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Registration

As previously indicated, special legislation is not linked to the nature of the asset but the security form or the type of security agreement. Likewise, registration system - Registry of Movables or Registry of Movable Property or Registry of Personal Property (Registro de Bienes Muebles) - is common to all personal property including transport vehicles and other mobile equipment, albeit they might be registered in different sections of the Registry. In case of aircrafts, however, Spanish Registry system is dual: on the one hand, the Aircraft Registry for aircraft registration), recently modified as it has been previously noted, maintained by an authority of administrative nature (Registro de Aeronaves for public/administrative purposes); on the other hand, the Registry of Movables for the registration of interests over certain objects.

Types of Registries and Principles Governing the Registry System

For the purposes of studying the scope and effects of registration, it might be well worth pointing out first the distinction between “administrative registries” and “legal registries” under the Spanish legal system. Both of them can be involved in the registering of transport vehicles, as mentioned in the precedent section. As far as transport vehicles are concerned, whereas the Aircraft Registry, the Vehicle Registry[1] and the Ship Registry are “administrative registries”, the Registry of Movables, that plays a central role in the implementation of the Cape Town system, is, as the Commercial Registry or the Property Registry, a pure “legal system” instead. Each kind of registry serves for specific and different aims. Not surprisingly, an efficient inter-connection between them is necessary and, in fact, carefully ensured.

Apart from differing in scope, aim and kind of information susceptible of being registered, most importantly, “administrative registries” and “legal registries” deploy different legal effects.

Very briefly, “administrative registries” serve Public Administration’s interests and, accordingly, even if there are not totally hermetic, they provide a quite limited access to public. Contrarily, “legal registries” feature wide accessibility (at least to those holding a legitimate interest, that is presumed in certain cases[2]), erga omnes effectiveness and attribution of legal effects to registered information.

In order to gauge how different the registry model created by the Cape Town system is from the domestic model, comparison has to be made with “legal registries” and, in particular, with the Registry of Movables that has been designated as a national entry point.

Thus, “legal registries” run in accordance to the following principles:

Firstly, they are essentially public registries in the sense that registered data can be searched and/or requested by anybody claiming an interest in that information. Since registries are broadly operating as electronic systems, any communication to and from the Registry can be conducted by electronic means (e-mail or more frequently through the electronic platform) and on an interactive basis. Such an open access to registered data is not subject to the participation of any professional or intermediary, unless the interested party wishes so. Therefore, anybody can freely request information from the registry.

Nevertheless, the reply to the information request can be produced under two formats: simple notes for only informative purposes or certificates that, as literal transcriptions of registration, previously treated by the Registrar, reliably prove the legal situation of the searched object. Both simple notes and certificates can be requested and issued either paper-based or in digital format with a certified electronic signature of the Registrar when necessary.

Secondly, “legal registries” are intended not only to give notice but, above all, to confer legal value to registered information. Specifically, in relation to the title- holder, registration acknowledges and attributes the corresponding rights and legal effects to the holder. As far as third parties are concerned, registration deploys erga omnes effects to those circumstances susceptible of being registered.

As a consequence, it is clearly laid down, as regards the Registry of Movables, that “it is presumed that everybody knows any registered right, then ignorance cannot be invoked”. Accordingly, in an opposite sense, any act or contract, susceptible of being registered, that, however, has not been properly registered, cannot be detrimental to any third party.

Hence, registration in a “legal registry” is the legal mechanism to prove, in or out of the court, the existence, extent, scope and limits of the registered situation and that the registered holder is the only person entitled to exercise it according to the law. Notwithstanding, registration is not able to validate null and void transactions. However, the principle of public faith entails that a good faith acquirer of an object from whom is registered as the owner will not lose his/her rights on the acquired object if afterwards the right of the original owner as registered is annulled or revoked. Good faith is presumed unless knowledge of the inaccuracy of the registration is proved.[3]

Thirdly, considering the strong legal effects deriving from registration, data to be registered are, not surprisingly, carefully reviewed to ensure accuracy and veracity. Hence, Registrar plays a central and active role in accrediting, certifying and supervising the information to be registered. To that end, Registrar certifies, on his/her own responsibility, the compliance of extrinsic formalities, capacity and right to dispose of parties, authority of courts, judges or authorizing professionals, and the material conformity with the law (any infringement of binding rule will be declared by the Registrar).

From this schematic outline of the Spanish model for “legal registries”, some points likely to conflict with the Cape Town registry model can be easily perceived.

  • [1] According to Article 2 of the Royal Decree 2822/1998, of 23 of December, the aim of theRegistry of Vehicles is to identify the owner of the vehicle, its technical characteristics, roadworthiness, completed inspections, compulsory insurance and compliance with all legalobligations.
  • [2] Contracting parties, lawyers, financial entities, detectives, accountants, public entities and anyother professional or entity whose business or professional activity is related to the personal property traffic.
  • [3] As stated by Article 34 of the Mortgage Law for the purposes of the Real State Mortgage. Decreeof 8 of February of 1946, published in the Official Bulletin num 58, dated on 27 of February of1946.
 
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