Citas bibligráficas
Lazo, D., (2022). La funcionalidad de derecho de retención sobre bienes muebles y la seguridad jurídica del adquiriente [Universidad Peruana de Las Américas]. http://repositorio.ulasamericas.edu.pe/handle/upa/2368
Lazo, D., La funcionalidad de derecho de retención sobre bienes muebles y la seguridad jurídica del adquiriente []. PE: Universidad Peruana de Las Américas; 2022. http://repositorio.ulasamericas.edu.pe/handle/upa/2368
@misc{renati/6023,
title = "La funcionalidad de derecho de retención sobre bienes muebles y la seguridad jurídica del adquiriente",
author = "Lazo Rojas, Dina Julia",
publisher = "Universidad Peruana de Las Américas",
year = "2022"
}
The interest of this work is to reaffirm the theories and importance of the Right of Retention that guarantees the functionality of the legal security towards the investment of the creditor on another's property where he is the immediate possessor, the legal act tells us that it is not necessary that a contract is in writing this can also be verbal. Since the fact is that nowadays in our country most citizens do not opt for a notarial contract when we lease a property, what matters is that there is a deal between both parties and the thing or other person is registered to debtor's name. But what do we mean by this rule? The Retention comes to make a rule that guarantees that the debtor agrees with the creditor through the possession of the thing. this is regulated in “Art. 1123 of the C.C. its function is expressed in whether, when the debtor of an obligation does not comply, the creditor may refuse to return the assets owned by the defaulter. retention is a way of pressuring the debtor to pay the debt that was obtained with him”. “The art. 1127 tells us that in the judicial and extrajudicial exercise of the right, the right of retention is exercised extrajudicially, refusing the delivery of the property until the obligation for which it is invoked is fulfilled. Judicially, as an exception that opposes the action aimed at obtaining the delivery of the property. There must be an asset or thing belonging to the debtor-owner in possession of the creditor. In this case, the law must verify that there is a relationship between the credit and the asset so that the retention can proceed. Before getting more involved in the issue, we must emphasize that There are two agreements that give similar rights to this standard. I consider that there is no problem for rights similar to retention to arise by agreement of the parties. First of all, let us imagine an agreement whereby the creditor accesses an asset whose owner authorizes him to retain (not return) until the obligation is paid. the treatment would only make sense in cases in which the assumption of the withholding rule is not met (for example, if it were the case that the withholding has not been legally authorized or when there is no link or relationship between the credit and the property), and as long as the deal does not become a pledge. Clearly, the right that arises from such an agreement would only be “similar“ to the withholding (but would not have the condition of withholding), since real rights are governed by a closed list and there can be no more real rights than those indicated in book v of civil code and other special laws (article 881 of the civil code). A model as a reference to be able to better understand the withholding is, for example, when there is a personal or patrimonial relationship that comes from making an obligation on the part of the debtor towards the creditor, in the civil retention: the legitimate pressure against the debtor improved between the debtor and the third party. , which makes the former feel obliged to obtain the restitution of the property in favor of the latter. Although the forms of conventional “withholding” that I have referred to are not real rights, it is clear that they are validly created and are enforceable by registration in the property registry. there are agreements that constitute limitations to the property right that can be registered in the registry, a registered right is opposable, even if it is not a real right. Now let's see the elements of retention. there are several figures of theories in their origin have similar characteristics this is because ratio juris exists identifies a point of origin for justice and legitimacy of its existence.
Este ítem está sujeto a una licencia Creative Commons Licencia Creative Commons