Kuwait Court of Cassation principle number 1465

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 securities for a personal right, it follows that right and passes with it upon its assignment to the assignee. Article 368 of the Civil Code. Applicability of that rule 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 import. He may plead the invalidity 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. - 277 - Obligation - Establishment that the appellants’ female predecessor was not the borrowing debtor but his provider of real security, who mortgaged the property as security for the debt. The appellants’ reliance, as her universal successors, on the invalidity of the mortgage contract against the assignee of the debt secured by the mortgage. The provision of Article Two of Law 41 of 1993 stipulating that the provisions on assignment of rights apply to the transfer of purchased debts from the original creditors to the State may not be invoked against them. Contravention thereof. An error in applying the law requiring cassation of the judgment.