CONTORNOS DE LA EJECUCIÓN DE LAS GARANTÍAS PATRIMONIALES EN EL DERECHO ARGENTINO.

Abstract

According to the historical evolution we have been tracing here, the understanding is that the type of collateral that is subject to automatic liquidation has its indirect forebear in German law's pure foreclosure, later passed on to French law, which featured pure foreclosure on property without prior trial. This is in counterpoint to South-American procedural law, which was influenced by Spanish law, which was in turn impregnated with the Roman system, which gave priority to the borrower's right to defence through trial. Indeed, since the main characteristic of such collateral is the lender's «private prosecution» of the surety, Roman law (which granted the borrower the possibility of defending himself in court before foreclosure) has not had an influence on its gestation. On the contrary, collateral subject to automatic liquidation is tied to the idea of pure foreclosure without prior trial, bilateralness or litigation; the court has no part to play until and unless the borrower files suit, which generally happens after foreclosure. However, despite the realities of procedural law, automatically forecloseable collateral was (and is) a good response to the problem of the increasing dearness of credit. If the exercise of the borrower's right to defence is relegated to a broad hearing generally held after foreclosure, there will be no long waits before the lender can collect what is due, and the outcome of foreclosure will not be «eaten up» by court expenses. This way, lenders will be strongly motivated to invest their economic resources, because they will have guarantees ensuring quick, less-costly reimbursement by borrowers. These circumstances were what probably lay behind the birth of the idea of collateral subject to automatic foreclosure. Nevertheless, on the other side of the mirror stands its evil doppelganger, the abusive or fraudulent use of automatic foreclosure writs. Their existence made it needful to design legal instruments to prevent misuse. Such is the case of the constitutional acknowledgement of the right of the borrower or surety to object to abusive or fraudulent foreclosure by petitioning a court for precautionary measures in automatic collateral liquidation. Thus, the exercise of the borrower's right of defence, envisaged in theory in the National Constitution, is acknowledged in practice.