Title deed
Introduction
The theory of title and manner is a system of transmission of ownership of things that requires the execution of a contract and the subsequent delivery of the thing that is to be transmitted, without either of the two being sufficient separately. It is the system in force in Spain today.
History
The theory of title and mode has its origin in Roman Law. The most common way of acquiring property in Rome was the delivery of the thing being transferred (if it was a movable thing) or entry into the property (if the thing was immovable). This act could be a fictitious delivery but it was always necessary to transmit the property.[1]
For the transfer of property to occur, it was necessary that this delivery had a just cause (iusta causa traditionis) or reason for which the delivery was made. Among these causes was the purchase and sale contract, so that the delivery is made by the seller to comply with its contractual obligation (causa solvendi).[2].
Nature and characteristics
In systems in which the theory of title and manner governs, contracts do not transfer ownership of any property,[3] but rather they generate the obligation to deliver it and until that delivery occurs, the seller (who appears as such in the contract) continues to be the owner of the thing. Thus, the transmission of a thing requires a title (the purchase and sale contract or another aimed at transmitting ownership) and a way, which is delivery.
The theory of title and manner tells us that neither delivery alone nor contract alone is enough. It is necessary that a prior contract states why the delivery is made. Thus, with delivery the property is not transferred when a lease contract was concluded, but it is when the objective of the previous contract was to transfer the property (for example a purchase and sale contract). If there was delivery but no contract, ownership will not be transferred.