Kuwait Court of Cassation principle number 2798

A mortgage. A right in rem that may not be the subject of an assignment of a right, which applies only to personal rights. However, like all securities for a personal right, it follows that right and passes with it to the assignee in the event of 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 defences against the assignee, which are confined to what was the subject of the assignment, namely the personal right and not the right in rem. - A mortgagor who is not the debtor. He may invoke his own defences. 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 passed as one of its securities. - Establishment that the appellants’ predecessor in title was not the borrowing debtor but his real security provider 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 debt secured by the mortgage. Article Two of Law 41 of 1993 may not be invoked against them insofar as it provides - 518 - Obligation for application of the rules on assignment of rights to the transfer of purchased debts from the original creditors to the State. Contravention thereof. An error in applying the law requiring cassation of the judgment. Settlement contract: