Professional Documents
Culture Documents
Law of Persons
Concept
Article 29
Birth determines personality; but the child conceived shall be deemed already born for all
purposes favourable to him, provided that he should be born meeting the conditions
expressed in the following article.
Article 30
Legal personality is acquired at the time of live birth, once the complete detachment from the
mother’s womb has taken place.
Conceived-but-not-yet-born protection (nasciturus) (i.e. Articles 627, 964 and 954 CC)
Article 627
Gifts made to conceived but unborn infants may be accepted by the persons who would
legitimately represent them if they had already been born.
Article 964
The widow who is pregnant, even if she should be rich in her own right, must be supported
by the property of the estate, taking into consideration the share to which the posthumous
child shall be entitled, if he should be born and be viable.
Беременная вдова, даже если она богата сама по себе, должна содержаться за счет
имущества наследства с учетом доли, на которую будет иметь право посмертный
ребенок, если он родится и будет жизнеспособным.
Article 954
Article 32
- Legal Capacity
Concept
Article 322
A person who is of legal age has capacity for all acts of civil life, save for the exceptions set
forth in this Code for special cases.
Article 315
The date of birth shall be included in full for the calculation of legal age.
Article 175.1
1. Adoption shall require that the prospective adoptive parent is older than 25. In an adoption
by both spouses, it will be sufficient for one of them to have reached such age. In any event,
the prospective adoptive parents must be at least fourteen years older than the adoptee.
Capacity of minors
Article 177
1. The prospective adoptive parent or parents and the adoptee older than twelve must
consent to the adoption in the presence of the Judge.
2. The following persons must consent to the adoption in the manner set forth in the Civil
Procedural Law:
1. The spouse of the prospective adoptive parent, save in the event of legal separation
pursuant to a final judgement or de facto separation by mutual consent set forth in a public
instrument.
2. The parents of the prospective adoptee who is not emancipated, unless they should be
deprived of parental authority by final judgement or they should incur in a legal cause for
such deprivation. Such a situation may only be appreciated in contradictory judicial
proceedings, which may be processed as provided in article 1827 of the Civil Procedural
Law.
Such consent shall not be required when it is impossible for those who must provide it to do
so, which impossibility shall be duly grounded in the judicial resolution constituting the
adoption.
The consent of the mother may not be given until after 30 days have elapsed from the birth.
1. Parents who have not been deprived of parental authority where their consent should not
be necessary for the adoption.
2. The guardian and, as the case may be, the carer or carers.
3. The adoptee who is younger than twelve, if he should have sufficient judgement.
4. The public entity, in order to appreciate the suitability of the prospective adoptive parent,
when the adoptee should have been legally under the former’s foster care for more than one
year.
Article 663
Article 688
The holographic will may only be made by persons who are of legal age.
In order to be valid, this will must be written out in full and signed by the testator, with
expression of the year, month and day on which it is made.
If it should contain words which have been crossed out, amended or written between the
lines, the testator shall save such changes underneath his signature.
•16 years old (i.e. Articles 320, 321, 701, 164.3, 166, 443, 626 CC)
The Judge may grant the emancipation of children older than sixteen if they should request
it, after hearing the parents:
1. When the person exercising parental authority should marry or live together in marital
fashion with a person other than the other parent.
3. In the event of any cause which seriously hinders the exercise of parental authority.
Article 321
The Judge, after receiving the Public Prosecutor’s report, may also grant the benefit of legal
age to the person subject to guardianship who is older than sixteen and who should request
it.
Article 701
In the event of an epidemic, the will may also be executed without intervention of a Notary
Public, before three witnesses older than sixteen.
Article 164.3
Parents shall administer their children’s property with the same diligence as they do their
own, in compliance with the general obligations applicable to any administrator, and with the
specific obligations set forth in the Mortgage Law.
3. Property acquired by the child older than sixteen by his work or industry. Ordinary acts of
administration shall be performed by the child, who shall need the parents’ consent for acts
exceeding the former.
Article 166
Parents may not waive the rights held by the children, nor dispose of or encumber any real
estate properties, commercial or industrial establishments, precious objects and securities,
except for preferred subscription right over shares, save for a just cause of utility or
necessity, prior authorisation of the Judge of their domicile, after hearing the Public
Prosecutor.
Parents must obtain judicial authorisation to reject an inheritance or legacy left to the child. If
the Judge should refuse the authorisation, the inheritance may only be accepted under the
benefit of inventory.
No judicial authorisation shall be required if the minor should be sixteen years of age and
should consent in a public document, nor to dispose of securities, provided that the proceeds
are reinvested in safe goods or securities.
Article 443
Minors and incapacitated persons may acquire possession over things; but they shall require
the assistance of their legitimate representatives to use the rights arisen in their favour as a
result of such possession.
Article 626
Persons without the capacity to contract may not accept conditional gifts or gifts made for
valuable consideration without the intervention of their legitimate representatives.
Article 1263.1
1. Non-emancipated minors.
Article 162.1
Parents who hold parental authority shall have the legal representation of their underage
non-emancipated children.
1. Acts relating to rights of personality or others which the child, in accordance with the Law
and to his maturity, may perform by himself.
Concept of emancipation
How can emancipated status be acquired ? ( article 314 )
Article 314
1. By coming of age.
Article 317
Article 320
The Judge may grant the emancipation of children older than sixteen if they should request
it, after hearing the parents:
1. When the person exercising parental authority should marry or live together in marital
fashion with a person other than the other parent.
3. In the event of any cause which seriously hinders the exercise of parental authority.
Article 319
A child older than sixteen who should live independently of his parents with their consent
shall be deemed emancipated for all purposes. The parents may revoke this consent.
Article 323
Emancipation qualifies the minor to govern his person and property as if he were of legal
age, but until he comes of age the emancipated minor may not borrow money, encumber or
dispose of immovable properties and commercial or industrial undertakings or objects of
extraordinary value without his parents’ consent and, in the absence of both, without his
conservator’s consent.
The emancipated minor may appear in court by himself.
The provisions of this article shall also apply to the minor who has judicially obtained the
benefit of legal age.
Article 324
Article 321
The Judge, after receiving the Public Prosecutor’s report, may also grant the benefit of legal
age to the person subject to guardianship who is older than sixteen and who should request
it.
Article 323
Emancipation qualifies the minor to govern his person and property as if he were of legal
age, but until he comes of age the emancipated minor may not borrow money, encumber or
dispose of immovable properties and commercial or industrial undertakings or objects of
extraordinary value without his parents’ consent and, in the absence of both, without his
conservator’s consent.
The provisions of this article shall also apply to the minor who has judicially obtained the
benefit of legal age.
Incapacitation
Concept
Article 200
Article 199
No one may be declared incapable save pursuant to a court judgement pursuant to the
causes set forth in the Law.
Tutor
Article 222.1
Article 267
The guardian is the representative of the minor or incapacitated person, save for such acts
which the latter may perform by himself, pursuant to the express provision of the Law or of
the incapacitation judgement.
Curator
Article 287
Likewise a conservator shall be appointed for persons whose incapacitation judgement or,
as the case may be, judicial resolution amending the former, should place them under this
form of protection, based on their degree of discernment.
Article 289
Conservatorship over incapacitated persons shall have as its purpose the conservator’s
assisting in those acts expressly provided in the judgement which established it.
Prodigality
Concept
Judgement needed
Effects: Curator
Article 154
Parental authority shall be exercised always for the benefit of the children, according to their
personality, and respecting their physical and psychological integrity.
If the children should have sufficient judgement, they must be heard always before adopting
decisions that affect them.
Parents may, in the exercise of their powers, request the assistance of the authorities.
Article 201
Minors may be incapacitated if a cause for incapacitation should apply to them and is
reasonably expected to persist after they come of age.
Article ( 222)
3. Persons subject to extended parental authority, upon termination thereof, save in the
event that conservatorship should apply.
Article 287
Likewise a conservator shall be appointed for persons whose incapacitation judgement or,
as the case may be, judicial resolution amending the former, should place them under this
form of protection, based on their degree of discernment.
- Prodigals ( Article 286 ) ( расточительно или безрассудно экстравагантный: )
Article 286
1. Emancipated minors whose parents should have died or become unable to exercise the
assistance provided in the Law.
2. Persons who have obtained the benefit of legal age.
3. Persons declared to be prodigal.
Artificial Persons ( Article 35 )
Article 35
Their personality shall begin from the very moment in which they should have been validly
incorporated in accordance with the law.
2. Associations of private interest, whether civil, commercial or industrial, to which the law
grants legal personality independent of that of each member.
- For-profit: Companies
- Non-profit: Associations (public or private interest)
Foundations
Functioning
● By-Laws (Article 11 FL)
● Board of Managers (Patronato) and Protectorate (Protectorado) (Articles 14-18 and
34-35 LF)
Associations
Constitution
● Agreement of 3 or more persons (Constitutional Certificate - Acta Fundacional)
(Articles 5 and 6 AL)
● Registration? (Article 10.1 AL)
Functioning
● By-Laws (Article 7 AL)
● General Assembly (Asamblea General) and Representation Committee (Órgano de
Representación) (Articles 11.3 and 11.4 AL)
Direct representation
Concept
Act of empowering
● Concept
● Capacity needed
● Form (Article 1710 CC)
Article 1710
An express mandate may be executed pursuant to a public or private instrument, and even
verbally. Acceptance may also be expressed or implied, as deduced from the acts of the
attorney.
Abuse of power
● Falsus procurator (Articles 1727, 1725 and 1715 CC)
Article 1727
The principal must fulfil all obligations undertaken by the attorney within the limits of the
mandate.
The principal shall not be bound insofar as the attorney has exceeded the mandate save
where the principal should ratify such acts in an express or implied manner.
Article 1725
The attorney acting as such shall not be personally liable to the party with whom he
contracts except where he expressly undertakes to be liable or where he exceeds the limits
of the mandate without making the other party sufficiently aware of his powers.
Article 1715
The limits of the mandate shall not be deemed to have been exceeded if the mandate should
be complied with in a manner which is more advantageous to the principal than the manner
set forth by the latter.