Chattel Mortgages

Summary: 1. Civil Code .- 2. Rights in rem .- 3. Personal Rights .- 4. Security interests .- 5. Mortgage .- 6. Legal nature of the mortgage .- 7. Legal delivery garment .- 8. Mortgage securities .- 9. Conclusions .- 10. Suggestions .- 11. Legislative proposal .- 12. Legislation consulted .- 13. Sources of information .-

1. CIVIL CODE

The Peruvian government has ruled that three civil codes are: Peruvian Civil Code of 1852, the Peruvian Civil Code 1936 and 1984 the Peruvian Civil Code which is in force.

For some authors in the Peruvian government have been more than three civil codes, which we record for a more detailed study of the topic under investigation, which is not accepted peacefully in doctrine, in that sense we can say that the majority doctrine outlined Peruvian state has had three civil codes and the last is in effect.

The Peruvian Civil Code of 1984 consists of ten books that are:

1) Right of the People.

2) Legal Act.

3) Family Law.

4) Law of Succession.

5) Property Law.

6) Obligations.

7) Sources of Obligations.

8) prescription and limitation.

9) Public Records.

10) Private International Law.

The book titled Real Rights V Peruvian Civil Code of 1984 governs the rights and the main real security interests.

Of these two kinds of property rights, the corresponding study are the security interests or rights in rem accessories, because the mortgage securities like the home mortgage is a security interest.

2. REAL PROPERTY RIGHTS

According to the Dictionary of the Spanish Language Royal Academy of Spanish real law is that people have about things. For example in Peru are real rights and property ownership are rights that people can acquire the assets, in this sense a person can own property right on land or on a vehicle. In the Peruvian land rights are classified by the Civil Code in major real rights and real rights or real rights accessories warranty.

3. PERSONAL RIGHTS

According to the Spanish Language Dictionary of the Royal Spanish Academy is a personal right which links together the subject and is not attributed to people about things. Personal rights, for example generate mutual contract and the contract of sale, in this sense a person can be forced against another person to cancel the purchase price for a vehicle. That is, in the purchase agreement are those who are related persons, may be related natural persons, legal persons and autonomous entities. They also may be natural persons and legal entities with individuals autonomous entities. For example a person may be required against another person to grant a deed. Another example of a personal right is the supply contract is defined by section 1604 as follows for the supply, the suministrante is obliged to execute on behalf of another person or continuing periodical payments for goods, ie the contract supply also generates personal rights. Generally all contracts generate personal rights.

4. Collateral right

Real rights are characterized fall on the property, ie, they are rights that can be subjects of property right, such a corporation can own a building or a house, or a mark or a patent or copyright, among other goods.

However, property rights are not only major real rights, real rights, but also accessories. Whereby a mortgage is the right accessory that can fall on real estate and personal property, but in the Peruvian law can only fall on property, unlike the Spanish law in which the mortgage may fall on furniture and buildings.

The security interests or rights in rem accessories regulated by the Peruvian Civil Code of 1984 are the mortgage, the antichresis, and the lien and are mainly primary real rights of ownership and possession.

In the Peruvian government with the current regulation and the mortgage is on real estate antichresis and liens on personal property and real estate.

However, in positive law abroad for example in the Spanish positive law rests mortgage movable and immovable property, so the mortgage can be real estate mortgage and chattel mortgage.

5. MORTGAGE

Of these three security interests that concerns us in this article is the real right of mortgage, which for some authors is a contract, which we disagree, because the mortgage is not a contract but is a security interest or real right accessory or guarantee.

When studying an important legal institution prior to his study to define it not to be confused with another legal institution, and that the studies are more accurate and not precise. It is also important to define the legal institution studied to ensure that investigations do not mislead those who take them into account for future research.

In the Dictionary of the Spanish language by the Spanish Royal Academy defines the right mortgage real property taxes or ships, subjecting them to answer for the performance of an obligation or payment of a debt, that is, according to the Dictionary Royal Spanish Academy is the right mortgage real estate levied and ships.

The Spanish Civil Code defines the mortgage on his 1876 article stating that the mortgage directly and immediately subject the property on which is imposed, regardless of its owner, the fulfillment of the obligation for whose security was established. This definition does not specify that the mortgage on real property lies only, so mortgage with that definition is applicable to the property.

The German Civil Code defines the mortgage in Article 1113 as a tax lien on a property by virtue of which those for whose benefit it provides may obtain certain sum of money to recover a claim recognized in their favor. In this definition the mortgage is on farms.

The French Civil Code defines the mortgage in Article 214 as the right real estate affects the performance of an obligation. This definition states that the mortgage is on property.

The Peruvian Civil Code of 1852 defined the mortgage as the tax is imposed on a property for another party, a credit or security of an obligation. This definition states that the mortgage is on property.

The Peruvian Civil Code of 1984 defines the mortgage stating that Article 1097 is affected by the real estate mortgage as security for the fulfillment of any obligation, own or a third party. This definition states that the mortgage is on property.

The Peruvian Civil Code of 1984 regulates the mortgage as a security that falls on property, for which the guarantee in question under the current regulations in the Peruvian government does not apply to property, but only applies to real estate.

6. LEGAL NATURE OF A MORTGAGE

When studying a legal institution, determine its legal nature, so that the studies are as accurate as possible, for example when studying the bill of exchange can determine that it is a security, when studying the letter confidence we can determine that it is a guarantee and when studying the sale we can determine that it is a contract.

In this regard must now determine the legal nature of the mortgage, which must specify that the legal nature of it is to be a security interest or real right accessory or guarantee.

It is important to determine the legal nature of the mortgage because some lawyers think it is a contract which is incorrect because, as said the mortgage is a security interest or real right accessory.

7. PLEDGE TO LEGAL DELIVERY

The original text of the 1984 Peruvian Civil Code regulating the legal delivery pledge, which is repealed from the year 2006 by the law of security interest.

Therefore, we will study below the guarantee, taking into account the same as the Peruvian legislative history and not current law, living or force, but as a right existing dead or not.

Peruvian law the garment was a security interest or real right accessory and clothing that there were three classes were: possessory pledge (articles on chairs, desks, shelves, closets, beds, clocks, etc), delivery garment legal (vehicular pledge, pledge of shares and pledge of shares) and pledge without displacement (garment and garment industrial agriculture, among others).

The garment at issue in this title is the legal delivery garment. The garment is a garment with vehicular legal delivery.

The pledge is a legal delivery security right to movables was registered in accordance with Article 1059 of the Peruvian Civil Code stating that it is understood legally delivered to the creditor when the property is held by the debtor. In the same article stated that the only appropriate legal delivery in movable registered. In the final part of the same article stated that in this case the pledge is only effective from the respective registration.

8. Chattel Mortgages

Mortgage In Spain also applies to some furniture, so the mortgage in Spain is two classes are: real estate mortgage and chattel mortgage. That is, in Spain can be mortgaged some property since 1954.

In the Peruvian government by tradition only mortgage on real property falls under the Peruvian Civil Code of 1852, the Peruvian Civil Code of 1936 and the Peruvian Civil Code 1984.

In the Peruvian state does not exist or chattel mortgage in any case the chattel mortgage pledge is called legal delivery. That is, in the Peruvian legal system there is no rule governing chattel mortgage, there is also no rule in the Peruvian legal system that refers to the chattel mortgage. That is, the chattel mortgage is not regulated in all states, for example if it is regulated in Spain and is not regulated by the Peruvian State.

In the Peruvian if approved mortgage chattel mortgage may be vehicles that the vehicles are registered in the Land Registry Vehicle. But if you can mortgage vehicles is no longer the garment may become legal on delivery vehicles. That is, the legislature can choose whether vehicles or mortgage may be legal pledge on delivery vehicles.

In this sense, if approved the change on mortgage securities may be some furniture that were on them garments legal delivery. That is, the chattel mortgage in some cases replace the item with legal delivery.

The change of the garment for delivery by chattel mortgage law has to do with changing the classification of goods for goods movable and immovable property registered and unregistered.

The chattel mortgage has the same form of execution that the home mortgage, ie the execution of the chattel mortgage is a judicial execution.

With the introduction of movable chattel mortgage will remain personal property and vehicles will continue to be vehicles, ie be sorted under another criterion guarantees that property is registered and unregistered property.

9. CONCLUSIONS

After having developed the mortgage securities subject to the following conclusions:

1) The chattel mortgage is a real right.

2) The chattel mortgage is a real right accessory or collateral right

3) The chattel mortgage is not governed by Peruvian law.

4) The chattel mortgage is governed by the Spanish positive law since 1954.

5) The mortgage is not a contract.

6) Many lawyers mistakenly believe that the mortgage is a contract.

7) The Peruvian positive law does not encourage the creation of mortgages, because the legislation is widely dispersed.

10. ADVICE

After having developed the topic of mortgage securities have made conclusions and suggestions in the following terms:

1) It is necessary to spread the benefits of the mortgage.

2) It is necessary to spread in the Peruvian government can not be the chattel mortgage.

11. LEGISLATIVE PROPOSAL

Having developed the theme and the mortgage securities have made conclusions and suggestions, formulate legislative proposals in the following terms:

1) It is necessary that the rules of the Peruvian Civil Code 1984 governing securities and other standards are grouped into a single standard, so that when we want to apply the guarantees we only have to study it. Which if it happens when we set up a company, or use a security, opportunities in which we apply general corporate law and securities law respectively.

12. CONSULTED LEGAL STANDARDS

For the preparation of this work have been consulted Peruvian norms of positive law and foreign, which are:

1) Peruvian Civil Code 1984.

2) Peruvian Civil Code 1936.

3) Peruvian Civil Code 1852.

4) Peruvian Security Interest Act 2006.

5) Spanish Civil Code of 1889.

6), 1896 German Civil Code in force since 1900.

7) French Civil Code of 1804, known as the Code Napoleon.

The record that all these rules are in force, except for the second and third, that is, all these rules are in force with the exception of the Peruvian Civil Code of 1936 and the Peruvian Civil Code of 1852 ..

13. SOURCES OF INFORMATION

For the preparation of this research work have been consulted not only books but also magazines, which in this part of the work can not be called literature, but sources of information.

1) SPANISH ROYAL ACADEMY. Dictionary of the Spanish Language. In CD.

2) TORRES Manrique, Fernando Jesus. Classification of goods in Peruvian positive law. In: Journal of Legal Rules.

3) TORRES Manrique, Fernando Jesus. Encoding. In: Journal of Legal Rules.

4) TORRES Manrique, Fernando Jesus. Warranties. Euro-American Editorial. Lima Peru. 2004.

5) MANRIQUE TORRES, Fernando Jesus. Commercial Warranties. In: Journal of Legal Rules.

6) VASQUEZ OLIVERA. Salvador. Civil Law Definitions. Editorial Edijsur. Arequipa.