Real Rights vs. Creditor Rights in Spanish Law: A Comprehensive Analysis

Posted on May 4, 2024 in Law & Jurisprudence

ITEM I. THE RIGHT THINGS AND LEGAL RELATIONS-REAL

1. Five Differences Between Real Property Rights and Creditor Rights

  1. Transmission: Real rights follow the title theory and require delivery (tradición) for transfer, while creditor rights follow different rules (Article 1526 et seq. CCi).
  2. Adverse Possession: Applicable to real rights but not creditor rights (1930 CCi).
  3. Statute of Limitations: Different deadlines for real rights and credit claims (compare Arts. 1962, 1963, 1964 CCi).
  4. Land Registry: Real rights on immovable property are registrable, while credit claims generally are not (Article 2 LH).
  5. Public Documents: Acts and contracts related to real rights over immovable property require a public document, while those related to credit rights do not (Article 1280.1 º CCi).

2. Traditional Characteristics Differentiating Real Rights and Creditor Rights (with Example)

  1. Direct and Immediate Power: Real rights grant direct control over the thing, while creditor rights require the debtor’s cooperation.
  2. Enforceability: Real rights are enforceable against anyone, while creditor rights are generally enforceable only against the debtor.

Example: Mortgage is a real right that does not grant immediate possession.

3. Arguments For and Against Numerus Apertus of Real Rights (with Security Interest Specialty)

Pros:

  1. Article 1255 CCi enshrines the principle of autonomy of will.
  2. Article 2.2º LH suggests the possibility of other registrable real rights.
  3. Article 594 CCi allows for atypical easements.

Cons:

  1. Real rights affect third parties not involved in their creation.
  2. Article 2.2º LH may refer to typical real rights not listed previously.
  3. Article 594 CCi may suggest a numerus clausus with some flexibility.

Security Interest Specialty: Atypical security interests may not be possible due to legal regulations (Articles 1921 et seq. CCi).

TOPIC II: Structure of the Juridical and REAL

4. Requirements for the Object of a Real Right (Compared to Contract Requirements)

  1. Current Existence: The object must currently exist for a real right, while it can be future for a contract (1271, 1272 CCi).
  2. Legality: The object must be within legal commerce for both real rights and contracts.
  3. Perfect Determination: The object must be perfectly determined for a real right, while it can be determinable for a contract (1273 CCi).

5. Requirements for Voluntary Bans (Compared to “Obligations Not Available”)

  1. Can only be imposed on gratuitous acts.
  2. Ineffective if perpetual or exceed legal limits (785.2º CCi).
  3. Usually require a serious interest to justify the restriction.

Difference: Violation of a voluntary ban renders the act ineffective, while violation of an “obligation not available” does not affect the act’s validity but may trigger consequences between the parties.

TOPIC III: BIRTH, TRANSFER AND TERMINATION OF LEGAL RELATIONSHIP, REAL

6. Modes of Acquiring Property and Property Rights in Spanish Law (with Title and Mode Peculiarity)

Modes of acquisition are listed in Article 609 CCi, including occupation, law, donation, succession, contracts, and prescription.

Title and Mode Peculiarity: In Spanish law, a contract (title) is necessary but not sufficient for transfer of ownership. Delivery (mode) is also required, unlike French and German systems.

7. Impact of Article 1280 ICC on Real Rights Transfer

Article 1280.1º CCi requires a public document for acts and contracts transferring real rights over immovable property. This requirement is for evidentiary purposes, not for validity. If a contract is in a public deed, it serves as both title and instrumental delivery. If not, other forms of delivery are still possible.

8. Relationship Between Tradition and Registration

Article 38 LH presumes delivery from registration. Article 36 LH suggests registration can replace delivery in some cases, such as when the transferor has lost possession (460.4 CCi). This aligns with the view that registration can be an alternative mode of acquisition.

9. General Causes for Termination of Real Rights

  • Loss or Destruction: Makes exercise of the right impossible.
  • Consolidation: Merger of ownership and the limited real right.
  • Waiver: Voluntary relinquishment of the right.
  • Prescription or Adverse Possession: Acquisition of the right by another through possession.
  • Eminent Domain: Expropriation by the State.