La (quasi) transmutación socio-jurídica de la hipoteca sobre vivienda habitual
It has been more than a decade since the beginning of the crisis and the social drama that engulfed the mortgage sector. During this period of time, our legal system -lack of empathy and justice- has undergone various reforms –in the field of Civil, Procedural and Bankruptcy Law– that have affec...
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| Format: | Article |
| Language: | Spanish |
| Published: |
2020
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| Subjects: | |
| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=7504468 |
| Source: | Anuario de derecho civil, ISSN 0210-301X, Vol. 73, Nº 1, 2020, pags. 143-239 |
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| Summary: |
It has been more than a decade since the beginning of the crisis and the
social drama that engulfed the mortgage sector. During this period of time,
our legal system -lack of empathy and justice- has undergone various
reforms –in the field of Civil, Procedural and Bankruptcy Law– that have
affected the Law of guarantees, in particular the mortgage whose object has
the condition of habitual residence. Its objective has been to safeguard –
with as little or as much effectiveness as possible– the mortgage debtor. In
other words, the purpose of legislative activity has been to provide the system
with greater morality.
At this point, I considered it appropriate to carry out the present article,
which does not seek to offer an isolated or fragmented study of legal measures
or benefits in favor of the mortgagor, but rather to show a generic vision
of post-crisis law and its legal repercussion. In particular, this task has several
purposes. First, make a presentation of the measures approved in different
areas of law in favor of the mortgagor, its content and results achieved.
Such work will develop the second objective, which is to explain how legal
reforms have caused the collapse of the Law of guarantees, the socio-legal
transmutation of the mortgage, tempering its effectiveness or diluting its content.
This goes from the «deactivation» or «deceleration» of the ius distrahendi
to the origin of a hypotheca specialis. After that, the third purpose
appears, focused on subtracting the new principles, thoughts and theories
that are provoking –in a progressive way– the «humanization» of the Law of
contracts and guarantees –in the context of mortgage loans– (the exaltation
of social rights of man, solidarisme and contractual perennity, mitigation of
the principle of universal patrimonial responsibility, etc.). Although, the
change of the legal order has just begun, since observing the French system,
it will be verified as our Law is in an intermediate phase, being possible to
reach a more social and flexible Law, in protection of the mortgagor and for
the sake of conservation of the habitual residence. |
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