EL CONTROL DEL CONSERVADOR EN LOS SISTEMAS FRANCÉS Y BELGA: LA CANCELACIÓN.

Abstract

In the transcription systems used in France and Belgium, a conservateur's examination of acts submitted for registration is merely an examination of form. However, when the cancellation of a mortgage or privilege is brought before a conservateur, he or she conducts a more rigorous examination that embraces not only form but also content. The conservateur must also examine capacity, particularly the capacity of the parties' representatives, even if a notary has already certified it. This idea, entertained in French and Belgian legislation, has been reaffirmed by the jurisprudence and doctrine of both countries. A conservateur's examination is more rigorous in cancellation because of the logic behind the transcription system. In a system characterised by the fact that it grants priority, cancellation is the most serious act of all, because cancellation causes priority to be irreversibly lost. Conservateurs are liable for their own mistakes and must personally pay for any damage they do, and they are not subject to the orders of any administrative authority despite their clearly functionarial nature. Their scrutiny is not subject to any administrative hierarchy.