Contractual retention
Introduction
The pledge contract consists of one party (the debtor) delivering a movable or immovable thing (there are other differences with the mortgage) to the other party (the creditor), with the purpose of obtaining a guarantee and security of a credit, in such a way that it grants pledged possession and with it the power to retain the pledged thing and, where appropriate, realize it and pay it preferably with the product of said realization, if the debtor does not comply with the obligation. guaranteed.[1].
The thing delivered does not become the property of the creditor, but his right is much more limited in that it is only possessory as collateral, without the creditor being able to simply appropriate the thing pledged (prohibition of the confiscation agreement).
With the perfection of the pledge contract "Pledge (Right)"), a real right of credit over the movable thing delivered is born and constituted, by which the beneficiary can sell the thing to satisfy his credit regardless of the owner of the same (given that the owner, from the constitution of the pledge until its execution, may have sold it).
As a measure of protection against third parties, the regulation of the pledge establishes that the movable property that is the subject of the guarantee becomes the possession of the creditor. In this way, the debtor cannot sell it to another who was unaware of the existence of the charge "Charge (Right)"), nor encumber it as collateral for other debts, which make its realizable value unviable. For cases of pledge without transfer, other requirements such as registration are necessary.[2].
Etymological origin
Pignus in Rome was a real contract (it was perfected with the delivery of the thing: datio rei), it was causal, bonae fidei, accessory, synallagmatic, imperfect.
In the Items, the pledge and the mortgage are treated interchangeably under the name of peños (law 1, title 13).
Concept
The pledge is a contract by virtue of which a real right over an alienable movable property is established, to guarantee compliance with an obligation and its preference in payment (Article 2856 Federal Civil Code).