Abstract

GIOVA, Stefania. Principle of proportionality and the mortgage guarantee. Rev. Bol. Der. [online]. 2018, n.25, pp.306-318. ISSN 2070-8157.

The research analyses the role of the principle of proportionality in the regulation of mortgage security, in addition also suggesting practical solutions for the clarification of the more general problem of the relationship between debt and securities. The Author explains the axiological basis of the principle that manifest in the necessity of balancing the interest of the debtor to not incur a sacrifice “beyond that which is strictly necessary” and, on the other hand, that of the creditor to possess adequate guarantees. The principle, before assuming a constitutional status, orientated legislators in 1942 to define the civil code rules as regards the registration and reduction of mortgages wherever a balance is contemplated both in the phase of the setting up of securities, with limitations regarding their reduction, as well as in the executive phase with arrangements relative to «improper reductions». Its value as a general principle makes it applicable not only as a hermeneutical instrument but also as regards its perceptive capacity, such as the maximization of its underlying values, making possible remedies for the reduction of equity in cases of the voluntary concession of securities.

Keywords : Principie of proportionality; mortgage guarantee.

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