Citas bibligráficas
Chávez, A., (2014). Principales características del sistema jurídico legal actual de transmisión de la propiedad inmueble a título oneroso en el Perú [Tesis, Universidad Privada del Norte]. https://hdl.handle.net/11537/188
Chávez, A., Principales características del sistema jurídico legal actual de transmisión de la propiedad inmueble a título oneroso en el Perú [Tesis]. PE: Universidad Privada del Norte; 2014. https://hdl.handle.net/11537/188
@misc{renati/509048,
title = "Principales características del sistema jurídico legal actual de transmisión de la propiedad inmueble a título oneroso en el Perú",
author = "Chávez Castro, Abel Omar",
publisher = "Universidad Privada del Norte",
year = "2014"
}
ASBTRACT Article 949 of the Civil Code provides that the ownership of real property is transferred by the mere obligation to dispose of, which should be correctly interpreted as a single contract. In fact, according to that article, legitimately expressed will suffice to accomplish the transfer of real property law. According to our legislative basis and authoritative view of authors, Peruvian law has adopted the principle consensual transmission of real property, of French origin. Under the consensual system, also called spiritual, the only voluntary agreement constitutes the title and means sufficient to accomplish the transfer of the right. However consensual transmission system of real property, the existence of a legal solution to the concurrence of creditors that confers a “better right“ real to anyone who can enroll, call into question the effectiveness of the principle full Consensual. Francesco Messineo has repeatedly stated that the contract signed, is valid but not effective because it is not effective against third potential purchasers of the same good. For Manuel de la Puente y Lavalle, the contract signed is ineffective since we can not prove its existence, validity and date of subscription. The ineffectiveness of proof of consent, legal solution caused by the concurrence of creditors under Article 1135 of the Civil Code, together with the regulation of early registration and enforceability priority registration, provided for in Article 2026 ° and 2022 ° of Civil Code, respectively, allows the fact that our system of transferring of real property for a consideration not only consensual. As we have explained Gunther authors Gonzales Barron, Eugenio Ramirez cross, and among others, Professor Manuel Miranda Canales, the existence of a regulation that gives preference to the creditor that part right, shows that our system has undergone a mutation, leaving to be spiritual only to become a system “ambiguous“, in which the property can be transferred in two ways, the contract and registration as exceptionally. In this regard, the deed transferring the registration has become a method of making necessary by the purchaser, in order to make it effective against third parties. Otherwise, you must assume the risk of loss of the right by the registration of a subsequent transfer of the same property. Given the level of ineffectiveness of a contract Purchase of property not entered in the Register, motivated by Articles 1135 °, 2016 ° and 2022 of the Civil Code, it appears impossible to regulate a system of transferring of real property only consensual. Indeed, taking into account the increase in the circulation of real estate, and the large number of double and consistent sales scams that are generated for the author Eugenio Ramirez Cruz, consensual system has “failed“ and turns to “dangerous“ for a society like ours. In fact, the legal solution to the concurrence of creditors largely gives legal certainty to purchasers who register their right, but also creates legal uncertainty for purchasers who do not. Moreover if we take into account that buyers do not register their right basically for three reasons: (i) Lack of proper cadastral registration system. (Ii) Lack of registration usual. (Ii) Lack of financial means or access to the registry. And (iv) the failure to register only for not being forced to. Consequently, it is indispensable to regulate minimum forms diligent contractors must observe. Indeed, it is always needed a way to prove the existence of the contract, its validity, its contents and the date of the meeting, which becomes more important when there are cases of concurrence of creditors on the same property. Situation which raises the need to regulate the registration of the contract of sale, at least, as a formality ad probationem.
Este ítem está sujeto a una licencia Creative Commons Licencia Creative Commons