The Principle of Constitutive and Convalidating Registration. An Approach from Dominican and Spanish Registration Law

Abstract

The aim of this study is to underscore the relevance, within the Registration Systems, of the Registry of Rights, from the perspective of the Registration Systems of both the Dominican Republic and Spain, reflecting on it from a comparative standpoint. The idea behind the paper is to engage in a reflective exercise whereby the principle of constitutive and convalidating registration akin to the Dominican Torrens System will be contrasted with the registration provided for under the Spanish Mortgage Act, which in principle is non-constitutive and non-convalidating. We shall come across other principles throughout the paper: rogatory principle, voluntary and compulsory registration principles, legitimation principle or public faith principle, all of which are closely linked to the constitutive registration principle and the convalidating principle. Against this backdrop, we shall address a series of issues and reach various conclusions: is there room for the alignment of both systems, on the basis that despite their different underpinnings, the effects that both systems have on the course of trade might not be as opposed as one might think at first?; is the Dominican system really a constitutive registration system, as provided for by law?; ¿is it always convalidating?; and vice versa: while the Spanish system is not convalidating, is it nonetheless aligned with the Dominican system as far as its effects are concerned in view of the public faith principle —which also applies in the Dominican system— that applies alongside the legitimation principle?; do both systems operate Registries of Rights?; are they constitutive, understanding by such something more than could traditionally be understood by constitutive?