The Grand Duchy of Lithuania in Bohdan Khmelnytskyi’s Political Agenda (1648 – the First Half of 1649)
Assistant, Vilnius University, (Lithuania, Vilnius),
The study of the legal institution of mortgage has been attended to in historiography; however, different historiography requires critical approach to itself. In Lithuanian historiography the works, which have critical analysis of the historiography of the problem and use enough wide act material attract a lot of attention. But all of them are dedicated to the study of mortgage standards and peculiarities of their realization at the times of the First Lithuanian Statute. The study of these standards in the Second Lithuanian Statute and their realization are practically set aside in Lithuanian historiography. This article is aimed at the analysis of mortgage law standards and peculiarities of their realization in the first years of functioning of the Second Lithuanian Statute (1566 – 1572). The research is based on the private persons’ documents, among which the documents concerning mortgage of the real estate prevail. It is the real estate that is closely connected with the main novelty of the Second Lithuanian Statute – the right of the gentry to dispose of all their land property. Such right is particularly mentioned in all «privileges» (or their confirmations) of the grand duke to the private persons. Despite of the proclaimed free disposal of the real estate there were some restrictions for services. Another problem, which is closely related to the gentry’s land property – is military service. We can judge about service of this duty from the private mortgaged estates before the First Lithuanian Statute adoption and during the time of its functioning only by the sources. Sources data said that both depositorowner and pawnbroker-creditor had to serve «zemskaya sluzhba» [«land service»]. Compulsory military service from the private mortgaged estates was strictly regulated only in the Second Lithuanian Statute. First of all, the codifiers «addressed» this duty to the pawnbrokers, although such possibility/duty sometimes was passed to the depositor. The fact, which attracts attention, is that according to our evidence, on the Ukrainian territories, which were joined to Poland in 1569, the completion of military service became an exceptional duty of the depositor. We need some extra evidence and comparisons with polish realities to confirm or refute this hypothesis. The analysis of the mortgage law standards shows, that: 1) in practice we found two forms of mortgage: mortgage with passing of real estate and mortgage without passing of real estate (in other words, property was passed to creditors in case of non-payment of the debt). The First and the Second Lithuanian Statutes strictly regulated mortgage of the real estate on condition of its loss, but we could not find any examples of this legal norm realization in practice. 2) Mortgage of the real estate with a different term of duration prevailed. Examples of non-defined term mortgage until payment of money are quite rare. 3) The indication of the exact date of the beginning or the end of the mortgage closely connected it with the norm of the mortgage redemption – the redemption occurred on a precisely set date. Otherwise the pawnbroker obtained the right to use the mortgage on the same terms. The redemption «within years» was allowed only in case of the depositor’s death. 4) No less important is a depositor’s obligation to protect the creditor’s rights from the third persons’ claims or even willfulness of the owner itself. The original financial measure of punishment was «kgvalt» [raid] and «zaruka» [mortgage]. The quantity of the «kgvalt» was envisaged by the Statute; the mortgage depended on the will of the contracting parties. 5) The pawnbroker had the right to re-pawn the property mortgaged to him to the third person and in this way took his money back. 5) The problem of the mortgage arrangement documenting is also worth noticing. The Second Statute foresaw a strict order of the mortgage arrangement fixing. In case of violation of this order the arrangement was declared invalid. The analysis of the private nature documents confirms that mortgage law itself was not essentially changed in the Second Statute. But precedents of everyday life were far beyond provided in those standards.
Mortgage, law, land service, terms, Statute, Grand Duchy of Lithuania.
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