The Impact of the jurisprudence on the Formulation of the Provisions of the French Civil Code relating to Reality of the Possessory Lien Contract

Abstract

The Impact of the jurisprudence on the Formulation of the Provisions of the French Civil Code relating to Reality of the Possessory Lien Contract : A comparative analysisThe possessory lien has raised problems about mortgaging the future money, and mortgage movable financial values and generally incorporeal mortgage funds, due to the reality nature of the contract taking into consideration that the delivery is a fundamental generally in the contract and is not considered the effect thereof. The French legislature remained for long time sticking with the Roman heritage which considered ( and still considers) the mortgage contract as in kind contract, despite all judicial attempts that have been critical of this description. Fol- lowing the same manner, the French Court of Cassation had remained faithful to the Roman legacy until it was overturned in 1999.This research aims to highlight the central role of the attempts made by the French Court of Cassation to push forward the French Legislature to abandon the in kind nature of the lien contract possessory, where the French Civil Law was amended in 2006, to reorganize the pro- visions governing the lien possessory contract in line with the new vision of the Court of Cas- sation. This considers a successful step after all jurisprudential attempts have failed to make the legislature abandons the in kind lien possessory contract. The study also aims at explore the developed position of Qatari Civil Law No. 22 of 2004. This Law already gave up the idea of in-kind lien possessory contract and considers it as consensual contract. This stance allows the extension of the lien to funds which could not be subject to it due to its nature. This position also avoids the problems raised due to the reality of the possessory lien.