Anthology

Foreword

To speak of the Critical Review of Real Estate Law is to speak of the golden age of studies of Real Estate and Registration Law. Its appearance, however, was due to a necessity. It was about provoking the reaction of the legal world against the lack of penetration of the existing mortgage system in the conceptual framework of Spanish society. This was clearly expressed in the Presentation of its first issue, with the title —a real declaration of intentions— “Our program”. The Spanish mortgage system “crawls”, he literally said, “waiting for new energies that, subjecting legislation, jurisprudence and doctrine to the poignant analysis of an impartial critic, advance along the path of compulsory registration”. The fault of this situation was, according to said text, the deficient and inadequate legislative measures for mortgage development; of the executive branch, “more concerned with political action than with legal progress”; and the abandonment of real estate studies in Academies and Universities. Nor did jurisprudence come out unscathed from the trial, then still “clinging to the old molds of law.”

The birth of the Critical Review of Real Estate Law is inseparable from the deficient application reality of the Spanish Mortgage Law of 1861 more than forty years after its promulgation. This Law, at a time when European nations were struggling between the Napoleonic and Prussian models for the regulation of Civil Law, appeared as a “pressing” and “urgent” need, given the insufficiencies of the previous legislation (the one contained in the Royal Decree of August 8, 1855). The clarity of his Explanatory Memorandum left little room for interpretation: “ Our mortgage laws are condemned by science and reason, because they neither sufficiently guarantee property, nor do they exert a healthy influence on public prosperity, nor do they settle Territorial credit on solid bases, neither do they allow the circulation of wealth, nor do they moderate the interest of money, nor do they facilitate its acquisition by the owners of real property, nor do they duly insure those who lend their capital on this guarantee ”.

The eagerness to remedy this state of affairs revealed something of which, not infrequently, we have witnessed in our history: I am referring to the insufficiency of legal reforms as the sole instrument for improving legal institutions, when the latter enjoy the firm roots provided by a tradition more than a hundred years old. The 1861 Law was not revolutionary for traditional Spanish law, but it did raise substantial novelties that were slow to penetrate the social fabric. And the Critical Review of Real Estate Law, aspired in the beginning, precisely, to facilitate this penetration into the different levels of the world of Law. With the impulse of a group of jurists who worked in the environment of the Directorate General of Registries.

With this objective in mind, the Magazine extended its contents, according to the original plan, to subject matters of various kinds. The spectrum was wide, and offered a comprehensive and current panorama of real estate, which sometimes reached areas outside the legal sphere but of interest to the jurist. The importance of the company required that no front was neglected and, in this way, throughout all these years, studies of legal doctrine have coexisted with current mortgage notes, analysis of national and foreign legislation as well as of the Supreme Court Jurisprudence and the Doctrine issued by the General Directorate of Registries on property and real estate rights. Not only members of the Corps of Property Registrars have participated in them, but also lawyers from all sectors, not necessarily experts in Private Law. In short, it was about opening the Magazine to everyone, putting all heads together, coming from the Registry, the Notary Offices or the Academy, as a better way to contribute to the need to position Real Estate and Mortgage Law in its rightful place according to its importance within the general Legal System.

At this point, it is fair to recognise, after the years, that the objective has been more than achieved. The Critical Review of Real Estate Law is today, more than eighty years after its emergence, one of the greatest exponents of Spanish scientific literature on Private Law, beyond the mere mortgage law sphere. The Critical Review of Real Estate Law is not, nor has it been, a Magazine for Registrars or for Property Registrars only, even though the Spanish Property Registrars Association took charge of it after the death of its founder and first director, the great Spanish Mortgage Law Scholar Jerónimo González y Martínez (the “master of all current Spanish jurists”, as José Castán Tobeñas pointed out in the Prologue to his posthumous Mortgage Law Studies, published in 1948). We are therefore not facing an official corporate body, but rather an open door to knowledge, through which the main heads of our Law have passed, with studies in which the mortgage occupies a prominent but not exclusive place, and where there has also been room for Corporate Law, Lease Law, Tax Law, Procedural Law or Legal Methodology, to give a few examples.

Many of these works are included in the Anthology contained in this issue of the Journal, in which some of the most outstanding doctrinal contributions published in it throughout his life are compiled, and which is added to that prepared by José María Miquel González and published in 1981. I have had the honour and pleasure of participating in it, even in this modest form. And serve, at least, as recognition by the Spanish judges and magistrates (whom I am currently honoured to represent) to the work of the Journal after all these years and, more broadly, to the contribution of the Public Registries to the attainment of legal security and certainty in the private sphere. A contribution known to those of us who know first-hand the complexity of the jurisdictional endeavour in its day-to-day life and the importance that the public registry faith has today for the realisation of the rule of law, and highly valued by the members of the Spanish judiciary.

I do not want to end this presentation without mentioning some factors that I understand have helped to place the Critical Review of Real Estate Law in the place of prominence that it currently occupies within the Spanish legal bibliography. In the first place, the careful combination of doctrinal and current legal elements, which constitute great attractions as a reference of the current position of Science and Jurisprudence and also as a means of gaining understanding of the evolution of legal thought during these years: as indicated by the current President of the Editorial Board on the occasion of the 75th anniversary of the Journal, the illustrious Private Law Scholar and also teacher of Private Law experts Mr Luis Díez-Picazo, the years must render the true value and scope of the works, which, in the present case —as with that of other traditional Spanish Law Magazines—, is appreciated for its condition of depositary of the legal culture of a country and of an era. The Critical Review of Real Estate Law fulfills this function, far from the neopathological temptation to disregard as useless everything that is not current. HERE Secondly, it is worth noting the degree of academic excellence of the Journal, caused by the very high average quality of the works that have appeared in it since its foundation, something that is difficult to achieve in a bimonthly publication of its length. Third and lastly, fidelity to its founding principles, wisely supported by adaptation to the new times (something that is evident in the fact that it is one of the first Spanish legal journals to be freely accessible on the Internet). Perhaps the result of the stability provided by having counted on its Editorial Board, with the best of our Private Law, throughout eighty-three years of existence, with only three Presidents: in addition to the two mentioned, the no less relevant Scholar Ramón María Roca Sastre, from 1965 until his death in 1979 (to which must be added the figure of Pedro Cabello de la Sota, de facto head of the magazine for a quarter of a century): the three, prestigious jurists and with academic, registry-related and, I also want to highlight, jurisdictional experience (Jerónimo González became President of the First Chamber of the Supreme Court; Ramón María Roca Sastre was Judge of First Instance and Instruction in Sort and in Cervera; Luis Díez-Picazo, in the first Constitutional Court after the return of Democracy). It is also worth highlighting the decisive contribution of those who have held the status of Director-Secretary of the Journal, the true, effective management of the Journal, who have been the Registrars Mr Francisco Sánchez de Frutos, Mr Manuel Amorós Guardiola, Mr Fernando Muñoz Cariñanos, Mr Francisco Corral Dueñas and, at present, Mr Javier Gómez Gálligo, all of them equally prestigious jurists.

With these elements, it is not surprising that, according to the indexes regarding the impact of legal-scientific publications, the Critical Review of Real Estate Law is one of the best valued by lawyers. In my opinion, this recognition was not necessary: ​​it is enough to pay attention to its trajectory in all these years, to the quality of its content and that of its managers to understand it this way. This Anthology is an example thereof: a sample of the noble work of the jurist when he acts as an instrument at the service of Justice: homo iuris auctor iustitiae.

Introduction

Editorial Thomson Aranzadi has conceived the happy idea of ​​building a book with a selection of articles and doctrinal works published in the Critical Review of Real Estate Law throughout its long existence. This means that if we applied the schemes of literary requirements, this book would have to be classified as an anthology of texts. It is a significant project to the effect that it is committed to the traditional or conventional book, depending on how you want to call it. There is no doubt in the sense that people who need to consult past issues of the Journal have excellent information at their disposal through the data banks that the Public Corporation of Property Registrars has taken care to organise in a very important way and at a significant cost lately. What we have here, on the other hand, is a book with all the appeal and pull that books have in relation to any other vehicle of information. I have always thought that a book, in addition to containing a literary activity, is also an object and that, as such, it must be especially cared for; in the paper that is employed, in the printing that is used, in the ease of its reading and in many other things.

The initiative has other types of advantages for many people: they do not need to be involved in making the selection, nor is it necessary for them to carry out the consultation, because prior selection and subsequent consultation are decisions left in the hands of experts.

The initiative also means endowing the Critical Review of Real Estate Law with a new prestige and in some sense a new image. Francisco Corral has told, at some point, the story of the magazine that was born, probably as the magazine of Mr Jerónimo González. Corral relates how, in the first part of the 20th century, there had been an Association of Property Registrars, which only as of 1934 became a Public Corporation and a National Public Corporation. The Association played a very important role in the creation of the magazine, which should have represented a show of respect and complacency towards Mr Jerónimo González, the great mortgage holder. Francisco Corral points out that the body of registrars acted at that time with significant altruism and love of legal culture and that no Spanish scientific body made a more valuable instrument available to Mr Jerónimo. To found the magazine, a public limited company was established and the President of the Registrars Association, who was Vicente Cantos Figuerola, and Jerónimo González himself, at the time Official of the General Directorate of Registries and Notaries, were founding partners. The magazine was established in the first months of the year 1925 and with the inevitable parenthesis of the Civil War it has practically continued to this day.

It was named after a discipline whose limits were not well known: Real Estate Law. It seems that a name was adopted that came from Mr Bienvenido Oliver, later supplanted by Mortgage Law. But the magazine was never exclusively directed to Mortgage or Real Estate Law, but rather diverse subjects of Private Law and even sectors of Public Law were incorporated. There are even works that could be included in a program of Philosophy of Law, such as all those Mr Jerónimo devoted to problems of legal interpretation or those in which he examined the most important characteristics of the jurisprudence of interests.

When around 1972 or 1973 the magazine passed directly to the orbit of the National Public Corporation of Registrars, things remained in the same vein. It is a perfectly significant fact that the journal did not become a vehicle for the professional concerns of the Corps of Registrars. The magazine wanted to continue to be at the forefront in the general topics of private, civil and commercial law, and to open its pages not only to members of the bodies of registrars and notaries, but also to an increasingly growing number University professors.

All this means that what I called a while ago an anthology presents, like all works of this kind, a clear dose of heterogeneity. It certainly exists in the authors whose texts are partially collected, ranging from university professors to distinguished mortgage law scholars. Everything is once again dominated by the name of Mr Jerónimo González, but with him appear other illustrious experts in the field such as La Rica or Roca Sastre, but the magazine also published works of another sign such as F. de Castro's doctrinal thesis on self-contracting or those that Moro Ledesma, who was Mr Jerónimo González's favorite student, could write at the time.

The heterogeneity in an anthology can give the work a special attraction since, through the works that are selected, its reading allows us to perceive not only what the trends were but also the concerns present in the different historical periods in which the works were thought and written. For all these reasons, we recommend that the curious reader who holds the book in his hands reads it carefully, without prevention, and extracts from that reading an important number of teachings that we are sure they will find.

Preface

If we look at the first meaning that the Royal Spanish Academy gives to the verb discriminate ("select excluding"), there is no choice but to conclude that any anthology implies discrimination.

The work that the scholarly reader has in his hands—I presume the adjective because a non-scholarly reader will never have the idea of ​​picking up this book—is very extensive and could have been even more so if the authors had wanted to collect all the doctrinally valuable of the many works published in these more than eighty years of punctual and periodic appearance of the Critical Review of Real Estate Law.

Therefore, of the articles collected here, although it can be said that they are all that are there, I cannot guarantee that they are all that there are. The Editorial Board, under the always correct lead of Mr Luis Díez-Picazo y Ponce de León, when entrusting the selection to the Secretary of the Board Mr Francisco Javier Gómez Gálligo, was aware of the risk they were running, as there will always be voices denouncing, perhaps rightly, some clamorous omissions.

As Dean of the Public Corporation of Registrars of Spain, a corporation that has edited, promoted and partly financed the Magazine since its acquisition from the heirs of its founder, Mr Jerónimo González, I think that, with or without risk, the company will have been worth it if, with this anthology, two objectives are achieved: firstly, to make available to the scholar a set of good articles that, by appearing unitarily, eliminate the discomfort of their isolated search, and secondly, and perhaps more importantly, to show the scientific world in a panoramic way our crown jewels.

Property and mercantile registrars have never denied our status as practical lawyers. Our daily work, silent in its practice but transcendent in its effects, has contributed notably to the economic and social progress of the country. Hence our discreet pride in the meaning of what we do and the added value we provide. However, together with this, we registrars have always demonstrated a strong and evidenced doctrinal vocation in the enormous work of the Centre for Registry Studies of the Public Corporation. In addition, some of the most renowned contemporary jurists have come from our ranks, with special emphasis in the branch of our specialty - traditionally called Mortgage Law - but also outside of it. This anthology, composed of works by both registered authors as well as by those external to our Body, is a palpable demonstration of this assertion.

I end these lines of presentation, borrowing a stanza from the anthem of Real Sporting de Gijón, home so loved and visited by Mr Jerónimo himself.

Values ​​emerged from your quarry
that no one never will be able to forget.
Winner for the fields of Spain,
again, you will triumph.
I ask the reader to make the small effort to refer these verses to the Critical Review as a fertile nursery of scientific-legal contributions, and I ask my successors at the head of the Public Corporation not to wait another eighty years to tackle the publication of a second anthology.

Presentation

Founded in January 1925 by Mr Jerónimo González Martínez, Official of the Facultative Body of the General Directorate of Registries and Notaries (he held the position of Deputy Director General for some time), professor of Civil Law and President of the First Chamber of the Supreme Court , the Critical Review of Real Estate Law has always been closely linked to Property Registrars, but also to the Ministry of Justice (specifically to the General Directorate of Registries and Notaries), and to Notaries, Law Professors and jurists in general.
The current situation of the real estate system is undoubtedly much more powerful than in the year of its foundation. In its first issue, when collecting the initial program of the Magazine it was literally said: “Abandoned by the judges and courts, forgotten by Parliament and without enthusiastic defenders in the Executive Authority, the mortgage system languidly crawls, waiting for new energies that, subjecting legislation, jurisprudence and doctrine to the poignant analysis of an impartial critic, advance on the path towards forced registration, keep the registrar in his position as territorial judge, promote the reform of the Management Body, bringing it closer to the sad reality, and return for the prestige of the Institution and of the people.””. La mayor parte de estos objetivos se consiguieron pronto, por Most of these objectives were soon achieved, of course in large part due to the legislative reforms of 1944-1946, but certainly also due to the doctrinal contributions to the science of property registry law channeled through the Critical Review.

The foundation of The Critical Review of Real Estate Law was born as a personal project of Mr Jerónimo González shared with several jurists, mainly registrars and officials of the Facultative Body of the General Directorate of Registries and Notaries. In fact, it initially adopts the legal form of a public limited company, constituted by the president of the Association of Registrars, Mr Vicente Cantos Figuerola, Registrar of Madrid, and by Mr Jerónimo González, in a public deed granted by the Notary of Madrid Mr Mariano Reguera and Beltrán, on December 25, 1925. His address is set as Calle Alcalá number 16 in Madrid, where he occupies a leased premises in the building where the Bank of Bilbao is based. The deed is registered on February 22, 1926 in the Madrid Mercantile Registry by the Registrar Mr Francisco Álvarez de Salas. Francisco Corral Dueñas tells us, in issue 619 of the Magazine, a monographic issue in homage to the founder of the Magazine, that the fees were waived. This legal form subsists until the National Association of Property Registrars directly assumes ownership of the magazine, acquiring the shares of the company (from the heirs of Mr Jerónimo, who died in 1940, and from other registrars and lawyers of the General Directorate) and proceeding to the dissolution of the corporation by means of a deed granted before the Madrid Notary, Mr Manuel Amorós González, on April 28, 1964, by the Secretary of the Board, Mr Pedro Cabello de Sota. Ultimately, the Public Corporation of Registrars takes over the assets, rights and obligations of the dissolved company.

Thus begins a second period of the Critical Review of Real Estate Law, in which this—as stated in the number corresponding to January-February 1965—is sponsored by the Association of Property Registrars. It even physically moved from the premises of the Banco de Bilbao building to General Mola—now Príncipe de Vergara 72. However, its orientation to legal-real estate issues is maintained, but "without this implying a closure to other matters or to other areas of the legal system"; thus, the journal's objective is considered to be “questions of civil law, registry law, notarial law, administrative law, tax law, agrarian law, etc.”. From this second, more collegiate period, that is to say, from 1965, it is customary practice for the Deans of the Public Corporation to become permanent members of the Editorial Board. This happened with the then Dean Mr Pedro Cabello de la Sota, and with his successors, Mr Juan-José Benayas, Mr José Poveda Murcia, Mr Pío Cabanillas Gallas, Mr Antonio de Leyva and Andía, Mr Carlos Hernández Crespo, Mr José Poveda Díaz, Mr Antonio Pau Pedrón, Mr Fernando Méndez González, Mr Eugenio Rodríguez Cepeda and Mr Alfonso Candau Pérez.
Distinguished jurists have chaired the Editorial Board of the Critical Review and held the position of counselor-secretary. It is enough to point out that it has been presided, no less, by Mr Jerónimo González himself, Mr Ramón María Roca Sastre and currently Mr Luis Díez-Picazo y Ponce de León. The latter also held the position of Director-Secretary, being subsequently succeeded by Mr Francisco Sánchez de Frutos, Mr Manuel Amorós Guardiola, Mr Fernando Muñoz Cariñanos, by Mr Francisco Corral Dueñas, and since 2003, by the person who writes these lines. We cannot stop for lack of space and for fear of forgetting any name, of those that throughout its history belonged and belong to its Editorial Board; suffice it to say that all of them are highly prestigious jurists.

Nor can it be ignored, in a very brief history of the Magazine, the reference to Ms Rosa Carretero Pindado, daughter of Mr Tirso Carretero García—also a famous mortgage law scholar—who has carried out the administrative tasks of the Magazine since 1984, and has played an essential role. Previously, auxiliary tasks were carried out, in a less institutionalized manner, by Fernando Sequeira, an official of the General Directorate of Registries and Notaries.
I imagine that Mr Jerónimo would like to know that at present the Critical Review of Real Estate Law is more powerful than ever. It has obtained the community trademark, it is in very good health in terms of subscribers, it is digitized, it can be obtained on paper or via the Internet through the Vlex Publishing House and it has the strong support of the Governing Board of the Public Corporation of Registrars and its Editorial Board. In a recent survey among Law Faculties, it has obtained one of the highest ratings among the most prestigious legal journals.
Some recent reforms have been undertaken by its Executive Committee, including adapting to formal requirements imposed by the Ministry of Education, such as making a summary of each of the works translated into English. But the important thing is that it remains faithful to its ideology, which is the critical analysis of the legal system in general, with special reference to real estate.
The idea of ​​making an anthology of the main articles published in the Critical Review always ran through my head. It would be a tribute to the various authors, members of the Editorial Board, secretary advisers and presidents of the Editorial Board that these more than eighty years of the Critical Review of Real Estate Law have made it one of the main journals in the field of Law, not only from Spain, but also from Latin America and Europe.

The selection of the articles has not been easy. All the works published in the Journal throughout its history are of a very high level, not only because of the difficulty and specialisation of the subject, but also because of the control that has always been exercised over the published studies, essential to maintain the level and prestige of the Magazine. For this reason, many more authors would have been worthy of being included in these pages. But of course, an anthology obliges, to a certain extent at its discretion, to make an extract, which will undoubtedly not conform to the equally valid criterion that others would have followed. I have only tried, with the advice of other members of the Board, and the supervision of its President, to select them taking into account not only the prestige of the author, but also and above all the criteria of the impact of the article at the time of its publication..

The classification of the selected studies has been carried out by subjects, and within them by publication dates, which at the same time achieves a global visualisation of the real estate registry law and its importance. The history of registry law is analysed; property transfer systems; the relations of the Law with the Economy; the economic function of the various registry systems; the nature of the registry function; the incidence of the autonomy of the will in the registry law; the registry property and its relations with the Cadastre; the relations of the possession with the Property Registry, the registrable titles; the registry principles, in particular the assessment by the Registrar of Acts and Contracts; the appeals against the legal assessment conducted by the registrars; the mortgage, one of the main contents of registry law; the preventive annotations, and then the relationship of the Registry with certain institutions such as, usucapion (acquisitive prescription), the prohibitions of disposal, the real estate leasing, the resolutory condition and the pact of reservation of ownership, the trust, the urban planning, the surface right, the public forests, the Registry of Movable Property, and the legislation on the protection of personal data. Finally, very important articles of substantive civil law, agrarian law, commercial law, procedural law, administrative law and comparative law are collected.

This Anthology demonstrates the breadth of the matter that has been the object of analysis and study in the Critical Review, oriented but not restricted to real estate and registry law, as well as the prestige of those who honoured it as authors of collaborations and studies, taking it to the intellectual level that today everyone recognises.