Mortgage – We are going to go to the mortgage case. They know that the mortgage is a real right of – Studocu

We are going to go to the mortgage case. They know that the mortgage is a real security right. The civil and commercial code brings an important innovation within the real rights of guarantee since you will see that they have a General part, applicable to all real rights of guarantee and a special part reduced compared to the art of Vélez. The Velez code only had the registration of this real right of mortgage by virtue of the fact that, as you know, the debtor continues to have ownership and possession of the property for which it is offered as collateral. Then he considered that so that the third parties did not have any inconvenience, the mortgage was the only real right that was registered in the property registry. To the extent that society becomes more complex, we are going to see that, with the reform of ’68, I am talking about the registration law 17801, the obligation to register all real rights for third-party advertising arises. If we look at the Velez code, as it prioritized possessory advertising, it considers that the mortgage could only be registered. Now we have in art. 1889 where it classifies real rights, marks that these real rights of guarantee are accessories to a credit, we will have a main obligation and as an accessory we have the guarantee. The dependence of both is such that the fact that the main obligation is missing results in the extinction of the guarantee. According to the constitutive act, we are going to see that these rights are constituted by contract, they arise from an agreement of wills, and must be implemented in the legally established manner. One of their characteristics is accessory, they are extinguished, they are transmitted with the credit they guarantee. If the mortgage is extinguished, but the credit can survive. What is prescribed by 2186. What type of credit is guaranteed? Credits of all kinds. In the constitutive act, the credit must be individualized in terms of its subjects, objects and cause. Both things and rights can be objects of a real guarantee (2188); they must be current and individualized. In art. 2189 with the modification of the law, the amount must be individualized in money, the guarantee must be individualized expressing the maximum amount of that guarantee. The elements of the creed can be individualized from the origin or born later. Any amount that exceeds the maximum expressed in the guarantee is considered unsecured. Maximum term of the guarantee could not exceed 10 years, counted from the granting of the constitutive act. The art. 2189 is reformed by law 2771 in 2016, it refers to the specialty in terms of credit.

We have to take into account two points, the specialty in terms of credit as well as the specialty, in terms of the property it guarantees. When we talk about a mortgage, the guarantee is a property, except in the real right of surface. This ppio, contained in 2189, talks about the specialty in terms of credit and has to do with the different types of mortgage: Classic: guarantees a specific credit without major inconvenience. A clear example is the mutual contract, where the bank lends money and the debtor guarantees the return with the mortgage of an asset within his or her assets or a third party. Due to balance of price: when the debtor acquires a property and in order to acquire it, he owes and one way to guarantee the balance of the property is by mortgaging that same property in favor of the creditor. Open: these guarantee frequent commercial relationships, for example, checking accounts or a certain supply of medicines in the case of a drugstore, and then it is not a mortgage as such but it is called open because if I control I can have paid the supplier in full and in others not. These do have an amount and do not violate the specialty principle, since they have a maximum limit, which is why the doctrine is called a maximum mortgage. The only thing you have to keep in mind is that at any time, through an accounting operation, you can perfectly determine how much I have paid or what I owe or if I have balances. In reality, regarding the effects in relation to the specialty property, it says that the constitutive act maintains its validity when data on the object or credit is missing, as long as it can be known from all the data. 2190. An undivided part can be mortgaged, I can be a joint owner with another and others, without the consent of the others. Form and stages: first the contract, arises as a consequence of an agreement of wills, there are no legal mortgages. See 2208. By public deed. 1017, no other form is supported. In art 2208, it provides that the creditor may accept in a subsequent act. There may be offer of mortgage in one instrument and may subsequently be accepted in another separate instrument. We have to keep in mind that both have to be registered in the registry. Expiration period of the mortgage entry: the v code provided that the entry in item 7 was valid for 20 years. Currently it provided the same but later, it was reformed in 2016, because housing loans with certain characteristics were implemented, where the updating of mortgage loans for housing were subject to cement, for example, to the rise in the cement, did not have a fixed fixed interest but was adapted to the rise in construction materials. It was renovated until the age of 35. So what happened to existing mortgages before the reform? What applied? Art 7. There are authors say that the 35 years do not apply, only the 35 years are for mortgages that are entered after 2016 and other authors say that if there are outstanding mortgage obligations that were made before the reform, the 35 years applied. Others say that if the mortgage was paid, only the cancellation deed was missing, here the 20 years applied. The real estate registry issued a technical registry where it states that the 35 years apply to mortgages that are registered after the reform.