LA INSCRIPCIÓN COMO TÍTULO-VALOR O EL VALOR DE LA INSCRIPCIÓN COMO TÍTULO.

Abstract

Exchange makes specialisation possible, and specialisation makes growth and well-being possible. But exchange is costly. The reasons: the mistrust born of lack of information, combined with the mutual conviction that the other party will conduct himself according to the dictates of self-interest and therefore will conceal relevant information when the benefits to be expected from doing so are greater than those of any other alternative. The information asymmetries besetting the market are, then, the main difficulty in coordinating the parties' interests and therefore concluding a contract. The objective of this paper is to show that two fundamental institutions of market economies -i.e., first, qualified securities and most especially bills of exchange, and second, the property registration system, particularly in its most-developed state wherein rights and trade are subject to registration- are institutional technologies generated by mankind to avoid such asymmetries. To achieve that end, said institutions are based upon similar principles and use similar techniques. They make available to the less-wellinformed party (usually the buyer) the information that is legally relevant to the contract, and they prevent the betterinformed party (usually the seller) from twisting the residual informative asymmetry to his own benefit. Thus, they create what is termed «a situation of functional information symmetry», because the situation neutralises the effects of residual information asymmetries. The institutions in question achieve this effect through the technique of incorporating the right at issue in a document (termed «the exchange technique » in the case of bills and «the registration technique» in registration), through which technique the bill of exchange and registration acquire very similar legal properties. The presumption of existence and ownership of a registered right as stated in the right's registration entry (the foundation of the legitimate standing for a registered owner's recognised power of disposal under article 38 of the Mortgage Act and the foundation of the effect of conclusive title under article 38 of the Mortgage Act, which trait is characteristic of trade registries) may be affirmed to be in essence similar to the rule of literal exchange and to the protection our system affords to endorsees. In both cases, acts of trade must have occurred, and through said acts relations inter tertios must have been established, said relations being the only environment where exchange relations as well as registration relations operate. In this sphere, incorporation entails the abstraction of the incorporated rights with respect to the underlying legal relationships from which they stem. But while in the exchange environment incorporation requires a contractual agreement between creditor and debtor, in the registration environment incorporation is a right of the purchaser that requires performance of a procedure. The reason: the difference between the nature of credit rights in the case of exchange and property rights in the case of registration. Property rights reflect a social consensus about how assets and their revenue flows can be acquired, used and possessed, and in that game the rules must be respected with exquisite care, else the basic consensus will be shattered. In addition, in order to for this to be so, property rights are required to be enforceable with respect to third parties, and the rule of contractual relativity prevents this, for, by means of the contract, the purchaser only takes the seller's place in rights, effective exclusively inter partes. Proof of ownership would thus be converted into a probatio diabolica; the only alternative available in the sphere of common law would be acquisition by usucaption recognised in a final ruling, and that solution is incompatible with market requirements. Other solutions must therefore be sought to facilitate trade. Registration is the institution that, in the name of all, recognises the purchaser as the owner and immunises the purchaser from possible personal exceptions stemming from prior contracts and even immunises him from anyone postulating himself as the verus dominus. Our registration system, then, may be affirmed to have immunising and functionally constitutive efficacy. That is why, until the purchaser has successfully registered the right he has acquired, he is not recognised by the market as the true owner. This is the reason why, as far as the market is concerned, registration is title. The inspiring principles form part of the body of law on security in trade whose origins in western Europe at least may be found in what was termed lex mercatoria or merchant law. Said body of law permits a higher, more complex level of cooperation (and therefore of specialisation) than does the common law (the law of legal certainty) it replaced, which responded to a more rudimentary state of cooperation. In this paradigm, as opposed to the one depicted above, everyone wins, not just some at the cost of others. Purchasers and creditors do not win out over owners; on the contrary, purchasers and creditors win precisely because in the new paradigm the owner's position is made more robust, and the more intensely the principles of the law of legal certainty operate, the more robust is that position. These are two elegant, sophisticated institutional solutions based on the same technique to solve the same problem in two different spheres: the sphere of the circulation of credit rights and the conversion of those rights into assets in the case of bills of exchange; the sphere of the mobilisation of property rights in immovable property as a means of converting said property into economic assets in the case of property registration.