La validez de la hipoteca abierta y su ejecutividad como título de ejecución – Análisis del caso ecuatoriano.

Abstract

In this paper we analyze the legal institution of the mortgage in its kind: the open mortgage. For this, we begin the study in a first part that includes the general considerations of the mortgage as real right and the determination and analysis of what we judge as essential aspects of it; we continue with its implementation at the contractual level and the determination of its essential elements based on its character of real right and its essential aspects; We end with the study of each one of the faculties that derive from the essential elements of the mortgage as a contract. We go through this conceptual iter under the threshold of the analysis of the relevant current regulations and under the contributions made by multiple experts in the matter. Having distinguished the essential elements of the mortgage contract and its scope, the next step is to analyze whether the mortgage, in its kind, open mortgage, as a contract has the essential elements for its birth and subsistence as a legal institution and if it also has , the essential elements to be considered an executable execution title via the execution procedure. The various applications of this in the courts at the national level will contribute to the identification of the problem and will help us to outline a proposal that improves the understanding of its application and execution in our environment. The work concludes with the categorical statement referring to the viability of the open mortgage as a title of execution.