Antichresis

The antichresis in civil and criminal law, is a guarantee by virtue of which the debtor delivers something to his creditor for the payment of an unpaid credit with the fruits, natural or civil (interest), that the thing produces, restoring it once the debt has been paid. While a part of the doctrine considers it a real right, this qualification is rejected by some.

For its part, an anticretic contract is commonly known as the assignment of a good in exchange for an amount of money. The same amount of money must be returned in order to recover the real estate. Theoretically, the interest on the money pays for the use of the asset unless otherwise stipulated. It would have the main disadvantage that the debtor would be left without the thing (such as the property) and with the debt, even in the event of an economic crisis.

Etymology

The nomen juris of antichresis is of Greek origin and derives from the combination of the terms ἀντί (anti), literally "in place of, to change"; and χρῆσις (chrêsis), literally "use, employment, enjoyment". Therefore, antichresis is constituted as the use of a thing by the creditor instead of the debtor.

Legal regulation by country

Argentina

The Civil and Commercial Code of the Argentine Nation, in its article 2212, reads as follows:

Anti-crisis is the right of security that falls on individualized recordings, the possession of which is given to the creditor or to a third party designated by the parties, to whom the proceeds are allowed to be charged to a debt.

Chile

In Chile, the Civil Code defines and regulates antichresis in Title XXXIX of Book IV, articles 2435 to 2445.

Columbia

In Colombia, the Civil Code regulates antichresis between articles 2458 and 2468, defining it as:

A contract for which a root farm is given to the creditor to be paid with its fruits.

Likewise, it is stipulated that the antichresis contract is perfected with the tradition of the property, without the creditor obtaining any real right over the thing delivered by that single act.

Ecuador

In Ecuador, the Civil Code defines and regulates antichresis in Title XXXVII of Book IV ON OBLIGATIONS IN GENERAL AND CONTRACTS, articles 2337 to 2347. In its article 2337, it says:

Anticresis is a contract by which the creditor is given a root thing, to be paid with its fruits.

Venezuelan

In Venezuela, the Civil Code defines and regulates antichresis in Title XX, articles 1855 to 1862.

Spain

In Spain it is regulated in articles 1881 to 1886 of the Civil Code.

Article 1881 says:

By the anti-cresis, the creditor acquires the right to receive the fruits of a property of its debtor, with the obligation to apply them to the payment of the interests, if any, and then to the capital of its credit.