페이지 이미지
PDF
ePub

performance of the obligation, and may, upon the maturity of the obligation, compel the application of such security to its satisfaction.

ARTICLE V.
Letter of Credit.

Section
2858. Letter of credit.
2859. How addressed.
2860. Liability of writer.
2861. Either general or special.
2862. Defined.
2863. Extent of general letter.

Section
2864. May be continuing guar-

anty.
2865. Notice necessary.
2866. Credit given must agree

with terms.

2858. A letter of credit is a written instrument, addressed by one person to another, requesting the latter to give credit to the person in whose favor it is drawn.

2859. A letter of credit may be addressed to several persons in succession.

2860. The writer of a letter of credit is, upon the default of the debtor, liable to those who gave credit in compliance with its terms.

2861. A letter of credit is either general or special. When the request for credit in a letter is addressed to specified persons by name or description, the letter is special. All other letters of credit are general.

2862. A general letter of credit gives any person to whom it may be shown authority to comply with its request, and by his so doing it becomes, as to him, of the same effect as if addressed to him by name.

2863. Several persons may successively give credit upon a general letter.

2864. If the parties to a letter of credit appear, by its terms, to contemplate a course of future dealing between the parties, it is not exhausted by giving a credit, even to the amount limited by the letter, which is subsequently reduced or satisfied by payments made by the debtor, but is to be deemed a continuing guaranty.

2865. The writer of a letter of credit is liable for credit given upon it without notice to him, unless its terms express or imply the necessity of giving notice.

2866. If a letter of credit prescribes the persons by whom, or the mode in which, the credit is to be given, or the term of credit, or limits the amount thereof, the writer is not bound except for transactions which, in 'these respects, conform strictly to the terms of the letter.

[blocks in formation]

2872. A lien is a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act. 1877–88.

2873. Liens are either general or special.

2874. A general lien is one which the holder thereof is entitled to enforce as a security for the performance of all the obligations, or all of a particular class of obligations, which exist in his favor against the owner of the property.

2875. A special lien is one which the holder thereof can enforce only as security for the performance of a particular act or obligation, and of such obligations as may be incidental thereto.

2876. Where the holder of a special lien is compelled to satisfy a prior lien for his own protection, he may enforce payment of the amount so paid by him, as a part of the claim for which his own lien exists.

2877. Contracts of mortgage, pledge, bottomry, or respondentia, are subject to all the provisions of this chapter.

ARTICLE II.

Creation of Liens. Section

Section 2881. Lien, how created.

2883. Lien future interest. 2882. No lien, claim not due. 2884. Contract liens. 2881. A lien is created : 1. By contract of the parties; or, 2. By operation of law.

2882. No lien arises by mere operation of law until the time at which the act to be secured thereby ought to be performed.

2883. An agreement may be made to create a lien upon property not yet acquired by the party agreeing to give the lien, or not yet in existence. In such case the lien agreed for attaches from the time when the party agreeing to give it acquires an interest in the thing, to the extent of such interest.

2884. A lien may be created by contract, to take immediate effect, as security for the performance of obligations not then in existence.

ARTICLE III.

Effect of Liens. Section

Section 2888. Contract for lien transfers 2891. Extent of lien. no title.

2892. Holder not entitled 2889. Certain contracts void.

pensation. 2890. Lien implies no personal ob

ligation.

com

satisfa

2888. Notwithstanding an agreement to the contrary, a lien, or a contract for a lien, transfers no title to the property subject to the lien. 2889. All contracts for the forfeiture of property subject to a

of the obligation secured thereby, and all contracts in restraint of the right of redemption from a lien, are void.

2890. The creation of a lien does not of itself imply that any person is bound to perform the act for which the lien is a security.

2891. The existence of a lien upon property does not of itself entitle the person in whose favorit exists to a lien upon the same property for the performance of any other obligation than that which the lien originally secured.

2892. One who holds property by virtue of a lien thereon, is not entitled to compensation from the owner thereof for any trouble or expense which he incurs respecting it, except to the same extent as a borrower, under sections eighteen hundred and ninety-two and eighteen hundred and ninety-three.

ARTICLE IV.

Priority of Liens. Section

Section 2897. Priority of liens.

2899. Marshalling different funds. 2898. Priority of mortgage. 2897. Other things being equal, different liens upon the same

property have priority according to the time of their creation, except in cases of bottomry and respondentia.

2898. A mortgage given for the price of real property, at the time of its conveyance, has priority over all other liens created against the purchaser, subject to the operation of the recording laws.

2899. Where one has a lien upon several things, and other persons have subordinate liens -upon, or interests in, some but not all of the same things, the person having the prior lien, if he can do so without risk of loss to himself, or of injustice to other persons, must resort to the property in the following order, on the demand of any party interested:

1. To the things upon which he has an exclusive lien;

2. To the things which are subject to the fewest subordinate liens;

3. In like manner inversely to the number of subordinate liens upon the same thing; and,

4. When several things are within one of the foregoing classes, and subject to the same number of liens, resort must be had

(1.) To the things which have not been transferred since the prior lien was created;

(2.) To the things which have been so transferred without a valuable consideration; and,

(3.) To the things which have been so transferred for a valuable consideration in the inverse order of the transfer.

ARTICLE V.

Redemption From Liens. Section

Section 2903. Redemption rights. Subro- 2904. Inferior lienor rights. gation.

2905. Redemption, how made.

2903. Every person, having an interest in property subject to a lien, has the right to redeem it from the lien, at any time after the claim is due, and before his right of redemption is foreclosed, and, by such redemption, becomes subrogated to all the benefits of the lien, as against all owners of other interests in the property, except in so far as he was bound to make such redemption for their benefit. 1905–617.

2904. One who has a lien inferior to another, upon the same property, has a right :

1. To redeem the property in the same manner as its owner might, from the superior lien; and,

2. To be sugrogated to all the benefits of the superior lien, when necessary for the protection of his interests, upon satisfying the claim secured thereby.

2905. Redemption from a lien is made by performing, or offering to perform, the act for the performance of which it is a security, and paying, or offering to pay, the damages, if any, to which the holder of the lien is entitled for delay.

ARTICLE VI.

Extinction of Liens. Section

Section 2909. Lien accessory, generally. 2912. Apportionment. 2910. Extinction by sale or con- 2913. Restoration extinguishes version.

lien, when. 2911. How extinguished.

2909. Alien is to be deemed accessory to the act for the performance of which it is a security, whether any person is bound for such performance or not, and is extinguishable in like manner with any other accessory obligation.

2910. The sale of any property on which there is a lien, in satisfaction of the claim secured thereby, or in case of personal property, its wrongful conversion by the person holding the lien, extinguishes the lien thereon.

2911. Alien is extinguished by the lapse of the time within which, under the provisions of the Code of Civil Procedure, an action can be brought upon the principal obligation.

2912. The partial performance of an act secured by a lien does not extinguish the lien upon any part of the property subject thereto, even if it is divisible.

2913. The voluntary restoration of property to its owner by the holder of a lien thereon dependent upon possession extinguishes the lien as to such property, unless otherwise agreed by the parties, and extinguishes it, notwithstanding any such agreement, as to creditors of the owner and persons, subsequently acquiring a title to the property, or a lien thereon, in good faith, and for value. . 1905–617.

« 이전계속 »