美国法律重述（英文）Restat 3d of Property Mortgages.docVIP

1 of 57 DOCUMENTS Restatement of the Law, Third, Property (Mortgages) Copyright (c) 1997, The American Law Institute Case Citations Foreword Foreword Real estate is a fundamental form of property and has been since the beginning of sedentary civilization. The real-estate mortgage is a primary mechanism for extending credit, both for purchase and development of real property and for financing other ventures. It therefore is and long has been a fundamental institution of the common-law system. The mortgage law of today, being of ancient derivation, is encrusted with technical anachronisms. Many of these complexities are the result of the laws oscillations in trying to maintain the basic balance required in this field: on the one hand, seeking to assure firm security for the creditor who advanced money; on the other hand, restraining creditors from exacting exploitive concessions from needy borrowers. As pointed out in the Introduction, this is the balance involved in providing adequate remedies for the mortgagee but still protecting the mortgagors equity of redemption. The matter of credit based on real property mortgages is also socially and politically sensitive. This sensitivity is reflected in the pervasive legislative interventions. These interventions have also oscillated in trying to maintain a proper balance between the conflicting objectives of mortgage law. Indeed, some technical complexities can be traced through cycles of interaction among judicial precedent, conveyancer ingenuity, and legislative response. Modern legislation in the form of codification has sought once again coherent reconciliation. However, legislative reform has not been uniform or constant, so that there is continuing need for clarifying judicial resolutions of various issues. Hence, the need for this first effort by the Institute to restate the law of mortgages. As perusal of the text will demonstrate, the Reporters, Professors Nelson and Whitman, are fully conversant with these