La reserva de dominio como garantía funcional del comercio internacional: su eficacia en España

Abstract

In time of crisis, as in time of economic stability, the availability of credit is a key element in financing business activity. But in the business world there is no credit without security. In this sense, the retention of tittle clause, understood as a clause inserted in a contract for the sale of movable property, wich suspends the transfer of propert until the full payment of the deferred price, is a cheap inter-party financing mechanism, a guarantee of compliance of the deferred payment, and, finally, and effective guarantee of satisfaction of the seller interest, in case of default of the buyer. However, when it is inserted in an international contract, its effectiveness is highly questioned, as a consecuence of the spatial discontinuity caused by the application of the lex rei sitae rule, as a criterion for determinig the law applicable to rights in rem in case on movables. This discontinuity of its effectiveness is caused, in turn, by the diversity of requirements that national legislators demand for their effectiveness against other creditors of the buyer and third parties. In this context, this paper analyzes the posible effectiveness in Spain of retention of title agreed upon abroad and proposes de lege lata and de lege ferenda solutions, taking into account legislative developments, in different territorial and material areas, that offer different models of regulation, through the choice or combination of material and conflictual techniques.