Mortgage Flexibility in Slovenian Law

The Slovenian property law system, we also know the so-called maximum mortgage. The claim that the maximum mortgage is more flexible than a fixed mortgage is misleading. According to the position of the Supreme Court of the Republic of Slovenia, it is possible to assign a claim that is secured by a maximum mortgage only without a mortgage, i.e. without real property security, which is of key importance for the enforcement of the priority repayment entitlement provided by the mortgage. This means that such an (unsecured) claim is practically uninteresting for potential buyers of claims, because no one wants to take over (acquire) a claim without mortgage security. In this chapter, we present the regulation of maximum mortgage in Slovenian law and critically respond to the positions of Slovenian case law. We also present comparative law arguments that confirm our efforts for a more appropriate regulation of maximum mortgage in the SPZ. The fact is that the SPZ inadequately stipulates that in the event of assignment of a claim secured by a maximum mortgage, the transfer of the mortgage is excluded (fourth paragraph of Article 146 of the SPZ).