Our Civil Code is divided into three parts: people, things and actions; real rights are integrated within Book I and II referring to things, that is why real rights are called: right to things or property.
The current legislation does not offer any definition, but it does clearly offer a differentiation with the credit right. ROCA SASTRE defines it as “a subjective right that attributes to its owner a direct and immediate power over a thing, imposing on everyone a duty of respect and abstention.”
It is characterized by: immediacy; the holder of the real right has direct and immediate power over the thing and the absolutivity of the right, since the holder has erga omnes powers, the community must refrain from disturbing that right.
As for credit rights, they are also called as rights of obligations and their distinction with respect to real rights is what really defines their definition.
The main differences between real rights and credit rights are the following:
By its object: the real right is exercised over a thing, while the credit right is exercised over the debtor, who has the obligation to perform a certain conduct.
- For the taxable person: in real law the taxable person is collective and, therefore, indeterminate. In the credit right the taxable person is individually determined. In other words, the credit right can be made effective against the debtors of the obligation and their heirs, while the real right can be exercised against all (“erga omnes” effectiveness).
- Due to its extinction: the real rights disappear when the thing perishes, while in the credit rights, the death of the thing does not extinguish the real rights, but the obligation subsists as compensation for damages that the debtor must satisfy. the obligation, and the real rights will not be extinguished until the debtor does not satisfy them.
- For its effectiveness: the real right is an absolute opposable right “erga omnes”, while the credit right is a relative right, since it can only be demanded against the debtor.
For their advertising: real rights can be registered in the Property Registry, while in credit rights there is no such possibility of advertising.
- By the principles that govern them: in real rights the principles contained in the law govern, while the credit rights are based on the autonomy of the will of the parties that contract the obligation.
- By their origin: the real rights are constituted by title and mode (they cannot be born solely from the contract) and can be acquired by usucapion. The credit rights are acquired through contracts and are not susceptible to usucaption.