Contracts and their effects in relation to circulation of immovables

Abstract

Circulation of immovables has to be seen in the light of the various provisions of the CC (particularly Art.998, Chp III) and, more so, the various interests which the parties to the contract and third persons have over the subject matter of the contract; the nature of the contract and that of the real right involved (ownership) is going to be very relevant for the purposes of classification and in relation to certain effects (opponibilita`) and implications (eg:- which is the relevant prescription usucapio or pracscriptio ). In this context, and for the purpose of classification so as to determine the effects of the clauses which are going to be analysed here, certain notions are going to be considered:- the onus, oneri reali and obligations propter rem; limitations in title, resolutive conditions in contracts of sale, c.d. elementi ta' proprjeta`; servitudes, being the only limitation specifically mentioned by law to burden the right of ownership; and, lastly, whether any of the aforementioned notions fit within the category of the abolished, thus unrecognised, institute of personal servitudes. This done it will be manifest what the real nature of the interests in the property (of different subjecta iuris) are and how a contract can affect, and at times upset, this neat/inherited framework of real rights set up by our CC. This structure of ownership and derivative rights, which was built with immovable property as the prototype, is going to be analysed with the parallel system of contract law in mind. It is the use of the freedom of contract beyond its legitimate limits (conclusion on this point in Chp VI) that is the real focus of the thesis and for which mention of fundamental notions of real and personal rights has to be made. The interaction between the two limbs of the CC is mentioned (ex. Chp V, but also as seen all throughout) so as to hammer the distinction I make in the thesis. Certain general principles (res inter altos acta tertios neque prodest neque nocet Chp. III, the rule of the numerus clausus of real rights Chp. I) and definitions (that of ownership in particular) are going to commented upon as used in practice and are going to be seen to be deceiving to the unwary. The same applies to certain norms, also of a general nature, which are derogated by specific provision of the law (tacit and express resolutive conditions in the context of the contract of ownership Chp VI and II/III, respectively, and in relation to emphyteusis; the tacit resolutive condition in other negotia involving immovables Chp VI). Certain principles of interpretation of contracts have to be resorted to, so as to determine the real effect of certain 'precarious' clauses of too-great-a-number of existing deeds (Chp VI). The correct approach to these is not 'giving legal effect to what has none', as the legislator plans to do with the Central Registry Bill.