Kuwait Court of Cassation principle number 1017

A mortgage. A right in rem that may not be the subject of an assignment of rights, which applies only to personal rights; however, like all security for a personal right, it follows that right and transfers with it to the assignee upon its assignment. Article 368 of the Civil Code. This rule applies while the provisions of Law 41 of 1993 concerning the State's Purchase of Certain Debts and the Manner of Their Collection are in force. Its effect. There is no scope for applying Article 370 of the Civil Code concerning the debtor's defenses against the assignee, which are confined to what was the subject of the assignment, namely the personal right, excluding the right in rem. - 219 - Right - A mortgagor who is not the debtor. May invoke defenses personal to him. Article 983 of the Civil Code. Its implication. He may plead the nullity of his contract with the mortgagee against the latter or against the assignee of the personal right which the mortgage followed and with which it transferred as one of its securities. - It being established that the appellants' deceased predecessor was not the borrowing debtor but his real surety, who mortgaged the immovable property to secure the debt. The appellants' invocation, as her universal successors, of the nullity of the mortgage contract against the assignee of the mortgage-secured debt. Article two of Law 41 of 1993, insofar as it provides for the application of the provisions governing assignment of rights to the transfer of purchased debts from the original creditors to the State, may not be invoked against them. Contravening this. An error in applying the law requiring cassation of the judgment.