I. GENERAL
In law there are many lawyers who are considered as specialists in civil law, however, they do not know this issue in a broad way, but in a quite limited way, which we intend to modify at least in Peruvian law, in order to know these topics in a proper way.
These lawyers on some occasions work in entities of the financial system (and also in other companies) such as banks and others, with which the problem is aggravated by Peruvian law, which is not only made up of legislation, but also by other sources of the law, within which we can cite the doctrine.
That is, it has been noted that the aforementioned lawyers generate a series of problems in Peruvian law, because they prevent the normal and natural development of the last of those indicated.
It is necessary to specify that the mortgage on property is not the only case or hypothesis of mortgage, but that there are abundant cases that can be presented, which may even deserve the support of a Doctorate in Law thesis on this important legal issue.
In this sense, the lawyers mentioned should be eliminated from the market if they do not update their knowledge, with trends in Europe from a few decades ago.
However, to avoid problems, we consider that the code that regulates mortgages in Peruvian law, as is the case with the Peruvian civil code, should be modified in order to contain a more adequate regulation on mortgages. But it is clear that some book authors consider that this should not happen but that other sources of law should be used to solve the problems that arise.
II. MORTGAGE RIGHTS
Now we will take care of mentioning the mortgage rights, but with a not only Peruvian approach, but also comparative law, in order to allow a broader knowledge, following the trends of the indicated one.
It is necessary that this headquarters expressly determine the rights that can be mortgaged or, in other words, the mortgageable rights.
Which are of two types that are the following: real rights and personal rights. Among the first we must take into account the right of property, co-ownership, possession, usufruct, use, habitation, census, leasehold and mortgage, mainly. Within seconds we will cite the lease, option, leasing, mainly.
In the same public deed, different rights can be mortgaged, for example a use mortgage on ten properties, a usufruct mortgage on twenty properties, a joint-use mortgage on four properties, a lease mortgage on two properties and a property mortgage on twelve properties. Which is a complex assumption, but it can be even more complex, for example that the properties are located in twenty cities of ten countries, assumption that it is complex can be presented in social reality, which should be a stimulus for the development of the mortgage.
The assumptions can be more complex, therefore, we do not want to delve further into these issues that have been sufficiently explained in different venues, not only by us but also by other authors, not only national but also foreign.
III. SCHEME
To have a clear idea of the rights indicated in the previous numeral, that is, of the rights that can be mortgaged, we formulate the present scheme;
1) Real rights.
to. Main.
i. Property.
ii. Co-ownership.
iii. Possession.
iv. Co-possession
v. Usufruct.
saw. Cousufruct
vii. Use.
viii. Couso.
ix. Room.
x. Cohabitation.
xi. Census.
xii. Cocenso
xiii. Enfiteusis.
xiv. Coenfiteusis.
xv. Servitude.
xvi. Convenience.
xvii. Concession.
xviii. Co-concession.
xix. Surface.
xx. Cosurface.
xxi. Nuda property.
xxii. Conuda property.
xxiii. Timeshare.
xxiv. Common ownership.
b. Accessories.
i. Mortgage.
ii. Antichresis.
iii. Retention.
2) Personal rights.
to. Lease.
b. Option contract.
c. Leasing.
At this headquarters we do not consider the pledge or the security interest, because they fall on other types of property, that is, they do not fall on real estate. And in any case, the last of the indicated guarantees is recent in Peruvian law and its regulation dates only from 2006, its antecedent being the pledge. Another precedent for the security interest is a CIDIP that we have studied at another location.
In this scheme we can locate the property right, which has the highest number of mortgages constituted, therefore, the other mortgage assumptions have not been adequately developed in Peruvian law.
The aforementioned are not the only types of mortgage, but there are other assumptions, which have not been developed even in the most recent doctrine of the countries that have the most perfected law, therefore, we recommend reviewing the Italian doctrine on this real law studied, as is by the way the mortgage.
IV. MORTGAGE ON PROPERTY
Next we will study the mortgage on the property right for which we must understand what the last of those indicated is, in this sense, it is clear that we can define it as the maximum right on an asset, which can only be real estate, at least In Peruvian law, but in Spanish law, all of this may also apply to some personal property, for mortgage purposes.
According to part of the Spanish doctrine, real rights are classified as follows: 1) real rights over their own assets, among which are the property rights and the co-ownership rights, and 2) real rights over the property of others, within which we can cite the case of use, usufruct, room, mortgage, among many others, that is, this type of classification has not motivated studies by writers, nor publications, but this up to where reaches the information to which we have had access.
Whoever holds the property right is the owner of the property, which in many cases reaches registration protection or, in other words, the property runs unregistered or in simple words or terms the registered property runs.
Therefore, we can affirm that this type or class of mortgage is the best known, not only in Peruvian law, but also in foreign law, of which we record to be able to investigate this issue in a broader way.
If a property is mortgaged without specifying which right is being mortgaged, it is clear that the property right is mortgaged, therefore, a user or usufructuary cannot mortgage this right, but only the owner can mortgage his right that falls on the property.
Many lawyers consider that the mortgage on property law is the only assumption of the first of those indicated, with which we do not agree, following the trend of French and Spanish law, that is, in these legal systems studying these issues, is totally normal and habitual in the study of law, however, in Peruvian law the opposite occurs, therefore, this topic is appropriate to do comparative law, between the mortgage in the countries mentioned, in order to better understand the law world and in this way find similarities and similarities, which make it easier to polish the rough edges of Peruvian law.
For example, a user can only mortgage the use, a usufructuary can only mortgage the usufruct, among many other cases, which should be the subject of study in another location in a broader way in order to know the present subject in a more detailed way.
It is very likely that many lawyers do not even know this topic or, in other words, sub-topic, against which we must be concerned, and in this vein we must specify that all lawyers must know at least the present topic.
V. CO-OWNED MORTGAGE
When we study the maximum right over property, we are dealing with property rights, however, in some cases it is not only owned by an economic agent, but there are several of those indicated, and in this case it is normal to speak of percentages of participation on the assets, which are not always the same between the different co-owners, but this may vary, since one co-owner can be the owner of 10 percent of the property, while the second of 40 percent of it, and the third and last 50 percent on the referred, among many other assumptions.
The right of co-ownership can also be subject to a mortgage and in this sense, we must state that in Peruvian law few lawyers know of this detail which is very useful in order to properly study the guarantees.
Which brings as a consequence that if there is a state of co-ownership, it is clear and evident that any of the co-owners can mortgage their existing percentage in the real estate, which must be taken into account above all by public registrars and judges, to effect of not hindering investments.
At the time of the auction, it must be borne in mind that only the percentage corresponding to the delinquent debtor or the guarantor of the indicated is auctioned, which turns out to be a matter of vital importance in the study of the right of guarantees, however, it has been very neglected, which worries us.
Judges cannot auction assets automatically, but must take into account the doctrine, which contains important approaches to this issue.
SAW. MORTGAGE ON POSSESSION
Now we will deal with the mortgage on possession, which is an issue that has not been developed by Peruvian doctrine, however, it can be constituted for which as the first part we must understand the definition of the real right of possession.
The present one tries to cover the existent void in the Peruvian civil law, which we explain for an adequate understanding of the present subject. In other words, it is a subject that has not been covered much, even in the most recent Peruvian doctrine.
Which in the Peruvian civil code of 1984 is defined as the de facto exercise of one or more powers inherent to property. That is to say, this right, as is certainly the right of possession, has less scope than the right of property and it must be understood that it is not the same as use, usufruct, nor the same as the right of habitation.
When the right of possession is mortgaged, the property right is not affected but in this case only the possession is being mortgaged, which in the Peruvian codified civil law reaches adequate development, but which many lawyers and law students are unaware of.
The mortgage on possession can be constituted by the owner of said right or his representative, that is, to understand the mortgage, the representation must be understood, in which the assumptions are the power and the mandate, mainly, what we explain in order to know the present topic from an applicative or practical point of view or perspective.
The mortgage on possession can not only be constituted by natural persons, but also by legal persons, companies, corporations and autonomous entities, which must be understood from an interdisciplinary point of view, because not only real rights must be taken into account, but also contracts and the legal act, which are fairly well-known topics in Peruvian law, and especially in Peruvian civil law, since those previously indicated are part of the latter.
In other words, this subject must also be known and mastered by corporate lawyers, and those dedicated to business, which we leave on the record to take greater care of the area of knowledge of this economic legal issue.
If a lawyer knows this issue, it is clear and evident that he is up to date with the latest developments in law, which in some other countries achieved development previously.
VII. MORTGAGE ON THE USUFRUCT
In this headquarters we will develop the mortgage on the usufruct, which is an important issue in the study of the law that we are passionate about, therefore, we hope that it is to everyone's liking, in this sense, we consider that it can be quite useful for scholars of the right.
We consider that an important topic or sub-topic in the study of the proposed topic would be the definition of the usufruct, therefore, we will first define it, for which, we will resort to article 999 of the Peruvian civil code of 1984, which establishes that the usufruct confers the faculties to use and temporarily enjoy someone else's good. Certain rights and utilities may be excluded from the usufruct. The usufruct may fall on all kinds of non-consumable goods, except as provided in articles 1018 to 1020.
That is, the usufruct is a real right that is regulated as such by the aforementioned substantive code, which we need in order to better understand the present issue.
This real right can be mortgaged by the owner of said right and in the event that said right is mortgaged by the owner of the property right, he must specify that he is not mortgaging the property right but only the usufruct right.
That is, it may be that property and usufruct rights concur over the same asset, which fall on different people, and it must be taken into account that the property right not only empowers to mortgage it, but can also mortgage the right of usufruct among other real rights, that is, leaving the remaining rights of the owner of the property right unaffected.
The usufruct mortgage can be constituted by the holder of said usufruct right, or through a representative with sufficient powers or obligations for said purpose, and in this order of ideas it may be constituted by a legal person, intestate succession, natural person, company, corporation, autonomous entity, among others.
In this case, we can affirm that those who celebrate the act studied, such as the usufruct mortgage, are not only natural persons, but that we may be faced with other assumptions.
The right of usufruct is not a contract, nor is it a personal right, however, we must specify that these last legal terms are or constitute the same, that is, personal law and contract, are exactly the same.
For us, if the usufructuary does not comply with paying the debt, the real usufruct right can be auctioned, with which the successful bidder will obtain with the auction only the indicated right, but not the property right, of which we leave evidence for a study and more adequate understanding of the present topic.
VIII. MORTGAGE ON USE
Now we will study or, in other words, we will develop the use mortgage, which constitutes a subject of vital importance in the study of law, which must be studied according to new trends in law, in which a series can be constituted rights, as long as the law allows it and / or they are not prohibited by it, since no one is prohibited from doing what the law does not prohibit.
When we study the use, we must state that we are not dealing with a personal right or contract, but that it is a real right by which the owner of this right has the right to use or use a non-consumable good and is governed by the usufruct provisions, insofar as they are applicable, but this according to the rules of the Peruvian civil code of 1984.
That is, in this case it seems that the owner of the property right is different from the owner of the right of use, therefore, if primus is the owner of the property right, then secundus may be the owner of the right of use, However, this does not always happen, but the owner of the property right may only mortgage the right of use in favor of tercius, and not other rights or attributes of the right that he has over the property, such as the property right.
It may even be that the mortgage is constituted by a representative, who must be invested with the necessary powers granted by the owner of the right of use or by the owner of the property right, who is also the owner of the right of use, which can be complex to understand in theory, but it is important in practice, which we explain in order to have a complete and clear idea of the subject matter of study.
The use mortgage can also be constituted by legal persons and by intestate successions, of which we leave evidence for a more adequate study of this subject.
If the debtor does not comply with paying the debt, the mortgage is executed or, in more technical words, it is carried out, because the non-compliance enables the guarantees to be made, when they exist. In this case we must specify that the successful tenderer only acquires the right of use and not the property right.
The use and the usufruct are quite confused in the study of the law, however, the Peruvian legislator has known how to differentiate them with which it is clear that it clarifies the panorama, and in this sense we can affirm that reading even the Peruvian codified civil law it is clear that you can understand this important topic.
IX. MORTGAGE ON ROOM
Now we are before the right of habitation, which is a matter of regulation in the Peruvian civil code of 1984, which in its article 1027 establishes that when the right of use falls on a house or part of it to serve as a dwelling, it is considered constituted the right of habitation.
Therefore, we can affirm that this right not only falls on rooms, but also on houses and apartments, among many other cases.
In this sense, this type or class or variety of mortgage is little used in Peruvian law, which should be a matter of study in a broader way in order to determine its characteristics since now we only want to offer a panoramic approach and not in detailed form, since this requires more time and knowledge.
This type of mortgage can also be constituted in business law and in corporate law, which are areas of knowledge, which part of the doctrine calls them branches of law.
X. MORTGAGE ON CENSUS
In current Peruvian law, the real census law is not regulated, however, in Spanish law the opposite occurs, as established from article 1604 of the Spanish civil code of 1889, which even refers to three types or classes special census, which are defined in article 1605 to 1607, that is, the census in Spanish law is studied as real law, which we want to specify so that this work is not only studied in Peruvian law, but it can also be applied to foreign law and comparative law, so that adequate information can be accessed in the study of law.
Article 1,604 establishes that the census is constituted when some real estate is subject to the payment of a canon or annual income in return for a capital that is received in money, or full or less full ownership that is transmitted of the same assets.
For its part, article 1,605 specifies that the census is taxable when one person gives another the useful domain of a farm, reserving the direct and the right to receive from the emphyteuta an annual pension in recognition of this same domain.
On the other hand, article 1,606 indicates that the census is consignive, when the census taker imposes on a property of his property the lien of the canon or pension that he is obliged to pay the census taker for the capital that he receives from him in money.
In addition, article 1,607 establishes that the census is reserved, when one person assigns full ownership of a property to another, reserving the right to receive an annual pension on the same property that must be paid by the census taker. "
That is to say, in Spanish law it is normal to study these issues, such as the classes or varieties of the census, and it is even possible to mortgage this real right as is the census.
In this case, if the census right is auctioned, it is clear and evident that the successful tenderer only acquires this right and not another, which should be the subject of analysis, taking Spanish law as a reference.
The civil code of Chile regulates this real right in the terms indicated below, in such a way that comparative law can be made, not only between Peruvian and Spanish law, but also with Chilean law, which we leave on the record for a more adequate study of the present subject.
Article 2022 specifies that a census is constituted when a person contracts the obligation to pay another an annual income, recognizing the corresponding capital, and taxing his property with the responsibility of the income and capital. In its second paragraph it indicates that this revenue is called a census or canon; the person who owes you, a censor, and its creditor, a census taker.
In addition, Article 2027 specifies that the constitution of a census must always be recorded by public deed registered in the competent Registry; and without this requirement it will not be valid as a census constitution; but the person obliged to pay the pension will be in the terms of the will or contract, and the obligation will be personal.
That is, on the census right, its holder can constitute a mortgage, in order to guarantee compliance with the credit, this term being little known in Peruvian law, however, in the economy it reaches greater development, and in this sense, it is clear that the law is united with the aforementioned, or in other words the economy is a source of the law, or in other words it is a part or element or component of the indicated.
Next we will review the articles referring to the census of the civil code of Puerto Rico, in order to allow comparative law studies, which will allow us to determine similarities and differences in the aforementioned, for which we state that, if we take said legal discipline as a reference in Some legal systems tend to regulate it, which should encourage their studies.
Article 1496 specifies that the census is constituted when some real estate is subject to the payment of a canon or annual income in return for a capital that is received in money, or full or less full ownership that is transmitted of the same assets.
On the other hand, article 1497 establishes that the census is leasehold when one person gives another the useful domain of a property, reserving the direct and the right to receive from the emphyteuta an annual pension in recognition of this same domain.
In addition, article 1498 indicates that the census is consignive when the census taker imposes on a property of his property the lien of the canon or pension that he is obliged to pay the census taker for the capital that he receives in money.
Article 1499 specifies that the census is reserved when one person assigns full ownership of a property to another, reserving the right to receive an annual pension on the same property that must be paid by the census taker.
That is, in the civil code of Puerto Rico the census finds legislative consecration, which does not happen with the Peruvian civil code of 1984, for those who like comparative law, which is a legal discipline that studies and regulates legal institutions of the itself, among which some are the migration of law, export and import of law, receipt of law, comparison of rights, among others.
That is to say, in order to understand this issue as the census mortgage is, by the way, we must first study the last of those indicated, which leads us to foreign law and of course to comparative law, which is a very important legal discipline, which it is not limited to the study of comparisons, but also to other legal institutions.
Now we will refer to the census right in Peruvian law, in this sense, we must specify that it is a real right, therefore, we must take into account that they are numerus clausus, that is, only those created by law, which it prevails even over the autonomy of the will.
In this sense, on property located in the Peruvian Republic, this right cannot be established, but only those regulated in Peruvian positive law, within which we must take into account the Peruvian civil code of 1984.
And to clarify the panorama in this matter we must record that the control so that censuses are not constituted regarding assets located in the Peruvian republic are the notaries public and of course also the public registrars.
The first of those indicated in many cases are reluctant to carry out the notarial qualification, therefore, we consider that over time, this resistance will no longer exist, because incentives can be created for it, as it is by the way that it is established that the service of qualification, notaries public may charge fees, which does not occur, at least to our knowledge, in Peruvian law.
The second of those mentioned normally carry out the registration qualification, which is known in a fairly simple way, as a legality check, however, it implies knowledge not only of legislation, but also of other sources of law, within which We can cite the case of jurisprudence, enforceable, custom, general principles of law, specific principles of law, social reality and manifestation of will, mainly.
XI. MORTGAGE ON ENFITEUSIS
Now we will study the emphyteusis mortgage, which is a real right that does not find regulation in the Peruvian civil code of 1984, therefore, we must review foreign law, in order to know this issue in a more adequate way.
Emphyteusis is not regulated in current Peruvian law, however, in some foreign rights the opposite occurs, therefore, to have a broader perspective, this real right should be studied in order to be able to make law compared to Peruvian law with foreign law. This real law is little known and little studied, especially in Peruvian law, in this sense, its study is adequate. The real law studied is exactly the same as the emphyteutical census, therefore, we ignore additional comments. Because we have studied it at the time of studying the census, which is of three kinds, according to the trend in comparative law, with respect to legal orders in which it finds legislative consecration.
We must specify that it is necessary for emphytheusis to be regulated in the aforementioned civil code because it would favorably increase the legal catalog of real rights, with which the market tends to grow, thereby encouraging investments, in a country in which they are quite necessary, since there is unemployment and underemployment, which not only constitute legal problems, but also social problems, and directly affect millions of people living in the Peruvian state, which would improve their access to the market if the emphyteusis would be regulated and in addition the indicated real right could be mortgaged.
The real law studied in some foreign rights exists, therefore, we must specify in this headquarters whether or not it can be subject to a mortgage, in this sense, the answer is affirmative, since all types or classes or varieties of censuses can be mortgaged.
When the debtor does not pay the debt, the creditor can request the completion of the census, and the successful tenderer only acquires the emphatic census, but not the property right, which does occur in the case of the property right mortgage.
This type of adjudication is little known in Peruvian law, therefore, we must go to foreign law, the best known being European law, within which is Spanish law, whose civil code dates from 1889.
XII. MORTGAGE MORTGAGE
Now we will study an important issue in the study of the law of guarantees, which has deserved few studies, in this sense, we want to bring up this issue, to take into account issues of Peruvian civil law, which should be a matter of study in the form quite precise and not get caught up in quotes from other authors, which are nothing more than copies of other authors, which in comparative doctrine is known as reception of doctrine as doctrine, which results in the need to study the law very carefully In order to provide economic agents with the necessary solutions in an environment in which almost all the authors consider that Peruvian legislation is not adequate, and even argue that a new civil code should be approved in the Peruvian state, and others consider that an amendment law must be passed,That is, the doctrine has not been agreed, and some even argue that legislative modifications should not be made but positive law should be interpreted creatively, for example, the French civil code has been in force for more than 200 years, which which shows that in French law this code has not been replaced, but that the problems have been solved through creative interpretations in a medium in which hermeneutics is considered every day as a more important legal discipline.which shows that in French law this code has not been replaced, but rather that the problems have been solved through creative interpretations in a medium in which hermeneutics is considered every day as a more important legal discipline.which shows that in French law this code has not been replaced, but rather that the problems have been solved through creative interpretations in a medium in which hermeneutics is considered every day as a more important legal discipline.
In Peruvian law, the mortgage can be mortgaged, which is little known in the indicated legal system. Therefore, it constitutes a subject of vital importance in the study of Peruvian civil law, in this sense, it is not limited to the study of the civil code, since the latter is only a part of the first, and lawyers must be distinguished from legal experts..
This mortgage is established by the mortgage creditors, and in the event of non-compliance with the obligation, the auction is carried out proceeding to the award of the mortgage, but not of the property right.
We recommend that this type of guarantee be used, after studying its advantages and disadvantages, in order to make the best decision.
In any case, its efficiency (or capacity to guarantee) is less than the mortgage on the property right, and in this sense, if it is auctioned, only the real mortgage right is acquired, therefore, some people are of the criteria that they must both mortgages are auctioned at the same time, but with summons from all those interested in both mortgages and in this sense we must state that the scholars have not agreed. In this vein, some maintain that each mortgage is foreclosed separately, because the first mortgage expires first and after the award, the second mortgage only expires, but others maintain that the two mortgages must be foreclosed at the same time, in strict application of the procedural principle of procedural economy. What we record,In order to take into account that the mortgage is not a simple matter, but the opposite happens.
That is to say, this subject is complex and we have not had any books in sight that develop it adequately.
Law studies simple and complex issues, the present being one of the second, however, for those who have seen this type of act in practice, it is a bit easy to understand.
We recommend its study taking into account registry jurisprudence, however, after the search carried out we have not found any on the subject matter of study, therefore, we must go to other elements of law, within which we can cite the case of law foreigner, acquiring special importance Spanish law, due to its proximity.
As we said, the secondary real right of mortgage does not guarantee as much as the main real property right, therefore, registrars, judges, notaries, among others, must know these issues. In order to interpret the law correctly, which must be carried out by people who know these issues adequately.
The right offers a series of advantages to the economy, in this sense, this type of guarantees must be taken into account by the entities of the financial system in order to take advantage of the mortgages in which they act as creditors, to be able to constitute on the indicated other guarantees of this type, which is a recordable act different from the assignment of mortgage, asset securitization and sale of portfolios. And in this sense, all those indicated constitute outlets provided by the right to solve problems that arise in social reality.
Therefore, we hope that this topic will be to everyone's liking, with which it can be achieved or obtained adequate dissemination in a medium in which specialized information is very limited, even in the case of topics that are apparently known, as it would be for true the case of mortgage mortgage.
XIII. OTHER CLASSES OF MORTGAGE
Now we will group other mortgage cases, which will notably increase our knowledge about this real right, which is enshrined in Peruvian law, and has deserved few publications, and even worse about those studied in this paragraph.
We must specify that we have studied some types of mortgage, therefore, it is obvious that there are other classes than the one indicated, within which we can mention the following: mortgage mortgage mortgage, antichresis mortgage, mortgage mortgage mortgage, Indefinitely Mortgage Mortgage, Active Easement Mortgage, Concession Mortgage, Bare Property Mortgage, Timeshare Mortgage, Lien Mortgage, Co-Use Mortgage, Cousufruct Mortgage, Co-habitation Mortgage, Co-Serv Mortgage, Co-Concession Mortgage, leasing mortgage, lease mortgage, option contract mortgage, among many other cases.
XIV. MORTGAGE IN COMPLEX CASES
In this numeral we will list the alleged mortgage complexes, which are little known in Peruvian law, but have reached dissemination in French and Spanish law.
There are also some mortgage assumptions which can be known as complex assumptions, within which we can point out the following: usufruct lien mortgage, mortgage usufruct mortgage, mortgage use mortgage, cohabitation mortgage mortgage, mortgage easement mortgage, mortgage mortgage room mortgage, mortgage mortgage co-use mortgage, mortgage leasing mortgage, mortgage mortgage leasing mortgage, among many other assumptions that may arise, that is, the These are not the only cases, but there are others.
XV. EVENTS IN WHICH MORTGAGE CANNOT BE CONSTITUTED
The list that follows is about the cases in which a mortgage cannot be constituted, because nobody gives what they don't have, which is the translation denemo plus iura.
Some cases in which a mortgage cannot be constituted are the following: mortgage for use property, mortgage for joint ownership, mortgage for concession property, mortgage for joint ownership, mortgage for joint ownership of joint ownership, mortgage for joint ownership of easement, mortgage of property rights of use leasing, among many other assumptions that may arise not only in social reality, but also by putting our intelligence into operation.
XVI. CONCLUSIONS
After having briefly developed the mortgage rights, we present conclusions, which we hope will contribute to the development of this issue within Peruvian law, which are the following:
I) There is not only one mortgageable right, but there are several mortgageable rights.
II) The right to real estate is only one of the various rights that can be mortgaged, which should be referred to or more properly known as "mortgable rights".
III) Mortgage rights is an issue that has been neglected within Peruvian law, within which the normative conception of law is accepted by many lawyers, which has generated a series of problems in the application and study of law.
IV) Mortgable rights in Peruvian law are the following: property, joint ownership, possession, joint ownership, use, joint use, usufruct, joint ownership, concession, joint concession, habitation, joint housing, lease, joint lease, financial lease, joint lease, option contract, co-option contract, mortgage, co-mortgage, antichresis, coanticresis, right of retention, right of retention, mainly. That is to say, we must clearly establish that these aforementioned assumptions constitute only one or some of the many real estate mortgage assumptions in Peruvian law which are known as mortgageable rights. Those that are well studied and known within French and Spanish law.
V) In Peruvian law almost all mortgages are constituted on real estate, that is, the mortgage to which we refer is the “real estate mortgage”, therefore, almost no mortgages are constituted on other rights, which It seriously threatens the market, and within it we want to refer to the mortgage market, which constitutes a market little studied, which threatens the Peruvian commercial traffic.
VI) We consider it convenient for this article to be disseminated to improve the stock market, that is, we are referring to asset securitization, within which mortgage securitization is located. And this especially within Peruvian law, in which it is necessary to opt for adequate solutions to improve the Peruvian economy. And we must point out that the doctrine within Peruvian economic law is underdeveloped, which has led to it even being confused with business law or business law or company law, which has been causing a series of legal problems. Peruvian. And we must also state that the law is only a part or source of the law, since there are others, within which we can cite the case of jurisprudence, doctrine, principles, enforceable,social reality, manifestation of will, among others.
VII) It is necessary to develop the mortgage in Peruvian law, not only in the right of ownership and co-ownership, but also on other rights, which will allow, facilitate, encourage and improve the increase or growth of credit in the Peruvian Republic, the which constitutes a subject or legal, economic, sociological and political institution, which is neglected within Peruvian law, which is the cause of many economic problems.
VIII) The greater the number of loans granted, as well as higher amounts than those indicated, companies (not only banks, but also other companies) tend to growth, within which the mortgage and other guarantees play a very important role. However, the latter constitute only one of the factors that are taken into account when granting credits, since there are also other factors, which must be taken into account when qualifying credit applications, within which we can mention the payment capacity, credit history, liquidity of the person requesting the loan, contracted debts, among many other factors, which must be developed within another headquarters in which the subject is "Credit"..
SUMMARY
This article deals with mortgage rights, which constitutes an issue that has been little taken into account within Peruvian law, but has reached adequate development in Spanish and French doctrine, which is published so that it may bear fruit in the sources of Peruvian law and in this way the commercial traffic is improved, since not only can a real estate be mortgaged, in which case a real property right is mortgaged, but other less full rights can also be mortgaged, within of which we can cite the case of the right of lease, use, usufruct, concession, bare property, habitation, possession, among many others.
KEYWORDS:
Mortgage, mortgage rights.
Regarding property rights, most mortgages have been constituted, at least in Peruvian law.
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