INTRODUCTION:

The present monographic work entitled 'Property' being this the power
direct and immediate over an object or asset, attributed to its owner
the ability to dispose of it, without more limitations than those that
impose the law.

It is the real right that involves the exercise of legal powers more
broader than the legal arrangement that grants rights over an asset, thus
is framed within the legal system as a right
therefore being regulated is a subject of study in our career.

The members of the group have deemed it appropriate to analyze this topic.
from a historical point of view. Specifically, we analyze the right of
property considering three aspects: its content, the goods on which
which fall upon, and who are their holders.

I address this first in relation to the current civil code, which can be considered

as the main source for understanding property law in Peru and

then it mainly refers to Article 70 of the Political Constitution
of the State. Finally, I propose some conclusions regarding those three
analyzed aspects.
HISTORICAL EVOLUTION OF PROPERTY LAW:

ROME:

In this era is where the basic idea of property is forged; it

developed in stages:

1. ARCHAIC PERIOD:

During this period, it was the Family or Gens that held ownership over a
primitive right over the land, having the FATHER in front of it
FAMILIES, who was the one who had the power, the fullness of their rights
civilians (SUI IURIS). Therefore, there was collective property, but private.
and not public, in the first case an individual property in the second.
Individual property is more of a 'power' than a property, in the
modern sense of the term.

From the beginning of the Republic, Rome sees its territories grow at the mercy
of the conquests, which will allow confiscating the lands and giving them to
individuals, in exchange for the payment of an annual fee.

This situation of fact is called POSSESSION, little by little attributes a

true right to whoever obtains the occupation, so that each time
but the property right of the State is depicted as a theoretical lordship,
an eminent domain.
2. CLASSICAL PERIOD:

First of all, we can point out the so-called 'Quiritary Property' or

full Roman ownership, where the only ones who exercised it were the
Roman citizens. Secondly, we can point out the emergence of
the so-called provincial property, pretoria or peregrine.

The praetor considers that there were properties that were not under the
quiritarian property and should be protected; the conditions of their
protection is set by the magistrate, thanks to this the relationships of
facts produce increasingly important legal consequences.

Possession is considered as a de facto relationship, but adapted to the

needs, practice and sometimes assimilated to material possession
others to the right of possession.

3. UNDER EMPIRE:

We find here that the only existing property is recognized by the

Roman civil law. In this era, the property of the praetor, peregrine and
Provincial is just a memory.

In this era, possession reaches its greatest evolution, as it is pointed out that the
possession by excellence is the CIVIL POSSESSION or possession of the
owner or of the one who believes to be so, by virtue of a just title of
acquisition, for which he had to demonstrate good faith, rightful title, and duration.
Summarizing, we will say that the Dominium ExIure Quiritium is indeed scarce, in

the reason that there were very few FUNDI IN ONLY ITALIC; the frequent in
Rome is not such a domain, but a bloated series of provincial lands, in
Based on which the Byzantines elaborated their CORPUS IURIS that is taken
like the typical Roman property, despite not being adorned either
characteristics

AVERAGE AGE:

After the fall of the Empire, the authority of the large landowners
converts more into fact than law, the crisis of the State converts to
great owner into an all-powerful owner and makes his property a
domination

The number of small freeholders decreases and they remain subject to the
Law "Potens" or to request the protection of an establishment
ecclesiastical.

An essential characteristic of the time is the confusion between relationships.

personal and real links. Legal relations are relations

"To have" something does not mean to be its owner, it is very
it's difficult to talk about property and owner, it would be better to emphasize the

the fact that different rights overlap on the same land

real.

The emergence of lordships marks the appearance of a kind of "Chiefs".

"Rural" areas that enjoy almost total autonomy, leading them to confuse
sovereignty and property. The "Potens" either to request the protection of a
establishment, turns the taxes of the public power into the object of their
private property, they acquire feudal rights that are a sign of their
power, property becomes the object of its sovereignty.

The feudal group is a kind of extended family and the bonds of man
a man, created by the ceremony of vassalage. The vassal must be "faithful" to
your lord and he must lend you the 'Auxilium' and the 'Consilium' (Advice).
so the regime of the feuds is of more interest to private law than
to the public. This thus becomes a specific regime of property that
it would last until 1789, the year the French Revolution would put an end
radically to feudalism, as the signature TOCQUEVILLE 'Ending of
To bring down feudalism was what made the revolution noticeable.

It was the Revolution, which through various laws, abolished the titles.
nobility, the debts incurred with the nobles and the lawsuits arising from
crimes committed against them, but perhaps the most important law was that of
demand from the nobles the presentation of their property titles on the
land in order to preserve or rescue it, which in practice was a
pure and simple repeal, in favor of the bourgeois.

It is the declaration of 1789 that would give property an inviolable character.

and sacred which would be reflected in the French Civil Code of 1804.

CONTEMPORARY AGE:

During the 19th century, as we mentioned earlier, the thesis of the

property as a social function, the thesis that would break with the character
"sacred and imprescriptible" that Liberalism intended to give to the
property. As the basis of this thesis, we can point out first of all, the
criticism of the individualistic nature of property; pointed out VON IHERING
that "The property could not be an inaccessible castle... left to the discretion...
of misunderstanding, whim, stubbornness and the most frivolous and unrestrained
"individual's selfishness", as property was supposed to serve as an element
for the integral development of society.

Secondly, we can point out the increasing intervention by the

State in the economy, a point that would be reflected with greater emphasis later
from the world wars, as a first example of what has been said, we can
point out the Weimar Constitution of 1919 which in its article 153 states
Property will be protected by the Constitution. Its content and
limits are set by the Laws.

Property obliges. Its use must at the same time serve the common good.
That is to say, from this moment on, the law acts as a brake on
owner's powers.

This orientation is captured by our positive legislation, indicating

That property requires using goods in harmony with the social interest
or in harmony with the common good according to the dictates of the new
Constitution (Art. 70)
PROPERTY IN PERU:
We will develop it by eras to appreciate its evolution:

PRE-INCAIC PERIOD:

The data on the prehistoric period regarding property is still

incomplete; however, in Peru as in other places, the
property has been collective in its origin.

In the Peruvian case, the primitive social unit is the agrarian community.
the AYLLU. This community appears to us as a result of a
secular evolution; its birth is lost in prehistory and we return to it
still found today in various regions of America without its features
has been significantly altered.

Consequently, as Hildebrando Castro Pozo asserts, 'the original root

the prehistoric ayllu was, then, the clan or the constituted horde groups and
organized by blood relationships, in a single unit
economic, initially of only consumptive and defensive quality, and with
essentially productive posteriority.
That is why the word 'Ayllu', in Quechua, means genealogy, lineage,
kin, caste; the genus or species of things.

The full existence of private property corresponds, in general, to a

historical stage in which clan and gentile groups collapse,
families emancipate and isolate, imposing a divided lordly layer
in families that have slaves and servants. It coincides, for those, said
stage with organized despotism and the creation of official officials,
that is to say, of the State.
Inca Era:

Regarding the nature of land ownership, the Incario is considered.

as a collectivist socialist system, where it is realized
certain individual property rights that were seized by the
application of the Inca system, and the 'quasi property', consisting of
donations, it was an exception.

A partnership thus established leads to a legal consideration of a

quite strengthened collective property.

Atilo SIVIRICH claims that since the Incas were traditionally collectivist, they do not
they had the least concept of private property in relation to goods
real estate.

Therefore, according to him, the Incas only had a Public Law; they did not have
knowledge of Private Law. By ignoring private property,
it claims that there were no private law institutions related to
people, obligations, contracts, etc. But there are other authors like Jorge
Basadre, which admits a quite impoverished private and commercial law.
Part of the fact that although the real estate could not be, at least
primarily, object of sale, then, when a relative occurs
"assimilation" of the lands to movable assets, making it
interchangeable, the Law of things (real), obligations and successions,
cobra relevance.
ERA OF CONQUEST AND COLONIZATION:

Collectivism is replaced by individualism. As for property,

the AYLLU is replaced by feudal private property. One of
the contributory elements to such diverse penetration is law
which we could characterize as mestizo, intermediate: the Indian Law.

This Indian right played an extremely important role, as soon as America

was discovered, the Spanish crown tries to obtain the titles that
prove
This becomes even more important as the company of the
colonization is closely linked to the appropriation of goods (minerals,
lands, etc). Apparently, it was the papacy that came to formalize the
Spanish real domination, through the institution of the bulls.

In this questioned bull, the crown was supported to grant the lands to
various people as a reward for the services rendered in
the discovery and the conquest. And also according to that bull, the
crown obviously had dominion over the American lands; such
lands were conferred not only to the discoverers and colonizers, but
also to churches, municipalities, convents, etc. And, in contrast, everywhere
what was not delivered or granted by the crown, evidently to him
belonged (as established by Law XIV of October 20, 1578).

The colonial agrarian regime, Ugarte argues, "determined the substitution of

a large part of agrarian communities due to landholdings of property
individuals, cultivated by the Indians under a feudal organization. These
great fiefs, far from dividing over time, are
they concentrated and consolidated in a few hands due to the fact that the property
the property was subject to countless obstacles and perpetual burdens that
they were immobilized such as, the mayoralties, the chaplaincies, the patronages,
and other links of the property.

This period is characterized, therefore, by the heroic resistance of the

agrarian community (deep Peru), facing constant assaults from
to make it disappear and absolutely and completely implant feudal property (Peru)
official).

TIME OF INDEPENDENCE:

José Carlos Mariátegui, when analyzing the problem of land during this
period, highlights the role of rector of the bourgeoisie - bourgeoisie
incipient, moreover during this movement.

The indigenous peasantry, despite being the great majority, did not have a
direct, active presence, for, adds the Amauta "If the revolution had
it has been a movement of the indigenous masses or would have represented their

aspirations, it would necessarily have had an agrarian physiognomy.

The new policy of the Republic left the power and force of the
feudal property invalidated its own protective measures of the
small property and of the land worker.
ERA OF THE REPUBLIC:

At the beginning of the republican era, the legislators, just like in the colony
they transplant legal ideas European policies inherited from the
French Revolution: division of powers, civil rights, liberties
citizens and democratic, etc., and the French revolutionary conception not
it was something else than a return to the Roman conception taken to the extreme.

The subjectivist conception of property that considers it as a

projection or prolongation of human personality over goods-
leads one to consider it as an absolute and unlimited right, such that it
proceed to the elimination of all kinds of links and privileges. Therefore,
the first of our Constitutions (1823) guaranteed the inviolability
of the right to property (Art. 193 Inc. 3). Example that has been followed by all
the following ones, although those of this century already introduce the new ones

relative currents to the matter

THE PROPERTY:

DEFINITION:

According to Article 923 of the current Peruvian civil code:

Property is the legal power that allows one to use, enjoy, dispose of and
claim an asset. It must be exercised in harmony with the social interest and within
of the limits of the law.

According to Jorge Avendaño Valdez, property is undoubtedly the most

important aspects of real rights. Property can be analyzed from
many points of view: historical, sociological, economic, anthropological
political, etc. We now limit ourselves to its legal aspects.

Diego Espin Canovas:

When addressing this same topic, consider that "logically the right to
property pertains to tangible things, and it is originally limited to these.
but Modern Law also speaks of intellectual property and
industrial, so she prefers to talk about rights over goods
immaterial, as a category of property rights, of nature
analogous to the real ones, which should be considered as a right of
special properties. Referring to this point.
Puig Brutau:

It indicates that 'the use of the word property means the fullest right.
that may fall upon objects of another class (different from things
materials), so one can speak of special properties.

Barbero thinks differently. Indicating that one can speak of object

of property both in terms of material goods (things) as well as
relation to intangible goods. It indicates that only people cannot
being an 'object' of property. Property is, in the first place, a power
legal.

Power takes many forms. Thus, there is the power of strength, the power
political, the military power. In this case, it is a power that arises from the Law.

It falls upon an asset or a set of assets, whether tangible

(things) or incorporeal (rights).

ATTRIBUTES OF THE RIGHT TO PROPERTY:

There are four attributes of the right to property: use, enjoyment,

disposition and claim which we detail below.

a) USE:

It is to serve oneself from good. The one who uses the car is the one who travels with it from a

place to another. The house is used by the one who lives in it. A watch is used by the one who wears it.

Set and check the time when you want.

b) ENJOY:

It is to perceive the fruits of good, that is to say, to take advantage of it economically.

Fruits are the goods that originate from other goods, without diminishing.
the substance of the original good. They are the rents, the profits. There are fruits.

natural, coming from the good without human intervention, fruits

industrial, in which humans intervene, and civil fruits,
that originate as a consequence of a legal relationship, that is, a
contract (article 891).

Example:

The first are the offspring of livestock; an example of the fruits

industrial crops or goods that are obtained from the
industrial activity; and an example of civil fruits are the interests of
money or a lease.

c) DISPOSE:

It is to renounce the good (better yet, the right), to get rid of the thing,
either legally or physically. An act of disposition is the transfer of ownership
of the good; another is mortgage; another, finally, is to abandon it or
destroy it.
d) The Code also tells us that the owner can

RECLAIM

The good to be reclaimed is to recover. This implies that the good is in

power of a third party and not of the owner. Why is this? Many
They can be causes ranging from eviction or usurpation to a
succession in which the legitimate heir was sidelined and entered into
possession of a third party who alienated to a stranger, who now possesses.
In any case, the owner is authorized, through the exercise of the
restorative action, to recover the asset from whoever possesses it
illegitimately.

For this reason, it is said that the claim is the action of the owner not
holder against the non-owner holder (illegitimate holder, there would be
that is needed). The classic attributes of property are use, the
enjoyment and disposition. The claim is not properly an attribute.
but the exercise of persecution, which is a power of which
enjoys the title of all real rights.

The possessor, the usufructuary, the mortgage creditor, all can

to pursue the good upon which their right falls. It does not seem to us
then the claim should be placed on the same level as
the other attributes, which together constitute a full right
and absolute. No other real right grants its holder all of these.
rights.
CHARACTERISTICS OF THE RIGHT TO PROPERTY:

Aside from the attributes or rights of the owner, doctrine analyzes the
characters of the property, which are four:

a) Property is the preeminent REAL RIGHT;

The property establishes a direct relationship between the holder and the asset. The
owner exercises their attributes without the mediation of another person.
In addition, property is exercised against everyone. This is the expression of the
called "opposability" that characterizes all real rights and,
special, to the property.

b) It is an ABSOLUTE RIGHT:

Because it grants the holder all powers over the asset. This has already been established.

we saw: the owner uses, enjoys, and disposes. The usufruct, on the other hand, does not
it is absolute as it only authorizes the use and enjoyment.

c) The property IS EXCLUSIVE (or exclusive, it could be said better):

Because it eliminates or discards all other rights over the asset, except from
then the owner authorizes it. So complete (absolute) is the
property right that leaves no room for another right.

The institution of co-ownership (property exercised by several)

people) does not distort this character of exclusivity because in the
co-ownership, the right remains one. What happens is that it
 several titles are exercised. These constitute a group, which is the holder of the
law and excludes any others.

d) Finally, the property IS PERPETUAL:

This means that she does not become extinct simply due to disuse. The
the owner can stop possessing (using or enjoying) and this does not entail
the loss of the right. For the owner to lose their right, it will be
necessary for someone else to acquire by prescription. This is stated in the article.

927 which primarily sanctions the imprescriptibility of the action

reclamation, with which the perpetuity of the right is declared that
that action is cautionary; and secondly, it says that the action is not admissible

against whom the property was acquired by prescription, which means that it does not
there is action (and thus the property has already been extinguished) if another has

acquired by prescription.

EXTINCTION OF PROPERTY

1. ACQUISITION OF THE ASSET BY ANOTHER PERSON:

Through this form, the so-called Alienation is enclosed, which due to its
character of an essentially transmissive act is both a way of losing the
property as if to acquire it. Extinction is a voluntary act that
understands the transmission by a unilateral or bilateral act or the abandonment or
waiver when it comes to movable property.
2. TOTAL DESTRUCTION OR LOSS OR CONSUMPTION OF THE ASSET:

This form of extinction of property requires: The total destruction of the asset.
Well, if there is only partial destruction, the right is maintained over the
remaining part.

Effective:

Should not be confused with the mere responsibility of using it in which

we can meet at some point, because they say there is a simple
obstacle to the exercise of real rights that does not affect the extinction of this
right.

Form:

The disappearance must result in the good no longer being the

what was before; in summary, it is a case in which the good has
ceased to exist physically and legally.

3. THE EXPROPRIATION:

Here it is stated that no one can be deprived of their property, unless

exclusively for reasons of national security or public necessity,
declared by law and after payment in cash of the just compensation
needs to constitute or include compensation for potential harm.
Administrative Act:

In the sense that only the competent authority can carry it out. The
the procedure is regulated by the Civil Code before the judicial authority not
there is a possibility to discuss the inadmissibility of the expropriation in the
Only the valuation and the litis circumstance can be objected through procedural means.

determination of the quantum.

The compensation Justiprecies:

Understand the value of the good and the repair when it is proven.
proven damages and losses for the passive subject, originated
immediate, direct and exclusively by the forced nature of the
transfer. The objective valuation will be set according to the regulations
general appraisal as of the date the execution is made
expropriation. Compensation for damages and losses will be determined by the authority

judicial within the judicial expropriation procedure.

Abandonment of property for 20 years in which case the property passes to the Domain.

of the State:

This is a rather debatable form of extinction of property, the rule is

that there are none, if the movable or immovable property does not belong to individuals,

is owned by the State. If it is a property owned by a private individual and to its

death does not appear anyone with hereditary voting, as in our country does not
There is the figure of vacant inheritance, which will obviously belong to the State.
THE GUARANTEES:
They are established on movable and immovable property whose usefulness
the practice is that they serve as a backup for an obligation.
They are formalized through a Pledge Guarantee Contract (in case of
Movable Property) or Mortgage (in the case of Real Estate).
Any owner or duly authorized person can constitute
guarantee for own debts (direct) or third-party debts (indirect).

TYPES OF GUARANTEE
Real Guarantees: Latin RES = THING Right of Guarantee over the
THINGS
Personal Guarantees. Backed by the entirety of the Assets
(Guarantee / Surety)

The Real Guarantees (on things)

Real Estate (houses, apartments, land, others).
It will constitute a MORTGAGE.

Movable Property (vehicles, machinery, merchandise, Titles)

Values, Money). It will be constituted as PLEDGE.

Considerations of the Mortgage

Defense of the Creditor against the Debtor who does not fulfill the Obligation:

You cannot directly become the owner of the mortgaged property (No
Pact
Commissary.
Actions of the Creditor (Right of Pursuit): Real Action (process
execution court of guarantees) and Personal Action (against the assets of
Debtor (in case the debt exceeds the amount of the lien) and against the guarantor

guarantor or co-signer.

Critical Aspects of the Mortgage in the Civil Code versus the Mortgage
granted to the Companies of the National Financial System

Article 1104 of the Civil Code.- The mortgage can guarantee a

Future or Eventual Obligation.
Article 172 of Law 26702 Analysis of the various
modifications that this article has undergone.

The Amendments to Law 26702

The guarantee from the perspective of Law 26702° (Law of
Banks
Article 172.- "Except for the mortgages linked to
mortgage instruments, the assets given as mortgage, pledge or
warrant in favor of a financial system company, support
all direct and indirect debts and obligations, existing or
futures, assumed by those affected in guarantee or
by the debtor, unless otherwise stipulated (...)

Law 27682 (03/09/2002).-

Article 1.- The goods given in pledge, pawn, or warrant in favor of a
financial system company, only backing debts and obligations
expressly assumed by those who are affected by it in guarantee. It is
null any contrary agreement.
Law 27851° (10/22/2002).
The assets given in mortgage, pledge or warrant, in favor of a company
of the financial system, support all debts and obligations of their own,
existing or future obligations assumed by the debtor that affect them in
guarantee provided that it is expressly stipulated in the contract.

FORMALIZATION OF THE PLEDGE,

Validity Conditions (Two Forms):

1. It is constituted with Physical Delivery. Private Contract of Date

Certain (Legalized or elevated to Public Deed before Notary):
Delivery of the asset to the Creditor or to whomever is designated as the Depositary

in the contract.

2. It is constituted with legal delivery. It is about registrable assets.

in Public Records. The Pledge is valid from its registration: The
Debtor retains the property and is established as a depositary or to whom
as set out in the contract.

CONCLUSIONS:

Property is the direct, immediate, perpetual real right and

exclusive that is exercised by its holder called owner, who has
the right to exploit the property subject to total ownership or
partially. In this object-subject relationship that can be expressed
better like the dominion exercised over the object thing of
property, there is a universal passive subject who has the obligation
not to do and to respect the referred object.

The ways to acquire the real right of ownership are the right
subjective, limiting and inherent to the real right of property with which
 every individual, natural or legal person, public, private, national or
foreigner in order to legally become the holder
of the right of property with respect to a specific asset.

The concept of property and its corresponding right to

Acquisition has been inherent to man throughout all times.

In nomadic villages, the right to acquire property is

was based on the natural law of the supremacy of the strongest
regarding the weaker one. While that was achieved through the
the strength of everything I wanted even when it belonged to others, these,
the weaker allowed this way out of convenience and safety
acquire the property.

It is with sedentary peoples that the concept is born.

of property over real estate giving rise to development and
establishing new ways to acquire ownership.

BIBLIOGRAPHY:

MAISCH OF HUMBOLDT, Lucrecia. The Real Rights,

3rd edition. Lima, Librería Studium, 1984.

Eleodoro Romero Romaña

Volume 1, Second Edition, Lima;

BORDA, Guillermo A., Manual of Real Rights, Fourth edition

Editorial Perrot, Buenos Aires, 1994;
CASTAÑEDA, Jorge Eugenio, Institutions of Civil Law, the
Real Rights, Volume 1, Editorial Castrillón Silva S.A., Lima, 1952;

MAISCH OF HUMBOLDT, Lucrecia, The Real Rights, Third

edition, Studium Bookstore, Lima, 1984;

Arturo VALENCIA ZEA

Fifth edition, Temis Publishing, Bogotá, 1958.

LEON BARANDIARAN, José. Treatise on Civil Law, volume I. Lima,

WG Editor, 1991 j

FERNANDEZ SESSAREGO, Carlos. Abuse of Rights. Lima,

Grijley Editorial, 1999

VEGA MERE, Yuri. Notes on the so-called abuse of rights.

In Themis, Law Journal No. 21, pp. 31-38.. Lima, Pontifical
Catholic University of Peru, 1992;

RUBIO CORREA, Marcial. Preliminary Title. Library to Read the

Civil Code, volume I. Lima, Pontifical Catholic University of Peru,
2001.

ESPINOZA ESPINOZA, Juan. The principles contained in the Title

Preliminary of the Civil Code of 1984. Lima, Pontifical University
Catholic University of Peru, 2002
LINCOGRAPHY

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Property
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