Kuwait Court of Cassation principle number 4541

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 securities for a personal right, it follows that right and passes with it where it is assigned to the assignee. Article 368, 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 the subject of the assignment, namely the personal right and not the right in rem. - The mortgagor who is not the debtor. He may invoke defenses specific to him. Article 983, Civil Code. Its import. He may plead the invalidity of his contract with the mortgagee creditor 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. - It is established that the appellants' female predecessor in title was not the borrowing debtor but his real surety, who mortgaged the property as security for the debt. The appellants, as her universal successors, invoked the invalidity of the mortgage contract against the assignee of the debt secured - 895 - Ownership by the mortgage. The provision of Article 2 of Law 41 of 1993, stipulating that the rules on assignment of rights apply to the transfer of the purchased debts from the original creditors to the State, may not be invoked against them. A departure from this. An error in the application of the law requiring cassation of the judgment.