The Technical Defence to the Judgment Mortgage: Time to Say Goodbye?
Conveyancing and Property Law Journal, Vol. 13, No. 1, 2008
8 Pages Posted: 3 Jan 2008 Last revised: 30 Jan 2009
Judgment mortgages are important mechanisms of debt enforcement, allowing creditors to realise debts owed to them from property owned by the debtor. As important financial transactions judgment mortgages are frequently used, but the law of judgment mortgages continues to be marred by an unacceptable degree of uncertainty. This is particularly the case in relation to the requirements for the creation of the judgment mortgage. This controversy relates to whether or not an affidavit on which a judgment mortgage is grounded must comply strictly and completely with the requirements of s. 6 of the Judgment Mortgage (Ireland) Act 1850. Early Irish jurisprudence predominantly held that absolute compliance with s. 6 was required and that, in the absence thereof, the judgment mortgage would be invalid. This position is what is referred to in this article as the 'technical defence' to judgment mortgages. Relatively recent Irish case law has noted the incompatibility of the technical defence with the apparent legislative purpose of s. 6 while failing to lay down a clear standard for judgment mortgage affidavits.
This short article argues for a 'commonsense approach' to the requirements of s. 6 and for the complete abolition of the technical defence from the law of judgment mortgages. Part I of the article outlines the role of the judgment mortgage affidavit; Part II considers the evolution and quasi-demise in Irish law of the technical defence; and Part III considers the current proposals for reform of the requirements for judgment mortgages in Ireland. In essence this article argues for the abolition of a technical defence to judgment mortgages on the basis that such a defence undermines and frustrates the purpose of s. 6, which is designed, this writer argues, not to trip up creditors but to ensure that sufficient information is provided to identify the relevant land and parties with certainty.
Keywords: property, judgment mortgages, Irish law, debt enforcement
JEL Classification: K11
Suggested Citation: Suggested Citation