Mortgage and Loan Basics – The Ultimate Guides and Tips – Part I
CONTENTS:
1. Definition . 2. Types of mortgage . 3. Rules . 4. Legal nature . 5. Mortgage in comparative law . 6. Involved in the mortgage . 7. Well field of mortgage . 8. Features of mortgage . 9. Conditions of validity . 10. Formal title of the mortgage . 11. Legal mortgage . 12. Conventional mortgage . 13. Judicial mortgage . 14. Extinction of mortgage . 15. Registration of mortgage . 16. Priority Title of mortgage . 17. Range of mortgage . 18. Registered owner . 19. Top of advertising . 20. Bona fide third party registrar . 21. Reduction and enlargement of the mortgage . 22. Factory . 23. Become independent and mortgage . 24. Foreclosure . 25. Judicial sale of mortgaged property and award . 26. Retroprioridad mortgage . 27. Third party exclusive domain . 28. Invalidity of mortgage . 29. Conclusions . 30. Tips . 31. Sources of Information . 31.1. Books . 31.2. Treaties . 31.3. Dictionaries . 31.4. Magazines . 31.5. Journals . 31.6. Peruvian legal rules . 31.7. Foreign codes . 31.8. Other foreign rules . 31.9. Court registrar . 31.10. Judicial Decisions .
1. DEFINITION
A mortgage is a security interest in positive law rests Peruvian property and for its constitution needs to be entered in the Register of Premises which grants the right of pursuit is on the property.
In the dictionary of the Spanish Language of the Royal Spanish Academy defines as the right mortgage real property levied or vessels, subjecting them to meet the performance of an obligation or payment of a debt, ie mortgage as this dictionary is a real right which taxes property and ships. In this regard the mortgage as the same applies not only to property.
For Josserand the mortgage is the collateral and indivisible is the involvement of an asset of the debtor to pay an obligation, without the constituent can be dispossessed at the time, and allowing the mortgagee to seize and sell such property, the maturity, whoever has it, to make payment with your money in preference to other creditors. That is, this author does not state that the mortgage falls only on real estate, so the mortgage that definition also applies to chattels.
The 1889 Spanish Civil Code defines the mortgage in his 1876 article stating that the mortgage directly and immediately subject the assets to be imposed, regardless of their owner, to fulfill the obligation for whose security was established. This definition does not specify that the mortgage falls only on real estate, so the mortgage with the same also applies to chattels.
For Planiol mortgage is a real security without dispossessing the owner but it allows the creditor to sell the maturity of the obligation, whatever the hands in which it has to be paid with the price obtained, in preference to other creditors . This definition does not specify that the mortgage imposed on real property only, so that guarantee the same or real right also applies to chattels.
The German Civil Code defines the mortgage in Article 1113 as a levy imposed on an estate by virtue of which he for whose benefit it provides may obtain certain sum of money to recover a debt acknowledged in his favor. With this definition the mortgage falls on farms.
The French Civil Code defines the mortgage in Article 214 as real estate law affects the performance of an obligation. This definition states that the mortgage imposed on property.
The Peruvian Civil Code of 1852 defined the mortgage and the charge is imposed on a property to a third party, in security of a credit or an obligation. This definition states that the mortgage imposed on property.
The Peruvian Civil Code of 1984 defines the mortgage in 1097 article stating that the mortgage is affected by a property as security for the fulfillment of any obligation, own or a third party. This definition states that the mortgage imposed on property.
The Peruvian Civil Code of 1984 regulates the mortgage as a security imposed on real property, for which the guarantee under the current regulations mentioned in the Peruvian government does not apply to property, but only applies to real property.
Some jurists defined the mortgage as the queen of warrants by the goodness of it, and that good can not be hidden and the owner giving the security (owner) is in possession of mortgaged property. However, considering the fact the same as queen of the securities is not accepted unanimously by the doctrine.
To understand the mortgage requires not only knowledge of civil law (and specifically within this branch of private law rights and more precisely the actual security interests or rights in rem accessories), but other branches of law as a registrar, notary public, urban, mining, civil procedure, criminal, criminal procedure, taxation, among other areas of law.
2. TYPES OF MORTGAGE
The mortgage may be of various kinds for which there are different classifications of it.
Being the first of which ranks in the mortgage and home mortgage chattel mortgage. The home mortgage is placed on real property and chattel mortgage is placed on the property. Of these two kinds of mortgages the best known, most used and embodied in all jurisdictions is the home mortgage substantive. As for the movable property mortgage can say that it is enshrined in the Spanish positive law. Which in some cases replace the garment with legal delivery.
The second ranking mortgage mortgage ranks in general and special. The first being placed on all real property of the debtor and the second that falls only on goods or property. Only the second is governed by Peruvian law.
The third classification classifies the conventional mortgage and legal. The first being that arises by agreement and the second in the cases provided by law. Both mortgages are governed by Peruvian law.
The fourth classification classifies mortgage mortgage regulated by the Civil Code and mortgage governed by other rules. Similarly both mortgages are governed by Peruvian law.
The fifth classification classifies the mortgage and mortgage registered mortgage hidden. The first being recorded in running public registers and the second runs not recorded. The latter is not regulated in Peruvian law.
There are other types of mortgage such as the judiciary and the unilateral, but are little known mortgage. In any case, we record the second one can be in Peruvian law, that is, by virtue of being a mortgage can not be observed unilateral (suspend registration) or delete (deny registration) submitted to the title registration requesting your registration. By noting that the observation could be corrected, while the defect can not be remedied.
3. RULES
The rules are Peruvian Peruvian Civil Code of 1984, the Peruvian Civil Code of 1993, the regulation and registration of land registration regulations and other rules governing the mortgage.
Under Spanish law, the rules are the Spanish Civil Code of 1889, the Spanish Mortgage Law, Civil Procedure Law and Regulation Mortgage mostly.
4. LEGAL STATUS
When studying a legal institution is necessary to determine their legal status to more serious studies on the legal institution studied.
In this regard the legal nature of legal institutions can be to be a contract or a property right or title value, or a guarantee or a legal entity, among others.
For example the buying and selling is a personal right to be a contract, the rights antichresis and possession are real, and the bill of exchange, check, promissory note and the bank certificate are securities.
The legal nature of the mortgage is to be a real right accessory that is an entitlement or who may have people on the property.
Therefore the standard applicable to the mortgage in the civil law and is also the book’s actual rights Peruvian Civil Code 1984.
However, not all authors agree to consider the legal nature.
Some authors consider that it is appropriate to determine the legal nature of legal institutions, as this is extremely theoretical and not applied.
5. MORTGAGE ON COMPARATIVE LAW
The mortgage is regulated by positive law in Peru, but it is necessary to determine whether it is regulated by positive law of other States.
External legal comparisons determined that in other states also are regulated the same.
For example, is regulated in Germany, Argentina, Spain, France, Italy, among other states.
But the Peruvian government is a guarantee that backs often with security, except regarding the privileges that detract from confidence to traders.
6. ACTORS IN THE MORTGAGE
Normally involved in the mortgage with the debtor (owner) and creditor.
But sometimes involving the debtor, creditor and a third who also owns the property.
However, at other times the mortgage is granted only by the owner, in which case is called unilateral mortgage.
7. WELL RELATED TO MORTGAGE
You need to determine which goods may fall on different security rights.
Some real rights is not imposed on any type of property in this sense only fall on the mortgage assets.
The well field is a property mortgage, but under Spanish law, the mortgage can also fall on property, in which case is called a chattel mortgage.
No related posts.
Related posts brought to you by Yet Another Related Posts Plugin.
