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A mortgage loan is a contract by which one party, termed the lender (typically a bank), transfers a determined sum of money to the other, termed the borrower, so that the latter may enjoy its use for a determined period, in exchange for the payment to the former of consideration in the form of interest.
Having thus outlined the essential structure and function of the contract, it must at once be observed that a mortgage loan, in practice, is enriched by numerous clauses, not always readily comprehensible, yet necessary to regulate the relations between the parties throughout the term envisaged: the manner of disbursement of the loan, the fixing of terms for the repayment of capital and the payment of interest, the determination of further costs for the administration of the contract, the rules and costs of early redemption, the provision and maintenance of security, and the consequences of relative default (delay) and absolute default (non-payment). Each of these aspects is, in turn, characterised by a considerable wealth of possibilities and nuances, the fruit both of modern practice and rules, and of a doctrinal reflection that may rightly be described as millennial (the loan being contemplated within classical Roman law and having been the subject of study by Byzantine jurists, by mediaeval jurists of the ius commune, and by the jurists of the codifications of the modern age). At present, the subject is further enriched by influences and developments arising from foreign jurisdictions and from European Union law. All of this conveys the true complexity of the institution: the mortgage-loan contract, a typical product of intellectual labour, may well be conceived as a composition of legal engineering, in which the work of constructing, calibrating, and coordinating the various clauses characterises the outcome as a whole, and renders possible its evaluation in terms of comparative quality and advantage.
Mortgage-loan contracts are generally prepared by banks; the notary, if instructed in good time by the borrower, may exercise over them a review aimed at rendering them clearer and more comprehensible, at identifying and suggesting solutions better suited to the parties, and at removing clauses liable to give rise to an unjustified contractual imbalance.
Whilst the basic structure of the contract is as set out above, it may occur, with a certain frequency, that the loan is executed pursuant to the special regime of "credito fondiario" (a specific category of land-secured lending). This regime today differs but little from that of an "ordinary" mortgage loan, to the point that experts themselves at times dispute which category is properly engaged; nevertheless, meaningful distinctions do exist. By contrast, the so-called unilateral mortgage loan, now widespread in recent practice, does not constitute a distinct species. Its distinguishing feature lies solely in the fact that it is the borrower alone who must appear before the notary (as is indispensable for the grant of the mortgage security): this mode of execution may, depending upon the circumstances, reduce the scope for the notary to exercise his function of guidance and counsel.
Attention must at once be drawn to an essential point. The execution of the loan is not always followed immediately by the material availability of the funds: at times, banks withhold the sum until the actual perfection of the mortgage security, that is to say, in practice (depending upon the particular model), for as much as a fortnight (or more) following execution. This point is of considerable importance, since the borrower often requires immediate access to the funds in order to pay the vendor for the very house being simultaneously charged in the bank's favour. One possible remedy consists in obtaining from the bank a "bridging" facility (or "pre-financing"), covering the period between the execution of the loan and the time necessary for the security to be perfected; but not every bank is willing to extend such a facility. With the assistance of the notary, it may be possible, depending upon the circumstances, to reconcile these competing requirements so far as may be practicable.
A further caveat concerns a contingent aspect: it may be that the borrower anticipates that the property purchased, and charged by way of mortgage, will shortly require to be resold for various reasons (a change of residence, an increase in family size necessitating a larger home, and so forth); the borrower may accordingly expect to be able to have the future purchaser assume, as part of the price, the residue of the loan yet to be repaid. Now, quite apart from the facts that (1) the purchaser must likewise consent to such assumption, and (2) banks at times raise certain obstacles to the operation, it must above all be borne in mind that, as a general rule, (3) such assumption is not "releasing" but "cumulative": that is to say, once the residual loan is assumed, the bank does not change debtor, but acquires an additional one; so that, should the new purchaser prove unable to pay the bank, the latter may still advance claims against the original borrower. For these reasons, current practice reveals a diminished recourse to such assumption: in substance, the vendor extinguishes his own loan, whilst the purchaser, where necessary, contracts a new one in his own name. Here too, the notary may be of assistance, setting out the concrete alternatives and their respective costs.
(Adapted from www.notariato.it)
