Home Law Implementing the Cape Town Convention and the Domestic Laws on Secured Transactions
Effects of Registration Under Portuguese Law
I. In Portuguese law, both the mortgage and the pledge give the creditor the right to be paid before any other creditor (Articles 686(1) and 666(1) CC).
However, mortgage must be registered. In Portuguese law, the registration of a mortgage has a constitutive nature: if the mortgage is not registered, it is not effective even between the parties (Article 687 CC and Article 4(2) of the Registry Code on Immovable Property - Codigo do Registo Predial, hereafter CRPred).
According to the general rule (Article 5(1) CRPred), the facts subject to registration only have effect against third parties after the date of registration.
Article 6 of this Code sets up some basic priority rules:
Article 7 CRPred deals with the presumption effect of the registration: the definitive registration creates the presumption that the right exists and that it belongs to the registered owner, in accordance with the terms defined in the registration.
Moreover, the judicial appeal contesting the registration act makes it possible to presume the application for discharge of the registration (Article 8(1) CRPred).
So, in Portuguese law, as between registered interests priority goes to the first to be registered and a registered interest has priority over an unregistered interest. A registered interest has priority over an earlier unregistered interest even if this was known to the holder of the registered interest at the date of registration.
Nevertheless, we must stress that, in Portuguese law, security interests over tangible goods are not subject to registration.
II. Under Portuguese law all kinds of vehicles covered by the three Protocols to the Cape Town Convention are able to be mortgaged or subject to other forms of security interests.
Indeed, as mentioned, the mortgage must pertain to immovable property and also to similar property, i.e., some kinds of movable property subject to registration - that is the case, for present purposes, of aircrafts. In turn, railway rolling stocks and space assets may be the object of pledge.
There is a special law and a special registration system concerning aircrafts. The registration system regarding aircrafts remains ruled in ancient and outdated Decreto 20.062 (25.10.1930); the competence for the registration belongs to the National Institute of Civil Aviation (“Instituto National de Aviagao Civil”, in short, INAC).
That Aircraft Registration System (“Registo Aeronautico National”) includes the license number of the aircraft, the name and domicile of the constructor and of the owner (what is consistent with Annex 7 of Chicago Convention on International Civil Aviation), the transfer of property, and other acts related to the aircraft or to aircraft objects (such as assignment, leasing, mortgage).
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