frequently applied
           in England and America. See {Hypothecate}. --B. R.
           Curtis. Domat.
           [1913 Webster]
  
     2. (Law of Shipping) A contract whereby, in consideration of
        money advanced for the necessities of the ship, the
        vessel, freight, or cargo is made liable for its
        repayment, provided the ship arrives in safety. It is
        usually effected by a bottomry bond. See {Bottomry}.
        [1913 Webster]
  
     Note: This term is often applied to mortgages of ships.
           [1913 Webster]

From Bouvier's Law Dictionary, Revised 6th Ed (1856) [bouvier]:

  HYPOTHECATION, civil law. This term is used principally in the civil law; it 
  is defined to be a right which a creditor has over a thing belonging to 
  another, and which consists in the power to cause it to be sold, in order to 
  be paid his claim out of the proceeds. 
       2. There are two species of hypothecation, one called pledge, pignus, 
  and, the other properly denominated hypothecation. Pledge is that species, 
  of hypothecation which is contracted by the delivery of the debtor to the 
  creditor, of the thing hypothecated. Hypothecation, properly so called, is 
  that which is contracted without delivery of the thing hypothecated. 2 
  Bell's Com. 25, 5th ed. 
       3. Hypothecation is further divided into general and special when the 
  debtor hypothecates to his creditor all his estate and property, which he 
  has, or may have, the hypothecation is general; when the hypothecation is 
  confined to a particular estate, it is special. 
       4. Hypothecations are also distinguished into conventional, legal, and 
  tacit. 1. Conventional hypothecations are those which arise by the agreement 
  of the parties. Dig. 20, 1, 5. 
       5.-2. Legal hypothecation is that which has not been agreed upon by 
  any contract, express or implied; such as arises from the effect of 
  judgments and executions. 
       6.-3. A tacit, which is also a legal hypothecation, is that which the 
  law gives in certain cases, without the consent of the parties, to secure 
  the creditor; such as, 1st. The lien which the public treasury has over the 
  property of public debtors. Code, 8, 15, 1. 2d. The landlord has a lien on 
  the goods in the house leased, for the payment of his rent. Dig. 20, 2, 2; 
  Code, 8, 15, 7, 3d. The builder has a lien, for his bill, on the house he 
  has built. Dig. 20, 1. 4th, The pupil has a lien on the property of the 
  guardian for the balance of his account. Dig. 46, 6, 22; Code, 6, 37, 20. 
  5th. There is hypothecation of the goods of a testator for the security of a 
  legacy he has given. Code, 6, 43, 1. 
       7. In the common law, cases of hypothecation, in the strict sense of 
  the civil law, that is, of a pledge of a chattel, without possession by the 
  pledgee, are scarcely to be found; cases of bottomry bonds and claims for 
  seamen's wages, against ships are the nearest approach to it; but these are 
  liens and privileges rather than hypothecations. Story, Bailm. Sec. 288. It 
  seems that chattels not in existence, though they cannot be pledged, can be 
  hypothecated, so that the lien will attach, as soon as the chattel has been 
  produced. 14 Pick. R. 497. 
       Vide, generally, Poth. de l'Hypoth‚que; Poth. Mar. Contr. translated by 
  Cushing, note. 26, p. 145; Commercial Code of France, translated by Rodman, 
  note 52, p. 351; Merl. R‚pertoire, mot Hypoth‚que, where the subject is 
  fully considered; 2 Bro. Civ. Law, 195; Ayl. Pand. 524; 1 Law Tracts, 224; 
  Dane's Ab. h.t.; Abbott on Ship. Index, h.t.; 13 Ves. 599; Bac. Ab. 
  Merchant, &c. G; Civil Code of Louis. tit. 22, where this sort of security 
  bears the name of mortgage. (q.v.)