Introduction To Patrimonial Law

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Introduction to spanish civil patrimonial law
Introducción al Derecho Civil Patrimonial (Universidad Carlos III de Madrid)
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CHAPTER 1: LAW AND SOCIETY
1.1. LAW AND SOCIETY

- The law arises as an instrument to organize the society. It is a system of legal rules established to
regulate co-existence imposed by the controlling authority.
- The more complex a society becomes, the more complex its legal system. There are different legal
fields as such as Civil Law, Commercial Law, Tax Law, Procedure law, Labor law…
- Also the difference between the Private law and Public law:
 Private law (Civil law, Commercial law):
 Regulates legal relations among individuals and among individuals and State in the private
sphere
 Public law (Administrative Law, Tax Law, Criminal law):
 Regulates the organization of the State
 Regulates legal relations where the State acts as the defender of legal order
 Protects the general interests of society
1.2. PATRIMONIAL LAW AS A PART OF CIVIL LAW

- It is the part of the legal system made of norms and institutions that rule relations between
individuals within the community. Civil law is the general private law because it is the Private law
that has not been assumed by a specialized field, such as Commercial or Labor law.
- The regulation of relations between individuals change with the time and the current Civil law
emerges from the liberal principles of French Revolution although it has developed in certain fields.
So Civil law rules the most intimate matters regarding the individuals, it comprises the legal rules
that are close to the human being (familiar relationships, economic transactions, consequences of
someone’s death).
- Not all Civil Law has a Patrimonial character because part of it refers strictly to the person
(filiations, dissolution of marriage, nationality and absence).
- The core of Civil Patrimonial law (law of goods) is constituted by:
 Law of obligations:
 Regulating economic relations among individuals, mainly credit rights
 Law of things:
 Regulating relations between individuals and goods, mainly real rights
- Foral laws (laws of the different territories) subsist in Catalonia, Navarre, Balearic Islands, Aragon,
Galicia and Vizcaya, and they are mainly concerned with family succession law. Territories that had
the Foral laws before the enactment of Spanish Constitution can regulate fields that were not
previously regulated by those Foral laws.
- However there are some fields of Civil law which are of the exclusive competence of the State and
cannot be regulated by any Autonomous Community.
1.3. ECONOMIC PUBLIC ORDER

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- The economic public order is the action of the Administration in order to organize the economic
structure of the society. It is constituted by measures and legal rules that direct the economy,
organizing the production and distribution of wealth. It is not static, and it changes depending on
the principles that inspire the economical organization of a country in a certain time.
- General legal principles that inspire the organization of the Spanish economic activity nowadays:
 Private property:
 Economic goods can be attributed to the individuals and not to the State and it is right of all
citizens with its limitations due to its “social function” (interest of community has to be
considered).
 Certain goods are protected due to their importance for the social welfare and the general
interest .
 Existence of Public property (territorial sea, beaches, offshore zone, natural resources of the
economic zone, continental shelf)
 Economic Freedom (not absolutely free, the State might intervene):
 Free Market:
o Implicates that means of production can be in private hands while there is freedom in the
production and exchange of goods and services
 Freedom of contract:
o Right to choose one´s contracting parties and to trade with them on the terms and
conditions they find appropriate while being adapted to each special situation
 Free enterprise:
o Right to create and conduct a business for profit without the intervention of the State
 Exchange principle:
 Legal rules have to be established to regulate an exchange
 Based in a valid and true cause; otherwise it shall be a cause of unjust enrichment
 Tend to the greatest equilibrium possible between the performances of the parties
 Moral sense and principle of good faith:
 Covenants and agreements have to be performed as they were agreed (pacta sunt servanda).
 Incorporation of moral as one of the limits to the freedom of contract
 Moral sense is based on principle of good faith which has a double face:
o Active manifestation, which entails the honest intention.
o Passive manifestation, on the confidence in the correct behavior of the other party.
 Legal certainty:
 The persons that intervene in the market are confident due to the certainty of the legal rules
applicable to their situation.
 They can understand the consequences arising from a certain situation, business or project only
if this certainty exists.
 It is the situation in which persons are secure as to the applicable rules to their position.
 Legal certainty brings principles and consequences that make individuals confident that legal
order is going to be maintained.

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CHAPTER 2: PERSON´S LAW
2.1. PERSON´S LAW

- Law regulates situations in which persons are involved in order to organize their interests and avoid
conflicts arising from patrimonial legal relations.
- Personal rights (most of them fundamental rights) comprise different manifestations of human
dignity and they are the basis of any Legal System. The basic right is the right to life, integrity,
equality, freedom, security, honor and privacy.
- The legal system acknowledges the personality of every individual. And within the Law it is the Civil
Law that regulates the person as subject of legal relations.
- Certain groups of individuals are recognized by law as persons and the law grants them personality.
Therefore, these groups of individuals are also capable of holding rights and assume obligations.
These are called artificial persons as opposed to natural persons.
2.2. NATURAL PERSONS AND PERSONALITY

- Personality is acquired at the time of birth with life, once the complete loosening from the mother’s
womb takes place.
- Personality starts at birth, but upon conception a person (nasciturus) is considered as born for all
effects that are favorable to him, provided that he is born with the conditions stated.
2.3. CIVIL AND LEGAL CAPACITY

- Differences between civil or natural, legal and special capacity:
 Civil or natural capacity:
 It is the capacity to hold legal rights (all natural persons have personality) starting with birth
and ending with death and nobody can be deprived thereof.
 A person with natural capacity can hold legal rights but cannot administer them himself nor
validly execute his rights.
 Someone with civil capacity but without legal capacity would need a representative to act on his
behalf in order for his actions to have civil effects
 Parents represent minors with their paternal power or paternal authority, for other cases there
exist other representatives (tutor or curator).
 Legal capacity or capacity to act:
 Capacity to manage and exercise the rights and obligations that the person holds
 Acquired when the person turns 18 (comes out of paternal power or tutorship)
 They can enter into binding contracts or commit other legal acts (some exceptions like being 25
to adopt).
 Legal capacity can be complete or limited (incapacitation, minority).
 Special capacity:
 Special ability to execute them (25 to adopt)
2.4. MINORITY OF AGE

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- Minors have their legal capacity limited and have to be represented by their parents or tutor in
order to use rights and to bind the minor´s patrimony.
- Minors can validly contract in cases of little economic weight that due to their characteristics are
normal of their age and are in accordance with the social usages.
- Minors acquire their legal capacity gradually and not at the very moment of turning 18 (capacity of
minors shall be restrictively interpreted):
 Minors may perform certain acts regarding personal rights according to the laws and their
maturity conditions.
 When the child has sufficient discretion, his consent is necessary in order to enter into contracts
that obligate the child to perform personal services.
 12 get consent to be adopted or not
 14 can testify and has testamentary capacity
 16 can administer the properties and goods they have acquired through their work
 They can accept donations at any age (“sensu contrario”) and acquire possession of things.
—> Can accept donations without age limit;required understand situation
-If donation is onerous or conditional—> representative required
EMANCIPATED MINORS CAN BE
—> MAKE DONATIONS: YES—> representative with JUDICIAL AUTHORISATION REPRESENTATIVES (1.716)
2.5. EMANCIPATION Can grant Power of Attorney ONLY
for acts they have the necessary
- Emancipation means release from the power of control of somebody. capacity to perform
- The emancipated minor has the status of a person of full legal age, except in two cases:
1. Borrow money
2. Encumber or sell immovable property, commercial and industrial establishments, nor goods of
extraordinary value
- The emancipation can only be granted to a child of more than 16 years of age and it has to be
recorded with the Civil Registry. Once granted, it is irrevocable.
- There are different ways in which the emancipated status can be acquired:
a) By parents
 Code requires the minor´s consent in a public deed or authorization of the judge in charge of
the Registry
b) By Judge
 Child has to ask it to the judge who will listen to the parents before granting the emancipation
 The judge may grant it if:
o Parents live apart
o Cause that gravely hinders the exercise of paternal power
o Minor is under tutorship (legal age benefit)
c) Marriage
 Emancipated minor can only valid marry
 Only when the minor obtains from a judge an age dispensation to marry which can be grated
with 14
d) Independent economic life from the parents
 Economic independence
 Exception because the parents´ consent might be revoked
CASE: Can emancipated buy diamond? In principle NO (not ordinary act of his age);parents needed
ONLY WAY: Marry another emancipated; consent of spouse—>can buy
2.6. INCAPACITATION

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- It is the limitation or deprivation of a person´s legal capacity by a judge, because the person is
impaired by a mental or physical impossibility to understand the consequences of his acts.
- The acts performed by an incapacitated person are voidable; that means that they are initially valid
but can be declared void if timely challenged due to the lack of the necessary legal capacity.
- A judicial decision is necessary to incapacitate a person. To annul contracts due to the person’s
inability to govern himself, it is necessary to proof that such inability existed when the act was
performed. On the other hand when someone has been incapacitated, the legal acts performed by
him will be voidable no matter if at the time of performance he has sufficient understanding to
execute them.
- The judicial decision also has to determine the scope of incapacity:
 Tutor:
 To represent the incapable as he cannot validly perform legal acts by himself (legal capacity
deprived)
 Curator:
 Who will assist the incapable only in those expressly fixed cases in the judicial decision where
double consent is necessary (the act that the incapable cannot perform is be limited)
- The declaration of incapacity must be brought to curt by familiars but in the case of minors only by
those exercising paternal power or tutorship. However anyone can inform the Attorney General´s
Office about facts that may be determinant of the incapacitation.
 Prodigality:
 A person who, though legal age, cannot manage his affaires in consequence of regular
disorganized and reckless conduct that endangers his patrimony.
 As incapacitation, prodigality has to be declared by a judicial decision (started by persons
emotionally dependent).
 It does not protect succession expectations.
 Although prodigal retains legal capacity, the judge wills appoint a curator who shall give consent
in specific acts.
2.7. ARTIFICIAL PERSONS

- Many human goals cannot be achieved by a single individual or are simply better performed by a
group of people. The Law recognizes these groups and grants them legal capacity because they
have supraindividual interests.
- The different individuals who integrate it also have an independent patrimony of the artificial
person.
- 2 types of artificial persons with personality that is independent from the personality of its
members:
 Public Law artificial persons:
 Corporations, associations and foundations of public interest
 Private Law artificial persons:
 Associations of private interest, whether civil, commercial, industrial
2.7.1. Foundations
 Concept:

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 Philanthropic institutions created by a person or a group of persons developing activities for the
benefit of the community
 They pursue and cover interest that the State no longer has to cover and have therefore special
tax regime.
 They are backed by the State who controls (Protectorate):
o The correct exercise of the foundation´s aims
o The proper allocation of the foundation´s economical resources
 Non-profit organizations
 Foundations consist of a patrimony (“universitas rerum”) dedicated by the founders to a certain
purpose.
 Endowment (initial patrimony) has to be sufficient (usually at least 30.000 euros).
 Constitution:
 It can be constituted by:
o Inter vivos through a public deed)
o Mortis causa by the founder’s testament
 Functioning:
 It is set in By-laws.
 The management and representation corresponds to Board of Managers (at least 3 members)
and the post in non-remunerated:
o They watch for the fulfillment of the foundation´s aims and administer the patrimony.
 A protectorate authorization is needed in order to dispose freely of their assets.
 At least 70% of income has to be destined to the foundation´s goals.
 Special accounting and auditing rules.
2.7.2. Associations
 Concept:
 Artificial person constituted by a group of individuals (universitas personarum) who get
together to carry out a purpose
 Non-profit associations
 If it pursues general interests, it can be qualified as public usefulness association and enjoy
certain economical and tax benefits.
 Anyone may create or become a member of an association but nobody can be forced to create,
join or stay in an association or to declare that he is a member.
 The organization and functioning has to be democratic.
 The income obtained has to be destined to fulfillment of the goals and the law requires the
accounting of the association.
 Constitution:
 They acquire personality through the agreement of 3 or more natural or artificial persons who
undertake knowledge, means and activities to achieve common and licit purposes.
 Personality is acquired since it is enacted in the Constitutional Certificate.
 To attain legal capacity it is not necessary to register in Constitutional Certificate, but for the
existence of the association to be effective against 3rd parties it is necessary.
 Requirements to be part of associations:
o Legal capacity
o Non-emancipated minors of more than 14 can do so with consent of representatives

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o For artificial persons, an express agreement of their decision making bodies is required.
 The Constitutional Certificate shall be formalized in public or private document.
 Functioning:
 It is set in By-Laws
 The main body is the General Assembly that governs and all members meet at least once a year.
 Management and representation corresponds to a representation committee.
 Members have rights (participate in activities, vote and meet, be informed, attack the decisions,
separate themselves from associations) and obligations (pay quotas, fulfill the obligations in the
By-Laws, collaborate for the consequences).
2.8. REPRESENTATION: POWER OF ATTORNEY

 Concept:
 Direct representation exists when a person (representative) performs an act of the law in
another person´s (dominus/principal) name and on his behalf so that the effects of such act
directly and immediately affect the person represented.
 When representation exists, the act executed by the representative shall fall with and be
responsibility of the principal.
 A power of attorney has to be previously granted to the representative.
 Voluntary representation:
o Principal entrusts representative
 Legal representation:
o Law appoints representative without taking into account the will of the person represented.
o Law is also the one that defines the powers of the representative.
 Act of empowering:
 It is the act by which a principal grants another person a power to act in his name and on his
behalf and it is documented in the power of attorney.
 It is unilateral and the will of the person appointed is not necessary because it is just an
authorization.
 The knowledge of the existence of the empowering by the representative is sufficient.
 Once empowered, the representative has to act attending primarily the interest of the principal.
 If the representative does not follow the instructions, the act is valid and the principal is bound
to perform it, but the representative is liable towards the principal and shall have to
compensate him for damages.
 Capacity needed
 There is freedom of form, but for some granted in a public deed (marriage, litigation,
administration of assets… acts where the representative has to prove his condition as such to
third parties)
 The representation can be apparent, third parties think that empowering exists (considered
under prism of good faith) If the representative does not fulfil the instructions (e.g. he is
 General power: told to sell a plot but not for less than half a million Euros and
he sells it for a lower price of 450,000 Euros) the act is valid and
o To perform all legal acts of the principal the principal is bound to perform it, but the representative is
liable towards the principal and shall have to compensate him
 Special power: for damages (in our example, 50,000 euros
o For certain determined acts

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 Express power:
o Comprise, alienate or mortgage goods
texto
 Power granted in general terms:
o Acts of administration
 Abuse of power:
 When representative acts differently to what he was empowered, generally in his own benefit
 The act is valid but he is responsible to the principal.
 “Representation” without power:
 Because the power of attorney never existed, expired or representative acts outside the scope of
such power (falsus procurator)
 Falsus procurator:
o The action does not have consequences for the principal unless he ratifies later.
o He is liable against third parties.
o Ratification can be express (statement) or tacit (behavior) and it is retroactive (effective since its
conclusion).
 Extinction of the empowering:
 Expiry of the power and fulfillment of the task
 Power revoked by the principal, effective when representative has knowledge of it (unilateral)
 Representative might renounce to the power, effective since knowledge of principal (but good
faith)
 Death, prodigality, insolvency
 Indirect representation:
 It exists when the representative acts on behalf of the principal but in his own name.
 The principal is not related to third parties, who do not know of his existence.
WHO CAN GRANT A POWER OF ATTORNEY?
To grant a power of attorney the principal has to have the capacity necessary to execute the act
in the law for which he is granting such power.
EMANCIPATED MINORS CAN BE REPRESENTATIVES and MANDATARIES (1.716)

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CHAPTER 3: THE CONTRACT
3.1. THE CONTRACT
 Concept:
 A contract is an agreement between two or more persons which creates rights and obligations
between them which are subject to economic valuation.
 They have a patrimonial nature, they can be converted into an economic value.
 Contracts are perfected by mere consent, and from that moment they are binding, but also to
the consequences in accordance with good faith and usage of the law.
3.2. THE AUTONOMY OF WILL AND OTHER PRINCIPLES OF CONTRACTS
- In contractual law, the principle of autonomy of will or private autonomy means that the parties
can enter into any kind of contracts, with any object whatsoever as long as they are not against
imperative laws.
- The contract which reflects the intention of the parties is the best way to regulate their legal
relations.
- There is contractual freedom but the covenants established by the parties cannot be contrary to
the law, moral or public order.
- Both should have the same status and a freedom of form exists although there are some
exceptions.
3.3. TYPES OF CONTRACTS
- There are many different classifications for contracts:

a) Unilateral and bilateral contracts
 Unilateral (donation, suretyship):
 Only create obligations for one of the parties
 Bilateral or reciprocal (sale):
 The parties enter into mutual engagements
b) Gratuitous and onerous contracts
 Gratuitous (donations and non-interest bearing loans):
 Those where one of the parties gives an advantage to the other without receiving
anything in exchange
 Onerous:
 Each of the parties receives something in exchange and the equivalence is established by
their will
o Commutative contracts:
 Equivalence known
o Contracts of chance or hazardous (gambling, betting, insurance, life annuity):
 Quantity or duration depend upon a certain event

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c) Consensual, real and formal contracts

 Consensual (sale):
 Are perfected by the mere consent of the parties (general rule)
 Real (deposit and pledges):
 Are perfected by the joint consent of the parties and physical delivery of the object of
the contract
 Formal (donation of immovable, mortgage):
 Are those that require a special form for their perfection and if such form is not adopted,
contract is null and void
d) Typical and non-typical contracts:
 Typical:
 Those which have a legal regulation provided for them.
 Non-typical (barter of a plot for a building):
 Those which have not a legal regulation, they are merely based on the parties will, law,
moral and public order.
e) Negotiated and adhesion contracts:
 Negotiated:
 Those that the parties can debate and freely agree on what better adapts to their
necessities.
 Adhesion (mass contracting):
 Those that have the contents thereof imposed by one of the contracting parties, the
other party not being able to negotiate.
3.4. ELEMENTS OF CONTRACTS
- Legal doctrine usually differentiates elements of the contact:

 Natural elements:
 They appear in contracts but can be altered or excluded by parties.
 Accidental elements:
 Those that the parties include to limit or modify the contract.
 A condition is an event which affects the enforceability of the contract and it can be future,
uncertain or past (unknown to parties).
o Precedent:
 Enforceability until event contract starts being enforceable when condition happens
o Subsequent:
 Termination of the contract when the event happens
 A term is the particular time agreed to start or cease contract.
 The modus is the burden that the person favored has to suffer (donation, legates).
 Essential elements:
 Those necessary for the existence of the contract, if not null and void
 No contract unless the following requisites occur:
1. The consent of contracting parties
2. A definite object
3. A consideration for the obligation established

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i. Consent
 Has to be declared
a) Capacity to give consent
b) Free consent
 Mistake (error):
 False knowledge of reality at the time of conclusion of the contract and to invalidate
the contract it has to be subject matter, essential and excusable
 The mistake is not to the neglect of the party suffering it who did not prevent it
through a proper diligence. The diligence of the party that did not suffer the mistake
is also taken into account. What was considered to be the base of the contract is not
in accordance with the resulting reality.
 Violence:
 Irresistible force used to obtain consent different from vice of consent is total
violence that makes the contract null for total lack of consent)
 Intimidation or duress:
 Threat and fear
 It has to be serious and imminent.
 Dolus or deceit (dolus, dolo):
 Tricks in bad faith, mistake has been willingly provoked, either actively or passively
(incidental dolus just compensation for damages) (not invalid the dolus bonus, that
refers to the permitted behavior).
ii. Object
 It is the matter dealt within the contract and to which the obligations arising from it refer.
 Requirements:
 Things or services have to be possible, lawful and in commercio (subject to trade).
 Object has to be determined
iii. Cause (consideration)
 Need for the obligation assumed in the contract to be justified
 Onerous, promise
 Remunerated, service or benefit remunerated
 Gratuitous, liberty of the benefactor.
 Requirements:
 It has to exist and be real (certain).
 The cause has to be lawful and according to good moral.
3.5. FORM OF CONTRACTS
- The form of contracts is the way a contract is exteriorized:

 Implied:
 The consent is deduced or presumed by the circumstances or by the conduct of the parties.
 Verbal:
 If problem arises it will be difficult to prove even of their existence.
 Writing:

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 Private document:
o Law between parties but it does not bind third parties
 Public document:
o Validated by a public official (Notary Public), give evidence of the date and of the
contents thereof
- The form is not an essential element of contracts, there are certain cases for which the law
requires a certain form to be adopted, with two different purposes:
i. As a proof of existence. The form facilitates the proof of the contract and it is not necessary for its
validity. The following have to be incorporated into a public instrument:
1. Acts and contracts having as a purpose the creation, transfer, amendment or extinction of real rights
on real property.
2. Leases of real property for a term of six or more years, provided that they have to be effective against
third parties.
3. Marital agreements and amendments thereto.
4. Assignments, repudiations and renunciations of inheritances rights or those arising from the marital
property.
5. Powers of attorney to contract marriage, general powers of attorney to litigate and special powers
which have to be produced in a legal action; the power of attorney to administer assets; and any other
power of attorney having as purpose an act in a public deed or which has to be raised to a public deed
which has to be opposed to third parties.
6. The assignment of action or tights arising from an act documented in a public deed.
7. All other contracts in which the amount of the performances of one of both parties exceed the sum of
Pesetas 1,500 must also be in writing, even though it is only in a private document.
- The consequence of not following the form required is not the nullity of the contract but for any
of the parties to ask for that form to be adopted.
ii. The form is required for the validity of the contract, being these the formal contracts, “ad
solemnitatem”.
3.6. FORMATION OF SALES
- Until there is an offer and acceptance, there will be no contract.

a) The offer
 It is the declaration of the will with the aim of concluding a contract on certain terms. It has
to be complete, it has to contain all the elements, if not it is just a dealing.
b) Acceptance
 It is the declaration of the will to accept the offer, the contract is then perfected.
 When there is distance between both, the knowledge criteria is followed here.
3.7. CONTRACTS WITH GENERAL CONDITIONS
- Adhesion contracts are those which are unilaterally written by one of the parties. The same model-
contract is used for every client. It lowers the costs of contract and it lasts less. On the other hand
the party that adheres to the contract does not have the possibility to negotiate its provisions and

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sometimes there are abuses by the strong party. Therefore the State enacted a Law on General
Conditions of Contracts.
- It is based in two kinds of controls:
a) Incorporation control
 Existence of transparency. In verbal agreements, the announcement in a visible place is
enough.
b) Content control
 The general conditions that contravene the law to the detriment of the person adhering to
the contract shall be null and void but they shall be valid if they are not abusive.
 Unfair are those that cause the detriment of the consumer. The Judge shall declare the
abusive clause null but the contract shall continue to bind the parties if it can subsist
without the unfair terms.
 Any doubt in the interpretation of dark clauses shall be solved in favor of the adherent
party.

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CHAPTER 4: INTERPRETATION, INTEGRATION, EFFECTIVENESS AND INEFFECTIVENESS OF

CONTRACTS
4.1. INTERPREATION OF CONTRACTS

- To interpret a contract is to ascertain the sense of the stipulation of a thereof.
- The interpretation consists of a procedure to find out the desired meaning of the clauses in a
contract so that they produce the effects initially intended by the parties.
 Rules of interpretation:
a) “In claris not fit interpretation” means that when the terms of a contract are not clear, the
literal sense of such terms shall prevail. But the common intention of the parties has priority
over the literal meaning of the contract.
b) In order to ascertain the intention of the parties, the attention must be mainly paid to their acts,
whether prior, contemporaneous or subsequent.
c) “Principle of conservation of the contract” means that where every different interpretation shall
be understood in the most adequate way to be effective.
d) The “Systematic interpretation” says that the stipulations of a contract have to be interpreted in
accordance with the sense of the whole contract.
e) Words which may have different meanings shall be interpreted in the one that is more in
conformity with the nature and object of the contract.
f) Usages (general practices) and customs of the country have to be taken into account when
interpreting ambiguities in contracts, and shall supply omitted clauses which are ordinarily
included therein.
g) The interpretation of obscure clauses shall not favor the party who caused the obscurity.
h) When it is impossible to solve the doubts arising from the contract:
i. The doubts are about incidental matters of the contract and the contract is gratuitous, the doubts shall
be solved in favor of the smallest transfer of rights. If the contract is onerous, doubts shall be solved in
favor of the greatest reciprocity of interests.
ii. The doubts are about the principal object of the contract, if the intention or will of the parties cannot
be ascertained the contract shall be null and void.
**SEE “NOMEN IURIS”: https://accesoalajusticia.org/glossary/nomen-iuris/
4.2. INTEGRATION OF CONTRACTS

- To integrate a contract is to complete it, filling the gaps left by the parties without a specific
contractual stipulation.
- There are two ways:
i. Through auto-integration the gaps left can be integrated by resorting to the rest of the contract, trying
to find a solution to the case not provided by the parties from the intention showed by the parties in
the rest of the provisions of the contract.
ii. When auto-integration is not possible, blanks will be filled through the Law, usages and good faith.
4.3. EFFECTIVENESS OF CONTRACTS

- The general effects of contracts are the following:
a) Contracts bind the parties

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 Contracts have to be performed (pacta sunt servanda).

 From the moment in which the parties consent to the contract, they become bound to it.
 The parties assume the risk of change in the circumstances but when the change in the
circumstances of the contract is unpredictable and extraordinary, the principle of the good
faith requires that the contract has to be adapted to the new circumstances (rebus sic
stantibus-things thus standing).
b) Contracts cannot be left to the will of one party.
c) Contracts bind only the parties.
 “Principle of relativity of contracts”, the relativity of contracts entails that they do not bind
third parties but if a third party negligently causes an unfair prejudice to the contracting
parties he would be non-contractually liable for such prejudice. But it is possible that a
contract contains a stipulation in favor of a third party.
4.4. INEFFECTIVENESS OF CONTRACTS

- We speak about ineffectiveness of contracts when the contract does not produce the effects
wished for and which can be reasonably expected from the contract. The contract was not properly
executed and therefore it does not produce effects.
4.4.1 NULLITY (NULL AND VOID CONTRACTS)
- Null contracts have a defect which impedes that the contract produces any effect whatsoever, the
legal act is completely deprived of legal consequences, nullity is definitive (“quod nullum est nullum
effectum producit”) (contrary to law, lacking essential elements, object undetermined, without
cause,lacking form of perfection).
- No need for a judicial declaration or legal action
- Anyone can invoke nullity anytime.
- Nullity can be partial, maybe just one part of the contract is void
- It is said to protect public interests
4.4.2. VOIDABILITY (VOIDABLE CONTRACTS)
- A voidable contract has defect, but it is valid as long as it is not challenged due to the existence of
such defect.
- Voidability protects the private interests, the interest of one of the parties to the agreement
 Causes:
i. Vices of consent
ii. Lack of legal capacity to act
iii. Lack of marital consent for the execution of onerous acts when such consent is required
- It can only be brought to Court by the person whose interest is being protected.
- The action has a term of expiration of four years and once the term of four years has elapsed
without the action for voidability having been started, the contract shall be considered to be valid
and can no longer be challenged.
- Confirmation can also exist and it can be express or tacit.
4.4.3. CONSEQUENCES OF INEFFECTIVENESS DUE TO NULLITY AND VOIDABLITY

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- The parties shall return to each other the things which have been the subject matter of the
contract with their fruits, and the price paid with interests, without prejudice to the previous
contained.
- The preferred one is the restitution “in natura”, the return of the things actually exchanged by the
parties.
- If it is no longer possible the goods are turned into a monetary obligation.
- Minors and incapables are not obliged to give back the goods or rights exchanged except to the
extent that they enriched themselves by the thing or sum received.
4.4.4. RESCISSION
- It is the ineffectiveness stated by the law for contracts which, although having all the essential
elements and not having any defects therein, entail a prejudice for certain persons to whom the
law provide with an action to stop the contract from being effective.
 Invalid:
 Effects in essential elements (defects of instrinct nature)
 Ineffective:
 Lack of effects (defects of extrinct nature)
i. When the debtor has performed acts to harm the creditor’s interests, the creditor is provided with the
“actio paulania”. It confers to the creditor the power to challenge acts that the debtor has undertaken
to prejudice his right of credit when the patrimony of the debtor is insufficient to pay such credit; the
patrimony of the debtor not being sufficient because he has emptied it not to have to pay his creditors.
The creditors have the power to go to Court to undo such fraudulent acts. The effect of such “actio
paulania” is to rescind the fraudulent contract in as much as it is required to pay the credit.
ii. Contracts celebrated by tutors without judicial authorization or contracts celebrated in representation
of absentees whenever the person represented suffers damages of more than one-fourth of the value
of the thing traded
iii. Contracts celebrated to trade goods that are subject to litigation without the knowledge and approval
of the parties in the litigation or of the judicial authority
iv. Payments made by an insolvent debtor on account of obligations which were not enforceable as yet
 Effects:
 It compels to the return of the things traded with their fruits and the price paid with
interests.
 Unlike the case of nullity and voidability, rescission shall not take place when the things
traded are legally and in good faith in the possession of third parties. In this case, the
obligation to return turns into an obligation from the person who caused the damage to pay
a compensation for damages.
- The action to ask for the rescission of a contract has a term of four years.

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CHAPTER 5: THE OBLIGATION
5.1. EFFECTS OF CONTRACTS: THE OBLIGATION

- Every obligation consists on giving, doing or not doing something.
- There is a double legal situation:
 Debtor:
 Subject to an obligation which can be legally asked for, and makes him behave in a certain
manner, because if he does not do so, he has to endure the consequences.
 Creditor:
 The owner of a personal right that empowers him to ask the debtor for what is due.
- Obligation signifies not only the right of the creditor but also the duty of the debtor.
- What is due by the debtor, it is referred as duty of performance.
- Obligation has two edges:
 Debt:
 The obligation to behave in a certain manner.
 Liability:
 Being the debtor subject to the coactive power of the creditor.
 It a universal patrimonial liability where the creditor can attack all of the debtor’s patrimony to
satisfy his credit. A debtor is liable for the performance of his obligations with all of his current
and future assets. Therefore, we can say that the obligation is a legal relation which allows the
parties to exchange goods and services.
- We can define the obligatory relation as the legal relation between two persons leading to one of
them obtaining goods and services from the other person, secured by all the patrimony of the
person obliged.
- Obligations are born from the law, contracts, quasi-contracts and illicit acts or omissions or those in
which any kind of fault or negligence intervene (Sources of obligations):
 Law:
 They are not presumed and need to be expressly determined by the CC or special laws.
 Quasi-contracts:
 Voluntary acts that no matter if there is no agreement between the parties, the law makes the
obligation to be born thereof and bind the author of the act with a third party:
o Collection of non-existing debt, “negotiorum gestio”
o Unjust enrichment
 Criminal offenses or misdemeanours:
 Governed by the Criminal Code
 Acts or omissions or those in which any kind of fault or negligence intervene:
 Regulation of non-contractual liability in the Civil Code
5.2. ELEMENTS OF THE OBLIGATORY RELATION

a) Persons subject to the obligation
 The creditor(active):
 The one who holds the subjective right of credit.

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 The debtor (passive):

 The one who has to fulfill the obligation.
b) Object of the obligation
 It is the duty of performance; the behavior the creditor can ask from the debtor. It can consist
of a giving, doing or not doing something.
 Requirements:
 Possible, lawful, be determined, patrimonial
c) Bond created by the obligation
 Link created by the obligation between the debtor and creditor.
5.3. TYPES OF OBLIGATIONS: SPECIAL REFERENCE TO OBLIGATIONS WITH SEVERAL PERSONS INVOLVED
- We are going to classify them depending on the object, on the bond and on the persons subject to
it.
5.3.1. OBLIGATIONS DEPENDING ON THE OBJECT THEREOF
a) Positive and negative obligations
 Positive obligations:
 Give or do something
 Negative obligations:
 Not doing something
b) Specific and generic obligations
 Specific obligations:
 Individually determined, the debtor of a thing cannot compel his creditor to receive
something different, even if its value is equal or greater than the thing due.
 The obligation to deliver a specific thing is extinguished when the thing due is lost or
destroyed without the fault of the debtor and before the debtor incurring delinquency. In
principle the debtor does not bear the risk of the loss of a specific thing before the delivery
and due to circumstances that cannot be considered his fault.
 Nevertheless if the thing is lost or destroyed while in possession of the debtor the loss is
presumed to have occurred due to his fault.
 Generic obligation:
 Determined with regard to the good pertaining to a kind of goods.
 The obligation is fulfilled by delivering any object pertaining to such class.
 Debtor bears the risk of loss of the thing due before delivery because he can deliver
anything that corresponds to the kind due. “Genus nunquam perit”, the general class never
perishes.
 Whenever the quality is not stipulated, the debtor cannot demand the highest quality nor
can the debtor deliver the lowest one.
 Once the thing due is determined the generic obligation turns into a specific one
(specification of the generic obligation) (no more “genus nunquam perit”).
c) Simple and complex obligations
 Simple obligations:
 Only one object involved
 Complex obligations:

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 More than one object

i. Cumulative
 Several objects and all of them subject to demand
ii. Alternative
 Several objects but only one of them shall be fulfilled, if they did not provide who chooses, the
debtor would choose. But if only one of the duties can be carried out the debtor loses the right to
choose. If everything disappears the debtor shall be liable for damages. If the thing was lost without
the debtors fault, he shall fulfill by delivering the good chosen by the creditor among the objects
left. If it is the debtor’s fault the creditor can ask for the value of the thing lost or between one of
the remaining things. If all things have been lost, the creditor shall choose the value of one of them.
iii. Optional
 The debtor has the possibility to substitute it for another duty of performance that the creditor
could not ask for.
d) Divisible and indivisible obligations
 Divisible obligations:
 Can be fulfilled in parts but it has to be expressly agreed, otherwise the creditor can refuse
the partial performance
 Indivisible obligations:
 Completely fulfilled
a) Principal and subordinate obligations
 Principal obligations:
 The duty of performance is the main object of the agreement.
 Subordinate obligations:
 It is accessory to a principal obligation. If the subordinate obligation disappears, the
principal obligation is not affected (not the other way round).
5.3.2. OBLIGATIONS DEPENDING ON THE BOND
a) Unilateral an bilateral obligations
 Unilateral obligation:
 Only one bond, only one of the parties has a duty of performance (donation)
 Bilateral obligation:
 Both parties are obliged; there is reciprocity in the duties of performance (sale).
b) Pure and conditional obligations and obligations subject to a term
 Pure obligation:
 It can be asked to be performed from the moment of constitution of the obligatory relation.
The performance is not subject to any circumstance.
 Conditional obligation:
 The performance and effects depend on a future and uncertain event or on a past event
that the parties ignore.
 Conditions can affect the obligations in different ways depending on their nature:
i. Suspensive condition or condition precedent
 The condition can suspend the effect of the obligation until such uncertain event happens. When
the condition precedent takes place the conditional obligation turns into a pure one, in general with
retroactive effects as to the moment in which the obligation was established. The creditor “sub

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conditione” holds a right for the case of the condition taking place and a certain protection is
Conditions can be precedent or subsequent. A condition precedent holds the
granted to him. enforceability of a contract until the event happens (so contract starts after
ii. Condition subsequent or resolutory condition); a condition subsequent terminates the contract when the event
happens.
 The obligation expires upon its taking place.
iii. Obligations subject to term (initial or final)
 The performance and effects depend on a fixed date.
5.3.3. OBLIGATIONS DEPENDING ON THE PERSONS SUBJECT TO IT: JOINT OBLIGATIONS AND JOINT AND
SEVERAL OBLIGATIONS
a) Joint obligations
 Each of the debtors only has to fulfill the part of the performance which corresponds to him.
 If the degree of participation of each debtor in the obligation is not stated by the parties, the
credit or the debt shall be presumed to be divided in as many equal parts as there are creditors
or debtors.
 Obligations are joint unless expressly provided otherwise.
 Active:
 Several creditors
 Passive:
 Several debtors
 Mixed:
 Several debtors and creditors
 Effects of joint obligations:
 If divisible, each debtor can perform his correspondent portion in the dept. If indivisible,
non-performance of one makes that it is turned into a monetary obligation.
b) Joints and several obligations
 Solidary obligations, each creditor has the right to ask and each debtor has the obligation to
fulfill the whole right of performance.
 Effects of joint and several obligations:
 Active solidarity:
o Several creditors, any of the creditors can ask the debtor for full performance of the
debt. When one of the creditors has asked for the total performance, a different creditor
can no longer go against the debtor because he is liberated.
 Passive solidarity:
o Several debtors, the creditor may sue any of the debtors or all of them simultaneously
for the total performance. If the creditor goes against one of the debtors and he does
not perform, he can still ask the others for performance. If one of the debtors performs
the obligation, he extinguishes the debt but, as he performed for the other debtors, he
can thereafter claim each of the other debtors for their part. This is called action for
contribution.
5.4. BILATERAL OBLIGATIONS

- In bilateral obligation both parties are obliged, both parties have a credit right and a duty of
performance and both parties are bound to fulfill reciprocally towards each other. However,

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reciprocity within the obligation does not mean that the value of the rights of performance have to
be identical. There is interdependence between the parties’ obligations (counter-performance).
- Interdependence works in two ways:
i. Genetic bilateralism
 Each performance is for the other party the reason to bind itself to perform the obligation.
ii. Functional bilateralism:
 Each duty of performance has to be fulfilled simultaneously.
 Consequences of the bilateral character of obligations:
i. Special regime on the debtor’s delinquency
 From the moment one of the parties fulfills, delinquency starts for the other
ii. Special performance and termination regime
 When one of the parties does not fulfill his obligation, the other party can terminate the obligation
or ask for performance thereof, with a claim for damages in both cases
iii. Exception for non-performance of contracts (“exceptio non adimplendi contractus”)
 None of the parties to a bilateral obligation can ask for performance of the other parties’
obligations without having fulfilled their own (good faith).
iv. Exception for inaccurate performance of contracts (“exceptio non rite adimplendi contractus”)
 The defendant can refuse to perform his obligation until the claimant has accurately performed his
own obligation.

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CHAPTER 6: PERFORMANCE OF OBLIGATIONS
6.1. PAYMENT: SUBJECTS, REQUIREMENTS, MOMENT AND PLACE OF PAYMENT

- The fulfillment of the duty of performance agreed by the parties; the correct and timely execution
of the duty of performance which satisfies the creditor’s interest.
6.1.1 SUBJECTS OF PAYMENT
- The creditor (active part) (accipiens) is the subject of the right of credit, he can claim for the
obligation to be performed.
- The debtor (passive part) (solvens) who has to endure the claim for performance.
a) Solvens
 Subject that makes the payment
 Debtor or someone empowered by the debtor
 Successors of the debtor, as they are obliged to do so, because they acquire not only the
debtor’s assets, but also his liabilities.
 Payment made by third party who assumed the obligations to secure the payment. Any third
party can make the payment unless the duty of performance is of a personal nature. If the
duty of performance is not interchangeable, the creditor shall only accept performance from
the person who can properly perform. Payment can be made by any person, whether he has
interest or not in the performance of the obligation, and whether the debtor know and
approves it or ignores it.
 Payment by a third party liberates the debtor but it entails certain consequences between
the debtor and the third party who pays him.
 We can find three different scenarios:
i. Payment made by a third party in agreement with the debtor
 The person paying on account of another can recover from the debtor what he paid, unless he paid
against the debtor’s will. So the third party who pays with the debtor’s agreement has the
possibility to choose between a reimbursement right and a right to subrogate in the positions of the
previous creditor.
ii. Payment made by a third party against the will of the debtor
 The third party who paid can only claim from the debtor the benefit he received from the payment.
The third party who paid shall not subrogate in the creditor’s rights, losing the possibility to benefit
from the guarantees of the debt.
iii. Payment made by a third party without the debtor’s knowledge
 The third party who pays has an action for reimbursement, to recover from the debtor what he
paid for him but does not have the possibility to subrogate in the position of the prior creditor.
b) Accipiens
 Subject that receives the payment.
 The payment has to be made to the creditor or to his representative.
 The general rule is that payment to a third party not involved in the obligation does not
extinguish the obligation, as the creditor shall not see his interest satisfied.
 The possibility of payment made to a third party different from the creditor insofar as it is useful
for the creditor. The creditor shall benefit from a payment made to a third party.

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read!  A payment made in good faith to the person in possession of the credit releases the debtor. The
person in possession of the credit is the one who apparently is the creditor. This is a way to
protect the debtor who honestly thinks that he is paying to the right creditor because he has the
possession of the credit.
 The only possibility for the true creditor to recover is to sue for unjust enrichment the apparent
creditor who received the payment.
6.1.2. PAYMENT REQUIREMENTS
- Not any payment can extinguish an obligation, there are some requirements:
a) Identity
 To liberate the debtor, the payment has to be the exact duty of performance agreed by the
third parties when the agreement was constituted. The creditor cannot be forced to receive
something different from the duty of performance agreed, not even if it is of equal or
greater value than the performance owed.
 In a obligation to do the creditor cannot be compelled to receive performance from a third
party when the quality and circumstances of the person of the debtor were taken into
account at the time of constitution of the obligation.
 As monetary obligations, payment has to be made on the specie agreed.
 The rule of the “medium quality” governs.
b) Integrity
 The performance has to be completely fulfilled.
 However, the creditor can accept a partial payment if the performance is divisible and it
satisfies his interest.
c) Indivisibility
 Partial performance is not permitted even though the performance could be subject to
division.
 The creditor can accept partial performance if it satisfies his interest and the performance is
subject to division.
 The creditor can refuse incomplete payment. The only exception to this we find in the case
of debts with liquid and an illiquid part, where the liquid part can be paid without having to
wait for the illiquid part to be liquidated.
6.1.3 MOMENT OF PAYMENT
- It is the time from which performance can be requested.
- The delinquency starts from the debtor from that moment if performance is asked by the creditor. Also
delinquency shall start for the creditor any time after the arrival of the moment of payment if he
unjustly refuses to accept payment.
- The moment of payment determines the moment from which the credit can be asked for, and sets the
moment from which the debtor can be placed in a state of delinquency, but the performance delayed
is still possible if the creditor is still interested.
- The moment of payment can be fixed on a particular date or when a certain event takes place.
- If the obligation does not fix a term for performance but from its nature and circumstances it can be
inferred that there was an intention to grant a term to the debtor, the courts shall fix the duration of
the term.

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- Neither the creditor can ask for advanced payment, nor can the debtor oblige the creditor to accept
payment in advance, unless such benefit has been granted to any of them.
6.1.4. PLACE OF PAYMENT
- Payment shall be made at the place of delivery of the thing.
a) Payment shall be made at the place designated in the obligation.
b) Payment shall be made at the place where the thing was located when the obligation was
constituted.
c) Domicile of the debtor. This is a clear reflect of the “favor debitoris”.
6.2. SPECIAL FORMS OF PERFORMANCE: IMPUTATION OF PAYMENTS, ACCORD AND SATISFACTION AND
PAYMENT BY ASSIGNMENT OF PROPERTY
- Payment does not always take place in the exact manner stated by the parties.
6.2.1. IMPUTATION OF PAYMENTS
- The debtor at the time of making a payment has the possibility to decide which of the debts he wants
to extinguish. This is called “imputation of payments”.
 Requirements:
a) An only debtor who has several debts
b) All debts are with an only creditor
c) The debts have to be of the same kind.
d) The debts have to be due
- The debtor decides which of the obligations he wants to extinguish first. The parties can agree
otherwise upon the constitution of the obligation.
- But if debt produces interest, it cannot be understood that payment is made on account of the
principal if the interests have not been paid.
- If it is not said to which debt such payment has to be imputed, the payment shall be applied to the
most onerous debt, which means the most unfavorable for the debtor. If all debts are of the same
amount, the payment shall be imputed to all of them a “prorrata”.
6.2.2. ACCORD AND SATISFACTION
- Accord and satisfaction exists when the debtor, in agreement with the creditor, gives something to the
creditor instead of the original performance.
- Accord and satisfaction is “pro solute” because it extinguishes the obligation no matter if the value of
the thing given is smaller or bigger than the original debt. The obligation is extinguished by the mere
fact of receiving the payment.
- The new performance does not always have to consist on giving something; it can consist on any
alternative performance the parties have agreed upon.
6.2.3. PAYMENT BY ASSIGNMENT OF PROPERTY
- When a debtor does not have sufficient assets to pay all of his creditors, he can agree with them the
assignment of all of his assets.
- The assignment only liberates the debtor for the net value of the goods assigned. This means that, if
the total amount of debt was bigger than the value of the assets assigned, the debtor shall still be
indebted for the excess. Payment by assignment of property is “pro solvendo”.

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- The assignment only entails the submission of the assets to a liquidation procedure in order for the
creditors to recover from the amount obtained out of the liquidation, there is a grant of irrevocable
power of attorney to sell them.
- If the amount obtained from the sale exceeds the total debt, the creditors shall return the excess to the
debtor. But if the total amount obtained does not cover the total amount of the debt, the debt is only
partially extinguished and, unless otherwise agreed, the creditors can still pursue assets that the debtor
acquires in the future until complete payment of the debt.
6.3. CREDITOR’S DELIQUENCY: OFFER OF PAYMENT AND CONSIGNMENT

- When the creditor refuses to receive payment without a proper reason or cannot receive the payment,
this should not impede the debtor from liberating himself. The law provides the debtor with a
procedure to liberate himself in these cases.
- There are two stages:
a) The offer of payment
 When the payment is offered to the creditor and he does not receive it or he unfairly refuses
the payment, such offer of payment entails the creditor’s delinquency.
 From this moment onwards, the creditor shall bear several consequences:
i. The risk of the loss of the thing due is transferred to the creditor.
ii. The delay in the performance shall not entail the debtor’s delinquency.
iii. If the obligation was of a monetary character, it shall stop to accrue interests.
b) Consignment
 It consists on the deposit of the thing with the judicial authority at the disposal of the creditor.
The consignment is only possible with regard to obligation to give something.
 Different cases in which the debtor can consign the thing due:
i. When the creditor unreasonably refuses to accept payment
ii. When the creditor is absent or incapacitated in the moment of payment
iii. When several persons claim that they have the right to collect payment
iv. When the title of the obligation has been lost
 The consignment of the thing due shall free the debtor from liability. Once the consignment is
properly made, the debtor can ask the Judge to cancel the obligation.
 Requirements:
i. Offer of payment (previous to consignment)
ii. Announcement (previous to consignment)
iii. Compliance with the payment requirements (simultaneous to consignment)
iv. Communication (subsequent to consignment)

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CHAPTER 7: WAYS OF EXTINGUISHING OBLIGATIONS OTHER THAN PAYMENTS
7.1. WAYS OF EXTINGUISHING OBLIGATIONS OTHER THAN PAYMENT: LOSS OF THE THING DUE OR
SUDDEN IMPOSSIBILITY OF PERFORMANCE. REMISSION. CONFUSION. COMPENSATION. NOVATION
7.1.1. LOSS OF THE THING DUE OR SUDDEN IMPOSSIBILITY OF PERFORMANCE
- Obligations are extinguished when the thing due is lost and in obligations to do something when the
performance becomes legally or physically impossible, in which case we refer to sudden impossibility of
performance.
- In the first case the obligation shall be extinguished and the debtor liberated
 Requirements:
 That the loss of the thing is not due to the debtor´s fault. The debtor´s fault is presumed when the
thing due is lost while in his possession.
 That the loss of the thing takes place before the debtor’s delinquency. If the debtor does not
perform on time due to his fault, he is also responsible for the loss of the thing in case of Act of God
or force majeure.
- If the debtor has received something in exchange of the thing lost, he has the obligation to deliver the
creditor what he recovered in substitution of such thing.
7.1.2. REMISSION LEER APUNTES DE JOSELU PARA REMISSION, MUCHAS COSAS QUE NO VIENEN AQUÍ
- It is the renounce of the creditor to his right of credit which entails the extinction of the debtor’s
obligation and it can be either made expressly (special form for donations) or tacitly. Remission cannot
exceed the amount that the creditor can donate through testament. The main obligation is remitted,
the subordinate obligations are also remitted, but not the other way round.
7.1.3. CONFUSION
- It entails the extinction of the obligation due to the concurrence in one person of the concept of debtor
and creditor.
- The confusion takes place because the same person is the “solvens” and the “accipiens” of the
obligation. -Inter vivos: bank mergers
- It can take place “inter vivos” or “mortis causa”. -Mortis causa: son was debtor of father; son is his heir, inherits
credit—> creditor and debtor are same person now—>
7.1.4. COMPENSATION confusion—> obligation is extinguised
- It exists when two debts are extinguished because the persons obliged are reciprocally debtor and
creditor of each other.
- Total or parcial:
 Total:
 Being the debts of the same amount, they shall both be extinguished in full
 Partial:
 In the case of debts of a different amount, the compensation shall be partial and the bigger debt is
extinguished in the amount concurrent with the smaller.
- Voluntary or legal:
 Voluntary:
 When agree by the parties, it shall operate semi-automatically.
 Legal compensation:

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 It shall operate automatically but some requirements have to be met:

i. Reciprocity
ii. Homogeneous performances, consisting money or fungible things of the same kind and quality.
iii. The two debts are liquid, expired and undisputed by third parties.
iv. The titles from which the debts arise have to be different.
7.1.5. NOVATION
- For the Law, novation means change.
a) Extinctive novation
 There is a change of an obligation for a new one that extinguishes the first one.
 Requirements:
 A valid obligation that is extinguished, the first obligation is null, the novation is null.
 The conclusion of a new obligation different from the first one.
 That the parties have the capacity to dispose of the credit.
 There is a clear will of the parties to extinguish the first obligation (animus novandi)
b) Modification
 When there is a change in the obligation which does not produce its extinction.
o Subjective or objective
7.2. SUBJECTIVE MODIFICATION OF OBLIGATIONS: ASSIGNMENT OF CREDITS, SUBROGATION IN THE

CREDIT AND TRANSFER OF DEBTS
7.2.1. ASSIGNMENT OF CREDITS
- It exists when the creditor transfers to another person his right of credit.
- The debtor´s knowledge of the assignment is convenient for the new creditor because the debtor is
liberated if he pays to the first creditor before having knowledge of the assignment. Therefore, if the
debtor is not notified of the assignment and he pays to the original creditor, the new creditor can no
longer go against him asking for payment.
- For the assignment to be possible, the credit has to be subject to transfer. All credits can be transferred
unless it is prohibited by law or the parties agree to prohibit the transfer.
- The assignment does not require a special form safe for two cases:
 Public Deed is needed for the assignment of credits that come from an act recorded in a Public
Deed.
 Public Deed and registration is needed for mortgage-backed claims.
- The original creditor is responsible for the existence and lawfulness of the credit, unless it was sold as a
doubtful claim in which case he is not responsible for the existence and lawfulness thereof. This rule is
just applicable to onerous assignments. If the assignment was gratuitous, the assignor is not
responsible even if the credit cannot be collected.
- The assignor of the credit is responsible of the insolvency of the debtor, unless expressly agreed
otherwise (not responsible if he acts in good faith, unless agreed otherwise).
- In the case of assignment of litigious credits, the debtor can extinguish the credit by paying the buyer of
the credit the price he paid for it plus the court costs and the interests since the day of payment.
- As far as the debtor is concerned, he can oppose to the new creditor all the exceptions he could have
opposed to the assignor. If the debtor has accepted the assignment he cannot oppose to the assignee
the compensation he could oppose to the assignor. If he has not given consent to the assignment, he

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could oppose the compensation of the debts prior to the assignment. If he does not know of the
assignment he could oppose the compensations of all debts he had with the assignor until knowledge
of the assignment.
7.2.2 SUBROGATION ON THE CREDIT (OR PAYMENT WITH SUBROGATION)
- It exists when a third party pays to the creditor and turns himself into the new creditor, acquiring the
guarantees of the credit. It is different from the assignment of credits because subrogation in the credit
is unselfish and stated by law. The subrogation satisfies the interest of the person subrogated to
recover what he has given to the first creditor; the assignment of credits is basically a mean to make
the credit circulate.
- Subrogation is presumed to happen if:
i. A creditor pays the preferred creditor.
ii. When a non-interested third party pays with the agreement of the debtor.
iii. When a third party interested in the fulfillment of the obligation pays.
7.2.3. TRANSFER OF DEBTS
- In this case there is a change of debtor which can happen without the first debtor’s knowledge, but the
agreement of the creditor is necessary for the primitive debtor to be liberated, that is, for the effective
transmission of the debt. This is reasonable because the creditor is concerned about the solvency of
the new debtor.
- If the debtor becomes insolvent, once the creditor accepts the change of the debtor, he can no longer
claim to the first debtor for performance due to the insolvency of the new one, unless the insolvency
was public and prior to the transfer.
- For the guarantees of the debt to subsist after the change of the debtor, the agreement of those who
constituted them is also necessary.

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CHAPTER 8: NON-PERFORMANCE OF OBLIGATIONS
8.1. TYPES OF NON-PERFORMANCE: TOTAL BREACH. DEFECTIVE PERFORMANCE. DEBTOR’S

DELINQUENCY.
- The Civil Code considers that non-performance exists whenever there is a contravention of the
obligation and any lack of performance shall give rise to a compensation for the damages caused
thereby.
- Different kinds of non-performance:
a) Total breach (Loss of the thing due or sudden impossibility of performance)
 It occurs when the debtor has not performed his obligation and he cannot perform it in the
future, either because performance is no longer possible or because it is still possible, but it
does not satisfy the creditor’s interests any more.
 It has to be said that a total breach also exist when the performance is still possible and the
creditor is still interested in the performance but there is a clear will of the debtor not to
perform.
b) Defective performance
 A performance is defective if it does not adequate to what the parties agreed.
 The debtor has undertaken some acts in order to perform the obligation, but his acts do not
exactly adjust to the performance agreed.
 If the defect of the performance shows after the delivery of the thing, the creditor can ask
for the repair or for a new performance that corresponds to what the parties agreed.
c) Debtor’s delinquency
 Concept:
 The debtor has not performed on time, but that performance is still possible and can
satisfy the creditor. This is the case of delay in performance.
 Requirements (to entail delinquency of the debtor, the delay in the performance does not
automatically set the debtor in a state of delinquency):
i. The obligation has to be liquid and expired and it has to be subject to be asked for with its amount
determined.
ii. The delay in performance has to be due to the debtor’s negligence and attributable to him.
iii. The creditor has judicially or extrajudicially demanded performance (interpellation, where it has to
be addressed to the debtor and made once the obligation has expired).
 Some cases in which interpellation is not necessary:
o Interpellation is not necessary when the law provides so.
o Interpellation is not necessary when the obligation so declares.
o Interpellation is not necessary when period (important but not essential) was decisive.
 Effects:
i. The debtor still has to fulfill his obligation if the creditor is interested.
ii. The debtor shall have to pay a compensation for damages caused by the delay in the performance.
iii. The debtor is responsible for the non-performance of the obligation after the delinquency.
 The delinquency does not take place if the creditor grants to the debtor a new term to perform
his obligation. This is referred as “moratorium”. It can also be that the creditor renounces to the
effects of the debtor´s delinquency once it has happened “purge”. Debtor’s delinquency also
ends if the creditor also incurs in delinquency himself.

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8.2. LIABILITY FOR NON-PERFORMANCE OR ATTRIBUTION OF NON-PERFORMANCE: FAULT AND DECEIT

- Debtor is liable for deceit, negligence, or delay in the performance of his obligations.
a) Fault or negligence (gross, ordinary, slight)
 Lack of diligence in the performance of obligations. When a person is carelessness,
neglectful or does not apply the proper expertise to the performance, there is a case of
negligence.
 The liability of the debtor arising from fault can be modified by agreement of the persons
obliged.
b) Deceit (or intention):
 Conscious act of the debtor who does not perform his obligations.
 It is graver than fault or negligence because there is bad faith and it has to be proved by the
creditor.
8.3. CASES OF NON-PERFORMANCE WITHOUT LIABILITY: ACT OF GOD AND FORCE MAJEURE
- The debtor is not liable when non-performance is due to act of God or force majeure. These are
events that do not depend of the will of the debtor, events of such character that cannot be
prevented by any kind of foresight or by any reasonable degree of care. Nobody shall be liable for
events which could not be foreseen or which foreseen were inevitable. The debtor should proof it.
- The debtor is not exempted if:
i. The parties so agreed
ii. It is stated by law.
- This does not apply to generic obligations if specification has not yet taken place because “genus
nuncuam perit” and the debtor can still perform with things of the same quality and kind.
8.4. ACTION FOR PERFORMANCE

- When the debtor does not perform his obligation, the law empowers the creditor so that he can ask
for performance thereof. The creditor can ask for the performance of the obligation as it was
originally agreed (performance “in natura”) or, if that is no longer possible, he can ask for the
equivalent in money plus the compensation for damages in both cases.
8.5. BILATERAL OBLGIATIONS

- If the obligation is a bilateral obligation, the creditor who has performed his obligations or who was
ready to perform them also has the possibility to terminate the obligation. 1124 cc
- Bilateral obligations can be terminated if one of the parties does not perform his obligations.
 Requirements:
i. Bilateral
ii. The party who claims for termination has to have performed his part of the agreement, has to be in a
position to perform it non-performance has to have been caused by the non-performance of the other
party.
iii. The other party has not performed or has not completely performed.

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iv. It has to be a principal obligation and has to be expired.

- There exists the possibility to ask for termination in case of fortuitous sudden impossibility of
performance.
- It gives the prejudiced creditor the possibility to choose between the action for performance or the
termination of the agreement, with the compensation for damages, in both cases.
- It gives the creditor the possibility to ask for the termination in the case that he opted for
performance but such performance has become impossible.
- The term for the extinction of the action as a result of the lapse of time, the prescription of action,
is of fifteen years.
 Effects:
i. Retroaction:
 Obligatory relation is extinguished as if it did not exist.
ii. Restitution:
 Return to each other anything they had exchange.
8.6. LIABILITY OF THE DEBTOR

- Non-performance which can be attributed to the debtor gives rise to a compensation for damages
if there is proof of the existence of damage. It is for the creditor to proof the damage suffered as
consequence of the non-performance of the obligation.
- When the debtor has not acted in bad faith, he is liable for the damages foreseen or that could
have been foreseen which are consequence of non-performance. But if he acted with deceit or
misconduct he shall be liable for all the damages which derive from his failure to perform. This is
not just the value of the loss but also the loss of profits or gains.

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CHAPTER 9: CONTRACTS IN PARTICULAR (I)
9.1. CONTRACT OF SALE AND BARTER

- The contract of sale consists in the exchange of a certain thing for a price certain.
- The contract of barter consists in the exchange of a thing for a thing.
9.1.1. CHARACTERISTICS OF THE CONTRACT OF SALE
i. It is a bilateral contract with interdependence.
ii. It is perfected through consent, it is a contract by consensus.
iii. It is a contract of pure obligatory nature, there is no immediate exchange of ownership of the thing
sold. For the transfer of ownership delivery has to take place. The general rule is that the obligations
have to be performed simultaneously.
iv. It is an onerous contract, both parties have a duty of performance of a patrimonial nature.
9.1.2. ELEMENTS OF THE CONTRACT OF SALE
 Personal elements:
 The contract of sale is concluded between seller or vendor and buyer or purchaser. It is
prohibited that the tutors and guardians buy the goods belonging to the person under their
guard; the mandataries and executors of wills to buy goods entrusted to them, public
employees to buy public goods under their administration and Magistrates, Judges and
members of the Attorney General’s office to buy goods subject to litigation.
 Real elements:
 The contract of sale shall bind the parties from the moment they agree on the thing to be sold
and the price to pay for it. Object and price are the real elements of the contract of sale.
a) Object of the sale
 Things as the object of sale.
 The thing to be the object of a contract of sale has to meet certain requirements:
i. Existence
 Existence or existence possible in the future
 If the future thing does not come to existence due to the negligence or deceit of the vendor, the
buyer shall have an action for the damages caused by the non-performance of the contract of sale.
 No effect if totally lost or if both knew
 If one knew the thing had perished at the time of the sale, he will have to pay a compensation for
damages.
 If the things has only been partially lost at the time of the sale, the buyer has two options: to
withdraw from the contract of sale or to ask for the part that still exists paying the price in
proportion.
ii. Lawfulness
 The thing to be object of a contract of sale has to be a thing subject to be transferred. It has to be a
thing “in commercio”, those “extra commercio” cannot be sold,the sale should be null and void.
iii. Determination
 The object of a contract of sale has to be a thing which is determined or subject to determination.
b) Price of sale

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 The price is the sum of money that the buyer gives to the seller in exchange for the thing
sold.
 Requirements:
i. It has to be real.
ii. It has to be certain. The determination of the price cannot be left to one of the parties.
iii. The price has to be paid in money or something representing the money.
 Formal elements:
 There is freedom of form to celebrate. If it is an immovable good, it would be convenient that it
is raised into a public deed in order to have access to the Property Registry.
9.1.3. OBLIGATIONS OF THE PARTIES IN THE CONTRACT OF SALE
a) Obligations of the buyer
i. The main obligation of the buyer in the contract of sale is to pay the price established for the thing sold
at the time and in the place established in the contract and it has to be understood that payment has
to be simultaneous to the delivery of the thing due to the interdependence.
Explicit termination makes sure that the buyer is going to fulfill the contract because if there is lack of
payment the contract shall automatically terminate (if immovable, the seller has to give notice of the
termination).
The agreement of retention makes that the seller keeps the legal ownership of the thing sold until the
buyer pays the totality of the price.
There is an exceptional case in which the buyer can suspend the payment of the price, and therefore
the price has been postponed. The buyer can suspend the payment of the price if he is disturbed in his
possession or he has well-founded reasons to think that he will be disturbed.
ii. If the buyer receives the thing before having paid the price, he shall also have the obligation to pay
interests in the three cases:
1) If the parties so agreed
2) If the thing sold produces fruits or income
3) The buyer is in a state of delinquency
iii. The buyer has the obligation to receive the thing bought.
iv. The buyer shall pay for the expenses incurred in after the sale, such as the first copy of Public Deeds,
transport, taxes for the registration of the sale in public registries.
b) Obligations of the seller
i. Delivery of the thing
 The seller has to deliver (tradition) the thing in the same state as it was at the time of perfection of
the contract of sale. Until delivery, the seller is obliged to preserve the thing with due diligence.
 But not only is the seller bound to deliver the thing sold, he also has to deliver all accessories of the
thing sold and the fruits produced from the moment of perfection of the contract.
 Delivery can be suspended if the buyer has not paid or payment has been postponed and the
vendor discovers that the buyer is insolvent.
 “Traditio ficta” means that delivery takes places by means of a fiction delivery.
 “Symbolic tradition” is that an instrument that represents the thing sold is delivered as proof of
delivery thereof.
 “Traditio brevi manu” means that the buyer already had the thing in his possession.
 “Constitum posesorio” means that the vendor keeps the possession of the thing sold but for
different purposes.

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ii. Warranty
 But the seller not only has to deliver the thing sold, he is also responsible towards the buyer if any
third party with a better right than the buyer claims the thing (warranty of title or in case of
eviction) or if the thing cannot be used as intended due to internal defects not shown at the time of
the sale (warranty for hidden vices or defects).
1) Warranty of title or in case of eviction
 The seller has the obligation to insure the buyer against any disturbance resulting from defects in
the title to the thing sold. There is an implied promise that the seller can transfer quiet possession
of the thing sold. If this is not so, he shall respond to the buyer.
 The seller is liable for eviction when, by a final court decision, and by virtue of a right prior to the
sale, the buyer is deprived of all or part of the thing sold (total or partial).
 Requirements:
a) Loss of the thing
b) The right of the third party who obtains the thing is prior to sale
c) Notification to the seller of the action for eviction started by a third party.
 Effects:
a) Refund of the price
b) Payment of the fruits or rents
c) Payment of the costs of the low suit
d) Payment of the expenses
e) If it was made with bad faith, the seller shall also pay for damages, interests and voluntary
expenses incurred by the buyer.
 In case of partial eviction and if the buyer would not have bought it, he can ask for rescission.
 15 years against the seller for eviction
2) Warranty for hidden vices or defects and warranty for hidden encumbrances:
 The warranty for hidden vices or defects plays when the thing sold has a defect that renders the
thing improper for its use or diminishes the use in such a way that, had the buyer known about it,
he would not have bought it or would have paid a lower price.
 It does not exist if the defects are not hidden. This is because, if he was so, he is supposed to have
discovered the defect at the time of the sale.
 The seller is liable to the buyer for the warranty against the hidden defects even if the defects were
unknown to him (if he knew his liability would be extended).
 Requirements:
a) Vice
 Defect that makes it improper for its use.
b) Hidden
 The defect has to be hidden.
c) Grave
 Importance
d) Prior to the contract of sale:
 Defect existed before the contract of sale. If defect arises later, it is for the buyer to endure.
 Effects:
 The buyer can opt between terminating the contract of sale (action “redhibitoria”) or a
proportional reduction of the price (action “quanti minoris”).

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 If he opts for the termination of the agreement, the parties shall have to give back the thing and
the price paid for it, and there shall be a compensation for damages if the seller acted in bad
faith; that is, if he knew of the existence of the defect.
 If he opts for a proportional reduction of the price, he shall receive the thing with the defect but
the price to be paid for it will be reduced in proportion to the value of the thing with the defect.
 If the thing is lost due to the vices therein the seller shall bear the loss, return the price and pay
the expenses of the contract and if he knew of the hidden vice he should also compensate
damages.
 The term to start the action against the seller is of 6 months since delivery of the thing.
 This is not applied to the sale of consumer goods.
 With the warranty of hidden encumbrances the buyer can opt between rescission or
compensation for damages.
9.1.4. RISKS IN THE CONTRACT OF SALE
- The problem of the risks in the contract of sale arise when the thing sold is damaged or lost without
the seller’s fault and once the contract is perfected but before delivery takes place.
- Everything depends on the nature of the thing sold:
a) If the thing is a generic thing, the risk of the loss is not transferred to the buyer until the
specification takes place.
b) If the thing is specific or generic but for a single price, the risk of the loss of the thing without
the seller’s fault and before the delivery is suffered by the buyer (“periculum est emptoris”). If
the fruits belong to the buyer since perfection, he should also get the risks thereof.
9.1.5. TRANSFER OF OWNERSHIP. DOUBLE SALE
9.1.5.1. TRANSFER OF OWNERSHIP
- For the ownership to be transferred delivery of the thing is necessary.
9.1.5.2. DOUBLE SALE
- Being the vendor the proprietary of a thing, he sells the same thing to different persons. When such
thing happens, the solution depends on the character of the thing:
i. Being movable, the property shall be transmitted to the first person who takes possession of the thing
in good faith (if he does not know that the thing he is buying has also been sold to someone else).
ii. Being immovable, the property is transmitted thereof:
a) To the first person that registers in the Property Registry
b) Person who took first possession of the immovable in good faith
c) To the person holding the oldest title
 The other buyers can act for damages against the seller
9.1.6. SALE OF CONSUMER GOODS
 Conformity with the contract:
 The seller is bound to give the consumer products in conformity with the contract, and shall be
liable against him for any lack of conformity that may exist at the time of delivery of the product
thus repairing, replacing the thing, reducing the price or terminating the contract.
 It is also possible to go against the producer. And the person who responds to the lack of
conformity has one year to pursue remedies.

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 The seller is liable for the lack of conformity that becomes apparent within two years. If second
hand it shall not be inferior to 1 year. And any lack of conformity which becomes apparent
within six months of delivery of the product, already existed at the time of delivery. But since he
knows, he has just two months to inform. If not, he does not lose his right but he shall be liable
for the damages arising from the delay.
 Commercial guarantee (It is an additional voluntary guarantee):
 Requirements:
i. Formalized in Spanish
ii. In writing or in a durable medium
iii. It shall be expressly stated.
9.2. DONATION
- It is a contract by which the owner of one or several things, the donor, transfers the title and
possession thereof to another person, the donee, without receiving anything in exchange.
 Characteristics:
i. Unilateral
 Only one of the parties has a duty of performance in the contract. The donor is the only one
obliged.
ii. Perfection
 The contract is perfected when the donor has the knowledge of the acceptance by the donee.
iii. Ownership
 The donation itself transfers the ownership of the thing, there is no need of delivery.
 Elements:
i. Personal elements
 The donation is characterized by the “animus donandi” of the donor, which is the will of the donor
to enrich someone through the reduction of his own patrimony.
ii. Object
 The thing or right given.
iii. Cause
 The aim of liberality of the donor.
 Capacity:
 In order to donate, legal capacity is necessary.
 To receive a donation, civil capacity is sufficient. Everyone with sufficient intellectual capacity to
know and understand what they are doing can receive donations.
 For conditional and onerous donations persons shall have to be capable to enter into contracts
or shall have to represented.
 Donations made to “nasciturus“ can be accepted by the persons who would represent them had
they been born.
 Form:
 Donation of movables:
o If the donation of movable is verbal, it requires the simultaneous delivery of the thing.
o If the donation of movable is writing, the donation shall only be effective if the acceptance is
also made in writing.
 Donation of immovables:

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o For the donations to be valid, they have to be made in a Public Deed which individually
states the property donated.
 Types of donations:
i. Pure
 The donor gives with total liberty and without receiving anything in exchange.
ii. Modalis
 Those that impose a burden to the donee but its value has to be lower than the thing given.
iii. Remuneratory
 Those given in gratitude to a person for his merits or for the services rendered to the donor.
 Limits (for the warranty given by the donor, the things that can be donated or the amount of the
donor’s patrimony of which he can dispose):
i. With limited warranty the donor is not liable for eviction unless there is deceit of his part.
ii. The donation of future things is banned. Future things are understood to be all those which the donor
cannot dispose of at the time of donation.
iii. The donor has to keep sufficient assets, or the right of usufruct thereof, necessary for him to live in a
state corresponding to his circumstances. Therefore, all of the donor’s assets cannot be donated.
iv. Nobody can donate more than what he can give through testament.
 Donations made jointly to several persons:
 Divided into equal parts and if one cannot accept, his part shall not increase the part of the
other donees. But this does not apply to donations made jointly to husband and wife.
 Revocation:
 Donations are irrevocable. There are some exceptions:
i. Subsequent appearance of birth of a child to the donor
ii. Non-performance by the donee of the modus in a modalis donation
iii. Ingratitude of the done
 This would lead to the donee giving the thing back or its value if already sold.
 Donations mortis causa:
 The donee has to live at the time of the donor’s death, it produces effect after the death of the
donor.
9.3. LEASE OF THINGS

- It is a contract through which a party is obliged to give to the other the temporary use and
enjoyment of a thing in exchange of a price.
- The lessor transfers the use and enjoyment of the thing but retains the ownership.
- The lessee has a personal right over the thing; he has the possession thereof but not a real right
over it.
 Capacity:
 The general capacity to contract is enough.
 Object:
 All kind of things can be leased, with the exception of fungible things as they are consumed by
their use and could not be returned at the end of the lease. Also a few rights can be the object
of a lease contract but not personal rights.
 Time:
 The duration of the lease has to be determined.

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 Form:
 No form required
 Obligations of the parties:
i. Obligations of the lessor
a) The lessor has to deliver the thing. The lessee is liable for the deterioration of the thing unless he
gives proof that it is not attributable to his fault.
b) He has to keep the thing in a state necessary for its use.
c) The lessor has to maintain the lessee in the lawful and peaceful possession of the thing. He has to
give warranty for eviction and hidden vices and he has to prevent any trouble or inconvenience in
the possession of the lessee. The lessor is not liable for any factual disturbance caused by a third
party in the use of the leased property.
ii. Obligations of the lessee
a) The lessee has to pay the rent
b) He has to use the thing as agreed or, lacking agreement, in a manner in accordance with the
nature of the thing. He can make useful and voluntary improvements.
c) The lessee has to communicate to the lessor any trespass or injurious alteration of the thing and
the necessity to make repairs to preserve the thing in proper condition. He shall be liable for the
damages caused to the lessor if he does not do so.
d) The lessee is liable for the deterioration of the thing during the lease
e) He has to return the thing at the end of the lease in the same condition as he received it at the
beginning of the contract.
9.3.1. URBAN LEASES LAW no está en apuntes de joselu
- It has recently been modified with the basic aim of enhancing the will of the parties, reducing the
minimum duration of the leases and in definitive, providing for a better equilibrium in the rights
and obligations of the parties.
9.3.1.1. LEASE OF REAL PROPERTY FOR A DWELLING
 Duration and extension:
 Lease lasts for a minimum of three years. If tenant does not want to extend until three years he
has to say it 30 days before. The term counts from the moment the dwelling is at the disposal of
the tenant. The three years shall not take place if the landlord needs the house for him or for his
family. If three months after the termination of the contract he has not yet occupied the
dwelling the tenant will be able to choose between:
i. Going back to the dwelling and being compensated for the damages caused by the move
ii. A compensation of an amount equivalent to a monthly payment per year that was still to lapse up to
three years.
 If no one has given any notice thirty days in advance of the termination, the contract is
extended for one more year.
 But the tenant can withdraw the contract after six months giving thirty days prior notice and he
shall compensate for the damages caused (pay one month for each year).
 Even if at the time of the sale the minimum period of three years has not lapsed, the buyer of
the dwelling is not obliged to bear the lease of the contract. But if it has been registered with
the Property Registry, the tenant is not going to be expelled.
 The rent and its update:

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 The rent shall be freely agreed and it can only be updated by the landlord or the tenant on the
date of expiry. The rent shall take place every month in the first seven days of the month.
 Works:
 The landlord has the obligation to deliver the dwelling in proper conditions and the tenant has
the obligation to return the property in the same state as well as the keys.
 The landlord is obliged to make the necessary works unless the damage was caused by the
tenant. The tenant has the right to have the rent reduced he is deprived of a part of the
property due to the execution of the works if they last more than twenty days. The landlord can
make works but he has to give three months advance notice to the tenant who has a month
term to desist from the contract unless the works are not of importance.
 But the tenant cannot undertake modifications without the landlord’s consent (yes if someone
disabled but later things have to be returned). Reparations needed due to the wear and tear of
the property shall be paid by the tenant.
 Assignment and sublease:
 The contract cannot be assigned by the tenant without the express written consent of the
landlord. It can only be partially subleased and it is sometimes prohibited.
 Expenses:
 General expenses are payed by the tenant. Expenses arising from services of the property would
be also paid by the tenant.
 Right of first refusal and redemption:
 In case of the sale, the tenant has the right to buy it. If the landlord does not communicate this
him, he has the right of redemption (started within thirty days).
 Deposit:
 Upon the conclusion of the contract the tenant has to deliver a cash deposit of one month of
the rent in order to guarantee performance and cover any damages. It shall be returned at the
tenant at the end of the agreement.
 Termination:
 The breach by any party of the obligations shall give the right to ask for performance or to
promote termination.
 The landlord can terminate the contract if:
a) If the tenant does not pay
b) If he does not pay the deposit
c) If there is not permitted assignment or sublease
d) If the tenant carries out non permitted works
e) If he undertakes in the property dangerous, illicit, insanitary or bothering activities.
f) The tenant no longer uses the property as a dwelling.
 The tenant can terminate the contract if:
a) The landlord does not undertake the necessary works.
b) If the landlord disturbs the use of the dwelling.
9.3.1.2. LEASE OF REAL PROPERTY FOR PURPOSES DIFFERENT THAN FOR A DWELLING
- It covers the lease of premises for a season and those to exercise in the property an industrial,
commercial, professional, cultural, craft, recreational, or educational activity. The deposit shall be
equivalent to two months of rent.

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- The special provisions for leases of real property for purposes different than for a dwelling cover
the different matters:
 Assignment and sublease:
 The tenant can assign the contract or sublease the property without the landlord’s consent. He
shall only have to give consent to the landlord of such circumstances. The landlord has the right
to increase the rent; 10% in case of partial sublease and 20% in case of assignment or total
sublease.
 Subrogation:
 In case of death of the tenant in the property the legatee shall continue the contract. When it is
sold the new owner shall subrogate in the rights and obligations of the landlord.
 Compensation:
 If five years have passed and five more years want to be renewed by the tenant the landlord
shall compensate him.

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CHAPTER 10: CONTRACTS IN PARTICULAR (II)
10.1. PROVISION OF SERVICES

- By the contract of provision of services one party is obliged to render a service in favor of the other
party who pays for it a certain price.
i. It is a contract by consensus, bilateral and onerous, and it is not a formal contract.
ii. Obligation to use means (best resources)
iii. Price certain and it depends on the period of time
iv. Duration is indefinite but not life-long
v. Confidence
 Elements of the provision of services:
i. Personal elements are the person who provides service and the person that entrusts and enjoys it.
ii. Real elements are the performance of the service, payment.
iii. There are no formal elements, it exists freedom of form for the contract of provision of services.
i. Obligations of the party who entrusts the services
a) Payment
b) Cooperation
ii. Obligations of the provider of the service
 Render the service with diligence and assistants can be used
 The action to claim for the payment of fees for the services rendered has a term of three years.
10.2. CONSTRUCTION CONTRACTS

- They are called “contracts of work” and are those through which a person, the contractor or builder,
assumes the obligation to carry out a work for the benefit of another, the owner, who pays a price for
it.
- With that purpose, he has to perform the work in manner established in the agreement and in
accordance with the rules and usages of his profession.
- The reception of the thing can be tacit or express.
- The materials can be provided either by the owner or by the contractor. If the contractor provides
them it can be taken as a contract of work or as a contract of sale of a future thing.
 Object:
 The work can consist on anything that has to have a final result.
 Price:
 It has to be certain, determined.
o There are different ways of fixing the price:
i. Total price fixed
ii. Make payments as the different units are received.
iii. The contractor cannot raise the price unless there are changes authorized by the owner. Payment shall
take place upon delivery of the work.
 Term:

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 They can freely agree on the term of the work to be concluded. If he does not finish it on time,
there exists penalty.
 Finally the owner can desist of the work at any time, even if the work has already started, but
he shall have to indemnify the contractor for all the expenses, labor and profits which he might
have obtained from the work.
 Risks:
 If the work is lost before the delivery due to act of god or force majeure, the builder has to
assume the loss. But if the owner was in fault he shall pay. The contractor shall have to
compensate the owner for damages caused if he had not informed about the bad quality of the
materials.
 Breach of contract:
 If the contractor does not deliver the work or not in accordance
 There is liability of the contractor and the architect of a building ruined due to the existence of
vices in the construction.
 Anyone who took part in the construction process is responsible. However, the Law has treated
the promoter of the building harshly, as he is made liable in any case for construction damages
alongside any other responsible Construction Agent.
 Periods of liability:
o Foundation vices for 10 years guarantee
o Construction or habitability vices defects for 3 years
o Finish defects covered for 1 year only the constructor being liable
 The action to claim has a term of two years from the moment of the damage
 The Construction Agents shall respond not only to the proprietary of the construction, to the
first owner, but also to the third parties who subsequently acquire the building or parts thereof.
 The Construction Ordering Law only covers the material damages in the building.
 The Construction Ordering Law provides that the liability of the Construction Agents is a joint
liability. If the responsible Agent cannot be identified, the possible responsible Agents shall be
joint and severally liable for the defect. In any event, as we have seen, they shall be liable
alongside with the promoter whose liability is always joint and several with the other
responsible Agent or Agents.
10.3. MANDATE
- It is a contract through which one party, the mandatory, assumes the obligation to perform an act
with legal implications for the account or at the request of another, the mandator.
- The mandate is different from representation. The mandate is the contract concluded between the
mandatory and the mandatory and it regulates the relations between them. The empowering is a
unilateral declaration of will of the principal that determines the efficacy with regard to him of the
transactions celebrated by the representative with third persons in the name of the principal.
- Therefore we can find:
i. Mandate without representation, mandatory enters into relations in his own name
ii. Mandate with representation
i. All the legal consequences of the act performed by the mandatory shall be for the mandator.
ii. The mandatory has to act in the interest of the mandatory.

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iii. The mandate is naturally gratuitous (sometimes onerous).

iv. The mandate is based in the confidence between the parties.
v. There is not a special form required to conclude the contract of mandate.
 Capacity:
 The mandatory and the mandate need to have general legal capacity.
 Types of mandate:
 Express or tacit
 Obligations of the mandator:
a) The mandatory has to pay the price for the mandate in case the mandate is onerous. The
fees shall be those agreed upon or those which can be asked for.
b) He shall have to advance to the mandatory all the amounts he asks for which are necessary
for the execution of the mandate.
c) The mandatory has to compensate the mandatory for all the damages he might have
suffered in complying with the mandate unless he acted negligently (indemnity).
 Obligations of the mandatory:
a) The mandatory has to perform an act he has been put in charge of. If he does not execute the
mandate properly, he is liable for damages caused to the mandator.
b) He has to respect the limits of the mandate. These ones are not trespassed if the action of the
mandatory results more advantageous to the mandator than that specified by him. If are
trespassed, it shall be, mandatory and not the mandatory the one bound by the legal act
performed, unless the mandatory ratifies it. The act shall be ineffective and the third party
might ask the mandatory for not being bound with the mandatory as it was his wish.
c) The mandatory has to carry out the mandate following the instructions of the mandatory.
d) The mandatory has to report the mandatory about the action he has undertaken to fulfill the
mandate and shall pay the mandatory everything that he has received under the mandate and
due to the mandate.
 Effects of the mandate:
i. Effects in the relation between mandator and mandatory
 If the mandatory acts in the name and on behalf of the mandator, the effects directly affect the
mandatory.
 If he does not declare that he is acting as such it only be effective between mandatory and the third
party.
ii. Effects in the relation between mandatory and third parties
 The mandatory has to fulfill all the obligations that the mandatory performed within the limits of
the mandate.
10.4. PARTNERSHIP
- It is an artificial person in which several persons get together to undertake an economic activity for
profit and share the profits thereof. The fact that the union is for profit makes partnerships
different from associations.
i. It is an agreement that produces juridical bounds and that gives rise to a long lasting entity.
ii. There is a relation of trust, the condition of partner cannot be transferred.

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iii. Lawful and follow their interests

iv. Permanent consent to join work, losses, profits and liabilities
v. The aim is the profit
vi. It is an onerous contract, all contributions are called common fun or corporate assets.
 Legal personality:
 As long as they are public partnerships they have legal personality if it is kept in secret it is just a
joint ownership.
 Irregular (or internal) partnership:
 Those who have no legal personality because of defects in form or constitution. It is fully
effective in internal relations.
 The partnership agreement:
 Intention to carry out an activity to gain profits
 Legal capacity is needed
 Management of the partnership:
 The managers have to be partners and if only one manager is appointed in the agreement his
power is irrevocable, whereas if he is appointed later his power can be revoked.
 If no rules have been established:
i. All the partners are empowered to manage the partnership.
ii. All of them can use corporate assets.
iii. They are obliged to pay expenses
iv. The consent of all of them is needed to alter the partnership.
 Debts and liability:
 The partners are jointly and subsidiary liable for the debts of the partnership.
 Dissolution and liquidation of partnerships:
 A process of liquidation has to take place. The debts are payed and then the rest is distributed
among the partners.
10.5. SURETYSHIP CONTRACT

- It is a contract of personal guaranty through which, a third person different from the debtor and
creditor (guarantor or surety), undertakes to perform an obligation which corresponds to the debtor in
case the debtor does not fulfill it. The guarantor binds himself to perform for the debtor in case he fails
to perform.
- It is an accessory obligation that binds the creditor and the guarantor or surety. The main obligation is
between debtor and creditor. The guarantor’s suretyship is subsidiary to the main obligation; it shall
only start to play if the debtor does not perform his obligation with the creditor. The suretyship is
extinguished when the main obligation disappears.
- It is accessory, by consensus, unilateral and it has always to be expressly agreed.
- There exists a possibility of co-suretyship.
 Elements of the contract:
i. Subjects
 Between creditor and guarantor (legal capacity) without necessity of debtor.
ii. Object
 The obligation guaranteed
iii. Form

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 Freedom of form.
 Rights and obligations of the guarantor or surety:
i. The guarantor is responsible for the performance of the main obligation if the debtor does not perform
it himself.
ii. The guarantor can oblige himself to less but not more than the principal debtor. If he has bound
himself to more than the principal debtor, his obligation shall be reduced to the limits of the principal
obligation (accessory character).
iii. The guarantor’s obligation is subsidiary and therefore he can only be compelled to perform the
debtor’s obligation if the debtor himself does not perform. While the debtor has enough patrimony to
pay the debt the guarantor can refuse to perform the suretyship obligation (benefit of discussion).
iv. The guarantor can oppose to the creditor any exceptions that the debtor could opposeand which are
inherent to the debt. He cannot oppose personal exceptions of the debtor, those referring to his
capacity to act.
 Relation between the debtor and the guarantor:
 When the guarantor performs the obligation that the debtor has failed to perform, he has against
the debtor an action for reimbursement. Such action covers what he paid for the debtor plus
interests from the moment the payment was communicated to the debtor, any expenses incurred
by the surety after having informed the debtor that payment has been demanded from him, and
damages in their case.
 Instead of the action for reimbursement, the guarantor can opt to subrogate himself in all the rights
that the creditor had against the debtor.

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CHAPTER 11: NON-CONTRACTUAL OR CIVIL LIABILITY

ACTION FOR CIVIL LIABILITY—> 1 YEAR (1968CC)
11.1. NON CONTRACTUAL LIABILITY
1902 cc
- It arises when there is no contractual relation between two or more persons, but one person
suffers harm as a consequence of an act or omission of other. A person who by an act or omission
causes damage to another, concurring fault or negligence, is bound to repair the damage caused.
- The compensation shall be granted “in natura”, shall consist of a monetary compensation or a
combination of both.
11.2. REQUIREMENTS OF NON-CONTRACTUAL LIABILITY: UNLAWFUL ACT OR OMISSION. FAULT OR
NEGLIGENCE. DAMAGE. LINK BETWEEN THE CONDUCT AND THE DAMAGE.
a) Unlawful act or omission
 Non- contractual liability might derive from an action or an omission. Any conduct or lack of it
which produces damage might give rise to civil liability.
 Therefore, any act or omission which causes damage shall be presumed to be unlawful unless
the agent acted legitimately, either because he was regularly exercising a right or because he
had a defense based on justifications.
 Exceptions:
 Self-defence, cause a damage in order to avoid a bigger damage, license, with the consent
of the victim unless it is contrary to law.
b) Fault or negligence. Reference to strict liability
 For the existence of civil liability, it is necessary that the damage is attributable to the agent
thereof, either because he had the intention to cause it or because he did not act with
sufficient diligence to prevent such damage.
 When there is an intention to cause damage, the conduct shall give rise to criminal liability and
therefore shall be considered by the Criminal courts under the rules for non-contractual liability
in the Criminal Code.
 Fault or negligence is the omission of the necessary diligence to prevent the damage.
 Strict liability:
 It is the strict liability criterion which attributes to a person the damage produced by an
activity independently of the diligence observed in the conduct.
 In some fields there is a tendency to impose strict liability as it is understood that when
someone earns a profit from an activity which is abnormally dangerous he has to be
considered liable for the damages which might arise therefrom, no matter if he acted with
diligence. special acts such as the Use and Circulation of Motor Vehicles Law,
Nuclear Damages Law or the Defective Products Law (which rules are
 Insurance arise today incorporated to the RTCPL)
c) Damage
 The obligation to compensate only arises when the negligent conduct of the agent produces
damage. Damage is any harm to a person or any loss or diminution of what is a person’s own
occasioned by the fault of another person.
 The damage has to exist, to be certain and valuable.
 The damage can be economic or personal.
 They can be moral damages, which are difficult to ascertain.
d) Causation: link between the conduct and the damage
 Interferences in the causation (limit liability):

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i. Act of God or force majeure.

ii. Intervention of a third party
iii. Contributory negligence. It exists when the conduct of the agent is joined by the negligent conduct of
the victim
iv. Fault of the victim
11.3. LIABILITY FOR OTHERS: SPECIAL REFERENCE TO THE LIABILITYOF THE EMPLOYER FOR ACTIONS OF
HIS EMPLOYEES
- There is a fault of the person responsible for the other who did not watch over him properly (fault
“in vigilando”), not educate him properly (fault in educando) or did not choose the proper person
for the job (fault “in eligendo”). But if they can prove their diligence, these people shall not incur in
liability.
i. Liability of parents
 Parents are liable for the damages caused by their children who are under their guard and tutors
are liable for the damages caused by minors or incapable persons who are under their authority
and live with them.
 Child has to be under their guard and the liability is extinguished when the child acquires legal
capacity, is emancipated or leads and independent economic life.
ii. Liability of school owners
 Individuals or entities who own a school shall be liable for the damages that their students under
age may cause during the periods of time while they are under their control or surveillance of
school teachers when performing curricular or extracurricular and complementary activities.
 Requirements:
 The student has to be a minor and during school time. The school later could recover from the
teacher what he paid.
iii. Liability of employers
 Owners and managers of an establishment or enterprise are liable for damages caused by their
employees in the servicing of the areas in which they are employed or in the performance of their
duties.
 Requirements:
a) Dependency
b) While on duty
c) Fault of employee

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CHAPTER 12: THE THINGS AND THE GOODS. REAL RIGHTS
12.1. THE THINGS AND THE GOODS

- Goods are a valuable object of a material or immaterial nature which can be dominated or subject
to appropriation by men. The goods are the content of the patrimony.
- Things are corporeal, tangible goods, but the concept of goods also includes rights. In fact, the
traffic does not take place over things but over the rights to the goods.
- Personal or movable goods are those susceptible of appropriation which cannot be considered
immovable goods. It follows that movable goods are those which can be transported without
damaging the immovable good to which they might be attached.
- In general, public goods are those destined to a public use or service.
- Private goods are those which belong to individuals and those which belong to a public entity but
are not destined to a public use or service.
- Fruits are the things generated by other things without altering the essence thereof.
12.2. REAL RIGHTS OR RIGHTS IN REM: CONCEPT AND CHARACTERISTICS

- It is an immediate and direct power of a person over a thing that the others have to tolerate. The
power of the holder of the real right grants him the possibility to enjoy and use the right and to
oppose its existence in front of everybody, because it has efficacy regarding all.
- We speak of real rights having an immediate influence over a thing as opposed to credit or
personal rights which are those that bind debtor and creditor.
- There are different legal implications:
i. Real rights are over a thing, credit rights consist on the possibility to ask for a particular behavior.
ii. The efficacy of real rights is against any third party, credit rights only against the debtor.
iii. For the transfer of real rights the delivery of the thing is necessary, whereas consent is sufficient for the
transfer of credit rights.
iv. The types of real rights are established by law, whereas the parties can organize at their own will
according to the principle of autonomy of will.
v. The existence of real rights consolidates them, whereas the exercise of credit rights extinguishes them.
vi. The loss of the thing entails the loss of the right, whereas the loss of the thing in an obligation only
entails the loss end of the obligations in certain circumstances basically depending on the existence of
fault in the debtor.
vii. Real rights are subject to be registered in the Property Registry, whereas, in general, credit rights
cannot be registered.
- The faculties to the holder of the right have following characteristics:
i. Direct power
ii. Exclusion power (exclude anybody’s actions)
iii. Efficacy erga homnes (efficacy regarding all)
iv. Universal and pursuit power (real right follows the thing)
12.3. TYPES OF REAL RIGHTS

 Limited real rights:

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a) Limited real rights of enjoyment:

 Those which permit the partial use or enjoyment of a thing which is the property of another
person and, sometimes, the acquisition of the fruits thereof.
1) Usufruct
 Right to enjoy another person´s property under the obligation to preserve its form and substance
unless otherwise permitted by the owner of the thing upon the constitution of the right.
2) Use
 It grants its holder only in as much of the natural profits of a thing that belongs to someone else as
is necessary to sustenance.
3) Habitation
 It grants the holder the right to use the rooms he and his family might require as dwelling.
4) Easements
 Burden imposed upon a real property for the benefit of another real property belonging to a
different owner.
b) Limited real rights of acquisition:
 They grant to their holder the faculty to buy anything which belongs to someone else with
precedence to others.
1) Option
 The right of option grants its holder, for which he has paid a sum of money, the right to buy the
thing which is the object of the option contract within the agreed period and paying for it the price
agreed with the grantor of the option.
2) First refusal
 The right of first refusal grants the possibility to acquire a certain thing when its owner has decided
to sell it.
3) Redemption
 The right of redemption grants the possibility to acquire a certain thing when it has already been
sold to a third party for the price and on the same conditions as it was sold to the third party.
c) Limited real rights of guarantee
 They grant the faculty to sell a good in guarantee for the performance of an obligation
(pledge, mortgage).
12.4. ACQUISITION OF REAL RIGHTS

- Ownership is acquired by occupancy. Ownership and the other rights over goods are acquired
and transferred by law, donation, testate or intestate succession and, as a result of certain
contracts by “tradition”. They may also be acquired through prescription.
i. Original acquisition of property and other real rights
a) Occupancy:
 It consists on taking hold of a thing that does not belong to anybody (usually only movable
goods).
b) Accession:
 Way of acquiring ownership by which the owner of a property becomes entitled to everything
the property produces and to all that is added or united to it, either naturally or artificially (if

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value of construction in a plot bigger than the land and built in good faith, it belongs to the
builder, who shall pay the land).
c) Usucapio (acquisitive prescription):
 Manner of acquiring property and other real rights by the mere possession in the conditions and
during the periods established by law.
 Requirements:
i. The person has to take possession alleging to be the owner
ii. He has to hold public, peaceable and uninterrupted possession of the thing
1) Ordinary usucapio:
 It requires a possession in good faith and with just title. Shorter period of time.
 Movable goods:
o Acquired by ordinary usucapio by uninterrupted possession in good faith and with just title of a
period of three years.
 Immovable goods:
o Acquired by ordinary usucapio by uninterrupted possession in good faith and with just title of a
period of ten years between persons present and twenty years between those absent (who
resides in a foreign country).
2) Extraordinary usucapio:
 No need of good faith and just title but possessed a longer time
 Movable goods:
o Prescribes by uninterrupted possession for six years
 Immovable goods:
o Prescribes by uninterrupted possession for thirty years
ii. Derivative acquisitions of property and other real rights
 Rights received form a previous owner, who assigns or transfers them (“inter vivos“ or “mortis
causa").
12.5. PROPERTY REGISTRY

- It is the register that gives publicity to real rights over immovable goods. It guarantees the legal
security and the certainty of the traffic of immovable goods by means of public entries to record.
The Property Registry is public. In the “presentation entry” date and time shall be stated.
- “Registration entries” relate the constitution, modification, transfer or extinction of the real right.
- “Provisional notations” are temporary entries due to the existence of a doubtful or eventual
situation of the right.
- “Marginal entries” are notes in the margin of the sheet and are used to relate records and make
modifications to the records which do not have sufficient importance to figure in the main entry.
- “Cancellation entries” cancel a previous entry
 Effects:
i. It protects the owner of things because the rights registered are presumed to exist and to belong to the
owner recorded in the Registry.
ii. It protects third parties who acquire based on what is registered therein (principle of public faith or
official authority).
 Requirements:

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i. Third party acquires form the person registered as the owner.

ii. The third party has to act in good faith
iii. Onerous acquisition
iv. Valid acquisition
v. The right has to be registered.

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CHAPTER 13: PRIVATE PROPERTY. REAL RIGHTS OF GUARANTEE
13.1. PRIVATE PROPERTY

 Concept:
 It is the right to enjoy and dispose of a thing with the only limits established by law (total or
complete right). The right of property grants the broadest powers over the thing. The owner of
a thing has its free disposition so that he can sell it, donate it and establish charges or
encumbrances over it. He can also enjoy it, receiving all the fruits and products thereof and has
a power of exclusion in order to impede other people’s enjoyment of his property.
 Limits to the right of property:
 The social function shall determine the limits of its content in accordance with the law. We may
differentiate between those which affect the right of enjoyment and those that affect the right
to transfer the right of property.
 Actions to protect the right of property:
 The proprietary of a thing has the right to protect his right of property. With that aim the law
grants him several actions:
i. Recover possession
ii. Quiet title (free of charges, encumbrances or limited real rights that someone is climbing over the
property)
13.1.1. SPECIAL PROPERTIES
 Intellectual property (author rights or copyright):
 Its object is immaterial because it refers to the property of an author over his intellectual
creations.
 It has to be expressed in some way and it has to be original; different in its form or expression
from anything created so far.
 Transformations may also be protected.
 Exploitation rights shall last for the lifetime of the author and seventy years following his death.
Then it falls in public domain and therefore can be used by any person.
 Moral rights belong to the author, cannot be renounced and are imprescriptible rights. They
cannot be transferred “inter vivos” and most of them not even “mortis causa”. The patrimonial
rights are those pertaining to any exploitation of his work. These are transferred “mortis causa”.
13.1.2. JOINT OWNERSHIP
- A joint ownership exists when two or more persons have a right of property over a thing. The
enjoyment and expenses of the thing shall be distributed among the owners in proportion to their
quotas.
 Horizontal property:
 The owners of the different dwellings or premises of a building have a joint ownership over the
common elements of the building. The owner of each dwelling or premises can make
modifications within his property as long as they do not impair or alter the safety, structure and
external appearance of the building or prejudice the rights of another owner.
 The president is appointed from among the owners and shall represent the community of
owners.

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 The administrator ensures the proper management of the building, prepares the budget for
expenditures to be submitted to the general assembly, sees to upkeep and the maintenance of
the building and carries out the resolutions adopted with regard to works and makes and
receives the necessary payments.
 He can, and he normally does, act as the secretary of the general assembly. This is the main
governing body of the community of owners. It shall meet at least once a year to approve the
budget and accounts.
 Three fifths of votes are necessary for the establishment or the elimination of lift… For the
installation of common infrastructures a third is enough.
13.2. REAL RIGHTS OF GUARANTEE: SPECIAL REFERENCE TO THE MORTGAGE

- The creditor who receives the thing given as a guarantee cannot use it or dispose of it. Once the
principal obligation is not performed, the holder of the right cannot keep the thing given as a
guarantee, he has to promote its sale to recover what is due to him.
13.2.1. PLEDGE
- It consists in the delivery of movable property by the debtor or pledgor to the creditor or pledgee
as a guarantee for the performance of an obligation.
- For the pledge to be effective against third parties the certainty of the date thereof shall have to be
recorded in a Pubic Deed.
- The pledgee has the possession of the thing but he cannot use the thing given as a security. Also, he
cannot make his the fruits or products of the thing pledged.
13.2.2. MORTGAGE
- A mortgage is a security granted over immovable property providing a guarantee for the
performance of an obligation.
i. The mortgage is a real right over immovable goods that limit the ownership thereof (movables as
airplanes).
ii. When a mortgage is constituted, the possession of the immovable property mortgaged is not
transferred to the creditor. The lack of transfer of possession is what makes this right so useful, as the
debtor can use and enjoy the immovable good. The Code requires the registration of the mortgage in
the Property Registry.
iii. It is not validly constituted until the Public Deed in which it is created is registered with the Property
Registry.
iv. Once the principal obligation disappears, so does the mortgage.
v. The mortgage is inseparable from the immovable good that guarantees the obligation of the creditor.
The debtor can use and enjoy the immovable good, and he can also sell it, but the mortgage follows the
good until the debt that it guarantees is extinguished.
vi. The mortgage extends to all natural accessions and improvements in the encumbered goods, as well as
to the amount of the compensation received by or owed to the owner by virtue of the mortgaged
goods.
 Rights and obligations of the parties:
 The creditor who takes or holds the mortgage is called the mortgagee. The mortgagor is the
debtor who mortgages his property.

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 The mortgagee does not have the right to possess the immovable good mortgaged nor to
receive the fruits there from. But he has the right to act against the deterioration of the thing by
the owner.
 Foreclosure:
 If the principal obligation is not performed the mortgage shall be executed, the immovable shall
be sold to recover. The action has to be started within a term of twenty years form the moment
the credit is expired and can be asked for. Once all the creditors satisfied, the remaining shall be
given to the owner of the encumbered goods.

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CHAPTER 14: FAMILY LAW
14.1. INTRODUCTION
- Matrimony is the core of the family law.
14.2. ECONOMIC SYSTEM OF MARRIAGE
- The economical system of marriage or matrimonial property regime is the group of rules stated by
law to regulate the different patrimonial issues arising from the matrimony.
- It is a system of rules and principles that govern the ownership and management of the goods of
married persons, not only between themselves, but also towards third parties. Life in common
entails expenditures that have to be made by both spouses.
- We shall refer to these expenses as burdens of the marriage. The main economic system of
marriage in Spain is the community of gains system which entails the creation of a joint patrimony,
independent from the patrimony of each spouse. In Catalonia, Valencia and the Balearic Islands the
separation system rules.
- Any of the spouses may carry out acts to meet the ordinary necessities of the family in accordance
with the usage and their circumstances of the family (“domestic potestas”). The spouse who has
contributed with his personal patrimony to meet such ordinary needs shall be entitled to
reimbursement in accordance with the matrimonial system ruling the marriage.
14.3. MARITAL OR MATRIMONIAL AGREEMENTS

- It is an agreement in which the spouses determine the economical system of their marriage. It can
take place before (1 year to marry) or after the marriage (the change of the economic system cannot
harm the rights already acquired by third parties.
- They require a special form for their validity; they have to be recorded in a Public Deed and in order
to be effective against third parties, they have to be registered with the Civil Registry.
14.4. TYPES OF ECONOMIC SYSTEMS OF MARRIAGE: SPECIAL REFERENCE TO THE COMMUNITY

PROPERTY SYSTEM OR COMMUNITY OF GAINS AND TO THE SEPARATE PROPERTY SYSTEM
14.4.1. ABSOLUTE SEPARATION
- Under the regime of separation of property each spouse acting alone uses, enjoys, and disposes of
his property without the concurrence and consent of the other spouse (Catalonia, Valencia and
Balearic Islands).
- Under the separation system each spouse owns the goods that he had at the start of the system
and all those acquired afterwards under any title.
- Therefore each spouse keeps the property, and also the administration, enjoyment and free
disposal of his assets.
- Obligations contracted by each spouse are of their sole responsibility unless entered into carrying
out household ordinary expenses.
- For spouses where both obtain important incomes and when one has to face big economic risks.
- As each spouse is the proprietary of his own assets, there is no joint property of the matrimony in
the absolute separation system.

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- Under the separation regime each spouse has to contribute to meet the burdens of the marriage.
- The spouses shall contribute in proportion to their means. The housework shall be considered a
contribution to the burdens and it might give right to compensation at the extinction of the
separation regime.
- If the property of one of the spouses cannot be proven, it has to be understood that the good
belongs to both spouses “pro indiviso”.
- Upon liquidation of the separation systems compensations have to be made between the
patrimonies of the spouses.
14.4.2. PARTICIPATION
- Under the participation regime, the economical system of marriage is a separation regime during
the matrimony but, upon dissolution of the system, the spouse, who has earned less, has the right
to participate in the earnings of the other.
- During the marriage the participation regime works as if it was an absolute separation system; the
spouses keep their own property and they manage and dispose of them at their own will.
- It is only at the end of the system that the possibility to participate in the gains of a spouse arises,
community system.
- Upon dissolution of the participation system the spouse, who has earned more, becomes the
debtor of the other spouse for half the amount of his superior earnings, the difference between the
initial patrimony and the final of each patrimony is calculated.
14.4.3. COMMUNITY PROPERTY SYSTEM OR COMMUNITY OF GAINS SYSTEM
- Lacking a matrimonial agreement setting a different one or being it ineffective, the economic
system of the marriage shall be community property system. It is the subsidiary economical system
of marriage in most parts of Spain. The gains of the spouses during the marriage become joint
property of the spouses and are attributed to them in halves at the end of the system. Therefore in
the community of gains system there are three different patrimonies to be distinguished.
a) Community property and separate property
 Community property:
 It is a joint property of the spouses constituted by the gains of the spouses during the
existence of the regime.
i. Gains form the working activity
ii. Fruits or products of the acquets as well as of the separate property (increase of value is not
considered a gain)
iii. Mutual agreement is needed for the validity of the acts with few exceptions such as acts concerning
the “domestic potestas”
iv. Property acquired under onerous title with community property assets, whether the acquisition is
made for the community or for one of the spouses. In this latter case, the spouse shall have a debt with
the community property for the amount paid.
v. Property acquired through a jointly held right of redemption
vi. Enterprises created during the existence of the community
vii. Goods to which the spouses attribute the quality of acquets
viii. Property donated to the spouses jointly
 The separate property (the one of a spouse is his exclusively):
i. Goods and rights that belonged to each spouse before the marriage
ii. Property acquired by one spouse under gratuitous title

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iii. Goods acquired at the expense or in substitution of separate goods

iv. Property acquired through a right of redemption belonging to one of the spouses
v. Personal rights, inherent to the person and those which cannot be transmitted “inter vivos”
(Intellectual property)
vi. Compensations awarded to one spouse for damages to his person or to his separate property
vii. Clothing and objects of personal use not having an extraordinary value and instruments necessary for
the exercise of a profession, unless these tools form part of a common establishment or enterprise.
b) Burdens and obligations of the community property
 The community is responsible for the debts contracted by one or both spouses for the
benefit of the family and due to common interest. In particular, the community property
has to face:
i. The support of the family, sustenance and education of the common children and needs adapted to the
usages and circumstances of the family
ii. The acquisition and enjoyment of acquets and the management of separate property
iii. The exploitation of business or exercise of the profession of each spouse
iv. Donations commonly agreed by the spouses when they did not agree that they had to be satisfied with
separate assets
v. Non-contractual liability of one spouse arising from actions for the benefit of the community or within
the scope of the administration of the goods, unless they were due to deceit or gross negligence of the
spouse.
 If any of these obligations were to be faced with separate goods, the spouse whose
assets were used to pay community obligations shall have a reimbursement right at the
end of the regime.
c) Liability of the community property
 When both spouses jointly incur in a debt the community property is responsible. Gains
shall respond to debts contracted by one spouse:
i. “Domestic potestas”
ii. Management of community property goods
iii. In the ordinary practice of his profession (the consent of both spouses is necessary)
iv. Ordinary administration of separate property
v. Obligations contracted by one spouse with the express consent of the other
 If the debtor does not have sufficient separate property to pay his own debts, the creditor
can ask for the attachment of community property (this spouse has the possibility to ask
for dissolution)
d) Management of the community property
 In the absence of covenant in a marital agreement, the community property is subject to
joint management of the spouses.
 A particular case in which consent of both spouses is necessary for the disposal no matter
if the good transferred is separate property; it is the case of the family dwelling
 The acts performed by one of the spouses breaking the rule of joint management are
voidable, and being voidable, these acts might be expressly or tacitly ratified by the other
spouse.
 For the disposal of common property the consent of both spouses is necessary. But in the
same way as in the case above, if one of them denies such consent or cannot grant it, the
judge might authorize the disposal when he considers it in the interest of the family.

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e) Dissolution and liquidation of the community property:

 Causes that dissolve the community property regime:
i. Dissolution of marriage (divorce)
ii. Annulment of the marriage
iii. Separation of the spouses ordered by the judge
iv. Agreement of a new regime in a marital agreement
 Liquidation procedure has to take place, debts have to be paid and then divided in half

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CHAPTER 15: SUCCESSION LAW
15.1. SUCCESSION LAW

- It is the part of the law that regulates the coming into the estate a deceased person had at the time
of his death. When someone dies, one or several persons have to take charge of his rights and
obligations.
- It can take place by express appointment (testamentary or voluntary succession) or by appointment
of the law (legal succession).
- It can be universal (the heir is universal successor), where all the rights and obligations succed in
bloc, or singular where the right is only one (the legaltee is the singular successor) (they can only be
disposed by testament).
15.2. THE HEIR

- The heir is the universal successor to the entire rights and obligations of the descendent which are
subject to be transmitted. There exists a testamentary heir and a law heir.
- There exists the possibility to appoint in testament a person who shall receive the inheritance when
the appointed heir dies (“fideicommisary”). They are only valid if they do not go further than two
generations.
- When there are several heirs, they become undivided owners and this is referred as coparcenary.
The division of the effects among them is called partition.
 Acceptance of inheritance:
 Before accepting the patrimony has no owner (yacente). If the person called to accept the
inheritance dies before having accepted or renounced, the right he has is transmitted to his
heirs. It is retroactive, indivisible and pure. The heir shall be liable “ultra vires hereditatis”, with
all his own patrimony.
 The benefit of inventory:
 In order to limit his liability he can as for the enjoyment of the “benefit of inventory”, thus
protecting his own patrimony. It has to be made in a Notary Public or at least in writing. For
that, an inventory has to be made and it shall start thirty days and shall be finished sixty days
later.
15.3. TESTAMENTARY OR VOLUNTARY SUCCESSION: THE WILL. THE LEGITIME.

- The descendant who makes a will is called testator or testate. But his completely autonomous will
of the decedent to decide his succession is not absolute as we shall see that the law states some
limitations as to who can be appointed heir by testament.
15.3.1. THE TESTAMENT OR WILL
 Characteristics of testaments:
 It is the unilateral, formal and personal act whereby a person disposes of all or part of his assets
to take effect after his death. It is also revocable during the life of the testate.
 Capacity to testate:
 Anybody can testate unless expressly prohibited by law.

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 Minors under 14
 Persons permanently or accidentally out of their right minds do not have capacity to testate.
But an incapacitated person can testate if the decision of his incapacitation does not contain a
statement about his capacity to testate.
 Kinds of testament:
 Special: Special circumstances (military in war, maritime on board, in foreign country)
 Common:
o Holographic:
 Entirely written, dated, and signed in the handwriting of the testator. Legal age is
necessary.
o Open:
 Those authorize in front of a Notary Public.
o Close:
 Written by testator and closed by him and then given to the Notary Public who does not
know the content thereof.
 The executors:
 They shall carry out the directions and requests of the will. The testator may appoint one or
more executors being successively, jointly or severally. The office is voluntary, and if the person
does not refuse six days after he knows about the appointment, it shall be understood as
accepted. The one who does not accept and shall lose what the testator left unless he had the
right to legitime. It is also personal and temporary and if the testator did not establish a term it
shall be of one year.
 If the testator has not established the executor’s duties, they shall have to:
i. Arrange and pay for the funeral of the testator
ii. Pay the legacies that have to be satisfied in cash, with the consent of the heir.
iii. Supervise the execution of all that the testator has ordered in the will
iv. Maintain, if it is just, the validity of the testament
v. Take the necessary precautions for the preservation and custody of the inheritance’s goods
15.3.2. THE LEGITIME
- The law establishes who should receive part of the inheritance, and the testator is forced to follow
such rules unless cases expressly provided by law. In this case we talk about “disinheritance”.
- Legitimate heirs for Spanish Civil Law are:
i. Children and descendants
ii. In absence of the foregoing, parents and ascendants
iii. The widower or widow
 Legitime of children and descendants:
 Two thirds of the assets of inheritance, this is the long legitime. One third has to be equally
distributed among the children or descendants (short legitime). The other third to any of them.
This is called “third of betterment or improvement”. The las third can be freely distributed.
 Legitime of parents and ascendants:
 Half of assets if they are the only ones with the right, one third if they concur with the widower.
 Legitime of the widowed spouse:
 The widowed spouse has the right to legitime unless separated. It always consists of an
ususfruct. If he is the only one with the right he shall have the usufruct of two thirds. If he

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concurs with children he shall have the usufruct of the third of betterment. If he concurs with
ascendants he shall have the usufruct of one half.
15.4. LEGAL SUCCESSION OR SUCCESSION AB INTESTATO

- A person dies intestate when he dies without making a will. The proximity of the family relationship
is determined by the number of generations. Each generation constitutes one degree. The series of
degree form a line, which might be direct (series of degrees of persons descending form one
another) or collateral (common ancestor, common trunk).
 Order of the legal succession:
i. Descendants: Inheritance “per capita”, equal shares.
ii. Ascendants
iii. Spouse (unless separated)
iv. Collaterals (siblings)
v. The State

Introduction To Patrimonial Law

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Introduction to spanish civil patrimonial law

Introducción al Derecho Civil Patrimonial (Universidad Carlos III de Madrid)

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CHAPTER 1: LAW AND SOCIETY

1.1. LAW AND SOCIETY

1.2. PATRIMONIAL LAW AS A PART OF CIVIL LAW

1.3. ECONOMIC PUBLIC ORDER

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CHAPTER 2: PERSON´S LAW

2.1. PERSON´S LAW

2.2. NATURAL PERSONS AND PERSONALITY

2.3. CIVIL AND LEGAL CAPACITY

2.4. MINORITY OF AGE

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2.7. ARTIFICIAL PERSONS

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2.8. REPRESENTATION: POWER OF ATTORNEY

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EMANCIPATED MINORS CAN BE REPRESENTATIVES and MANDATARIES (1.716)

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CHAPTER 3: THE CONTRACT

3.1. THE CONTRACT

3.2. THE AUTONOMY OF WILL AND OTHER PRINCIPLES OF CONTRACTS

3.3. TYPES OF CONTRACTS

- There are many different classifications for contracts:

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c) Consensual, real and formal contracts

3.4. ELEMENTS OF CONTRACTS

- Legal doctrine usually differentiates elements of the contact:

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3.5. FORM OF CONTRACTS

- The form of contracts is the way a contract is exteriorized:

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3.6. FORMATION OF SALES

- Until there is an offer and acceptance, there will be no contract.

3.7. CONTRACTS WITH GENERAL CONDITIONS

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CHAPTER 4: INTERPRETATION, INTEGRATION, EFFECTIVENESS AND INEFFECTIVENESS OF

4.1. INTERPREATION OF CONTRACTS

4.2. INTEGRATION OF CONTRACTS

4.3. EFFECTIVENESS OF CONTRACTS

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 Contracts have to be performed (pacta sunt servanda).

4.4. INEFFECTIVENESS OF CONTRACTS

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CHAPTER 5: THE OBLIGATION

5.1. EFFECTS OF CONTRACTS: THE OBLIGATION

5.2. ELEMENTS OF THE OBLIGATORY RELATION

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 The debtor (passive):

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 More than one object

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5.4. BILATERAL OBLIGATIONS

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