42 

 

 

THE RIGHT OF PLEDGE ON MOVABLE ITEMS (PIGNUS) IN 

REPUBLIC OF KOSOVO 

 

 

Ekrem SALIHU, PhD. C. ¹ 

¹ South East European University, Faculty of Law, ekrem-salihu@hotmail.com 

 

Article history: 

Accepted 20 March 2020 

Available online 31 April 2020 

 

Keywords:  

The Right of Pledge,  

Pignus,  

Mortgage,  

Pledge Object,  

Pledge Principles,  

Titles for Obtaining  

The Right of Pledge by The Hand 

Item. 

A b s t r a c t 

The pledge is an item right based on which its official holder – the pledgee may seek the payment of 

his/her claims from the item if those aren’t paid within certain time limit. The right of pledge in the 

Republic of Kosovo constitutes a complex occurrence which has various relations on which at one 

side is the pledgee creditor, and in the other side are debtor pledgor and other third persons. The role 

of pledge and its affirmation is related to most qualitative changes of claims.    

 

The right of pledge as item right in foreign item (iura in re aliena) makes a history only to a certain 

degree of economic and social development. In this degree of development there was a need and 

necessity to secure the other’s claims even de facto, by the hand item, by “pledging” of an item. The 

creditor requires that his claims to the debtor be secured by obtaining of a pledge of debtor item. The 

debtor’s conjunction of creditor by obtaining debtor’s item is safer for the creditor to realize its 

claims, rather than when the debtor secured these claims by his/her personality, bail, personal 

insurance. In the Kosovo legal system there is possessory pledge, non-possessory pledge and the 

pledge over the rights.    

  

 

 

1. Introduction 

Financial turnover in Kosovo, as is the case in the countries of the 

region, is the basis of the modern economy, whereas ensuring the 

fulfilment of debtor's obligation is of particular importance in 

terms of financial turnover. It is widely recognized that there are 

various forms of ensuring the fulfilment of obligations that are 

personal as well as non-personal. In terms of securing the 

creditor's property claims, the most appropriate form is securing 

judicial real rights through the right of pledge. In modern business 

practice, the use of loans that are secured by the right of pledge, 

mortgage and pignus is ever increasing. 

 

The execution of the claim is a problem that continuously 

concerns the creditor, not only at the time of concluding the legal 

relationship but even later at the time of maturity of the claim. 

The property status of the debtor is vital for the creditor and his 

ability to execute his claim in the future. The creditor has no 

guarantee that the property status of the debtor will always be 

stable and solvent. The creditor cannot directly control the work 

undertaken by the debtor who may face a situation whereby the 

execution of his claim becomes questionable. 

 

In order to prevent a potential problem regarding the execution of 

the creditor's claim, the provisions of the substantive law provide 

for different means, which foresee a safer execution of the 

creditor's claim. 

 

Our legal system, as is the case with every other legal system, has 

various means for securing creditor's claims. Substantive 

provisions foresee the contractual penalty, bail, advance payment, 

earnest money, surety, penalty, right of retention, and right of 

pledge. 

 

Of all means provided for securing creditor's claims, right of 

pledge (pignus and mortgage) represents the oldest and safest 

means for securing creditor's claims. 

 

Right of pledge means creation of any interest on movable 

property or on any right through agreement or pursuant to the law, 

https://orcid.org/0000-0002-2561-3933


 

 43 

whereby the pledgee is granted the right to take possession of that 

property or use that right in order to satisfy any existing and 

identifiable obligation secured with the pledge. 

 

2. Types of Pledge 

Traditionally, the right of pledge is divided into pignus, namely 

on the right of pledge in movable property, and mortgage, namely 

the right of pledge on immovable property. When dividing the 

right of pledge into pignus and mortgage, the type of the property, 

namely the subject pledged ought to be considered. Thus, if the 

object of pledge is a movable property it is always a pignus. 

Meanwhile, in cases where the pledge object is an immovable 

property, that means that we are dealing with mortgage as a type 

of the right of pledge . A pledge may be a pignus and a mortgage. 

The pignus is a right of pledge on movable property, while the 

mortgage is a right of pledge on immovable property. The 

difference between the two types of pledge is not only shown by 

the object of pledge. Another factor that distinguishes the two is 

that the pignus, according to rules, is handed over to the creditor 

(pledgee), whereas in the case of mortgage the pledge is recorded 

in the respective registers . The first person to divide the right of 

pledge into these two main types, depending on the movable or 

immovable property, was Hugo Groitus. Back then, he 

formulated the concept according to which pignus consists of 

only movable property whereas the mortgage consists of only 

immovable property. 

 

The mortgage is a real right of the creditor on immovable property 

of others. The creditor, as foreseen by the law, is entitled to 

request the compensation of his claim from the value of that 

immovable property against creditors that do not have a mortgage 

on it as well as against creditors who have got the mortgage on 

the property after him, regardless of the change of ownership of 

the claimed immovable property . The mortgage presents the so-

called "real means" of securing claims, although the subject of 

insurance is the property, respectively the immovable property. 

Insurance of claims consists of what the debtor pledges, 

respectively of the immovable property he owns, for the purposes 

of securing creditor claims. If, within the deadline foreseen in the 

agreement made between the creditor and debtor, the latter fails 

to fulfil his debt towards the creditor, consequently the creditor, 

through legal means, is entitled to satisfy the claim through the 

forced sale of the immovable property of the debtor. 

 

This concept of pledge has undergone changes in the 

contemporary law. Nowadays, there is also the mobile mortgage 

which implies the right of pledge that consists of movable 

property. However, the pledgee's right over the movable property, 

similar to immovable property, is recorded in the public books. In 

such cases, the division of pledge into pignus and mortgage, 

according to the authors, is based on the delivery of the property. 

In this case, it is vital to know whether the property is delivered 

to the pledgee or whether the debtor keeps it. Therefore, the 

possession of the property is far more important than the type of 

property that is subject to possession . Law on Property and other 

Real Rights of the Republic of Kosovo (hereinafter referred to as 

LPORR) provides for the possessory pledge, non-possessory 

pledge as well as the pledge over a right in Article 134, 

paragraphs 1, 2, 3, and 4. 

 

3. Pignus 

The pledge over movable properties is called the pignus. It is 

presented as part of the right of pledge against the right of pledge 

on immovable property and the right of pledge over rights. Pignus 

is established through a contract whereby the debtor (or a third 

party) enters into obligation towards the creditor (pledgee) for 

delivering any movable property with ownership rights in order 

to secure the claim. On the other hand, the creditor is obliged to 

keep the movable property and, after the expiration of the claim, 

return the same to the pledger without any damage. 

 

The pledge has been named after the Latin word “pignus” which 

means palm and symbolizes the manner of controlling the 

property . The pledge represents real means of securing the 

execution of a contract. It's an accessory contract. This contract is 

a pledge on the movable property. Indeed, the pledge contract is 

a contract where the debtor or any third person called the pledger 

has obligations towards the creditor, or the pledgee, to deliver any 

movable property in which the right of ownership exists and 

which is valuable enough to satisfy his/her claim to other 

creditors, if the claim is not to be paid after the expiration of the 

claim; the creditor, on the other hand, is obliged to keep the 

property and after the expiration of the claim, return it to the 

pledger without any damage . Pignus is the most ancient right of 

pledge. It is older than fiduciary, far older than mortgage and 

other rights of pledge. Pignus is a real right on the property of 

others. The subject of pignus is the movable property, which 

secures the claim of the pledgee/creditor to the pledger/debtor and 

is delivered to the pledgee/creditor in retention (in possession), 

and from its value of the latter satisfies his/her claims. The 

movable property which comprises the pignus is individually 

defined. A right can also be the subject of the pignus. Upon 

submission of the movable property in retention, a 

pledgee/creditor acquires the real right to that property so after 

the expiration date of the claim, he/she can legally satisfy his/her 

claims from the value of the property. The pledge property is only 

the one that is in use and capable of ensuring the pledgee/creditor 

with the value that is sufficient to satisfy his/her claims. 

 

 



 

 44 

4. Titles for Obtaining the Right to Pignus 

By way of establishment the right to pignus can be:       

- Contractual, 

- Judicial, and 

- Legal. 

 

4.1 Judicial Work as a Legal Title for Obtaining 

the Right to Pignus 

It is widely known and acceptable that the contract is "titulus 

turis" built on which the right of pledge is obtained. In addition, 

obtaining the right of pledge based on the contract rather than the 

most common legal basis based on which the pledge is incurred 

and obtained, is a rule . In theory, the contract for pledging the 

property is a pledge contract and in Latin it is called the contraktus 

pigneraticius which obliges the debtor or any third party (the 

pledger) to deliver to the creditor, by way of the right of pledge, 

the designated movable property, while the other contracting 

party is obliged to take care of the pledge and, upon the 

termination of the claim expiration date ensured by the pledge, 

return it to the pledger . 

 

The right of pledge has not been substantially established by the 

contract yet. The contract only presents the legal basis (titulus 

iuris) for obtaining the right of pledge. It even states that it only 

paves the way for obtaining the right of pledge. Precisely, such a 

contract is only treated as a precontract. In order to acquire a real 

right, and in this context, a right of pledge, it is also necessary to 

undertake another action - the delivery (traditio) of the movable 

property; meanwhile, in terms of immovable property it is 

required the registration of the property in the public books. This 

act, which is qualitatively important for acquiring the right of 

pledge, is called the method for acquiring a right, or modus 

acquirendi. Only the acquisiton or the existence of the titulus iuris 

and the modus acquirendi simultaneously will result in acquiring 

the right of pledge . Law on Property and other Real Rights of the 

Republic of Kosovo, Article 136 paragraph 1 and 2 foresees: “The 

validity of a pledge agreement requires a written document 

containing the following particulars: 

1. the name and address of the pledger and if the pledger 

is a person other than the debtor; 

2. a description of the obligation to be secured; a 

description of the pledged item; 

A statement that the purpose of the agreement is to create a pledge 

in favour of the pledge holder; the signatures of the parties to the 

agreement; and the date on which the pledger signs the pledge 

agreement”. 

 

 

 

4.2 Judicial Decision as a Legal Title for 

Obtaining the Right to Pignus 

The right to a judicial pledge on movable properties is acquired 

by seizure in an enforcement procedure when the debtor has not 

fulfilled the obligation required and the creditor has proposed 

compulsory enforcement based on the final decision. This can be 

an administrative enforcement procedure, and according to some 

theoreticians, it would be best to call it enforcement pledge right.  

 

The right of pledge also arises by a court decision. Judicial or 

compulsory pledge on movable property shall be established 

based on a court decision taken in the enforcement procedure. 

Upon registration by the judge, the property is individualized. 

This may be the reason why a delivery act to acquire the right of 

pledge is not required in case of a compulsory pledge . 

 

Movable properties that are subject to judicial pledge remain 

under the possession of the pledger/debtor. However, in such 

cases, there is a possibility for these properties to be transferred 

under the custody of the court or of the third person. The decision 

of the court to establish a movable property is similar to cases of 

the procedure for securing the claim as a precautionary measure 

and in the procedure for the execution of movable property for 

the fulfilment of a monetary obligation. Enforcement for movable 

items is conducted through registration, sequestration, and 

evaluation, selling of such items and settling the credit from the 

amount obtained from sale of such items. Creditor gains the right 

of pledge for inventoried movable items. If the inventory is done 

in benefit of more creditors, the order of priority of the right on 

pledge obtained through inventory or writing in the register of 

inventory for the purpose of sequestration, shall be assigned 

according to the order of receiving enforcement proposals by the 

enforcement body. 

 

4.3 Law as a Legal Title for Obtaining the Right 

to Movable Property 

Statutory pledge exists based on the law in favour of legal 

creditors assigned for certain legal claims, without the consent of 

the debtor . Within the right of pledge, in some rare cases, the law 

is presented as a legal title (legal basis) for the establishment of 

the right to movable property. This includes cases where after the 

fulfilment of certain conditions, the law considers that in that 

case, the right of movable property exists. The conditions for this 

type of pledge are foreseen by law, and in these cases, the consent 

of the contracting parties is not required for the constitution of the 

right of pledge . This means that the right of pledge can exist 

without publicity. This reflects the weak side of the statutory 

pledge since third parties cannot know about its existence. So 

when it comes to movable property, there is no need for the debtor 



 

 45 

to transfer the property in possession of the pledgee/creditor due 

to the establishment of the right of pledge, such as the case with 

the right to voluntary pledge. Furthermore, the statutory pledge 

may also be granted to persons (carriers, commission agents, 

freight forwarding agents, warehousers) who at one point were 

under the possession of the property, but not any longer . The fact 

that the statutory pledge depends on the fulfilment of the facts set 

forth by the law means that the debtor's consent is not necessary 

for the establishment of such a pledge. This pledge will be created 

even if the debtor opposes its establishment. 

 

The owner of the apartment (house) in use, the lessor, or put 

differently, in cases when the lessor leases the apartment to the 

lessee, there is a greater need for securing the lessor's claim on 

the lease if the lessee fails to fulfil his obligation. The lessor's 

statutory pledge consists of movable property of the lessee placed 

(transferred) in the apartment. The statutory pledge consists of the 

so-called invecta et illata, movable properties which the lessee 

has in the apartment or on the arable land . Kosovo's LPORR 

regulates the legal pledge with Article 135 paragraph 1, 2 and 3. 

Due to the importance of this institute, some cases of legal pledge 

are mentioned below. One case is the "right of retention" foreseen 

by Article 267 of the Law on Obligational Relationship of the 

Republic of Kosovo (hereinafter: the LOR), where the creditor of 

a claim that has fallen due shall have the right to retain anything 

of the debtor that is in the creditor’s hands until the claim is paid 

thereto. 

 

According to Article 643 of the LOR in order to secure payment 

for the work, recompense for the material used and other claims 

deriving from a contract for work, the contractor shall have a lien 

on the things made or repaired and on other objects delivered 

thereto by the ordering party in connection with the work, as long 

as they are in the contractor’s possession and the contractor does 

not relinquish them voluntarily. 

 

According to Article 693 thereof, in order to secure payment for 

the transport and the refund of the necessary costs incurred by the 

transport the carrier shall have a lien on the things handed over 

thereto for transport and in connection with the transport as long 

as they are in the carrier’s possession or as long as the carrier 

holds documentation that allows the disposal thereof. 

 

Article 800 of the LOR states - the commission agent shall hold a 

lien on the things that are the subject of the commission agency 

contract, as long as such things are therewith or with a person that 

holds them in possession thereof or as long as a document that 

allows them to be disposed of by the commission agent is held 

thereby.  

 

5. Principles of the Right of Pledge 

Every right has its own character and characteristics, which 

distinguish it from others in terms of content, juridical nature, 

notion. The right of pledge cannot be an exception to it. Based on 

this, it is easier to distinguish the principles on which the right of 

pledge is based and which express the essence of the existence 

and the right of pledge as a real right iura in re aliena. 

 

Had it not been a right on itself, the right of pledge could not have 

had its own principles and vice versa. The particular principles 

also distinguish it as a legal institution, as a real right from the 

other rights, whether it is a real right or obligation . In legal 

literature different authors differ have different views on the 

principles of the right of pledge. However, some of these 

principles are found in the work of most of them.  

 

The most important principles of the right of pledge are: 

1. The principle of accessority; 

2. The principle of officiality; 

3. The principle of speciality;  

4. The principle of indivisibility, and 

5. The principle of priority. 

 

5.1 The Principle of Accessority 

The right of pledge, as a real right on other’s property and 

securing a creditor's claim in relation to the debtor implies the fact 

that this right results upon the existence of a binding legal-civil 

relationship. A right of pledge cannot exist if it is not preceded by 

the existence of a binding relationship between the debtor and the 

creditor. A right of pledge cannot be created and exist without the 

creditor, while the latter exists without the right of pledge. The 

right of pledge exists with the existence of the claim provided. 

The right of pledge is created to secure such a claim. It is clear 

that the right of pledge exists only if there is a certain claim, the 

realization of which is guaranteed by the right of pledge. The right 

of pledge presupposes the existence of a certain claim, while the 

latter conditions the first from which it is secured. All this shows 

that the right of pledge is not a right established on itself; is not a 

main independent right. It is dependent on the existence of the 

claim right, which is an independent right . The accessority of the 

right of pledge is particularly taken in consideration in the case 

when the claim or the transfer of the right of claim is transferred 

to the heir, whereby this transfer from one entity to the other 

implies the continuity of the right of pledge for securing the claim, 

no matter who the creditor is in this given case. 

 

Exclusion from the principle of accessority exists in the case of 

the statutory limitation of the claim that is secured by pledge - the 

pledgee is entitled to satisfy his/her claim from the value of the 

property pledged if it is under his/her possession or if the right is 



 

 46 

registered in public books. This exclusion from the principle of 

accessority is also included in some foreign laws, such as (e.g. 

German law and Swiss law for securing mortgage claims, namely 

Austrian law and Polish law in the case of pignus . The right of 

pledge may be constituted for future claims, which is the case of 

a bail pledge which is granted for a claim that may, but not 

necessarily arises, and the credit pledge that is granted for a claim 

that may arise from contracted credit. This right arises 

immediately with the constitution of the pledge, although the 

claim is for the future; if the claim does not arise, the right of 

pledge is terminated . Securing non-existent claims at the moment 

of the creation of the right of pledge consists of both movable and 

immovable properties. This at the same time is an exemption from 

the principle of accessority, according to which, at the moment of 

the creation of the right of pledge, there must be a claim which is 

secured by the pledged property and the value which satisfies the 

claim. 

 

5.2 Principle of Officiality 

The right of pledge as property security secures a certain claim of 

the creditor who is entitled to complete (satisfy) his/her claim 

from the value of the property, if, upon the execution (maturity) 

of the claim, the debtor (pledger) fails to meet it; fails to fulfil 

his/her obligations in due time. 

 

Legal arrangements explicitly provide that the creditor or pledgee 

has the right, before other creditors, to collect his/her claims by 

the value of the pledge if his/her claim obligations are not met. 

However, it should be noted that the creditor cannot satisfy the 

claim by selling the pledged property himself/herself, but only 

through court proceedings. The creditor can only address the 

court, requesting the judge to render a decision by which the 

pledged property is to be sold at public auction or according to a 

certain price, when the property already has a stock price or 

market price.  This is a characteristic feature of the principle of 

officiality, which is preceded by the LPORR of Kosovo. Article 

168 of the specified law stipulates that, upon default, a pledge 

holder may sell, lease or otherwise dispose the pledged item. A 

sale of a pledged item can be affected by public auction or in any 

other suitable manner . In accordance with the principle of 

officiality, the so-called lex commissoria is forbidden. The pledge 

creditor is forbidden to collect debt from a pledged property based 

on the unilateral declaration of will, and similarly any contractual 

provision is also forbidden, which, at the moment of entering into 

a pledge contract, foresee that the pledged property be transferred 

to the ownership of the creditor if his claim is not fulfilled or in 

such case the creditor may hold the pledged property for 

himself/herself or sell it at a pre-determined price.  

 

This is foreseen in the LPORR of Kosovo in Article 130 

paragraph 1 where it is expressly stipulated that” An agreement, 

entered into before the secured claim has matured, is void if it 

provides that upon non-payment after maturity of the secured 

claim the encumbered assets are to become or to be transferred 

into the ownership of the secured creditor or the encumbered 

assets are to be sold at a fixed price. 

 

In principle, the creditor's ownership of the pledged property is 

prohibited. However, the exemptions from this principle are 

contained by most of the contemporary legal systems including 

the LPORR of Republic of Kosovo. According to Article 169 of 

the law in question “the pledge holder may purchase the pledged 

item only at a public sale or a private sale if the pledge item is 

sold in a recognized market, or in cases where commonly known 

standard prices exist for the pledged item.   

 

5.3 Principle of Speciality  

By legal nature, the right of pledge is a real right. Real rights are 

established only on the individually determined property. As a 

real right, the pledge right cannot be anything else but a property. 

It is made up of an individually defined property. Thus, the pledge 

property must be individually defined, whether it is movable or 

immovable. The pledge is an accessory right and as such depends 

on the essence of the claim, which is provided by the individually 

determined pledge property.  Thus, this principle implies that with 

right of pledge only secures the specific claim of a creditor (and 

not an indefinite number or indefinite amount), and the right of 

pledge may only exist on certain properties or on many 

individualized items.  There are some exceptions to the principle 

of specialty.  

 

The first exception is that the right of pledge can secure both 

future and conditional claims. The right of pledge, can also secure 

eventual claims, respectively the claim that will emerge or (if 

emerged) will still exist. This can be the case when a person gives 

something of his own as insurance for the obligation that may 

emerge but not necessarily emerges. For example, a person rents 

the ship on the ocean and leaves his/her watch as a pledge in case 

he/she damages the ship (bail pledge).  Such an exception can be 

found in the LPORR of Kosovo which in Article 131 stipulates 

that "A proprietary security right can be granted for securing 

present, future and conditional claims.  

 

5.4 Principle of Indivisibility 

By its very nature, the right of pledge is inherent, while the 

entirety of the pledged property with all its constituent parts 

secures the claim of the creditor. The principle of indivisibility 

implies that the entire pledge property secures the claim until it is 

fully fulfilled. The right of pledge is indivisible, primarily in 



 

 47 

terms of the claim secured through the pledge, and secondly in 

terms of the pledge property. The meaning of indivisibility 

consists in that the creditor holds the right of pledge even after the 

partial fulfilment of the claim, until the debtor pays all the debt.   

The right of pledge is indivisible even if the obligation is 

divisible. The claim is complete and as such is secured; the pledge 

property is complete and only as such provides security. This 

means that only as a whole the claim is secured by the pledge and 

that only the pledge property as a whole can secure the claim. The 

entirety of the claim consists in securing the pledge with all its 

parts. Meanwhile, the entirety of the pledge property consists in 

its "ability" to secure the claim with all its components and parts, 

its accessories and pertinence, as well as harvested and non-

harvested (separated) natural and non-natural fruits.  In this 

regard, the LPORR of Kosovo foresees that "the mortgage 

extends over all parts of the immovable property unit, including 

the buildings thereupon that are firmly attached to the ground. 

The mortgage covers all component parts and natural fruit of the 

immovable property as long as the latter are not separated from 

the principal thing. The mortgage secures the secured claim until 

it is completely paid off. A partial payment does not affect the 

mortgage.  

 

The principle of indivisibility is also dealt with by the most 

popular civil codes such as the French Civil Code in Article 2114, 

Austrian Civil Code in Article 457, and the Swiss Civil Code in 

Article 889.   

 

5.5 Principle of Priority 

The right of pledge exists on the designated property. A certain 

property may be subject to more rights of pledge. The property is 

pledged for claims of various entities, which in this case are 

pledgee creditors. This represents a cumulation of the rights of 

pledge. Cumulation of the rights of pledge may emerge at the 

same time or at different times. In these cases it is necessary to 

foresee the possibility of the fulfilment of the secured pledged 

claims.  

 

The creditor acquires the right of pledge based on which he has 

the right to collect his claims before other creditors and before 

those who have acquired the pledge over that item after him. The 

pledge secures the creditor, not only in relation to the debtor, but 

also in terms of eventual reflections by others in this matter. Since 

more rights of pledge compete over the same pledge property, 

there is a need to regulate the relationship between them. 

Similarly, acontrario when more creditors have the right of pledge 

over the same pledge property, from the value of which they are 

secured, there is a need to establish a relationship between them. 

The maxim prior tempore, potior iure (First in time, greater in 

right) has been set long time ago.  A particular feature of the 

mortgage is its range on the registration in public books. It is 

regulated by the principle of priority, according to which the 

protection of immovable property rights is determined according 

to the time of registration in public books. In this way, the order 

of priority in payments of claims deriving from mortgaged 

immovable properties is established. This concretely implies that 

the first mortgaged immovable property will first fulfil the claims 

of the creditor who first constituted the mortgage, and after that, 

the claims of the other creditors who constituted the mortgage in 

that immovable property after him if anything is left, and 

according to the order.  The LPORR of Kosovo has foreseen the 

principle of the ranking of real rights with Article 118 which 

stipulates “The ranking of several rights encumbering the same 

immovable property shall be determined according to their date 

of entry into the register. Rights that were registered on the same 

day and at the same time have equal ranking”. Article 119 of the 

same law provides for the possibility of changing the order of 

ranks, but in this case an agreement is required between the 

holders of the rights that are affected by the ranking change. 

Meanwhile, Article 120 of the law in question provides for the 

possibility of reservation of priority ranking stating that “the 

owner of an immovable property when registering an 

encumbrance on such property may make a reservation that grants 

authority to have a different, clearly defined right registered with 

priority ranking over the encumbrance.  The right of priority is 

also foreseen by most of the world's legal systems and is regulated 

by special laws or civil codes/Article 1209 of the GCC, Article 

893 of the SCC, Article 1056 FCC. 

 

6. Entities of the Pignus 

The pledge itself does not emerge or come out of thin air; it is 

established by the people. It is clearly not established by each and 

every person socialising with others in a rally, in society, or in 

gatherings, but only by those who enter together in a specific legal 

relationship, standing opposite one another, for the purpose of 

realizing any property interest. A relationship, be it social or legal, 

cannot be conceived without people, without entities. Therefore, 

it is clear that the people, the entities are needed for the 

establishment and existence of the legal relationship of the 

pledge, as for any other civil-legal relationship. One entity is 

known as the creditor/pledgee and the other is known as the 

debtor/pledger.  

 

The creditor/pledgee is the entity for whom the right of pledge is 

constituted and who has the right to satisfy his claim from the 

value of the pledged property. He is the holder of the right of 

pledge. His right acts on all other persons, is an erga omnes 

entitlement, which means that it is enforceable towards all, the 

debtor from the relationship of obligation, the pledger, as well as 

towards third parties. In this legal relationship the debtor is the 



 

 48 

person who obliged to fulfil the obligation of the creditor from 

his/her property, namely the pledger/debtor who has pledged 

his/her property to secure the claim of the pledgee/creditor. 

However, the pledger/debtor is not necessarily the same person 

with the debtor from the obligational relationship because in 

certain cases there is also a third person who pledges his/her 

property for securing the creditor's claim for the debtor from the 

obligational relationship.  From the content of Article 133 and 

134 of the LPORR of Kosovo it is noticed that the lawmaker 

names the entities of the right of pledge as the pledger and the 

pledgee. 

 

7. The Subject of Pignus 

In order to constitute the pignus,it ought to have its own subject. 

The subject of the right of pledge may be any movable property 

that is in legal circulation, including the share of joint ownership. 

The property must be individually defined and non-consumable. 

If the subject of the pledge would be the non-consumable 

property, then the right of ownership would be transferred to the 

pledgee who would return the same amount upon termination. In 

literature, this is called an irregular pledge (irregular pignus). The 

subject of the right to pignus may also be the right that has a 

property value. Such rights are: copyright and disclosure, other 

rights to industrial property, the right incorporated into securities, 

the right to inheritance, etc.  

 

Subject of the pledge can be properties which were given as the 

pledge. However, in this case, the pledger shall notify the pledgee 

and require from him/her to deliver the pledge to the other 

pledgee upon collection.  The LPORR of Kosovo in Article 138 

paragraph 1 stipulates that "any movable item or right that is 

legally transferable can be pledged.  Property that is jointly or 

commonly owned may be pledged only if all joint or common 

owners consent the pledge.  Subsoil minerals and hydro-carbons 

and rights to subsoil minerals and hydro-carbons can be pledged 

in accordance with the provisions for the transfer and 

encumbrance of subsoil minerals and hydro-carbons or such 

rights in the applicable law . According to the LPORR of Kosovo, 

subjects of the pledge may also be generic things of the same kind 

and quality  as well as pledge of future items and inventory   

 

8. Conclusions 

The right to insurance in the Republic of Kosovo, as every branch 

of law has undergone considerable changes, adapting to social 

transformations and the demands of the modern economy. If the 

right to legal property insurance of Kosovo is comparable to the 

rights of the countries of the region, it can be inferred that many 

of the institutions for securing the claims are almost identical. 

LPORR of the Republic of Kosovo has foreseen the possessory 

pledge, non-possessory pledge and a right of pledge as a fixture 

for securing claims. 

 

By all means provided for securing the creditor's claim, the right 

of pledge (pignus and mortgage) is the oldest and one of most 

secure means of securing creditor claims. The right of pledge is a 

real right. It is a real right over other’s properties. It is an iura in 

re aliena right. The pledge is a real right by which its pledgee or 

creditor may request payment of his claims from the property if 

they are not to be paid within the prescribed time limit. Put 

differently, the right of pledge is a real right to other’s property, 

and from this right the pledgee has the power to satisfy his/her 

claim from the pledged property if the debtor fails to fulfil the 

obligation assigned at the appointed time. 

 

Traditionally, the right of pledge is divided into pignus, namely 

on the right of pledge in movable property, and mortgage, namely 

the right of pledge on immovable property. When dividing the 

right of pledge into pignus and mortgage, the type of the property, 

namely the subject pledged ought to be considered. Thus, if the 

object of pledge is a movable property it is always a pignus. 

Meanwhile, in cases where the pledge object is an immovable 

property, that means that we are dealing with mortgage as a type 

of the right of pledge. 

 

In the future, Kosovo's lawmakers should be committed to 

establish a right to insurance on a variety of movable properties 

that are important to business activity in order to facilitate access 

to credit through a legal regime that is in accordance with 

international standards such as those set by the United Nations 

Commission on International Trade Law (UNCITRAL) and the 

World Bank. 

 

References 

 

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