Acquisition of rights is a formula used to achieve ownership of real rights. Personal rights are acquired through contracts. Instead, acquiring rights in rem requires a specific form.
That is, the acquisition of rights constitutes the method through which a person obtains ownership of a right. In this article, we will focus on the acquisition of rights in rem.
What are these real rights that can be acquired? Mainly property, possession, pledge, mortgage, usufruct or easement.
Thus, the methods of acquisition are: occupation, transmission determined by law, donation, succession, prescription and through certain contracts by tradition.
If the difference between acquiring personal and real rights is that personal rights do so only through contracts, how can it be that real rights are also acquired by contracts? The key is that the contracts by which property rights can be acquired have a translational purpose and require tradition. The tradition is the delivery of the object, that is, the delivery of the real right.
Ways to acquire rights
The acquisition of rights can be:
Onerous or free mode
For example, a way of acquiring the property through a sales contract has an onerous nature. Likewise, another way of acquiring the property can be through a donation that is free of charge.
Inter vivos mode or mortis causa
The same example above works here. Acquiring property through a purchase agreement is an inter vivos acquisition. Acquiring property through succession is a form of mortis causa acquisition.
Voluntary or forced modes
Voluntary modes refer to those forms of acquiring property by the simple declaration of will of the party that wants to obtain ownership of a right. For example, the constitution of a garment. On the other hand, there are ways to be the owner of a real right in an imperative way because the law so determines, for example, with the obligation to establish an easement on land for water pipes to pass through.
Pure acquisition or subject to condition
Achieving ownership of a real right in a pure way means that it will not be acquired on the condition that something is fulfilled. For example, a person may acquire possession on the condition that they marry.
Acquisition under universal title and private title
When the ownership of the real right is achieved under a universal title, it means that it acquires full ownership of the right and, in particular, only the faculties of law are acquired.
Original or derivative mode (birth of the right or transmission of the right)
When the right is originally acquired, it means that the right of the new holder is not based on any previous one. For example, the finding, finding something that has no owner and, therefore, the person who finds it acquires the right to that thing. Instead, the derivative form is based on the previous owner of the right. This means that ownership passes from one person to another. For example, this is the case of inheritance or donation. The new right is not born, but is transmitted.
When it is acquired derivatively, it is essential to know the right held by the previous owner, because the right that the new owner will acquire will be limited by the powers that made up the right of the previous owner.
Requirements for acquisition of rights
The civil law theory establishes the theory of the title and the mode as a form of acquisition of rights:
- Title: the title is the contract by which ownership of the right is achieved. For example, contract of sale or exchange.
- Mode or tradition: refers to the delivery of the thing on which the right is to be acquired.