Absolute nullity for illicit cause of a real estate mortgage contract. Third party guarantor against the loan agreement. The existence of a preliminary sale and purchase agreement for the mortgaged property and the existence of a court judgment in lieu of

JURISPRUDENȚĂ COMENTATĂ ȘI ADNOTATĂ

Abstract

The illicit cause entails the absolute nullity of the legal act, if it is common or if the other party knew it or, according to the circumstances, should have known it [art. 1.238 para. (2) Civil Code].

In the present case, the existence of a wrongful cause in the case of the mortgage contract arose from the fact that the mortgage was created by a person who was a third party to the loan agreement, in the context of the fact that he knew that the mortgaged property was the subject of a sale and purchase agreement under which he had received the full sale price and the property had been handed over to the prospective buyer, and in the context of the fact that he declared that the property was not encumbered. In addition, the culpable attitude of the third party constituting the mortgage security has been judicially established by a court judgment which takes the place of a sale and purchase.