آثار معالجة صعوبات المقاولة على الدائن المرتهن في الأصل التجاري

الملخص EN

Mortgage, whether official or possessive, is considered one of the oldest forms of mortgages in general, and the creditor who is keen on his interests is often entrusted with a request for guarantees towards his debtor, by imposing a set of conditions that guarantee him the fulfillment of his debt at the time of his maturity, where he entrusts the creditor, whether he is a natural person, or legal entity such as banking institutions To request an in-kind guarantee, according to which a certain money is allocated to guarantee a particular debt.

These in-kind guarantees are known in Moroccan legislation as subordination rights in kind, and the debtor’s submission to the judicial settlement procedure leads to the suspension and prevention of all lawsuits brought by the mortgagee creditors against him; Whether these lawsuits aim at ordering the debtor to pay an amount of money, or they aim at rescinding a contract for non-payment of an amount of money, This is because of its importance in saving the business that is subject to the judicial settlement procedure, and protecting the rights of creditors by preserving the assets necessary to continue the activity, production, and work.

Therefore, the mortgagee creditor in the commercial asset must declare his debt like other creditors after notifying him or notifying him personally by the syndicate.

As long as its mortgage is focused on a material element, which is the commercial asset, in contrast to the judicial liquidation procedure whose purpose is to liquidate the business and distribute its funds to all creditors, and the continuation of the activity of the business subject to judicial liquidation is based on the availability of the interest of the creditor or the general interest of its continuity.

And that is for a certain period, and the period that the court determines is usually a short period, as the aim of the continuation of the contracting activity after subjecting it to the judicial liquidation procedure is to strengthen it while it is still in the process of production, so that others accept its purchase, and that is in the interest of the creditor, and the hand working by maintaining jobs, but the problem in this regard is that the debts arising after the opening of the liquidation procedure enjoy the right of preference, and privilege over the rest of the debts arising before the opening of the ruler, and this is harmful to the creditor mortgaged in the commercial asset in the first degree, and the rest of the other creditors, Especially after the failure of the judicial settlement procedure, where the privilege of debts that arose during that period is added to the debts arising after a judgment of judicial liquidation.