EXAMEN DEL ARTÍCULO 178.5 RH: LA ESPECIAL CANCELACIÓN DE LA HIPOTECA GANANCIAL.

Abstract

Cancellation of a property registration entry through a juristic act of cancellation always requires the subject consenting to the cancellation to have the capability to act and the power of disposal, whereas cancellation has traditionally been regarded as being in the nature of an act of disposal. However, section 178 of the Mortgage Regulation establishes exceptions to this rule, because it permits individuals who have no such power of disposal or an incomplete power of disposal to cancel registration entries. Such an exception is made in the case of a mortgage taken under a community property regime and cancelled by only one of the spouses, even though the rule of joint management of community property demands that any acts of disposal be performed with the consent of both spouses (1377, Civil Code). This paper looks at why this exception is made, what its meaning is and what the historic and legislative evolution of the rule has been, so that it can be interpreted correctly today.