LA PUBLICIDAD REGISTRAL, BASE DE LA SEGURIDAD JURÍDICA DEL TRÁFICO DE BIENES INMUEBLES. EL REGISTRO DE LA PROPIEDAD COMO GARANTÍA DE DICHA SEGURIDAD SU INSTRUMENTACIÓN EN LOS ARTÍCULOS 105 Y 107 DE LA LEY HIPOTECARIA Y DEL REGISTRO DE LA PROPIEDAD DE PUERTO RICO DE 1979. EL INFLUJO ESPAÑOL. ANÁLISIS CRÍTICO.

Abstract

Whereas the Property Registry is conceived as an instrument providing dynamic certainty of trade, historically speaking the figure of the «third party», conceived as the person who benefits from said certainty, becomes the sedes materiae of the issue. The position of the third party is a changing one that follows in the step of amendments to Spanish mortgage legislation. And Spanish mortgage legislation influences Puerto Rico, both directly, by means of the application of the 1893 Mortgage Act for Overseas Provinces, and, after the Spanish reform of 1944-46, by means of the importing of jurisprudence on Spanish problems. In interpreting the act, the Supreme Court of Puerto Rico handles Spanish doctrinal texts without observing the differences between Spanish and Puerto Rican law. As a result, considerable influence is attributed to the thoughts of Roca Sastre, which were embodied in the new 1979 Mortgage and Property Registration Law of Puerto Rico. Nevertheless, although said embodiment hewed to the critical criteria of the master of Spanish mortgage experts, it seems to have been unable to embody said criteria suitably. This is clear in the configuration of the notion of the «third party». The «third party» is formulated in the usual way in article 105 of the law (equivalent to article 34 of the Spanish act), but it becomes completely disfigured by the wording in article 107; article 107 «tried to be» article 36 of the Spanish act, but, torn between literally tracking Roca Sastre's critique of the article and a desire to summarise the Spanish text (itself the object of grounded criticism), article 107 is rendered nonsensical, even contradictory of the spirit of article 36 of the Spanish law, and impossible to apply. It even blurs article 105's notion of third-party intervention. A hermeneutic problem that, for its own part, moreover, does not appear to have received clarification from case law. For now it sits, waiting for some sensible -and there lies the rub- jurisprudential clarification.