Real Estate Brokerage

SUMMARY:

1. Sources of law .- 2. General .- 3. Legal nature of the brokerage .- 4. Brokerage Classes .- 5. Competent Courts and Halls .- 6. The real estate brokerage is a loophole .- 7. Background .- 8. Brokerage in Egypt, Rome, Chile, Panama and Colombia .- 9. The brokerage contract is a contract atypical .- 10. Definition of real estate brokerage contract .- 11. Economic Function .- 12. Commercial Mediator Agent .- 13. Insurance Agent .- 14. Brokers .- 15. Real estate brokers may be legal persons and natural persons .- 16. Absence of a Pre-registration or administrative records .- 17. Tribute Form .- 18. Mediation .- 19. Area of ​​knowledge .- 20. Brokerage Agreement and codified law .- 21. Brokerage and contract law is not codified .- 22. Brokerage contract under public law and private law .- 23. Comparative Law .- 24. Study Title .- 25. Well matter of contract .- 26. The registered owner .- 27. The attorney or agent .- 28. The title filed .- 29. Levies and charges .- 30. The contract and the deed .- 31. Contractual agreements .- 32. Means of Payment .- 33. The public .- 34. 35 .- The notary transfers. Registration .- 36. The title .- 37. Rating Registration .- 38. Remedy .- 39. Appeal .- 40. Objection to act or administrative decision .- 41.

The full registration .- 42. Legal Security .- 43. Sources of Information .- 43.1. Books .- 43.2. Papers .- 43.3. Magazines .- 43.4. Dictionaries .- 43.5. Websites .- 43.6. Peruvian Legislation consulted .- 43.7. Foreign Civil Codes .- 44. Conclusions .- 45. Suggestions .-

1. SOURCES OF LAW

The Peruvian Civil Code 1984 does not establish which are the sources of law, unlike the Spanish Civil Code of 1889 that if you set it.

Article 2 of the Code of Commerce of Peru, 1902 states that commercial transactions, whether or not traders who execute them, and whether or not specified in this Code, shall be governed by the provisions of, and in his absence, by the trade practice usually observed in each square, and in the absence of both rules, the common law.

The standard of the Preliminary Title III of the Peruvian Tax Code (DS 135-99 EF-1999 which is the consolidated text of Leg. 816 of 1996) states that are sources of tax law: a) The constitutional, b) international treaties approved by Congress and ratified by the President of the Republic, c) The tax laws and rules of equivalent rank, d) or special organic laws regulate the creation of regional or municipal taxes, e) The decrees and regulations, f) jurisprudence, g) Decisions issued by the General Tax Administration and h) the legal doctrine.

At the end of this article states that are standards of equivalent rank to the law, those for which under the Constitution can create, modify, suspend or abolish taxes and provide tax benefits. Any reference to the law is construed as referring also to the rules of equivalent rank.

René David states that the sources of law in the States belonging to the family are Roman Germanic law, custom, jurisprudence, doctrine and general principles. To these sources some authors describe formal sources of law. The record that the Peruvian government and the Spanish State belong to the Roman-Germanic legal family.

The brokerage contract in the Peruvian government and the Spanish state has not been regulated by law.

Therefore we must turn to other sources of law as custom, law and social reality, in this sense corresponds to study the same in reference to real estate brokerage.

The law can not ignore social reality that the living law can be seen in it, which is of great importance to the right. The jurisprudence also appreciates the living law.

Therefore we must point out that formal sources of law sometimes does not regulate certain legal form, but this takes place in practice, so we can say that positive law can not regulate all social reality, but only covers part of the same as all regular social assumptions that is very complex.

There are several classifications of legal families, among which the classification made by René David, which is classified by the legal systems in four legal families are: 1) Roman Germanic legal family, 2) common legal family law. 3) legal family of social rights, and 4) legal family of philosophical and religious systems.

Lucio Pegoraro and Rinella Angelo out that in a broad sense, the common law legal systems are rooted in the legal system that was developed in England and spread to the systems that evolved from the English base, as in the case United States of America.

Civil law systems are, however, in the tradition of Roman law roots of the same structure. They have their main area of ​​coverage in the liberal-democratic states of continental Europe and those that derive from them (for example, in South America).

Include many common examples that illustrate the important differences that exist between the two types of systems.

Normally it is noted that civil rights are based on source coding of the rules: the law develops a role in the legal system. By contrast, common law systems are essentially based on case law. The law, which is not unheard of, no question, however, a location in your system fonts. While a foundation has it own autonomous source law jurisprudence.

Then, it is also profound difference in regard to the organization of courts and the process. As shown, just note that the civil judge is an officer who accesses the judiciary by public competition, whereas the selection of the common law judge goes through many different channels and, if necessary, you can even file your political appointment .

Many lawyers believe that the law is no source of law in states that are part of the common law legal family, which is not correct, because in these states the legislation is a source of law in this regard Philip James points out that in English law the legislation is a major source of law.

The right of the United States has several sources among which the restatements that are positive and concrete source of American law. Which there is no other legal system. The United States has evolved over the restatements. The restatements are not enacted legislation because not properly known a legislature chosen by the people, nor state or federal governments. The committee drafted specialists in each field, and discussed and approved at a forum of about five hundred elite jurists. Who wants to study American law in this matter, or other matter declared in the same way, you should start with a Restatement.

2. GENERAL

The reality usually goes beyond the positive law of states belonging to the Germanic Roman family. That is, the positive law usually falls short of social reality. For example, procurement positive law and especially the Peruvian Civil Code of 1984 does not regulate all existing contracts in the Peruvian law.

Abrogated with the Peruvian Civil Code of 1852 and 1936 was the same, ie procurement, civil codes do not regulate these all existing contracts in the Peruvian law.

Some professionals believe that the Civil Code specifically regulates all private law contracts, which is incorrect because although the above code is part of private law, it as a main rule of private law regulates only one part of it.

The original text of the Code of Commerce of Peru, 1902 several agreements regulating trade or business, such as the purchase agreement, exchange, mutual, deposit, and deposit of a commercial nature, the insurance contract and the contract of transport (this contract last of which we have not had access to research, but the same is applied consistently and is very important in the commercial, contractual, business and within the private law), among others. But Article 2112 of the Peruvian Civil Code of 1984 provided that contracts of sale, exchange, mutual, bond deposit and commercial nature, are governed by the provisions of the Civil Code provides that articles are repealed 297-314, 320-341 and 430-433 of the Commercial Code.

Article 1353 of the Peruvian Civil Code of 1984 states that all private law contracts, including the unnamed, are subject to the general rules contained the first section entitled General Contract Source Book of Obligations of the Civil Code, except as resulting inconsistent with the rules of each contract.

Therefore we can say that with the Peruvian Civil Code of 1984 has continued the process of decoding the Code of Commerce of Peru in 1902, initiated by special laws such as the bankruptcy law (material that was later regulated by other laws and that is currently regulated by the general law of the bankruptcy system), the Securities Act and the Companies Act (matter is now regulated by the General Corporation Law also regulates the law that civil society, matter was not regulated by company law).

That is, the Code of Commerce of Peru, 1902 and 1984, the Peruvian Civil Code the main contracts governing private law, however, other private legal rules pertaining to commercial contracts and also regulate the banking law.

In all states this occurs, ie normally in every state substantive law and in particular the Civil Code falls short of social reality. For example in Spain, positive law and in particular the Civil Code does not regulate all contracts.

Any lawyer can not ignore the practice to that effect in the practice of law are contracts that every lawyer should know.

It is in this sense that there is the urgent need to study the brokerage contract, which in our country normally held by a private document with signatures authenticated by a Notary Public.

That is, the brokerage contract is not normally part of the record and not granted by deed.

We investigate various legal issues, but we should not ignore social reality, a purely theoretical research, not taking into account what happens in reality.

Upon investigation we prefer to investigate new legal figures or not regulated in positive law, that in terms of states belonging to the Germanic Roman family.

For example, in the work of Peruvian civil law codified, we can not ignore the draft law of amendments to the Peruvian Civil Code 1984.

3. NATURE JUR? DICA Brokerage

On the right is studied in some cases the legal nature of the legal institution studied. For example, when considering the purchase and sale in some cases we study the legal nature of it, another example is when studying the legal nature of leasing or trust in some cases we study the legal nature of them.

Legal institutions have legal status in this sense when research is necessary to determine the same so that the studies are more accurate and deeper.

For example, the possession and ownership have the legal status of being real rights and real rights are major rights that are created on the property. Therefore the applicable standard is the Peruvian Civil Code of 1984 when Peruvian study civil law. Or the Spanish Civil Code of 1889 when we study the Spanish civil law.

Another example is the case with the bill of exchange whose legal nature is to be a security. Therefore the applicable standard is the Peruvian securities law when studying the exchange law or cartular Peru.

In this sense when we consider the brokerage for our purposes should determine their legal status.

The brokerage has the legal status of being a contract and a contract as a contract is unusual in Peruvian law and Spanish law that is not regulated by positive law of those states.

Therefore we must point out that the real estate brokerage will apply the general rules on contracts contained in the Civil Code.

Article 1353 of the Peruvian Civil Code of 1984 states that all private law contracts, including the unnamed, are subject to the general rules contained in the first section of the book source code obligations in question, except as incompatible with the rules of each contract.

4. BROKERAGE CLASSES

No single type or class of broker, but there are several types such as: real estate brokerage, insurance brokerage, brokerage vehicular and securities brokerage.

The four classes or types of contracts are discussed in contract law, but specifically the real estate brokerage and vehicular traffic in commercial law, insurance brokerage, insurance law and securities brokerage in securities law.

Of these four types or classes of brokerage in the present work is the subject of study only the real estate brokerage, which we develop the most important aspects, however, many of the comments also apply to other types or classes of brokerage.

5. COMPETENT COURTS AND BOARDS.

The various problems that exist between the parties may be ventilated by the judiciary through its courts, such as the peace courts, civil courts, criminal courts, family courts, magistrates lawyer, supreme upper rooms and halls . Magistrates' courts also need lawyers not taken into account because they provide the service of justice.

In this sense every court has established jurisdiction in some cases by the Organic Law of Judicial Power, but other times the rule that competition is a special resolution.

In this sense in the present work corresponds determine which are the courts.

In the negotiation, conclusion and implementation of real estate brokerage may be problems which can in some cases be aired on the Judiciary.

Therefore it is necessary to identify competent courts and halls.

When brokering scam in the competent courts to prosecute those who committed this crime are the criminal courts and criminal divisions, the latter formerly known as Corrections Courts.

But when the problem is a document containing grant brokerage contract, or damages resulting from the execution of the contract or negotiating in bad faith and there is liability in the talks, previous treatment or preliminary treatment, or the problem is not payment as agreed in contract brokerage, the competent courts are the civil courts.

However, with the creation of specialized courts and rooms in the subspecialty civil business, these would be the competent court as the real estate brokerage is a contract that is part of commercial law. Subparagraph e of paragraph 1 of Article I of the Administrative Order No. 006-2004-SP-CS issued by the President of the Supreme Court of the Republic establishes that the courts of the subspecialty Commercial aware of the claims arising from contracts brokerage .

Besides the literal to the paragraph 2 of Article I of the same rule above states that the upper rooms of the Commercial subspecialty known on appeal, among other issues resolved by the processes of the Subspecialty Commercial Courts. As complaints of law by rejecting the appeal.

As for the appeal, the competent Chambers of the Supreme Court of Justice of the Republic is known regarding the competence of the courts and halls are subspecialty Commercial Civil Chambers.

6. THE VACUUM IS A REAL ESTATE BROKERAGE LEGAL

The law regulates the legal cases, but it can not regulate all the cases, in that sense there are some assumptions or legal concepts that are not regulated by law. In these cases not covered by the law is called loopholes.

It can occur if the loophole is governed by case law or doctrine, in such a case corresponds to consider them when they are a source of law to apply to particular legal course or institution.

The loopholes are not the same in all states. As such a state can be a contract is a legal vacuum, but not in another.

The loopholes are not the same gaps in the law. However they are confused by some, which corresponds to distinguish them. Are loopholes that are not regulated and prescribed by law, while legal gaps are when all the sources of law are not under certain circumstances or legal institutions. That is, a loophole in some cases also a legal vacuum, but not always a loophole is a loophole. The loopholes are always loopholes.

The real estate brokerage is not regulated in Peruvian positive law and positive law in Spanish, in this sense is the law of both States loopholes.

In some cases the loopholes of a State are governed by the law of another State or the law of another State. For example, the real estate brokerage is governed by Spanish law. In such a case is to apply the same in the Peruvian State.

7. BACKGROUND

When researching a topic, subject or topic is necessary to take into account the existing background, in this sense then we will refer to the main background.

Under Spanish law are the main background is the book of Daniel Rodriguez Ruiz de Villa through his book The Real Estate Brokerage Agreement: The Real Estate Agents.

That is, there is already a great job on this atypical contract, which develops the main aspects of the contract in question as the following: general aspects and character delineation, the real estate brokerage to other related contracts, elements of real estate brokerage effects and extinction of real estate brokerage.

In the Peruvian doctrine should not ignore the work that was published in the book Modern Business Contracts authored Volume II Sydney Alex Melgar Bravo.

In this sense we can say that the contract subject matter has been studied by Peruvian doctrine and also by foreign doctrine. Therefore any study of the brokerage without taking into account this background a study would be trifling, which should be discarded especially at post-graduate studies, such as master's or doctoral degree, or advanced degrees in specific areas.

8. BROKERAGE IN EGYPT, ROME, CHILE, PANAMA AND COLOMBIA.

When conducting legal research can be seen if we make enriched this research study of Roman law and if we compare the current law with Roman law.

However, it is necessary to make clear that for some authors the right of Roman law is not current or dead right, but for others Roman law is still alive applicable law or right that can be studied by reviewing the existing laws of some states such as Peruvian law, Spanish, Argentine, Chilean, Bolivian, Ecuadorian, Italian, French, among others, which implies a partial vision slit affirm the right table that Roman is dead right that only serves as a background study, ie involves a misplaced statement that Roman law should only be considered as a precedent.

To have a fair idea of ​​Roman law should work study entitled the classification of goods in Peruvian positive law has the same author as the author of this research work, which was published in the Law Review of Peru took 58 page 127 for the month of September this year 2004.

Reason for consideration in particular the history of Roman law brokerage and Egypt.

The origin of the brokerage is very old, dating back to ancient Egypt, where the runners were a particular breed.

In Rome had extensive development especially in family relationships, namely: pimp, mediator, interpres, internuncius, curritor, where are the root French "coutiere? and Hispanic "corridor? .

The legislative history of brokering more remote we find in the Republic of Chile. Place through the Commercial Code of 1865 was legislated in this respect, this position was later copied by the Republic of Panama, Colombia made it later in the year 1887.

9. BROKERAGE CONTRACT IS A CONTRACT AT? PICO

There are various classifications of contracts, one of which classifies contracts into typical and atypical contracts.

These are typical contracts that are regulated by the positive law of a State.

On the other hand are non-standard contracts which are not regulated in the positive law of a State.

Therefore not being regulated brokerage contract in the Peruvian and Spanish positive law, should be considered as an atypical contract the right of both states.

10. DEFINITION OF REAL ESTATE BROKERAGE AGREEMENT

When researching a topic, subject or topic is convenient to define the legal investigated to obtain a more accurate and more precise, to avoid confusing legal concepts, especially when they are similar.

For example, the lease contract is similar to the loan, however, each of these has its own characteristics, is different, so we can understand if we define this legal form of contract.

In this regard in the next paragraph we proceed to define the real estate brokerage contract as implemented in the Peruvian daily.

The brokerage contract is a contract that is not expressly regulated in Peruvian positive law, by which the owner grants the right to a third party that gets a buyer, seller or lessor to a lessee or a fee, which can be a fixed amount or a percentage or a monthly fee of the first leases.

The brokerage contract is a contract that is normally held by private document notarization of signatures.

The brokerage contract may be a contract of adhesion or any prior negotiation is, in the contract talks are not always available, previous treatment or preliminary treatment. Since it is likely that real estate brokerage firms establish pre-established document, and negotiate the terms support.

BRAVO Alex MELGAR Sydney states that the brokerage is the contract whereby a person named proponent or applicant sends a request materials to another person called corridor, so that you bring the opportunity and the person may hold the legal business, in exchange for financial compensation, which in practice usually results in a percentage of the sale value of the property.

BRAVO Alex MELGAR Sydney states that the brokerage is the agreement between "broker? and "principal?, for which the former agrees for a fee to search the person or thing necessary to conclude the contract designed by the second.

Precisely the same author that differs from other contracts: a) the commission in the commission stipulated in this contract in its own name, while in the brokerage acts as a simple approximation nexus for the parties sign the contract, b) the location of services: in this contract, the following orders of the employer, the effort is paid without regard to the outcome. The brokerage commission is paid by the result, to reach which the runner chooses, in its discretion, the means most effective means.

Also states that the doctrine is discussed whether or not contract: for some (TUMEDEI; PAZZI) is unilateral promise, preliminary contract, which only becomes such when the customer enters into a contract with the third, others (CARRARO) understand that is only a list of mediation without prejudice to this has been perceived (Messineo), which is brokerage contract, in which, it becomes important that the rights and obligations are imposed by law (FERRI), also has said it is trilateral agreement, that complies with the intervention of the client, broker and third. However, the contract should not be confused with the contract brokerage commission merchant orthodox.

Raul Chanamé brokerage accurate ORB following: call and to the activity performed by the broker or intermediary trade or commercial and for which he receives remuneration.

On the website http://www.fce.unl.edu.ar/derechoprivado/contenidos-contratodecorretaje.htm found the October 22, 2004 shows the following definition of brokerage "brokerage contract is when a part-runner - undertakes to provide an interested party to conclude a transaction with another party, customer or client, who agrees to pay a commission if the transaction takes place?.

11. ECONOMIC FUNCTION

Every institution has an economic, as the law relates to the economy.

When studying a legal institution is convenient to study the economic, in that sense the same website as mentioned above, the economic role of the brokerage is the next

"The broker is an intermediary between supply and demand. In other words, links two or more parties for the completion of business without being tied to any of them for collaborative relationships, subordination or representation.

This means that the broker provides a service.

An example of this activity is called the real estate brokerage. Who is interested in selling a property can attempt to connect himself with a buyer, but frequently uses the services of a broker. This attempt to connect with a buyer. If, ultimately, the contract of sale takes place, the seller must pay the broker a commission for the service. This fee is usually stated as a percentage of the sales price.

It may be that the buyer also have required the services of the corridor (ie, its intention to buy a house led to a property). In this case, the broker has contracted with both who wanted to sell and who intended to buy. Two contracts, and each will receive commission?.

12. TRADE mediators

Pedro Flores Polo states that the Code of Commerce of Peru, named after the auctioneer auctioneers or agents of change and exchange, trade corridors and corridors interpreters ships. The creation of the National Supervisory Commission of Companies and Securities whose legal history dating back to the laws Nos. 17020 and 18302 and innovate the securities laws, were repealed all provisions of the Code of Commerce mediators. In practice, by law, they have been reduced to only the "collegiate players bag? and "auctioneer? . As for the other agents or brokers, in our opinion, are covered by rules of the Commercial Code on mandate and commission merchant and, additionally, the Civil Code, except in matters specifically regulated, as is the case of the "representatives of foreign firms? . Having passed the new Civil Code, we believe that this view remains valid, in accordance with the provisions of Articles 1353 and 2112.

13. INSURANCE AGENT

Pedro Flores Polo accurate the insurance agent acts as intermediary between insurers and insured, receiving a commission. For the specialization of their work is also called "insurance brokers? or "brokers?, commercial use and may be natural or legal persons. Its services include advice on insurance for their customers. In Peru, have been called legally "insurance producers? by defining the Decree Law No. 17855 as "all natural or legal persons who act as paid intermediaries in insurance contracts?. They are prevented from exercising their activity if not previously registered in the Officer who works in the Banking and Insurance.



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