The in-rem right of comiso and the issues with the «new law» of Catalonia: a comment to the DGRN Resolution of 29 August 2019

Abstract

The RDGRN Resolution of 29 August 2019 established that the provisions of the Civil Code of Catalonia do not apply to a “condition subsequent” securing the deferred price in a sale-and-purchase agreement, despite the assets sold being located in Granollers. The DGRN declared its competence over the challenge to the Registrar’s refusal to record the right, and it ruled that, since the “condition subsequent” is not an in rem right, article 10.5 of the Civil Code applies. Therefore, so does Spanish common law, which the parties had chosen to govern the sale-and-purchase agreement. In this paper, I discuss the aforementioned DGRN Resolution, and I sustain that the so-called «condition subsequent» is actually an in rem right in re aliena, which is emphasized in the case at hand because of the agreements by the parties. This analysis shall lead us to a conclusion that is similar in its effects to that reached by the DGRN, but on completely different merits.