Vznik zástavního práva

The basis of lien regulation is to be found in section 151a and the following of the Act No. 40/1964 Coll. – the Civil Code (hereinafter referred to as OZ), as subsequently amended. The purpose of the lien is to secure a debt (claim) and its appurtenances in such a way that in the event of non-performance in time the lien creditor is entitled to satisfy his claim by foreclosing on the thing encumbered. The lien encompasses the debtor’s duty to perform his obligation properly and timely and it is thus conceived as the securing of the debt (the securing function of the lien). In case of non-performance in time the lien creditor is entitled to satisfy his claim directly through the thing encumbered (the redeeming function of the lien). There are several prerequisites which must be satisfied when establishing a lien: the obligation to be secured by the lien, the qualified object of the lien (pledge), and one of the conditions required by law for the lien to be established. A lien can be established for the purpose of securing a monetary as well as non-monetary claim, a claim which is or is not due, a current or future claim or such an obligation as will arise upon occurrence of a certain condition. The provisions of section 299 (1) of the Act No. 513/1991 Coll. – Commercial Code, as subsequently amended, enable the establishment of a lien for a specific period, up to a particular amount and on a particular type of claim which will arise to a lienee against the debtor in the future. Apart from the claim itself, the lien secures also its appurtenances. By these regular interests, interests on the amount in default, and late charges are meant as well as the costs incurred while asserting the claim. The pledge is most commonly a thing, movable or immovable, which must, however, be a thing in the legal sense of the word. It is therefore impossible to pledge a mere part of a thing (s. 120 of OZ). Neither is it possible to pledge fruits which have not yet been severed from the thing. The fruits can be subject to the lien only after their separation. According to section 151h (1) of OZ, it is also possible to pledge a claim (receivable) if the object of its performance is a thing, a right or something else of economic value. Pledged can be both monetary and non-monetary claims, payable claims or those which are to become payable in the future. Furthermore, there are special laws which provide for pledging a trade mark (s. 21 [1] of the Trademark Act No. 137/1995 Coll.) or securities (s. 34 [10], ss. 39–44, and s. 56 [8] of the Act of the Czech National Council No. 591/1992 Coll. on the securities, as subsequently amended, hereinafter referred to as ZCP). A fiat or non-residential premises, too, can be subject to a lien provided they are an independent item of ownership. This condition is satisfied by those flats and non-residential premises which represent – as delineated parts of the house – the so-called units under s. 2 (f) of the Act No. 72/1994 Coll. on the fiat ownership. The essential prerequisite to be fulfilled in order to become a subject of the lien is the transferability of the economic value. This flows especially from the so-called redeeming function of the lien which rests in the debtor’s ability to satisfy his payable claim by selling the pledge. Under section 151a (1) of OZ, a lien relates not only to the pledge itself but also to its appurtenances, accretions, and fruits not yet severed from the thing. Only those property values cannot be subject to a lien which are denied this disposition by an express legal provision or when it flows from their nature. Establishing a lien requires, apart from a valid claim and a qualified object of lien, the presence of a legal title amounting to a lien. Under section 151b (1) of the OZ, such a title can be a written contract or an approved inheritance agreement or a title in law. A decision of the court which is another legal title is regulated by s. 338a and s. 338b of the Act No. 99 /1963 – the Civil Code of Procedure – as subsequently amended (hereinafter referred to as OSR). If a contract establishes a lien, we speak about the so-called contractual lien. For the contract establishing a lien a written form is mandatory specifying the object which is encumbered and the claim secured thereby. The law requires another condition for a lien to be established. It is the so-called modus, i.e. a way of acquiring the right of lien. The modus is important especially for the protection of the pledgee’s interests as well as those of the third person because it gives the lien due publicity. For movable assets, the modus is governed by s. 151b (3) of OZ whereby a lien takes effect upon delivery of the encumbered thing to the pledgee or upon entering the establishment of the lien in a document which affirms the ownership of the person to the thing to be encumbered and which is necessary for disposal of the thing or its delivery into the custody of another person if agreed so. It is only upon the physical passing the encumbered thing onto the pledgee or another person or upon entering the establishment of the lien in the document as mentioned above that a lien will have been established. A different modus is provided in s. 151 b (2) of OZ for immovables. In case of real property, establishing a lien requires an entry in the real estate cadastre. A real estate lien is established on the day of entry in the real estate cadastre. Under s. 2 of the Act No. 265/1992 Coll. on registering property rights and other real estate rights, as subsequently amended, the entry takes effect on the day in which the application for it has been delivered to the real estate cadastre. If a claim (receivable) is pledged, the lien is established once the written contract made by the pledgee and the pledgeor has come into effect, according to s. 151h (2) of OZ. Legal regulation of the securities contractual lien is stipulated in sections 39–44 of ZCP. Besides the security, a claim (receivable) attached to the security can be pledged, too. In case of securities in the form of a document, the lien is established upon their physical passing onto the pledgee unless the law provides otherwise. In case of registered securities the lien is established upon the entry of the security lien in the Register of the Securities. A valid trademark lien requires the entry of the lien in the Trademark Register upon the application filed with the Industrial Property Office. It is at the moment of this entry that the trademark lien is established. Under section 151b (1) of OZ, a lien can also be established on the basis of an inheritance agreement approved by the final decision of the court. The prerequisite for this way of establishing the lien is the creation of an inheritance agreement during the course of the probate proceedings and the judicial decision approving this agreement. The lien is established on the day of the coming into effect of the decision on the inheritance which approves the inheritance agreement involving the settlement establishing the lien. If a real estate is the object of the lien established in this way, the entry of the lien in the real estate cadastre is necessary. A statutory lien is established at the moment when the requirements conditioning its establishment by virtue of law are satisfied. In a statutory lien we can distinguish between the cases in which the decision of the competent authority on the establishment of the lien is a prerequisite for establishing the lien and other cases in which such a decision is not required. If a real estate is the pledge, the entry of the lien in the real estate cadastre is necessary. Under section 7 (1) of the Act No. 265/1992 Coll. this statutory lien entry is made by formally recording it. Unlike registration, a record only lists a lien previously established through fulfilling the conditions set by law. Statutory lien provisions can be found in for example the Civil Code (s. 672), Commercial Code (ss. 535, 608, 628, 707), in the Act on Securities (s. 56 [8]), in the Tax and Fees Administration Act (s. 72), in the Customs Act (s. 305) and in the Fiat Ownership Act (s. 15 [1], s. 26 [4] and s. 16 [2]). A lien by virtue of the court only applies to immovable assets. It arises on the basis of one of the seizure titles stated in s. 274 of OSR and the ruling of the court whereby the execution of the decision is ordered through establishing the lien by virtue of the court. This type of lien is established once the above ruling of the court take legal effect. Since the object of the lien by virtue of the court is the real estate, its entry in the real estate cadastre is required (s. 338a (1) of OSR and s. 7 of the Act No. 265/1992 Coll.). The lien by virtue of the court gives the creditor the certainty that in case of the sale of the real estate his claim will be satisfied in due order as set out by this lien and it will not be endangered even if the debtor assigns the real estate to another person. The lien by virtue of the court is thus effective against the acquirer per se.