The Frankenstein Mortgage: Conceptual inconsistency and the quest for legal coherence in the Torrens system

Abstract

The principles of “certainty” and “autonomy” are central to the Torrens system and contract law respectively. Courts seek to resolve conflict between these principles. Systemic incoherence is especially apparent when courts consider the all-obligations mortgage.

The mortgage document does not only place a charge on title. It secures personal obligations also. Registration may or may not extend to these obligations. According to the laws of contract, these personal obligations are established by the substance of the relationship between the parties, illustrated by a structure of legal forms via the contract. Registration then purports to "animate” the contract through the legal form of "title/interest by registration”. Hence the title of this paper: the "Frankenstein Mortgage".

The Torrens system requires jurisdictions to engage in a perpetual search for coherence. An awareness of the ideological disunion underlying the law of real property enables judges to subduct concepts in a congruent manner and achieve a semblance of a unified legal form.

Rather than etiolating the Torrens principle of certainty through policy-based rationales, reforms require an examination of residuary common law principles and conceptual sources of law, combined with a consciousness of the illogical nature of lawmaking that must, to maximize practical efficacy, provide a compromise between the two systems.