Influence of the mortgage law on the theory of the title and the mode in the acquisition of real rights

Abstract

The Mortgage legislation, since the mortgage law of 1861, whose 160th anniversary we celebrate, decisively influenced the modification of the civil theory of title and the way in which real rights were acquired. The Civil Code of 1889 itself incorporated its principles, not only by collecting express references to it, but also by regulating institutions such as double sale, attributing the property to the one who first registered it in the Property Registry. Mortgage legislation is thus not special or exceptional legislation, but is part of the general civil system for the acquisition of property and other real rights. And it is not merely a legislation of third parties but also and above all of protection of the acquirer, therefore also of parties. The stubbornness of the public deed is not true in this sense, because even though it is a formal channel for registration, it is this that produces the enforceability of the content of the real law, the deed being subject to the secrecy of the notarial protocol.