Document Type
Article
Publication Date
2019
Publication Information
107 KY. L.J. 425 (2019).
Abstract
The common-law mortgage has been much maligned. Legal historians have called it everything from "clumsy" to "mendacious." Following their lead, the current Restatement (Third) of Property: Mortgages and the leading treatise on mortgage law denounce the modern incarnation of the common-law mortgage - the "title theory" of mortgages - in favor of the "lien theory."
As many states have adopted this view, the common-law mortgage has been nearly eliminated from the modern legal landscape. But the consensus is wrong. Critics of the common-law mortgage have relied upon a superficial view of the device. They appreciated neither the background law that explained its basic contours, nor the changes it underwent over time. This article exposes their misunderstandings by placing the common-law mortgage in the relevant doctrinal and social context of the turn of the seventeenth century. This snapshot shows how - at the height of the common-law, before equity became a major aspect of the legal landscape - the common-law mortgage made perfect sense. It then demonstrates how well-intentioned interventions by equity judges caused ultimately problematic changes to the form of the mortgage that scholars and jurists have confused with the inherent common-law device.
This shows several things. The common-law mortgage was a logical and clever device, undeserving of the criticism to which it has been subject. Judges should be wary when disregarding parties' clearly stated intent in contracts. And the modern theory of basic mortgage doctrine needs reassessment. We also gain a different view of a fundamental legal institution and greater understanding of legal history.
Recommended Citation
David P. Waddilove,
The “Mendacious” Common-Law Mortgage,
107 KY. L.J. 425 (2019)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1568