In the civil law, an antichresis is a contract for security between the debtor and his creditor; a transfer of possession of the pledged real property from the debtor to the creditor, including the the fruits or rent income therefrom, in lieu of payments on the loan, including interest, for any such time period as is provided for in the contract.
For the tenure of his occupation, the creditor has an obligation to maintain the real property in a state of good repair. The creditor does not become the owner of the real property.
The 1960 version of the Louisiana Civil Code, §3133-3135, defined antichresis as a pledge:
"The pledge is a contract by which one debtor gives something to his creditor as a security for his debt. There are two kinds of pledge: the pawn and the antichresis.
A ting is said to be pawned when a movable thing is given as security; and the antichresis, when the security given consists in immovables."
In Maestri v Board of Assessors, the Louisiana Court wrote:
"It is necessary in this species of contract (antichresis) that there should be a pre-existing debt, at the time the contract is entered into, for which the debtor surrenders the property to the creditor so that the latter may eventually pay himself the debt out of these and fruits of the property surrendered to him."
In Conklin v Caffall, Justice O'Neill wrote:
"An essential element of the contract of antichresis is that it shall be given to secure a debt which the (debtor) owes to the (creditor).... A (debtor) must be the owner of the property."
Some jurists prefer the more descriptive term living pledge of real estate. It is also similar to the common law's Welsh mortgage.
Antichresis is a product of ancient Greek law, subsequently adopted by Roman law.
The exigencies of modern commerce have wrung the death knoll for this ancient form of security. Increasingly, in civil law jurisdictions, the legal tool of antichresis (spelled antichrèse in French) is being replaced by simpler, less onerous chattel mortgages.
French: antichrèse.
REFERENCES:
- Cabrillac, M. and Mouly, C., Droit Des Sûretés, 7é Éd. (Paris: LexisNexis, 2004), pages 674680.
- Conklin v Caffall 179 Southern Reporter 434 (Supreme Court of Louisiana, 1938)
- Duhaime, Lloyd, Civil Law Dictionary
- Dainow, J., Civil Code of Louisina, 2nd Ed. (Minnesota: West Publishing Co., 1961), page 558.
- Maestri v Board of Asessors 34 Southern Reporter 658