Possession, traditio and registration(II)

Abstract

Traditio, in a modern State, does not consist so much in the delivery of possession as in the transfer of jus disponendi, which will transmit possession if the transferred right entails it. Traditio, as a dispositive legal transaction, only produces inter partes effect. In order to produce inter tertio effect, the trade must be entitled to the ius disponendi and have the capacity to dispose of it. The Civil Code does not contain any mechanism for identifying the holder of ius disponendi. To this end, it refers to the Mortgage Law and this, in order to achieve this objective, modifies the system of transfer of   title and mode of article 609 of the Civil Code and introduces the system of registry transfer - article 34 of the Mortgage Law - which follows the same logic as articles 545 of the Commercial Code. 12 and 119 of the Exchange and Check Law–, 11.3 of the Securities Market Law – and especially, that article 85 of the Commercial Code, which configure transfer systems based on the security of legal traffic. Registration in the Land Registry makes the traditio by contract dispensable as a separate procedure, but the current system is preferable because it allows greater flexibility in the protection of titles, without incurring in irregularity, unlike what happens in the BGB.