Prescription of the obligation and the mortgage entails extinction of both.


Prescription of the obligation and the mortgage. The privileges and mortgages are extinguished by the extinction of the principal obligation, subject to the case provided for by thearticle 2422 of the Civil Code, and prescription is acquired to the debtor, as to the goods which are in his hands, by the time fixed for the prescription of actions which give the mortgage or the privilege.

By specifying that the prescription is acquired by the debtor who remains the holder of the mortgaged property by the time fixed for the prescription of the action which arises from the main obligation of which the mortgage or the lien is the accessory, the drafters of the Code civil wished to proscribe the rule of the old law, according to which the mortgage action survived the prescription of personal action by becoming the accessory of a natural obligation, and, on the contrary, to make the prescription of the claim and the extinction of the mortgage coincide.

To admit that the mortgage or the privilege can survive the prescription of the action in execution of the principal obligation would call into question this objective, by allowing the exercise of the mortgage action after prescription of the personal action.

It follows that prescription, whether it concerns the principal obligation or thepayment action entails, as a consequence, the extinction of the mortgage or the privilege.

Should be set aside the judgment which retains that the prescription of the action for payment resulting from the application of the provisions of theArticle L. 218-2, of the Consumer Code does not extinguish the right of the obligee, which it only prohibits from requiring performance of the obligation, and that this limitation does not have the effect of extinguishing the title evidencing the claim.

  • Cass. 3e civ., 12 mai 2021, n ° 19-16514

PS: Like all prescriptions, these are subject to suspension or interruption; they can also be lengthened by the displacement of their starting point, for example in application of the adage: ” On the other hand not able to act, does not run presriptio » . But in certain hypotheses, following certain acts, doctrine and jurisprudence admit that the limitation period is not only interrupted but that it can even be “inverted”.


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