As we have seen above, the CPA regulates two types of ordinary procedure, namely judicial and oral. Given their status, both serve as a conduit for many different types of claims. However, there are cases in which the claim possesses very specific or special characteristics, which are not appropriate for a specific avenue of procedure, but which do justify the employment of certain specific procedural rules; in the light of which the legislation provides for a number of special procedural options linked to the corresponding ordinary procedure, based on the substance and quantity of the claim, this is termed special ordinary procedure.
Thus, on the one hand, with the aim of obtaining a ruling that the purchaser of chattels inscribed in the Hire Purchase Registery of Personal Property (hereinafter referred to as the HPRPP) has breached his obligations, the sole aim is to obtain enforcement of the ruling against the defaulting purchaser; and on the other, the claim may be to enforce a ruling against vendors or lessors – declared in breach of contract by the other party to the legal agreement – and thus to obtain immediate delivery of the assets that are the subject of the financial leasing contract or the lease of personalty as the case may be; or with regard to a hire purchase agreement with reserved legal ownership. In all these cases, because what is shought – amounts solely to the recovery of property that is the subject of a legal agreement – the legislation provides the claimant with the rememdy of oral proceedings, regardless of the amount in question; and grants these oral hearings a special summary status. Before examining these processes and their special characteristics, it is necessary to clarify two aspects with regard to their scope of application:
• Oral summary proceedings for the recovery of personal property can only be claimed to terminate the contract or for a declaration of default and, consequently, only for the recovery of assets sold or leased. If the claimant wishes to bring other related actions, for example, for the payment of outstanding and unpaid rents or compensation for damages suffered, then resort must be had to the relevant ordinary process depending on the amount involved.
• To avail of this specific legal remedy it is necessary that the contract of sale or lease be registered in the HPRPP and that it be formalized in the official manner established for this; in addition to being fully documented by public deed or by a controlled commercial contract policy. In accordance with a joint interpretation of the CPA and the Hire Purchase of Personal Property Act (hereinafter referred to as the HPPPAct).
In reality the CPA does not provide one form of oral summary proceedings for the recovery of such property, but two. The reason is that, although the legal relationship involved is very similar, the hire purchase sale of personal property involves the transfer of ownership of the property from the outset of the legal relationship; whereas leasing and renting involve the business activity of leasing that does not involve transfer of ownership; and a sale with a retention of title agreement only transfers ownership at the end of the legal relationship, not at its commencement. These distinctions, in turn, determine small variations in the oral summary proceedings depending on whether the object amounts to the hire purchase sale of personal property – in which case the debtor is the owner of the property of which the creditor seeks recovery – or the business of leasing, renting or sale with reservation of title agreement – in these cases the creditor retains ownership of the property whose recovery is being sought. This study is common to both procedures, though emphasizing the differences between each when necessary.