ANALYSIS OF AGREEMENT ATTACHED TO THE MORTGAGE CONTRAVT AND OFFERING OF AGREEMENT TO BE DISTINGUISH REQUIRED BY LAW

Abstract

          The detail in agreement attached to the mortgage contract, especially in case of mortgagee is a bank. There are some agreements which distinguish required by law. In addition, agreements are specifying the superior rights of mortgagee above mortgagor whether specify mortgagee has to save the deed, do not bring guarantee to a double mortgage, mortgagor do not transfer the ownership of the property to others or an agreement for prioritizing rights of mortgagee. It could be hold that the detail in agreement may conflict with law under section 150 and section 151 of Civil and Commercial Code. Moreover, if considering by bring the regulation under section 10 of the Unfair Contract Terms Act B.E. 2540 (A.D.1997) in the point of bargaining power and economic status for consideration. It could be analyzed that the fairness of the result of agreement attached of the contract as mentioned problems above.

          In relation to the findings, it was found that the agreement which specify that mortgagee has a duty to save the deed, do not bring guarantee to a double mortgage, do not transfer the ownership of the property to others. It could be hold that the agreement did not have legal effect or could not enforceable. In part of agreement which conflict with section 733 of Civil and Commercial Code, it was found that the court use discretion to interpret whether it is a section regarding peace and order or good morals of the people or not. Therefore, the parties may agree otherwise, that is if forcing the mortgage and did not cover debt, the debtor must still be liable for the remaining debt. This condition may agree in agreement attached to the mortgage contract. But in part of the interesting point is the agreement which give rights to each mortgagee. When there is a mortgage enforcement, mortgages must arrange according to the date and time of registration and the mortgagee. According to section 732 of Civil and Commercial Code, may have agreement to differ from the law by edit some issue of Civil and Commercial Code.