INVESTIGACIÓN ACERCA DE LA PUBLICIDAD REGISTRAL Y SU ESTRUCTURA JURÍDICA.

Abstract

Since the times of Theophrastus (4th century BC) and Ptolemaic Egypt (around 3000 BC), there has been a separation between the creation of a right (via private, notarial, judicial or administrative agency) and legal disclosure of that right, for, as the philosopher said, «Where the registration of properties and of contracts is established, it is easy to know thereby if assets are free and without liens, and if the seller is really the owner, because the Magistrate immediately registers the buyer in the seller's stead». Disclosure means dissemination and knowledge (Pugliatti). This merely disclosure-related concept, however, is of little relevance to the research presented in this paper, which focuses on the legal aspects of disclosure: externalization or divulging of a legal situation in order to produce general cognoscibility or possibility of being known; or declaration of wishes aimed at having a certain act externalized through a public body (Corrado). Historically, a distinction must be drawn between disclosure per se and the techniques of disclosure: dissemination, information, communication. Legal disclosure must be connected with certainty, and certainty demands social bodies or functionaries or instruments to take care of it: legal instruments such as public or private documents or public registries. Furthermore, there is a set of similar concepts that must not be mistaken for legal disclosure: publication, notification and form. It is a historic fact that disclosure has unceasingly expanded, in its facet as an instrument of certainty by means of the legal instrument of public registries and in its facet as an instrument of the legal science that justifies and regulates public registries, i.e., registration law. Registration law has ancestral historic origins, because it concerns the disclosure of rights in immovable property. At present it is channelled throughout the world through a specialized type of body, the registry of in-rem rights or property registry. The influence of the idea of registration as an instrument of disclosure and legal certainty has been so great that other registration institutions have developed to accord legal protection to different assets and rights: the intellectual property registry, the business registry, the industrial property registry, the personal property registry, the registry of personal property instalment sales, of ships and of aircraft, and the most modern, the registry of general contract conditions. In order to attain objective legal certainty, registration disclosure calls for two essential prior conditions: the authenticity of the thing disclosed and the registrar's scrutiny or check of legal fitness through the rigorous, regulated registration procedure. In this way full protection is obtained for the real rights that are registered, their erga omnes efficacy, reclaiming them from clandestinity, creating a legal situation of ownership in which the civil holder of the right is the registered holder (before whom all other means of disclosure bow), and sometimes determining the very legal existence of a real right (constitutive registration). The paper then assembles the foundations of a thesis on the legal structure of registration disclosure. These general principles are proposed: 1. Rule of consent. Legal registration disclosure is not just another requirement in the right-creating process; it is the elevation of the already created, perfect right to a higher plane of legitimation, assurance and efficacy. This new situation must be desired by the parties concerned: Disclosure involves a declaration of private wishes (Corrado) that is externalized through public bodies and is aimed expressly at externalizing or divulging those wishes (Pugliatti). 2. Rule of legal cognoscibility. Legal cognoscibility implies not only the possibility of knowing, but also the presumption of knowledge by all. Legal cognoscibility replaces actual knowledge, and the legal consequences take place regardless of whether or not there is actual knowledge. 3. Rule of the right to actual knowledge. Cognoscibility as an essential quality of registration disclosure is not only a presumption of comprehensive knowledge of the registrar's pronouncement, such that ignorance cannot be claimed; it also includes the possibility of attaining actual knowledge of the registry's contents. It would be simply unlawful to impose registration contents and at the same time to forbid any knowledge of those contents. 4. Rule of substantive legal effects. Disclosure by itself causes legal effects, which stem directly from the fact of disclosure and not from the disclosed act or right. If an act or right is not registered, these effects are not caused. Lastly, an outline is given of a possible scientific ordering of the instruments of legal certainty. The proposal distinguishes between the documentary structure of proof of an act (inter partes certainty) and the registry-based structure of disclosure (erga omnes certainty).