SENT No. 476
HOME CI Ó N
In the city of San Miguel de Tucuman, Thirty (30) June two thousand ten, the lords assembled members of the Hon. Supreme Court, the Chamber of Civil and Criminal, composed of Messrs. Antonio Daniel Braising vocal doctors, Alberto Brito and José Antonio Gandur, Mario René Goan-for lack of sufficient votes to pass sentence validly Dr. and Mrs. vocal Claudia Beatriz Sbdar-to survive the lack of votes to cast a valid judicial pronouncement, "chaired by Dr. Antonio owner Daniel braise, to consider and decide on the appeal brought by the attorney for Mrs. Mary Ascension Martinez in cars, "Manzar SRL s / reorganization. Incident review sponsored by the Banco del Tucumán SA. " Established
the voting order as follows: Dr. Antonio Gandur, Alberto José Brito, Antonio Daniel braise, Mario René Goan and Dr. Claudia Beatriz Sbdar, proceeded to it with the following result:
Mr. vocal
Dr. Antonio Ghandur said
1) .- comes to understanding and resolution of the Court on appeal by the attorney for Mrs. Mary Ascension Martinez against the decision dated October 29, 2007 issued by the Court of the House Civil and Commercial Joint on file No 19 (pages 189/191), which was granted by order dated May 30 , 2008 (folio 226).
The appeal was filed on time, with a deposit slip, and is directed against a ruling that is final with respect to the enforceability of the purchase agreement against the mortgage. It complies with the requirements of Sections 751 and 752 CPCC, so the action is admissible.
2) a. - As background, it may be noted that the creditor verificante in the contest reference María Martínez Ascension acquired through purchase agreement dated 20/8/1996 an apartment and a garage for a single price to Manzar SRL (now bankrupt), in a building that was under construction at the time of the conclusion of business (cf. ticket fs. 25 incident review). The ticket was expressed that the building be submitted to the horizontal property regime under the laws 13,512 and 19,724 and its implementing regulations (clauses first, second and fourth ticket, cf. Fs. 25). Was agreed that the possession be delivered in March 1997, and for good reasons that limit could be extended ninety days. In affidavit dated 11/5/1998 made in the presence of the seller and the buyer, it was noted that canceling the price of the garage and the department, which was put in possession of the department, that the garage would be delivered within sixty days that act, and that the regulation of ownership and management would be registered within one hundred eighty days, or until November 11, 1998 (pages 30 row.).
The seller, Manzar SRL, reorganization was presented on November 27, 2000. Mrs. Mary Ascension Martinez asked in the competition to verify the requirement to notarize the garage n.36383/17 identified as the building unit insolvent, it had acquired jointly by a single price with a through ticket sales department dated 20/8/1996, seized by the Revenue Department on 23/11/1999. Credited with affidavit that the price had been canceled on 11/5/1998.
By Order dated 12/9/2003 passed on file No 19 of Ms. Martinez declared the obligation of writing (pages 1). The decision was based on the possession dated from 11/5/1998, and the price was canceled before the filing in bankruptcy (27/11/2000), the establishment of the mortgage (the mortgage was drawn up by writing n ° 789 dated 18/10/1999 and registered on 04/11/1999, see fs incident review. Row 12.).
2) b. - against the resolution, the representative of Banco del Tucumán filed incident review, which stated that the property was mortgaged in its favor from 18.10.1999 (pages 12 et seq.). Manzar SRL was stated that a mortgage to the Bank on several properties in the same building, including that of Ms. Martinez, a public deed No. 789 dated 18/10/1999 inscribed in the Property Registry 04/11/1999 . Manzar 27/11/2.000 reported that the SRL is introduced in reorganization. He said that although the contest was recognized legitimacy to his credit mortgage, by resolution dated 12 September 2003 (folio 1) was made the request for her deeds of Ms. Martinez. He noted that when the mortgage is signed the property was free of charge, and that after Manzar SRL was presented in competition came third with sales tickets not registered in the Register, no date certain prior to the date of registration of the mortgage. 23/11/1999 noted that the buyer sealed his ticket, and never entered into the Property Registry. He argued that according to art. Civil Code 2505 of the ticket is not enforceable against the mortgage, particularly if you have a date certain prior. Refused the good faith of the acquirer as failed to comply with the rules concerning the acquisition and transmission of property rights by not recording the ticket. He stated that the instrument has no definite date because it was operated by the Inland Revenue after registration of the mortgage and bills to pay because they lack the requirements of the DGI.
Ms. Mary Ascension Martinez objected to the review on the ground have paid the full price, that his ticket was sealed on 17 November 1999 and which held animus domini possession since July 9, 1998 (cf. fs. 49 row.).
In a ruling dated October 21, 2005 was denied its request for review made by the Bank (pages 123/124). In the ruling was expressed that the former bankruptcy judge had issued rulings in each of the requests for verification of ticket buyers for mortgage departments, and had arranged to stay the pending review of a subset 11 of the Bank pending against the decision which stated that credit was unsecured, to avoid contradictory judgments, considering he had to solve a case by case and not widespread. The judge noted that the principle of speed, however, pending the appeal against the decision of the Bank of 12/9/2003, going to resolve the enforceability of the mortgage in relation to the obligation to notarize a favor de la Sra. Martínez. El Juez consideró que el acta notarial de fecha 11/5/1998 agregada a fs. 79 era prueba suficiente de que el boleto se había celebrado con mucha anterioridad a la escritura hipotecaria, lo que descartaba una maniobra fraudulenta (cfr. fs. 123 vta.). El Juez expresó que “entre los terceros que menciona el art. 12 de la ley 19.724 no puede considerarse incluido al propio concurso, “debiéndose tener presente que la inscripción es facultativa para el comprador, por lo cual dicho incumplimiento no puede tener como consecuencia la pérdida de su derecho” (cfr. fs. 123 in fine y 124). Interpretó que el boleto de compraventa era anterior a la hipoteca, y que el incumplimiento por parte de the seller now bankrupt, made applicable to the provision of art. 21, prehorizontalidad law which states that "The property rights made by the owner of a property affected in violation of the provisions of this law are ineffective and unenforceable to the purchasers" (cf. fs. 124).
By decision dated October 29, 2007 the House upheld the appeal of the Bank, and acknowledged the privilege arising from the mortgage, maintaining the obligation to notarize for Ascension María Martínez (pages 189/191). The decision was based on that land registration should prevail in the absence of the bill of sale registered. The Court stated that the buyer had not exercised against the retailer for action to make it join the ticket under the guidelines established by law 19,722 (19,724 probably meant, cf. fs. 190 row.).
3) .- The manager of Mrs. Martinez appealed (pages 197/206), which highlights both the sealed affidavit ticket as proof that the ticket was held before the mortgage deed , which rules out fraudulent schemes, while certain date credited. Is that the garage was not writing because the unit that he wanted to assign was not agreed, and then it could not be done because the seller entered into contest. He says that in bad faith Manzar SRL credit guaranteed a property that was not his. Highlight the good faith of his hand and his right sleeve art. 146 LCQ. Invoke the art. 21, prehorizontalidad law therefore considers that the mortgage is unenforceable (see fs. 202 and row.). Interpreted that after the enactment of art. Bis 1185 CC the only requirements for the enforceability of the ticket are paying 25% of the price, and good faith in the acquisition, consisting of the knowledge that the seller was not in default. In such conditions, interprets the ticket does not require advertising possessory or registration, which plays only in the event of insolvency of the debtor against creditors of the debtor, and only on behalf of purchasers who meet the requirements of law. States that the ticket is enforceable against creditors of the seller if there possessory, as when possession is prior to birth or unsecured priority claims against the seller, the priority is for the owner. Argues that a ticket holder may object to the creditors of the seller, because the owner of the property off its possession and the buyer purchased legitimately support a sufficient basis for the purpose of acquiring possessory (cf. fs. 204) . Edmundo quoted Gatti, Jorge Alterini and Fazio's Marta Bello, and a ruling by the English Supreme Court to reinforce the view that when the ticket holder is in possession prior to the claims against the seller, the right prevail over creditors of the transferor (pages 204 et seq.). Cautions that his approach to enforceability of the ticket does not mean a claim against the competition aimed to join the mass of creditors, but consists of a request for contract performance, which aims at the deeds of the property and liability exclusion bankruptcy ( fs. 205 row.).
4) .- It should be noted that according to how the suit arose, no discussion is required to notarize the insolvent based on the provisions of art. Act 146 of 24,522. The quaestio iuris answer lies in whether, under bankruptcy, is effective against the bill of sale to the mortgage constituted by the debtor on the same property. In other words, the question is whether the purchaser of a property with a bill of sale is not registered must support lien established later.
The question of enforceability of the bill of sale to the mortgagee is a controversial issue both in doctrine and in jurisprudence. Expressed about Dr. Ricardo Lorenzetti that "the enforceability of the ticket sales to third attaching or facing bankruptcy or insolvency of the transferor is a problem whose solution requires balancing two aspects: firstly the purchaser's protection, which has relied on well and not get compensation, and that is why the evolutionary trend has been to protect this right by admitting the possibility of pleading the case of a serious buyer, in the sense that it has paid a portion of price, has taken possession. Initially protected more strictly bound for home purchase, but then the criterion is generalized. In return, we must expect that a ticket so protected and directly enforceable, can provide a tool for the debtor to "manufacture" tickets to the detriment of creditors. To prevent this requires that you have been registered, or that there is possession. " Then Dr. Lorenzetti sets out a series rule that the doctrine and jurisprudence have made when confronting the bill of sale and the debtor's creditors, including the following states: ... "5: In the conflict between the ticket buyer and the mortgagee must must be at the possession: if it was given prior to the mortgage buyer succeeds, whereas if the mortgage was held before the creditor prevails, freeing the buyer contractual action against the seller and the criminal. If the mortgagee executed well, the ticket buyer possession before the mortgage can deduce the third party domain (cf. Lorenzetti, Ricardo, in "Treatise on Contracts" Volume 1, p. 345 to 347, Rubinzal-Culzoni publishers, 1999 edition, Santa Fe).
Dr. Lorenzetti in the work mentioned mentioned scientific events that applied the approach set forth. Appointment in that sense the "First Conference of Civil Law" held in Mendoza in 1983, which concluded that "if the ticket purchaser has been put in possession of the property: mortgagees against whose mortgage was constituted after the purchaser was put in possession, won the ticket purchaser "(op. cit. p. 346). VIII National Conference on Civil Law held in La Plata in 1981, declared that "when advertising collide possessory and real estate land registration, wins the first time, where good faith "(see statement 4 of the Committee n ° 4). The second meeting of civil rights lawyer held in Santa Fe in 1988, recommended: "However recognize the technical superiority of the registry in real estate advertising, publicity regarding possessory, it should be noted that possession is the outward manifestation of a real legal situation of undeniable importance of advertising, when seen from the point of no glimpse of the tradition, but pursued and extended in time for a reasonable period (conf Andorno, Luis O., "Effectiveness of advertising possessory on Real Rights, "in Zeus 50 - D - 193). Dr. Ernesto
Wayar also shares the grounds, stating that: "... b) If you have tickets and possession, even if the ticket is not registered, and the mortgage deed is after the possession, should also be preferred holder, as tradition held, translate advertising that judge against the creditor whose title is later "(conf Wayar, Ernesto in" Sale and Swap ", publisher Astrea, 1984 edition page 604).
The same criterion expresses Luis O. Andorno, when he says that the doctrine and jurisprudence have been setting guidelines to protect purchasers by ticket demand for this registration as available in the jurisdictions that support it, or require the need of possession by the acquirer (conf Andorno LO "Conflict of interest in the property ticket sold "Journal of Private Law and Community - ticket sales, 2,000 - 3, Rubinzal-Culzoni, p. 251 and 252, published 2001, Santa Fe).
Augusto Morello argues that the reform implemented by 17,711 law provided certain policy responses, circumstantial, aimed at solving urgent social needs in a context conditioned by reality Square real estate. Hence, each situation in which he plays the ticket, it must find out which best meets the demands of justice away from all conceptual schemes, abstract and at odds with social requirements involved. (Cnf. "The real estate purchase agreement", 3 rd ed. T. I, pp. 99/100, Ed Abeledo-Libreria Editrice SRL Platense Abeledo-Perrot, La Plata, 1981, similar criterion holds Bellotti, Mirta Liliana in "Are enforceable against attaching creditor rights under the bill of sale? (La Ley, 2001-E, 1114).
regards the conflict between the ticket purchaser to creditors of the debtor, Dr. Kemelmajer de Carlucci in the decision of the Supreme Court of Mendoza in full in Coviram dated 30/05/1996 Ltd., has stated the following: "The purchaser of a property mediating third party ticket wins in the best law or action enforceability exerted on the individual process or bankruptcy, if they meet the following documents: a) The ticket is dated or is there some factual certainty of their existence prior to the attachment or opening of the competition; b) The ticket is advertising (or possessory registration) c) the third party or petitioner in the competition has become who is the registered owner or is in conditions of subrogation in its legal position through a perfect linkage between successive purchasers; d) the third party or petitioner in the contest in good faith and has paid 25% of the work prior to the embargo or the opening of universal competition. " In essence, the Judgement had kept the criterion established in a previous plenary 06/12/1991 fallen on "Ongaro Mini and others, with details due to the reform of Art. 146 paragraph 2 of the Bankruptcy Law 24 522 (formerly art. 19 551 150 of the Act), which supports the enforceability of the ticket to bankruptcy regardless of the destination of the property. In the same vein, the Supreme Court of the Province of Buenos Aires in the case "Radil Lopez, Jaime c. Canellas of Nicastri, Alicia and another", 1995/06/13, BALF, 1995-909 - DJBA, 149-4311 held that "for the third-party ticket sale (Art. 1185 bis Cod. Civil) requires both the payment of 25% of the price, as the existence of a specific date." ExternalLink? Docguid = i8DAC3F9C927411D686070050DABAA208El approach was also followed by the Superior Court of Justice of the Province of Entre Rios, room II in civil and commercial autos labeled "Díaz Giménez, Celia R. and another", 1994/05/17, JA, 1995-II -108.
The most recent jurisprudence of the Supreme Court in late 2006 also tacitly leaning in that position, "Banco de Credito Argentino c. Germanier, Carlos A. and others, 26/09/1996 (DJ, 29/11 / 06, 954, Law 29/11/06, 9), which was a foreclosure on the property where the buyer filed a third party domain based on a preliminary purchase agreement with the registrant on a date prior to the embargo. The ticket was certified signatures, the purchaser had paid 70% of the price and had received possession. The trial judge admitted the third party, while the House rejected it. The Superior Court reversed the decision of Corrientes on appeal, whereupon the plaintiff filed an extraordinary appeal, which led to reject the complaint. The Supreme Court's Office rejected the complaint, sharing the opinion of the Attorney General. In the prosecutor's opinion was taken into account the numerous accessions that have been expressed both in doctrine and in jurisprudence, "in the sense that while the art. 1185 bis Cod. Civil relates to insolvency or bankruptcy of the seller rule can be applied to the creditor in a process executive, are credited as the legal and the buyer's credit is before the arrestor .(...) For this current doctrine and jurisprudence, the legislature intended to give to this standard, a clear mission care, in order to supply its enforceability privileged, the significant need for protection required by society in regard to the legal significance that the ticket holder the housing market. "It said:" In effect, the judge, citing doctrine and jurisprudence, he argued that the enforceability of the ticket does not appear to consider it a real right subject to article 2505 of Civil Code, but the special protection the law gives through Article 1185 bis of the Code. It has been rightly said that, although the buyer does not acquire the domain of the property if no deed is given, if there are not tradition and against any third party, if not registered the deed transferring ownership in the Registry property, Article 1185 bis of Civil Code provides that property purchase tickets given to for purchasers in good faith, be relied on if is paid 25% of the price. Said it is clear that while the law does not refer explicitly creates a kind of privilege to the purchaser in good faith, which has held the ticket and paid the percentage of listed price. This being so, having arbitrated by law a specific solution to the problem of property purchase tickets to the enforceability of these does not match demand their registration, because this requirement has not been mentioned by the law. "
The Civil Chamber Room C King, Raul O. c. Fisicario, DS and other "judgment 06.17.1988, has stated that" The purchase agreement is enforceable against the secured creditors or unsecured - even the mortgage - if possessory mediated favor of the purchaser even where possession is entered into after or unsecured priority claims, unless the mortgage. " ". (Conf LL 1990 - - 207 Idem SCJBA, ED 55-203). The Supreme Court of Buenos Aires in "Noceti, A. c. Zorzi, H. and another" (12.03.1974, ED, 55-203, with a note of Guillermo A. Borda "About the legitimate possession and abuse of law "), said from the third party domain deduced by a ticket holder in a foreclosure process followed against the seller of the mortgaged property, in a case in which a mortgagee - in apparent collusion with the debtor - sought to deprive a rightful owner. The National Chamber of Civil Appeals, Room B in a ruling dated 24/04/1997 on "Vainikoff, Luis C. c. Emiliano SA Posted on: THE LEY1997-F, 226, stated "If the bill of sale purchaser has been put in possession by the transferor, facing mortgagee whose mortgage was constituted after the purchaser was put in possession the buyer wins. " In the same sense of Appeals issued in Civil and Commercial Rosario, room I dated 18/04/2006 on "Scarabelli, Adela C. c. Curatolo, Aida and other "published in LLLitoral 01/01/1900, 938.
5) .- According to the above, the enforceability of the ticket sales to purchasers of property in possession of good faith of an earlier date, it has a strong support doctrine and jurisprudence national peak that endorse and support the position assumed in this vote.
Summarizing the above, the criterion is based on articles 1185 and 2355 bis second paragraph of the Civil Code, which grant special protection to the ticket, which as the case may be focused when faced with other legal right of that nature or even with another real nature. In this regard, art. 1185 bis Cod. Civil, according to text of laws 17,711 and 17,940, provides that "property sale tickets issued on behalf of purchasers in good faith will be enforceable against the insolvency or bankruptcy of the seller, if it is paid twenty-five percent of the price." In accordance with Act 146 of 24,522, the effect of this provision operates as long as the ticket is dated prior to the declaration of bankruptcy or open competition, where the following requirements: a) bill of sale or act by way consideration of a building, and b) acquisition in good faith, ie without simulation or fraud; c) payment of 25% of d) of the instrument relied on a certain date (arts. 1034 and Code 1035. Civil). It should be noted further that the majority view of the doctrine supports the operation of the protection of art. 1185 bis Cod. Civil in the field of individual performances in addition to the bankruptcy.
When there is the possession of art. 1185 bis, possessory advertising budget is unavoidable for its enforceability against third parties. Such publicity is not necessarily the registry, because the ticket registration is not mandatory but optional (Article 2, Law 17 801). In this regard, he stated: "On the positive law, retains its significance possessory advertising," which will be "across it when third parties have known or could know the reality non registered "(First Conference on Civil Law, Mendoza, 1983). In line with this concept, has preached that when advertising collide possessory estate and land registration, wins the first time where in good faith (VIII National Conference on Civil Law, La Plata, 1981, First Conference on Civil Law, Mendoza, 1983).
From the foregoing, it can be argued that 1) the securities referred to personal rights over property not involve in principle registrable legal situations (Article 2, Law 17 801), 2) remains the possessory in real estate advertising, since it was suppressed by advertising registration, as in the Code of Vélez, possession retains its specific function, which is to be the promoter of the legal situation who has been awarded "the thing in his power with the intention of subjecting the exercise of a right property "(art. 2351, Cod. Civil) and 3) that the law reforms of 1968 to 17,711 Civil Code in relation to the purchaser possession" compromise "bill of sale, as expressed by its author, sought to protect it "in the strongest terms possible" because "they feel ownership."
6) .- It then examines the facts of the case, to verify whether the factual circumstances that shape become enforceable against the bill of sale to the mortgage under the doctrine expressed.
First, it should be noted that the purchase agreement is dated 08/20/1996, even though the instrument has no definite date, "it was not sealed or certified firms," \u200b\u200bthe affidavit dated 11 / 5 / 1998 held in the presence of the seller and the buyer, it found that the price was canceled, that the garage would be delivered within sixty days of that act, and that the regulation of ownership and management would be within one hundred eighty days from then, ie until November 11, 1998 (pages 30 row.). For that reason, the date of affidavit: 11/5/1998 gives certainty factual existence of the property purchase and the cancellation of the price. It is emphasized that the price was canceled 11/5/1998. In the statement it appears that the ticket price and cancellation predated the mortgage. Assists
for the appellant in terms of their grievances relating to the lack of exact date of the purchase agreement and good faith on their part, going against the terms of the sentence on such issues (cf. fs. 189 row.). First, it should be noted that the subject of dispute between the parties is the possibility of fraudulent collusion between SRL and Ms. Manzar Martínez, relevant to note that nothing in this cause can be drawn that conclusion. As noted, in one transaction of sale and one price for Ms. Martinez became department and garage in the same building, which was reflected in the purchase agreement dated August 20, 1996. In the deed of the Department dated February 16, 2,000, added to fs. 89-91, the clerk said the ticket held between the parties dated August 20, 1996, and clarified that the annexation of the original instrument as head of writing (cf. fs. 90). In his separate report issued by the Receiver also about the veracity of the ticket and the cancellation of the price (pages 36/37). Finally, the record of finding instrumented in writing number 160 dated May 11, 1998, the clerk testified to the existence of the sale, cancellation of the sale price of the ticket sales on the department and the garage (see fs. 30). From all this emerges unequivocally the existence of the transaction and full payment of the price of the unit 17 prior to the mortgage that was implemented by deed dated October 18, 1999.
After celebrating the ticket sales, Manzar SRL property was on a domain trust whose trustee was the Banco Hipotecario SA, by contract implemented by deed number 1207 dated October 21, 1997 (see fs. 31 row.'s record foreclosure "Bank vs Tucuman. Manzar SRL). This domain was restored by the trust deed No. 788 of October 17, 1999 (cf. fs. 31 and 32 of a foreclosure). The day after the termination of the trust domain, the mortgage was constituted by deed No. 789 dated October 18, 1999 the protocol of the same scribe Gonzalo Padilla. Previously, by writing n ° 934 of October 13, 1998 and reform by writing 37 of the 14 January 1999 had approved the submission to the horizontal property regime. The debtor filed for bankruptcy the 27/11/2.000.
is also of interest to note that, contrary to what is said revisionist in a ruling dated September 12, 2003 made under art. LCQ 36 in file No. 11 of Banco del Tucumán SA, was declared admissible on credit from Banco del Tucumán SA emerging balance of the contract by mutual home equity, unsecured but with character. That ruling was challenged in an incident review sponsored by the Bank, which to date has not been solved and that is to process suspended since August 17, 2005 (see fs. 251). That suspension was ordered in order to avoid conflicting judgments in relation to those issued in the incidents were promoted by the Bank against the check number for ticket buyers mortgaged units, having noted that no action had been taken in that incident them generic (cf. fs. 75 of the incident I12). The sentence above is at fs. 249 of this incident, and was added as a result of measures to provide better prepared for this Court dated November 10, 2008 (see fs. 242). The incident for review of that ruling was brought to the hearing in compliance measurement would be helpful.
Finally, also as to better provide you was it the case "vs Banco del Tucumán SA. Manzar SRL s. foreclosure, "which dealt with the Court Documents and the First Nomination locations. In this trial, which began on December 5, 2000, executed the same building 20 units, among which is the n ° 17 (see fs. 39-42). On 15 October 2001 issued a ruling made in the execution (pages 152/153), which was confirmed by a court of appeals of 13.05.2002 (pages 180). By resolution dated June 28, 2004 was suspended the auction of the property, up to ascertain the nature of privileged or unsecured creditor of the Bank (cf. fs. 549). In that case fs is observed. 377, in an inspection carried out as a preparatory event for the auction, the unit n ° 17 for the current incident, it was stated that it corresponds to the Unit No. 41, which undoubtedly means that he is in possession of Ms. Martinez, owner of the unit 41, which acquired in a single operation the department with the garage (see fs. 377).
7) .- From the above, we see that after selling a ticket by the department and the garage to Ms. Martinez on August 10, 1996, the seller was a trust domain in which the trustee was the Mortgage Bank , on October 21, 1997 (see fs. 31 row.'s record foreclosure "vs Banco del Tucumán. Manzar SRL), which was restored on 17 October 1999 (cf. fs. 31 and 32 of foreclosure). The day after the termination of the trust domain, the mortgage was constituted by deed No. 789 dated October 18, 1999, both of Padilla Gonzalo clerk protocol. Meanwhile, Ms. Martínez had canceled the full price as of 5/11/1998 as recorded in deed. However, at that time there was a trust domain on the property, which lasted until October 1999. The next day was the mortgage. This indicates the attitude of bad faith of the seller, who then sell a domain constituted trust, then, simultaneously with its restitution levied on property mortgage.
is proved in these proceedings that ticket sales and the cancellation price predate the mortgage. It was not disputed fact in possession of property by Ms. Martinez. In the minutes of finding by Escribano the parties agreed that the garage was delivered within sixty days of writing, ie, until July 1998 (acc. fs. 30). The possession of Ms. Martinez was supported by the bankrupt (pages 22 row.) And the Trustee, which supports it in its report added to fs. 36 car, also has possession of the ocular inspection practiced in foreclosure, added to fs. 377.
must therefore be dismissed any suggestion of collusion between the acquirer and purchase agreement and the debtor to thwart the rights of the mortgagee. Indeed, forecasts for the arts. 1185 bis, 2355 and related provisions of the Civil Code, have sought to defend the status of bona fide third owner of the property acquired by purchase agreement. It should be noted that analogous application of Art. Bis 1185 CC requires good faith, relied upon an earlier date, whether the ticket has certain date, or delivered prior possession, and the payment of 25% of the price.
For these reasons, the solution here is encouraged, "that departs after a new study by the precedent of the Supreme Court of the Province of Tucumán, Civil and Criminal Chamber Judgement of 03/12/2004 http://www.laleyonline.com.ar/app/document?src=externalLink&crumb-action=append&context=20&docguid=i9ECEE0657E4911D895040050DA6B0F0Fen "Melgarejo, Adrian and other c. Guerra Mendez, Adam and otrohttp: / / www.laleyonline.com.ar/app/document?src=externalLink&crumb-action=append&context=20&docguid=i9ECEE0657E4911D895040050DA6B0F0F "- was established as an effective way to prevent disruption of the rights of others holders and the restriction of their legitimate rights, because to find otherwise seriously injure their rights, with undeniable impact of a social nature.
For these reasons, I think that should be place on merit appeal to the next legal doctrine: "In the conflict between the purchaser unregistered bill of sale and the mortgagee, is effective against the emerging right of first if conclusion is verified, and possession under the conditions of articles 1185 and 2355 bis last paragraph of the Civil Code prior to the mortgage. "
Marries sentence and it is replaced by the following: not to grant the appeal filed by the Banco del Tucumán SA against the decision of 21/10/2005. Costs of both instances by the order established.
8) .- As controversial subject in the doctrine and jurisprudence the legal issue addressed here, in which this vote is away from the precedent of this Court in a ruling dated 12/3/2004 in "Melgarejo, Adrian and other c. Guerra Mendez, Adam and otrohttp: / / www.laleyonline.com.ar/app/document?src=externalLink&crumb-action=append&context=20&docguid=i9ECEE0657E4911D895040050DA6B0F0F "corresponds to impose the costs in the order established (art. 105, inc. 1 °, CPCC).
vocal
Mr. Dr. Alberto José Brito, said
I. - The ratio of the background of the case are neatly made in paragraphs 1, 2 and 3 of the previous vote Gandur Dr. Antonio M. vocal, and they refer me.
II .- In order to be admissible and direct appeal we conducted the following considerations.
The sentence onslaught has begun holding "on the understanding that it does not look manifestly arbitrary, that the notary who certified the taking of the property of the case does not involve proof of the cause of possession and, therefore, can emerge it's a date certain, which was obtained recently with the sealing of ticket sales to the DGR. Beyond that, the violation of the rules of the 19,724 law (art. 12 and 21) and any fees may be applicable to the purchaser of the unit, has implemented the prevalence of land registration of possessory, the principles of the Law 17,801, which means the statement violated by the previous instance, stating that it is casting vote to resolve the issue of failure to register the contract of sale in real estate property registration, even before the evidence submitted on the possession of the buyer. In it there is no error of law or vice of absurdity or unreasonableness.
Indeed, the circumstances of this case, outlined as stated in the previous vote, enabled to apply "mutatis mutandis" in the case, as does the decision Chamber, the above considerations in re "Melgarejo ..." it was said that "the problems surrounding the situation with ticket holder which faces the attachment creditor of the seller presents highly complex edges. Both in doctrine and case law have been tested several solutions specifically for the nuances that the issue offered and the difficulties surrounding the interpretation of the rules (see Gatti, Edmund Alterini, Jorge, "Legal status of ticket sale ", LL 143-1146; Vidal Mariani, Marina," The holder under purchase agreement, LL 141-943; Morello, Augusto M., "The real estate purchase agreement" Morello Augusto M., "The ticket sales and a functional interpretation of the third party with" JA 1992-IV-201; Moisset of Spain, Luis, "Reflections on the third party with the better title," JA 1986-II-161; Rivera Julius Caesar, "Conflict between attaching creditor and holder of ticket sales," in ED 159-246; Flah, Lily, "The purchase agreement and its enforceability, LL 1190-A, 207, Forte, Robert," Do Campo, Adriana, "The art. 1185 bis of Civil Code. The requirements for the enforceability of the ticket to the third party" LL 1990-A, 826, Bono, Gustavo Alejandro, "The bill of sale purchaser and creditors of the seller" , LL 1995-E, 743; Bellotti, Mirta Liliana, "Are enforceable against attaching creditor rights under the purchase agreement? "LL 2001-E, 1114, Ferrer, Adam," attaching versus ticket purchaser: a daily conflict, LLC 1987-E, 170; Faudo de Losada, María José , "a better third party rights based on property purchase ticket, DJ, 2002 to 2.377, among others).
was stated that" the choice between the rights acquired by a ticket-holder and a creditor under garnishee - proof than the existence of bad faith on the finished any of them, is always heartbreaking to the judge, who does not comply with a cold application of the law but looks beyond the position academic form their conscience in the conviction of having arrived at a just decision "(Palmieri, Jorge," The ticket holder to purchase on the third-party domain, ED 135-307). The difficult discussions on the subject, have been to ask: "Who can say they do not feel overwhelmed against the prevailing discrepancies in our doctrine and jurisprudence regarding the legal status of real estate purchase agreement and its effects between parties and their degree of effectiveness against third parties? "(Alsina Atienza, Dalmiro," Around the disturbing discrepancies on the effects of real estate purchase agreement. A new interpretation of existing law "(RDCO, year 11, 1978, pg. 325). Sitting
the foregoing premises, the solutions can only be adopted in accordance with the particularities of each case (cf. arg. In Rivera, Julius Caesar, "Conflict between attaching creditor and holder of ticket sales," in ED 159-246 ) and going to a systematic interpretation (see Bono, Gustavo Alejandro, "The bill of sale purchaser and creditors of the seller," LL 1995-E, 743).
on buildings and in relation to the enforceability of rights to third, the substantive law has established an advertising system derived from the registration of respective titles, which moves in importance, advertising possessory. Categorical rules are laying the foundations for a registration system that has prioritized the protection of traffic safety in the face housing static and dynamic (see Bono, Gustavo Alejandro, "The bill of sale purchaser and creditors of the seller "LL 1995-E, 743).
The prevalence criterion of land registration is built on the basis of the provisions in arts. 2505, 2609 and 1185 Coll. Civil and arts. 2, 3 and 19 of Law 17,801 (cf. CSJTuc., Sent. 1073 of 03/12/2002, "Dominguez, Juan Pedro vs. V. Bank of Boston. Bevacqua, Manuel A. s / Collection s executive pesos / third party). And while the ticket is not considered appropriate certificate to justify the transfer of interests in land, the purchaser under such conditions may register the instrument in order to inform the legal status of third respect of the property in question.
Provincial Law 3690 (assuming the requisite powers agreed national law 17,801 and its dec. regulatory No. 652) supports the registration of such private instruments (art. 14) and regulates procedure for making reason and time of expiry of registration (art. 37).
The question under consideration by the Court imposes evaluate two situations: the ticket-purchaser in the case, no real estate registered in the Registry, and the mortgagee of the bankrupt.
On the one hand, the ticket purchaser states that he obtained possession of affidavit dated 11.5.1998, the ticket was not registered with the Property Registry. Moreover, the Creditor Bank argues that the property was mortgaged in its favor since 10/18/1999.
A comparison of both situations can be seen that the omission in the registration of the ticket, provided under art. 3 of Act 17,801 and art. 14 of the provincial Act 3690 - deprives the purchaser of the benefits of land registration that gives reason for making the act in question, ie, that parties other than the promise of sale, take knowledge of the obligation of writing which was upon the registrant.
If the legal system recognizes both parties, the holder of ticket and the lender (mortgage) - access to land registration, by application of the "prior in tempore potior in jure, the first of the rights that had been registered, shall enjoy a preferential jus. This approach reinforces the provisions of art. 19 of Law 17,801 which establishes the principle of priority of registration as of the date and serial number of documents entering the Property Registry.
must therefore be the ticket purchaser to bear the consequences of his failure to register the same instrument.
Admit to third, possession matters alleged by the third-party advertising that seeks rights over the thing, the creditor imposes the burden of finding not only the registration status of the property in question, as the system of special advertising planned by law, but also, and even though he was registered under the name of the debtor, take steps to verify the status of the non registered; end unduly aggravate situation of the creditor (see Bono, Gustavo Alejandro, "The bill of sale purchaser and creditors of the seller," LL 1995-E, 743; in the same direction, Rivera, Julius Caesar, "Conflict between attaching creditor and holder of ticket Purchase "in ED 159-246).
In the specific circumstances of the case, the performer is equated to third parties, for which the art. 2505 Coll. Civil declares unenforceable the mutations (in the case, referring to possession) levied on property when not registered in the relevant Register. The creditor (mortgage), by contrast, has obtained a registration site under the evidence in the registration and good faith has not been effectively challenged (crf. arg. CSJTuc., sent. 1073 of 03/12/2002, "Dominguez, Juan Pedro vs. Bank of Boston v. Bevacqua, Manuel A. s / Executive Collection weight s / third party).
The registration advertising is a principle very dear to our legal system that promotes this way the security of credit and legal transactions. Recognize the holder of a building without a registered title, the right to oppose his situation who relied on the evidence in the record, is a harsh attack against the property that the system seeks to protect a priority (see Ferrer, Adam, "attaching versus ticket purchaser: everyday conflict, LLC 1987-E, 170; Moisset of Spain, Luis, "and advertising automotive domain registration" page. 195).
As noted above, land registration tends to dynamic traffic safety , protects the legal appearance offered by media that the State itself organizes the advertising, unless a higher value constitutional provision that allows a different interpretation (as is the case of higher value is based on the protection of personal property), or clumsiness or bad faith or negligence of the person seeking to take advantage of it, should be given priority, otherwise it would be a useless mechanism "(the vote of Dr. Kemelmajer de Carlucci, CSJMendoza, Room I, in the case "Minni Ongaro, LL 1992-B, 159).
the foregoing, the sentence must be upheld under appeal.
III .- In terms of costs, it is that they are supported in the order established.
As the appellate court said when justifying the allocation of costs in the appeal, the parties showed sufficient grounds for litigation. This is compounded by the complexity of the issue here discussed, the difficulties of interpretation offered by the conflict and the contradictory nature of the solutions outlined in both the doctrine and jurisprudence.
What justifies
expressed in sublite, this Court deems meritorious to depart from the general principle that imposes costs up ordering the appellant to be distributed in the order established (art. 105 inc. 1 of CPCC).
vocal
Dr. Antonio M. Daniel braising, said
1 .- The background to the case have been neatly summarized by Mr. vocal preopinante Dr. Antonio Gandur.
1.1 .- In the folder No. 19, Mrs. Mary Ascension Martinez requested the verification of a 'must do' pop-up a bill of sale, and is given deed to a unit under horizontal property regime in the building at street Laprida No. 580/586, which is identified as car No. 17. The property registers a mortgage in favor of Banco del Tucumán SA, incorporated by deed No. 789 of 18.10.1999, registered on 11/23/1999.
Failure makes room appeal to the appeal brought by the mortgagee, and in place supports the incident for review filed by the Bank of Tucumán, with the scope set out in part I of the slide. The appellate court's lack of decisive value of the contract recording sales in real estate property registration, since the existing legal system allocates land registration prevalence, shifting in importance to the possessory advertising. Considers that the national court violated the principles of the Law 17,801, which regulate the advertising of property rights and enforceable against third parties outside the constituent, and that the incident is one of the third parties to whom the art. 2505 Coll. Civil declares unenforceable mutations borne property, while not registered in the appropriate register.
1.2 .- In expressing grievances, the challenger said that his client bought an apartment on street Laprida floor No. 580 4, Apt. "A" and a garage in the same building as the incident is under review. Clearly believes that the mortgage was constituted on assets and equity were not part of the previous owner, but continue to sign your name on the registry. Argues that according to the affidavit of 05.11.1998, to date his client had paid the full price and taken possession, noting that the garage would be delivered within sixty days. He argues that the ticket was held well in advance of the mortgage deed, with support in the affidavit referred to and sealing of the instrument, which excludes fraudulent while gives you a specific date. Refer to as of 26/11/1999 the Clerk Padilla made available to his client's deed of assets acquired, including denouncing the garage in question, and that it was not signed by Ms. Martínez not reasons of negligence, but because the unit was assigned was not agreed by the transferor (see fs. 200 row.). He adds that after negotiations and reach an agreement in principle, the deed could not be formalized because the company Manzar SRL was presented in receivership.
2 .- In my opinion, the specific circumstances exhibited substantially different from those raised in the case "Melgarejo" resolved by the Supreme Court-with-previous integration in Judgement No. 144 of 12/3/2004. In sublite, Ms. Martinez relies on rights arising from ticket sales, and deals with the mortgagee of the seller whose failure has been declared afterwards, but there is no record that he did tradition well before the establishment and registration of the mortgage. In such conditions, it is pointless to analyze the grievance based on the alleged priority of possessory advertising, because the factual circumstances of this claim has not been credited to file with the required certainty. This way, the present conflict are not addressed in the question concerning the effects of advertising possessory against the mortgagee to access post-registration, so my opinion does not correspond to understand at this point.
To explain the above conclusion, I emphasize that the identification of the property subject of this litigation does not come from ticket sales added to fs. 25/27. It is a unit (garage) under horizontal property regime as of 13/10/1998, without prior registration under the provisions of Act 19,724. It should be emphasized that as stated in the affidavit dated 05.11.1998 (pages 30), while receiving possession of the department acquired (4 ° floor "A" of the building), the parties differed delivery of the garage within sixty days, and according to the statement made by the buyer it was due to differences with the seller of the unit should be given to them. The affidavit only realizes that Ms. Martinez received the possession of the department, but not promised in the garage sale, and no record of auto indicates that he has become a tradition of the individual with the No. 17 before Mortgage entered the registry.
it pertains to possession of the property has been discussed in the case and should be considered with the utmost rigor, because it is a crucial factual budget hold the doctrine promoted by the challenger, as postulated that through it would be satisfied the collection of advertising for the transfer of ownership. It is worth to note that the mortgagee based its petition for review relied on the priority registration, and stated that "the alleged possession, be it-we deny, is not in good faith" (cf. fs. 17) . The very fact of possession has been the subject of dispute between the parties and the trial judge considered it proven by the record added to fs. 79, which resulted in specific grievance before the appeal. The appeal brief shows that the mortgagee argued prevalence Registered rights through the relevant registration, as the only way to advertise the liens, or failure hanging over a well. For the specific case, denied that the tickets have a date certain or sealed prior to the mortgage, and also reiterated that "the alleged possession, if any of it-we deny, is not in good faith" (cf. expression of grievances appeal, fs. 148).
purpose of communication sent by the notary deed is ineffective intervener to prove the fact of possession, because according to accounts the report issued by the notary fs. 75, this is a subsequent act the date of registration of the mortgage, which authorizes the inference that the deed to the garage because it was not possible from the garage 23/11/1999 No. 17 was affected to the mortgage collateral consisting of the transferor. The same report confirms the above, when it states that after the Ascension 12/21/1999 Ms. Martinez sent a letter to the clerk's document, stating that he drafted the deed "only unit No. 41 and that the garage would requested by the court. " In this regard, we should recall that the above aware of Ms. Martinez, possession was not received by disagreements with the seller about the individualization of unit. In turn, the report issued by the administrator of the consortium fs. 73 records that Ms. Martinez regularly paid the expenses of the garage No. 17 from the date of establishment of the consortium, which took place in December 2000, after recording the mortgage.
In the specific circumstances referred to above, consider that the appellant's arguments about the good faith of their constituents, fully paid and the property rights are ineffective in reversing the decision of the Court a quo, since it does not exclude the idea of \u200b\u200bthe condition of possessing invoked by Ms. Martinez. Ultimately, the appellate court decides the litigation in favor of the mortgagee who earned the record and the evidence of record does not indicate that reality extraregistral invoked to hold the possessory advertising a date preceding the seat of real charge.
3 .- It is also not effective in reversing the decision of the questions, invoking a legal privilege resulting from a purchaser in good faith that held a ticket and paid the price 25% (Arg arts. 1185 bis Ref. Civil LCyQ and 146).
The appeal is insufficient at this point, since the arguments to support it are blatantly contradictory and fails to make the legal doctrine that objecting considered correct. Just note that, on one hand, claims that his client has met the unique requirements of the substantive law to the opposition of the property purchase tickets to the contest or the bankruptcy of the seller, that the purchaser is in good faith and has paid 25% of the cost of the property in question. However, even when he postulates the irrelevance of tradition when it comes to insolvency or bankruptcy of the seller, expressed later, citing doctrine that the regulatory system "the enforceability of rights (whether personal or real) always requires some degree of publicity, however imperfect, in other words, the uncertainty would reign everywhere and credit motor of the capitalist economy would have suffered a mortal blow "(cf. fs. 203 row.). Remember also that to clarify the enforceability of the ticket to secured creditors and unsecured, qualified authors estimate of peculiar importance "to analyze whether or not it was accompanied by the displacement of possession" and that under this doctrine, if possession is before birth or unsecured priority claims against the seller, a priority for the owner ... "(cf. fs. 204).
Thus, admitting the need for some form of advertising, the appellant asserts that his client has the possession of property before the entry of real right referred to by the Bank, with support in the timing of the purchase agreement, sealing in the specific circumstances referred to above, consider that the appellant's arguments about the good faith of constituents, fully paid and the property rights are ineffective in reversing the decision of the Court a quo, since it does not exclude the idea of \u200b\u200bthe condition of possessing invoked by Ms. Martinez. Ultimately, the appellate court resolved the suit in favor of the mortgagee who earned the record and the evidence of record does not indicate that reality extraregistral invoked to support the advertising is possessory pre-date the real seat of the charge.
3 .- It is also not effective in reversing the decision of the questions, invoking a legal privilege resulting from a purchaser in good faith that held a ticket and paid the price 25% (Arg arts. 1185 bis Ref. Civil LCyQ and 146).
The appeal is insufficient at this point, since the arguments to support it are blatantly contradictory and fails to make the legal doctrine that the objecting considered correct. Just note that, on one hand, claims that his client has met the unique requirements of the substantive law for the opposition property purchase tickets to the contest or the bankruptcy of the seller: the buyer is in good faith and have paid 25% of the cost of the property in question. However, even when he postulates the irrelevance of tradition when it comes to insolvency or bankruptcy of the seller, expressed later, citing doctrine that the regulatory system "the enforceability of rights (whether personal or real) always requires some degree of publicity, however imperfect, in other words, the uncertainty would reign everywhere and credit, motor of the capitalist economy would have suffered a mortal blow "(cf. fs. 203 row.). Remember also that to clarify the enforceability of creditors ticket privileged and unsecured, qualified authors estimate of peculiar importance "to analyze whether or not it was accompanied by the displacement of possession" and that under this doctrine, if possession is prior to birth or unsecured priority claims against the seller, priority for the owner ... "(cf. fs. 204).
Thus, admitting the need for some form of advertising, the appellant asserts that his client has the possession of the property before the entry of real right referred to by the Bank, with support in the timing of the purchase agreement, sealing of the instrument and the proposed decision possession by notarization. In this regard, we can only reiterate the foregoing, in the sense that the tradition documented by notarization was restricted to the dwelling unit under condominium building, identified as 4 th floor "A", and that the minutes be acknowledged postponement of delivery of a garage yet identify (according to those of the appellant, due to differences in the determination of unit sold).
failure of grievance does not preclude analysis noted that the special protection of the purchaser of real estate purchase agreement may be invoked via the contest no matter the creation of a privilege, "Enforceability the insolvency or bankruptcy legally can not mean more than the right to demand compliance or simply require the continuation of the contract on the agreed conditions" (see Roitman, H. Effects bankruptcy on existing contracts. Rubinzal-Culzoni, updated second edition, 2005, pg. 202). In sublite, the bill of sale purchaser faces a mortgagee who assert the collateral, and the matter can not be resolved solely by application of the rules cited by the appellant, as the right of his client should not only success in relation to mass, but in respect of mortgagee who earned the record, and that question can not be resolved regardless of the rule contained in Art. 2505 Coll. Civil, which provides land registration of acquisitions or transfers of interests in land.
4 .- It is considered, I understand that the action under review can not succeed. These claims of ineffective is objecting to demonstrate that the case is not apprehended in the rule contained in Art. 2505, Cod. Civil, as declared unenforceable third mutations borne property, while not registered in the appropriate register. The mortgagee obtained the registration of the right site based on the evidence registration, and good faith has not been effectively challenged, while the grievances put forward lack of support in the facts of the case, for lack of evidence of the fact finished casting around which develops its grievance, that is, receiving possession of the garage prior to the registration of the mortgage. From their perspective, does not appear accurately possessory accredited advertising relied on the carriage house No. 17 in the same building.
is a central factual budget for the support of the legal position taken by the challenger, so that should not make pronouncements on the matter. In the absence of proof of ownership completed pre-registration real assessment, it is pointless to revisit the fundamentals underpinning the decision of the House, noting that the buyer not signed the purchase agreement and also served as action to ensure that the seller registered under the guidelines of Act 19,724. As has been stated above, it has to decide about the relevance of advertising possessory real rights to property levied on its enforceability against third parties when such factual situation has not been finished before tested. In such conditions, the exact date of the instrument or the good or bad faith of the seller are not settling for resolving this issue.
I conclude that the present conflict are not addressed in the question concerning the effects of advertising possessory against the mortgagee to access post-registration, and therefore is not for an opinion on this point. The specifics of the case lead to confirm the solution given by the House, with costs for your order in recognition of the complexity and novelty of the issues raised.
vocal
Mr. Mario René Goan doctor said:
The background of the case resulting from the detailed synthesis speech made by Dr. Antonio M. Gandur.
The House a quo decided the case by application of the doctrine underlying the decision of the Supreme Court in the case
Notwithstanding the foregoing, the examination of the specific circumstances present leads me to agree with Dr. Antonio M. vocal Daniel stews, as pointed out that whatever the doctrinal position is adopted, the incident review promoted by María Martínez Ascension can not be accepted. This is because there is no record of the good tradition in its favor before the establishment date and registration of security interest, which excludes the advertising alleged possessory opposed to creditor earned income mortgage registration. This is a crucial fact to support the position of the appellant, no effective system to test its finding the contested decision must be maintained.
Mrs. Dr. Claudia Beatriz Sbdar voice said:
Being consistent with the rationale given by Mr. vocal Dr. Alberto José Brito, vote in the same direction.
and Vista: The result of the preceding agreement, the Hon. Supreme Court, through its Board of Civil and Criminal
RESOLVED:
I. - not to grant the appeal by the creditor Mary Ascension Martinez against the decision dated 29/10/2007 issued by the Court of the Civil and Commercial Chamber in recognition of the considered. Refunded the deposit.
II .- COSTAS, as are considered. BOOK III .-
decision on payment of fees for their chance.
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