Wuolah Free Introduction To The Patrimonial Law

Introduction-to-the-patrimonial-...
Anónimo
Introducción al derecho civil patrimonial
1º Grado en Administración de Empresas
Facultad de Ciencias Sociales y Jurídicas. Campus Getafe

Universidad Carlos III de Madrid
Reservados todos los derechos.

No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad.
Introduction to
the patrimonial
law
mnieberd@der-pr.uc3m.es
Exam 6 points / incorrect answer
-0,25
Practical part 4 points (Final case
study - 2 pints 14th December/
Multiple choice exam 1 point 11th
November 2022 - 1 point/ 2 case
studies /1 points
a64b0469ff35958ef4ab887a898bd50bdfbbe91a-8720547
Reservados todos los derechos. No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad.
Lecture 1 (07.09.22)
Patrimonial Law as a part of Civil Law / Economic Public Order

1. CIVIL LAW rule relations between individuals within the community. (there are several Civil Laws) !
-the civil status of people

- person’s patrimony
-the exchange of goods and services
-family relationships and mortis causa(deathbed gift)
2. PATRIMONIAL LAW - regulates:
-the distribution of goods to individuals
- the exchange of goods and services between individuals.
3. ECONOMIC PUBLIC ORDER - the action of the Administration in order to organize the economic
structure of the society.
Based on:
-private property (economic goods can be attributed to the individuals and not to the State)
- economic freedom(free market / free enterprise / freedom of contract)
-the moral sense and principle of good faith(!the agreement need to be performed as it was
agreed! !you can have any conditions of contract BUT in line with morale(cannot kill sb))
-legal certainty - make individuals confident that the legal order is going to be maintained
Lecture 2 (07.09.22-09.09.22)
Law of persons. Civil capacity; Legal capacity; Artificial persons;

Representation.
LAW OF PERSONS - In order to be a subject of rights and obligations, it is necessary to be a
person.
1)Civil capacity - inherent constitutional and statutory rights (life/integrity/security/freedom)

-starts with birth and finishes with death (Article 29-30 CC) ↳bothpoin to are proved by the]
reg ty
is record in Civil
!!!Nasciturus = embrion (if it is born – law recognize that they have capacity to inherit or
smth else from the moment it was conceived)
2)Legal Capacity - capacity to exercise the rights you hold and cumpliment your obligations.
- Full capacity 18 y.o EXEPT cannot adopt children under 25
- Achieve progressive legal capacity at ages
*12 – give consent to be adopted
*14 – testify
*16 – employment agreement
The judge might grant it if (i) the parent exercising paternal
a) Emancipation can be granted by the power remarries; (ii) the parents live apart; (iii) there is a
EMANCIPATION parents. In this case, the Code requires the
minor’s consent in a public deed or the
cause that gravely hinders the exercise of paternal power;
or (iv) the minor is under tutorship (arts. 320/321 CC).
authorisation of the judge in charge of the When the emancipation is granted by a judge to a minor
*How can be acquired? ↳ Registry (arts. 317/318.1 CC). under tutorship we refer to it as «legal age
benefit» (beneficio de mayor edad).
- Granted by parents (they’re 16 years old) - is needed a concent in a public deed(notary)
-
- Granted by a judge – 80%

-Marriage
-Independent economic life
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Introducción al derecho civi...
Banco de apuntes de la
*What is their capacity?
-Would receive full legal capacity
-CANNOT borrow or lend money
-CANNOT buy real state, companies or goods of extraordinary value.
Also, the minor would receive the BENEFIT OF LEGAL AGE if he was an orphan.
INCAPACITATION - the limitation or deprivation of a person’s legal capacity by a judge
*Why you can be incapacitated?
- Suffer from persistent mental or physical disease which doesn’t allow you to manage yourself.
*What types of incapacitation exist?

-Total (status similar to a minor > have assigned TUTOR)
-Partial (have a CURATOR to proceed legal procedures)
!!!!!!! If a person performs a legal act (of buying etc.) it is considered VOIDABLE= valid, BUT it can
be questioned by a judge!!!!
PRODIGALITY
A prodigal is a person who, though of legal age, cannot manage his affairs in consequence of
regular disorganized and reckless conduct that endangers his patrimony. > appointed CURATOR
to authorize your decisions.
Lecture 2109 09 221
ARTIFICIAL PERSONS certain groups of individuals (who come together to pursue some
. .
goals) to whom the law grants personality (corporations, partnerships, associations,

foundations...).
Types:
1. PUBLIC LAW ARTIF. PERS. : Corporations
2. PRIVATE LAW ARTIF. PERS. : a) Personal Essence: Associations (for-profit/non-profit)
b) Patrimonial Essence: Foundations
Have
artificial but not group of people
logalpersonality it is is
person
an a
FOUNDATIONS - philatropic institutions developing activities for the benefit of the community. ,
(Defence el of human rights, social assistance, defence of environment)

it consists of patrimony
*Backed by the State (less taxes) because the State has no longer has to cover this issues.
*ENDOWMENT - initial patrimony, has to b sufficient to fulfil foundation goals
(minimal amount 30 000$, BUT it can be less if you can prove that it is enough)
*To be constituted they must account with the WILL OF THE FUNDER (alive by public deed or
mortis causa before notary if it’s legal), the APPROVEMENT OF THE STATE and LEGALITY.
*Function is set in By-Laws(include> management, name, goal..)
let d
*Management - minimum 3 people, the post is NON-REMUNERATED
*CANNOT freely dispose of their assets, need authorisation of Protectorate.
*Can seek additional resources, but 70% need to be destined to fufill the goal
N
Control erate
ASSOCIATIONS Have legalpersonality .
An association is a group of people who get together to pursue a lawful aim.

*Can have General or Private interest (profit or not profit) be member can a
you 14 with the

*It achieves LEGAL CAPACITY when at least 3 people agree to create it. from y 0
agreement ofyourparents
. .
*It DOESN’T HAVE TO be registered but it is recommendable. -I

..
*The main body is General Assembly and represented by Representation comity. * ⑦
⑧ - -
-
~
2
>>> EXAM>>>>UNDRSTAND THE DIFFERENCES BETWEEN ASSOCIATIONS AND FOUNDATIONS,

NEED OR NOT TO BE REGISTERED, PROFITABLE OR NOT!!
REPRESENTATION
Representation happens when a person performs a legal act on behalf of someone and the result is the
responsibility of the principle.
!!!A will of the person appointed is not necessary because does not imply any obligations, it should just
know!!!
Types: -
- Voluntary - I appoint a representative

- Indirect (when sb performs an act on his name but on sb’s behalf) - it is not actually a representation
- Legal - State appoints a representative (EXAMPLE PARENTS, TUTOS, CURATORS)
*Does not need a special form, can be written or not, BUT for some acts should be registered in a public
deed.
*ALWAYS YOU HAVE TO HAVE THE CAPACITY INSIDE YOU TO DO THE ACT IN QUESTION.(you cannnot
appoint sm to sell the house if you are 16)
*Can be extinguished by renouncing by attorney, by my faith, in case I die or i become prodigal…)
UNDERSTAND THE DIFFERENCE BETWEEN ABUSE OF POWER AND FALSUS PROCURATOR
· ↳b
Abuse of power> you exceed a little bit instructions
Abuse of power !If the representative does not fulfil the instructions(i say to sell a house for 5$ but she sold for
1$)> the act is VALID for person who bought a house (if he DID NOT know abut the initial deal between me and my
appointed) but the representative shall compen''sate me 4$ (but if the buyer KNOW about it > thee deal is not valid
because the buyer did not acted in a good faith)
Falsus procurator(representation without power because the power expired or never existed)> do smth
completely different (I say to Maria to sell the house, but Maria donate it)
*Does not bind the principle unless the principle want to do it
*Procurator is liable against the third party principle mify
can
Legalresentation =
dircet
feesentation
-the to be deelaud duch must pass
person
,
years)
10
I
C
person
>75
I
- s
years
I
Practice session chapter 2
-
A) Legal minority
1. Can he inherit the house? Why?
Yes, he can
2. The plumbing of the house is old and needs to be changed, can Peter himself contract the
plumber who is going to carry out the works?
No, a minor cannot sign contracts
If the minor is emancipated, he can sign a contract
3. Can he freely rent the house he has inherited from his grandfather?
No, he cannot.
If he emancipated he can rent
4. And if he wants to mortgage the house, is your answer the same?

No, he cannot
If emancipated, also NO
Applicable articles: 323, 1.259 and 1.727 of the Civil Code.
B)Artificial persons
1. Has the entity been correctly and validly constituted?
It is an association BUT there only 2 persons, so cannot be named association. Do not have
endownment of 30 000, dispose their funds as they want, not registrated, 70% of recources are not
destined to the main goal.
2. Are the 20 Euros of the membership fee sufficient economic contribution to start the entity?
State the necessary requirements for the valid constitution of this entity.
‘Endownment minimum 30 000 or to prove that less is sufficient BUT it is an association, so it does
'not have a minimal fee.
Have a board of minimum 3 persons. Foundaion can be constitued if you are alive or dead,
association ‘ NO, Foundation should be registrated, associations NO
Have By-Laws
Applicable articles: 22 of the Spanish Constitution and 5, 7, 10, 15, and 19 of the Organic Law 1/2002 of
March 2. '
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C) Power of attorney
1. If the price of the acquisition of the house was not stated in the power of attorney, could the person
empowered have acquired the house for any amount whatsoever?
No, attorney need to act attending the benefit of a principle.
2. Being the price stated in the power of attorney, what happens if the person empowered buys the
house for a price superior to the one stated (e.g. 290,000 Euros)? Is your answer the same if he bought it
for an inferior price (e.g. 120,000 Euros)?
-In the first case, it is abuse of power. This means that the deal is valid, however, attorney must
compensate 90 000 to the principle.
-In the second case, in the contract is stated that it could be any price that not exeeds 200 00, so
the attorney followed all the instructions correctly.
3. What is the consequence if the person empowered buys a different house, one in calle Arenal 3 for
180,000 Euros?
This is called falsus procurator(representation without power) because the person did smth
extremely different that what was stated in the contract. In this case the contract is not valid and
the attorney is responsible against the third party.
If the principle like the house and ratify it, then the deal is valid(as is attorney acted in the benefit of the
principle)
Contract
CONTRACT - an agreement between two or more persons which creates rights and obligations
between them which are subject to economic valuation. (Ex: ticket for a football match, payment for a
restaurant bill). - have patrimonial nature
a) Contracts are perfected by the
Law between parties=obligations arising from the contract. consent of the parties expressed by
the concurrence of offer and
~
acceptance.
TYPES OF CONTRACTS
• By the requisites for their formation:
>Consensual (contratos consensuales): perfected by the mere consent of the parties.
Ex: contract of sale.
>Real: perfected by the joint of consent and the physical delivery of the object of the contract.
Ex: deposits and loan contract.
>Formal: require a special form for their perfection. If such form not adopted, the contract nul.
Ex: partnerships with immovable properties or rights i
n rem which should be contributed, the mortgage, don
• By the nature of the relationships created (refers to obligations arising from the contract):
> Bilateral (reciprocal): create obligations for both parties.
Ex: contract of sale.
> Unilateral: create obligations only for one of the parties.
Ex: donation.
• By their formation process:
>Negotiated: the parties can debate and freely agree on what better adapts to their needs.
Ex: negotiation process before the contract.
>Adhesion: the strong party set the rules and the other can only take it or leave it.
Ex telephone/electricity/gas contracts -(convenin for mass
contracting)
• By their purpose: contract
- of
> Onerous: each of the parties receive something in exchange sale :
*communicative (comutative) - the equivalence is known bilateral , onerous, comutative
*contracts of chance - depends on an uncertain event (insurance/gambling)
>Gratuitous: one of the parties gives an advantage to the other without receiving anything in
exchange.
The fact that a contract is unilateral does not mean that it is gratuitous. Ex: gift, donation or the simple
loan.
• By their legal regulation:
> Typical: have a legal regulation provided for them.
> Non typical: do not have a legal regulation, they are merely based on the parties will(online
auction)
2. AUTONOMY OF THE WILL (private autonomy) - parties can enter into any kind of contracts,
with any object, any kind of parties and may establish the pacts, clauses and conditions as long as thy
are not against imperative law.
!!The principle of autonomy of will is being limited due to the fact that economic order is not as free as it
used to be.
RESULT
- “modern” contracts (free will of the parties is impeded by one of the contracting parties who impose
its conditions). ~ banks/telephone companies
- intervention of the State to limit the autonomy of will principle(protect weak party)
& Elements ofcontract

Essential elements - those Natural elements - those Accidental elements - are
without which contract does which normally appear in those that the parties
not exist A contract lacking contracts but can be altered include to limit or modify
any of its essential elements or excluded by the parties. the contract
is null and void.
3.1. ESSENTIAL ELEMENTS

. ⎯ Consent: it is a free agreement of the will of the parties declaring their intention to assume
obligations.
* Has to be declared and the person giving such consent is capable to do so.
!!!
* It has to be given in a free and conscious manner.
freedom of form
If the consent is given by mistake. (p 64-66),violence, intimidation or dolus (use of tricks in bad faith to
deceive the other party with the purpose of him executing a contract), the consent is void.
⎯ Object
: is the matter dealt with in the contract and to which obligations arising from it refer. Even
future things can be the object of contracts. Not also things but also rights can be object of the contract
(ex: assignment of credit rights).
The object has to be:

• Real or possible: it has to exist or be possible to achieve.
• Determined
• Lawful and subject to trade: (goods owned by the state are things excluded from trade)
⎯ Consideration
justification
/ cause: reason which moves the contracting parties to enter the contract
It has to be:
o Real:
o Lawful: the cause is illicit if it is contrary to the law or good moral.
▪
The accidental elements are:

Condition: an event which affects the enforceability of the contract. Such event might be uncertain,
future(if you approve the driving test>I will give you a car) or past(but not known to the parties). It can be
precedent (holds the enforceability of a contract until the event happens) and subsequent (terminates the
contract when the event happens).
Term: a particular time agreed by the parties upon which the effect of the contract shall start or stop.
Modus = burden that the person favoured by the contract has to suffer, which imposes on the donee the
obligation to do a service to the donor(I give you a boat but you will bring me on the trip once a year)
&
-
Form - not essential element of the contract

*Writing(private document/public document)
*Verbal
*implied(consent is deduced or presumed(give a coin to the bus driver)
Contracts are perfected by the consent of
4. FORMATION OF CONTRACTS B
the parties expressed by the concurrence of
offer and acceptance.
to exist it has
1.
·
Preparatory stage:he first
= out o contacts
ffer
IleteI(contain
Offer
in which
,
they discuss
to be the possible terms to be included in the future
be
com
all the elements
contract.
p
It finishes with the andt
offeror acceptance.
I
ture contrac
2. Perfection / completion stage: a contract is perfective or completed when the parties consent to the
fre
IqI acceptedpropo
object of the contract. It exists when there is a coincidence between the offer and the acceptance.
If upon acceptance
·
a new offer, a t
butwithdraw Before I
the othe person
er is
counter-offer,
changes the,terms of the
~-
ser eas
offer, such will not be considered an acceptance
he o er which might be accepted by the first offeror. Also, it cannot be out of time;
tion to maintain
offeror may assumeangling
-
if there is no time limit,

->
a contract is not the expression of two independent
ertain period consents, but of two coincidental declarations of
will. This coincidence takes place through the
3. Fulfilment stage: when the parties accept their duties due to the contract. offer and the acceptance of the offeror’s proposal.
Therefore, until there is an offer and an
When the offer is made through an automati it s valssible
degies
-> acceptance thereof, there will be no contract.
5. CONTRACTS WITH GENERAL CONDITIONS OF SALE - adhesion contracts

So, there is always a weak party and a strong one; and the same model-contract is used for every client.
Due to these contracts can be abusive to the weak party > exist some anti-abuse mechanisms:
❖ It forbids certain clauses such as an excessive duration of the contract.

❖ Not negotiated need to be interpreted to benefit the consumer.
❖ Clauses have to be clear and simple.
❖ Abusive clauses are considered null, such as those which limit consumer rights or break the
balance between the parties.
when the offeror and the
➢ General conditions must be clear and transparent. person who has to accept the
➢ Particular conditions must prevail over the general ones. offer are in different places,
there is consent from the
➢ General conditions have to be in favour to the weak party. moment in which the offeror
➢ Abusive clauses are considered null. knows of the acceptance
➢ Those clauses which the weak party doesn’t know are null.
➢ Those clauses not understood are null.
Pre-contractual liability - To what extent one party can be held liable for costs incurred by the other party during the
negotiation
whatsoever, unless
of mangatalings
has
Brach
·
Gr consequences
in a
acted
in
person
WHAT IS INTERPRETATION OF CONTRACTS ?
To interpret a contract is to find out which was the will of the parties at the time of conclusion of the
agreement and what effects that they were willing to establish.. when its contents are not straight
forward, when the will of the parties is not clear as to what they wanted when they wrote a certain clause
or made a certain statement. Is it needed to save the contract
RULES OF INTERPRETATION
⎯ Literal interpretation: when the terms of a contract are clear, the literal sense of such terms shall
prevail.
⎯ Searching for the real interpretation: if the wording of the contract appears to be contrary to the
shard intention > intention should prevail.
(We LOOK FOR COMMON INTENTION > taking into account not only what one person wanted to say, but
good faith
how the other one understood) ?
How to ASCERTAIN common intention > look at the acts of the parties BEFORE, during and after the
contract.
⎯ Clauses subject to different interpretations / doubtful terms and words: if any clause/
term/word of the contract should admit several meanings, it must be understood to have the meaning
most suitable to produce effects.
⎯ Systematic interpretation: clauses in contracts must be interpreted in accordance with the sense
of the whole contract.
⎯ Ambiguous clauses: customs and general practices of the country shall be taken into account to solve
doubts as to witch was the intention of the parties when the wording can be understood in different ways.
⎯ Obscure clauses: interpretation must not favour the party who caused the obscurity.
(Ex: in an insurance contract the imprecision about injuries covered shall be interpreted in favour of the
insured party.) ~unilateral contracts + general cond of sale
.
The qualification that the parties give to a contract will NEVER bind a Judge when
taking a decision about it.
WHAT TO DO WHEN IT’S IMPOSSIBLE TO SOLVE THE DOUBTS?

“CLOSING RULE”
• When the doubts are about incidental matters of the contract and the contracts are :
* Gratuitous > the doubts shall be solved in favour of the smallest transfer of rights (this is in order to
pretext the only party who has obligations an protect her from transferring more than he was willing to
transfer)
* Onerous: doubts shall be solved in favour of greatest reciprocity of interests (as obligations arise for
both parties > none of them should benefit from the lack of clarity)
• The doubts are about the principal object of the contract, so that the intention of will of the parties cannot
be ascertained, the contract shall be null and void.
▪
▪
INTEGRATION OF CONTRACTS (when parties have not provided in the contract for a certain situation)
To integrate a contract is to complete it, filling the gaps left by the parties.
1. Auto-integration - integration inspired in the general rules established in the contract

2. External sources (when the situation cannot be inferred rom the rest of the contract) - law,
usages(when there is no applicable law), good faith (ex> publicity in contracts with consumers> if in the ad it was said
that the house have views at golf club, even if it is no in the contract, it is expected that the house have this views)
EFFECTIVENESS OF CONTRACTS - rules that regulates relations between parties
Pacta sunt ser vanda: contracts shall be performed as it is / Obligations bind the parties, no matter
what happens, a contract must be performed.
*small and rare exception: if EXTREME changes arise that make a contract unfair >in every contract there
is an implicit clause “rebus sic santibus” “things thus standing” , according to it contact has to be adapted
to he new circumstances.
”Relativity of contracts” - contracts shall bind only the parties

*exception: rights and obligations arising from the contract are transmitted to parties’ heirs(unless otherwise agreed).
*exception: ”third-party beneficiary” - if the two parties convene that the performance of one of them is intended to
benefit a third party > a this party has a right to demand the performance (life insurance> a wife of a dead person can
demand money)
Extended effects of contracts: contracts also bind parties to all consequences of the contract.
Contracts cannot be left to the will of one party: a contract can be modified or revoked wig the
mutual agreement.
*exception: consumer contracts(a consumer can desist from. the contract within a period of time without any
consequences) / distance contracts.
INEFFECTIVENESS OF CONTRACTS - cases in which the contract does not produce the effects wished
for and which can be reasonably expected from that contract. The contract was not properly executed and
therefore it does not produce effects.
Categories of infective contracts:

*Absolute nullify (strictest sanction) - when contract has a defect which impedes that it produces any
effect.
to
-Contract has no affects at all
to to court now
even
involved -Operates ipso iure(no need for juridical declaration) it is not
meessary go ·start
-Contract would be considered as never executed laction
third- · -Anybody can seek nullty without a time limit is the nullity definite lega
for ·
parties -Parties have to give back whatever goods and rights that they have exchanged with their fruits +
interest contract to
!if the person lost that thing > return any fruits received + value of the thing(at time of the loss) + benull
interest(from the et of the loss)
!If the person dos not return that thing > the other one cannot be demanded to return
!When one person say that there is nullity and another one say there is not>they go to court BUT the judge
will only have declarative nature.
Why a contract can be null?
- Contrary to the law
- Lack of essential elements(consent/object-not determined or unlawful/cause-absence of real cause)
-Formal contract lacking required form
-
- - -
-
-
*Partial nullity (only a part of a contract is void)

-Civil Code does not have specific rule about it
-
-The court will tend to decide in favour of the conservation of the contract Cannal onl a
part of the con)-
Tan be etainedfor year

- -
*Voidability - when contract has a defect but it is valid as long as not challenged due to that deffect
(One party can claim the defects and destroy the contract BUT it also can confirm voidable contract - one party
can declare its will for the contract to b valid)
-if the action is not brought > contract is valid and CANNOT be challenged
-if the action is brought > the contract can be considered ineffective and be annulled > parties must
return goods and rights they have exchanges+ their fruits + interest
Why a contract can be voidable?

-Lack of legal capacity (contracts with minors or incapables)
-Lack of consent or vices of consent(mistake/dolus/violence/intimidation)
·
it
Lack of marital consent when is required ↳ deliberate (if incidental - compensation]
Confirmation of voidable contract (making a contract valid)-> eximino ? David by is
1) Only affected person can confirm (not require agreement of both) -
2)
entThe vice must be known bute eliminated confirmation purifies the
contract David or his
Only
tutoz -
can seel
voidab
3) Confirmation can have express form or tacit form (when the affected person behaves in such manner that is -
incompatible with contract’s voidability)

en n m
- -
-
*Rescission - when a contract claimed to be ineffective by law even though it has all essential elements
and does not ha any defects. (Is used when no other legal resort can be used)
G
but it has prejudice against artain person and givets the zighto
law a
the contract an effective

a a
Rescission shall not
to take place when the
-return things+fruits+interest
the
person make things traded are
legally and in good
-the person who acquired things of creditor must compensate to the creditors any damages. faith in the possession
of third parties. In this
case the obligation to
return turns into an
obligation from the
!Should not be confused with the termination of contract due to its breach by one of the parties!
person who caused
the damage to pay a
compensation for
!You can claim or rescission for 4 years. *if you’re a minor this 4 year starts from yours 18 years old)!
damages (art. 1.294
CC).
When contracts suffer rescission? (cases):

-Fraud and creditors (actio pauliana)- when a person who take money empty his patrimony in order not to
pay to the creditor > the creditor is provided with actio pauliana (means that creditor can go to Court to undo
this fraud)
-Injury - contracts celebrate by tutors or representatives when the person represented suffers more than
25% of the thing traded.
-Goods that are subject to litigation(находятся в судебном процессе) - when the litigious things were
entered by the defendant without approval of litigator(судебный юрист)
-If the payment was made by an insolvent debtor on account of obligations which were not enforceable yet.
-
-
- -
me
-
co
-
1) The contract states that he can adat the structure

the contract itis stated that
of
the
building
he cannot out
,
but in
trees -
When the terms oft
Le
any
should
.
contract clear literal

are -
meaning
prevail .
a)
The contract o
falethe does not
Monetary compensation . need to be done
fablic derd .
in
-
1) Consent exists I
but
it has vices Contract VALID
has
[
.
The contract is NOT void

,
butwe claim
can a
voidability
because it lacks concent .
2 I Yes it be considered mell andvoid because

may
one
,
of the essential element is

missing
.
&
Es
-
!!!!!
S
The term )
!
I voidability
1) years is
nee
-
.
a) Lack
htt
of
They transparency
should have told
.
snitk
because heis shareholders
a
All the shareholders must

-
know the
information about
negotiation They disclosed
.
in
formation
a De
he
3)
etfter years
↳ canno
damag
-wire
LaoobI
German com
fany
caused in
.
damages Roo
Thecourt willtake the

final desition .
Effects of contracts: OBLIGATION
(band)
Obligation -legal relation which allows the parties to it to exchange goods and services.
Double legal situation:
>Debtor (passive) - subject of obligation/has to fulfill it
>Creditor (active)- holds subject of rights (ask debtor for what is due) 3 Pensacbe at enter
Obligation has 2 edges:

>debt - obligation to behave in a certain manner
>liability (state of being legally responsible for liable
smith)— meaning that the creditor can attack all of the
be
youfuture salary many
debtor’s patrimony to satisfy his credit. Iyou withassets directlypaidto)
can
the even
-> ex : be
reditor
future your
Duty of performance (prestación).- what is due by the debtor(object)
Sources of obligation:
1. Contracts - obligations arise upon the agreement of parties.
2. Law - explicitly determined by the Civil Code
3. Quasi-contracts - (court create this contracts if there were no obligations between the parties)
ex: you ordered pizza and paid, but the delivery men delivered it to the wrong address. Instead of denying, the receiver accepted the order, even
though did not pay. The court will order to issue a quasi-contract to make the person pay for pizza.
4. Criminal offences/misdemeanours(less serious crimes) - determined by criminal code
5. Quasi-delicts - wrongs that occurs unintentionally.
Elements of the obligation: only to have civila facity

can play both roles! we und
(contract ofsale) 3
1. Person subject to the obliga tion (creditor/debtor) !One person physicaland arefferson
,
2. Object - the duty of performance. Consists of giving, doing or not doing smth. natural
impossibility
3. Bond - link between debtor and creditor. (Bilateral obligations=double bond) legal impossibility
and
one fine) absoluteimpossiblity e to
end pattere
Calling
contract - one
total
imposit millana void
Types of obligations:
-
partial infros-compous. fo r
bregeen"piemelland
dan
premacy
1. Depending on the object a
void
>Positive obligation - obligation to give or do smth

>Negative obligation - obligation to NOT do smth
*Specific obligation - object is individually determined (ex: deliver a certain painting by Goya)
the obligation to deliver a specific thing is extinguished when the thing
due is lost or destroyed without the fault of the debtor
*Generic obligation - object is one of a group of the same ones (delivery of 100kg of apples)
never extinguished by loss or destruction, since it can be easily replaced by another of
the same kind
nungwam fait
obliation
genus
~
generie
the lostf fhe
is neven
extinguished
by of thing
- Simpleobligation - one object involved
- Complex obligation - more them on object involved.
~Cumulative - several objects and all of them are subjects to demand

(oranges AND lemons)
~Alternative - several objects and one of them are subject to demand.
(oranges OR lemnos)
!if not provided who chooses> debtor chooses.
!If CHOSEN object lost without debtor’s falt > debtor is free
!if there only one thing left> debtor NOT chooses
!if all things are lost > creditor chooses value of any of them
~Optional - the debtor has a possibility to substitute a a good for smth else
(not foreseen by law)
^Divisible obligations - can be fulfilled in parts (I give 200$ and later 100$) !has to be AGREED!
Îndivisible obligations - canNOT be fulfilled in parts.
*Principal obligation -duty of performance is the main object.

*Subordinate obligation - accessory to the principle obligation, if disappears > principal ob.stays
(ex: interest on the principal debt)
2. Depending on the bond
& Unilateral obligation- one party has a duty of performance

& Bilateral obligation - both parties h ave a duty of performance. !READ THE END O LECTURE!
(the obligation togive car

Pure obligation - can be asked to be performed from the moment of constitution
a
~
~Conditional obligation - performance depend on future event or on an unknown past event
!condition CANNOT depend on the will of DEBTOR = NULL and VOID obligation!
What effects conditions may have?

Suspensive condition
1, Suspend the effects until a certain event happens. Obligation can be ask to be performed from
(I willgiveyou
->
ifyouprass driving exam)

a care
the moment the event teaks place.
a
2. Cause obligation to expire “resolutely condition” - if the condition never happens, obligation
(Once
->
you
start
working Istopgivimyyou money)
, become pure.
The
obligation expire after the condition
takesflac)
@ Obligations subjects to term - performance and effects depend on a fixed date.

F D mber s start to sellthe house
[
Star
ting vom ees
, I
the house
Final I
stop selling by the December 31
3.Obligations depending on the persons subject to it
- Joint obligations
*creditor can only ask the debtor to fulfil his part of debt, each debtor has to fulfil its part
*credit shall be divided equally (if not specified)
*insolvency of one of the debtors ones not affect other debtors
>if joint is active (SEVERAL CREDITORS) - each creditor can ask only for his pat of credit
>if joint is passive (SEVERAL DEBTORS)— creditor can ask a debtor only for its part
>if the joint is mixed (SEVERAL DEBTORS AND CREDITORS) - 1+2
Effects of joint obligations
* If INDIVISIBLE - debtors cannot pay there individual share>transform in monetary value>divide
* if DIVISIBLE - each debtor pay its share
* if ONE DEBTOR BREAK AN OBLIGATION > others are not affected
Maria and etma

decided to
But etnna didn'tpay
buy a
~Joint and several obligations (must be expressly stated) 1000 III.

.
cat
for the who
le
↑
.
to
Maris was ob obliged payjoint and several
*creditor can ask a debtor for the fulfilment of the whole credit ligation
was
as the
price ,
etnno
sue
Maria can
BUT ·
dow
back
Effects of joint obligations: to
get
hor money
*if active (SEVERAL CREDITORS) - any of the creditors can ask any debtor to fulfil all the credit.
From that moment the debtor who has paid all becomes a creditor for other debtors
*if one of the debtors is insolvent > other are affected as they need to pay his part
*if the performance becomes impossible WITHOUT DEBTORS’ FAULT > extinguished
WITH FAULT > will pay additional damages &
Bilateral obligations (type explanation)

*the value of performance does not have to be identical
*obligations are interdependant
- Genetic bilateralism - when the disappearance of one obligation causes the disappearance of the other.
- Functional bilateralism - each duty of performanceto has to be fulfilled simultaneously.
H not bount giveyou ifyou haven'tpaid theprice) a car
(contract of sale) am
Consequences of bilateral obligations:

1. Special regime for debtor’s delinquency(neglect of duty) (Delay)(since the moment mendto
/faidtheprice give me
delinquency starts only when one party fulfilled his performance you
-
a house
2. Special performance and termination regime:

If one party fulfil duty and theandother does not > one can ask to fulfil or terminate the contract (with all the
didn't house
damages) in both (Iflgiveyou give
me a
money you ,
agreement
-
house though Iterminate the
eases
even
give me a
o
(with
compens) compensation f
late
you're (with
damages
3. Exception for non-performance
none of the parties can ask for performance if they haven’t performed themselves
4. Exception for inaccurate performance

Defendant can refuse to perform until the other one performs correctly
Performance of obligation - PAYMENT Ifulfilmentis
o
-Solvens
SUBJECTS OF PAYMENT ->
decipients
1. SOLVENS (debtor) - the subject who makes the payment (debtor, person empowered by debtor,
successors, third party - person who acted as a guarantee for secure payment)
!Payment can be made by any person WITHOUT the knowledge or approvement of the debtor and
creditor shouldn't care who makes it!
!If the obligation is of a personal nature, the creditor can only accept the payment from the debtor!
(Ex: famous paintor who must do the task on his own)
Different scenarios: simberment

*PAYMENT IS MADE BY A THIRD PARTY IN AGREEMENT WITH THE DEBTOR:
subtrogate
The third party becomes a new creditor for the debtor. Third party will recover his money.
2 choices: REIMBURSEMENT RIGHT ///// SUBROGATE IN THE POSITION OF THE CREDITOR.
*PAYMENT BY THE THIRD PARTY IS MADE AGAINST THE WILL OF THE DEBTOR:
Third party can only ask the debtor for the benefit he got from those funds.
unjumerchant
(Ex: if the debtor could achieve the reduction of the debt, but the third party paid the whole sum, third party could
only claim for thee reduced amount)
!Third party CANNOT SUBROGATE in the position of the creditor(lose the guarantees of the debt) but he
gets an ACTION FOR ENRICHMENT; this will cause the third party to probably recover less than the debt
he paid out.
*PAYMENT IS MADE WITHOUT THE DEBTOR'S KNOWLEDGE:

sinbesment
Because there is no active opposition to the payment, the debtor must reimburse quantity paid by
the third party but the third party CANNOT GET THE RIGHTS OF THE CREDITOR.
2. ACCIPIENS - the subject who receives the payment (creditor or his representative)
!Debtor can make a payment to a person different from the creditor if it is useful for the creditor!
(Ex: debtor paid to the brother of the creditor, who will give the money to the creditor)
!”Apparent” creditor. If the debtor thought that the person is a real creditor and paid to him (acted in a
good faith), then debtor is free from credit. The real creditor can sue the “apparent” creditor to return his
money.!
!it is NOT obligatory to give a receipt of payment (except contracts with consumers)!
PAYMENT REQUIREMENTS
In order to liberate the debtor > payment must meet all these requirements
a)Identity
*The payment has to be the exact duty of performance agreed (creditor cannot be forced to accept
something different than what was agreed, not even if it is of even or greater value.
*Monetary payments have to be made in the specie agreed (special currency, gold, diamonds)
*Creditor cannot be compelled to receive the performance from the third party (because with the time
circumstances may have changes, appearance, abilities of the debtor have changed)
*In the case of generic obligations, the creditor can't ask for the highest quality nor can the debtor give the
lowest quality, there has to be a medium point.
b)Integrity
The debt will not be considered to be paid until it has been paid totally, but the creditor can accept a partial
payment if it satisfies its interests.
c)Indivisibility
It occurs when the partial payment is not accepted by creditor even though it can be divided. The creditor
can accept partial performance if it satisfies his interest.
!Only exception is the debts with liquid and illiquid part. Liquid part can be paid without waiting for the
illiquid pat to be liquidated!
(Liquidity is sufficient cash or property that can easily be converted to cash without a substantial loss in value to meet
financial responsibilities. If the person has no other liquid assets to tap, the only options left to meet the bills are
borrowing at a high rate of interest, selling a possession at a probable loss (illiquid assets) to pay the bills on time)
MOMENT OF PAYMENT
Payment has to be made on time {since the moment one party performs (in bilateral obligations) or the
deadline arrives (unilateral obligations)}
!Delinquency starts for the debtor from the moment the creditor asks for performance
!Delinquency starts for the creditor any time after the arrival of the moment of payment if he
unjustly refuses to accept payment!
!Debtor can perform with delay and if creditor is still interested!
!if the contract doesn't specify the date, but from the contract it can be inferred that there was an intention
to grant a term to the debtor, the court will fix a duration.
PLACE OF PAYMENT
Usually, the place of payment is established in the contract
If place is not established:

1. Contracts of sale > payment shall be made at the place of delivery of the thing.
2. If the place of payment is not stated in the agreement and a specific thing is to be delivered, payment
shall be made at the place where the thing was located when the obligation was constituted.
3. In the rest of cases, the place of delivery will be the domicile of the debtor.
Imputation of payment - when the debtor has a series of debts with the same
creditor, debtors pays a sum but he does not specify to which debt it has to be allocated.
Requirements:
*One debtor with several debts to one creditor.
*The debts are all of the same kind (usually monetary).
*The debts have to be due(не простроченные)
! It's for the debtor to decide which of the obligations he wants to extinguish first.
! if not specified, shall be applied to the most burdensome and unfavourable debt. -
! if all debts are of the same amount > shell be divided equally.
Pro coluto
Accord and satisfaction - exists when the debtor, in agreement with the creditor,
gives something to the creditor instead of the original performance. The new performance has to have a
value sufficient to satisfy the creditor’s interest
!!!!!!! It extinguishes the obligation, NO MATTER IF THE VALUE IS LESS, SAME OR BIGGER, if the consent of
the creditor is received, the value of both performances is considered equivalent.
PAYMENT BY ASSIGMENT OF PROPERTY Only -

when I debtor and several reditors
If the debtor doesn't have the financial capacity to pay his debts, he can give the property of some or all of
his assets. Creditor receives irrevocable power of attorney to sell the assets.
Pro solvendo
!Debt shall be extinguished in the level of net value of the assets offered
!Assignment doesn't immediately extinguished the debt. It only entails submission of the assets
to a liquidation procedure in order for creditors to recover from the amount obtained out of liquidation.
!If the total amount obtained is bigger than the debt > excess shall be given to the debtor;
!If it does not enough > debt is not completely paid ⑨
CREDITOR’S DELINQUENCY
If the creditor is not there to receive payment or unfairly refuses to receive it(because the debt may
become more onerous > more inerest on the money).
In these cases, the debtor is liberated because it is the fault of the creditor not receiving it but the debtor
has to follow 2 steps to be liberated:
1) THE OFFER OF PAYMENT

If payment is offered to the creditor, and he does not receive it or refuses to accept it, then delinquency for
the creditor starts.
Once delinquency demonstrated:

>Risk of the loss of the thing due is transferred to the creditor (meaning: if the thing disappears without
the debtor's fault, creditor shall still have to fulfil his obligation in BILATERAL contracts)
>The creditor shall be responsible for the increase in the expenses to liberate the debtor(if monetary >
stop accrue interest)
>Delay does NOT entail debtor’s delinquency
si lees esto me debes un besito

2) CONSIGNMENT
It is the deposit of the thing with the judicial authority or the Notary at the disposal of the creditor. Judge
free the debtor from the debt.
As a consequence, this is only possible when the obligation is to give something.
Cases for consignment:

- Creditor unreasonably refuses to accept payment, to provide the document acknowledging
payment or to cancel the guarantees.
- Creditor is absent or incapacitated in the moment of payment.
- Several persons claim that they have the right to receive payment.
- Person of the creditor is unknown.
- Title of the obligation has been lost. (the debtor can ask the judge to cancel the obligation or
the guarantee)
Requirements for consignment:

* Offer of payment: debtor have to prove to the Judge that he has made the offer of payment
and the creditor has unjustly refused it or in any of the previously mentioned cases.
(Not needed when the creditor is absent, incapable, when several persons claim the right to collect the debt
or when the instrument of the obligation has been lost)
* Announcement: the consignment must have previously been announced to the persons
interested in the performance of the obligation.
*Compliance : consignment must comply with the payments required
*Communication: Once consignment has been confirmed, it has to be told to the all the interested persons .
Want
a) Ma .
Lopentant Travel
agency sales
He can se
only industry
travel a
because he
it It
has contract
by a on
that he willnot seced)

with
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etiport through
.
3) MM Loby .
the can me
extra contractual liabili ty

1) e
1) etset Davidpayed all the .
debt the obli tion f

gaLandthejoinwas
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and several
Me Davie setrgated
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and several
2)
Ifothersjoint
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In contrast,
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·I If thebetime fessence was o ,
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termination
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Judge of
WAYS OF EXTINGUISHING OBLIGATIONS OTHER THAN PAYMENT
1) LOSS OF THE THING DUE OR SUDDEN IMPOSSIBILITY OF PERFORMANCE
Obligations are extinguished when:
*the thing due is lost (only when specific and NOT general obligation)
*sudden impossibility(performance become physically or legally imposible)
Requirements:
-The loss of the thing or the impossibility of the performance is NOT THE DEBTOR'S FAULT.
-The loss of the thing takes place BEFORE THE DEBTOR'S DELINQUENCY.
!!!!!!!!!!A CASE OF TOTAL BREACH!!!!!!!!!!!
!!!If the debtor has received something in exchange of the thing lost he must give that compensation to the creditor!!!!
(Ex: if the thing due was lost in a fire and the debtor receives a compensation from the insurance company, he shall
have to give such compensation to the creditor)
2)REMISSION (renouncement of the creditor to his right of credit)

!!Remissions are ruled like INOFFICIOUS DONATIONS, so
>cannot exceed that the creditor can donate through testament
>his remission must not perjudicate his creditors or heirs.
!!!If main obligations are remitted>subordinate are also remitted!!!!
Can be made:
-
*Expressly - declaration of will of the creditor renouncing to his right of credit.
!!!!Has to follow the form required for donations!!!!
*Tacitly - renouncement inferred from the creditors behaviour.

Exists when the creditor gives to debtor a document of the debt.
3) COMPENSATION (when t wo debts are extinguished because t wo persons are

reciprocally debtor and creditor of each other)
!Can be total or partial(if debts are of different amount)! zales
!Can be:
no med
to
with
comply legal
>voluntary(agreed by parties) D
⑪ (homogeneous)
-
>legal(operates automatically), requirements:

*reciprocity - each person is a debtor and creditor
*performance has to be money or tangible things of the ⑧same kind
⑳
*both debts are liquid, EXPIRED and do not involve third parties
*debts must be from different contracts
⑳
3) CONFUSION (the same person is a debtor and creditor)
Can be:
*inter-vivos (ex: a company buys all the shares of debtors company)
obligation is extinguished from the
moment the concepts of creditor and
*mortis causa (ex: heirs have debts with deceased person)

debtor merge in the same person.
!!Joint obligations are not extinguished by confusion, extinguishes only the part corresponding to that debtor!!
4) NOVATION (change of obligation)

subrogation
Can be:
*Extinctive - change of obligation for a new one that extinguishes the first one.
Requirements:
-obligation is valid and has a due date
-new obligation is different from the first one
⑪
-the parties have a capacity to dispose of the credit no vandil
⑧88 -will of the parties to extinguish obligation must be explicitly declared (aninus
the first
obligation is
*Modification - change that only modify anabsolutely incompatible with the second one
or
obligation
Types:
-subjective(change in a subject) - changes the creditor or debtor
1) change in creditor(assignment of the credit)
~debtor dos not have part in a assignment, however, if the debtor oes not kow about the assignment
and pays to the first creditor>debtor is free
~assignment NOT require a special form !except mortgage and credits recorded in a Public Deed)
~original creditor is responsible for the insolvency of the debtor prior to the assignment(if insolvency
was not hided)
!if the agreement is onerous - the original creditor is responsible for the existence and lawfulness of the credit at the moment
of assignment unless it was sold as a DOUBTFUL CLAIM, in which case he doesn't have to assure anything.
!if the contract is gratuitous- assignor is NOT responsible even if the credit cannot be collected
!In litigious credits, the debtor can extinguish the debt by paying the new creditor the amount he paid plus court costs, plus
interests since the day of payment. wo to prstectprivateproperty
which have value
may superious
If the debtor
>approves the assignment - have to pay the compensation since the day 1 he had to pay to the original creditor.
>opposes the assignment - can refuse to pay the compensations UNTIL THE MOMENT OF ASSIGNMENT.
>doesn't know of the assignment, he could oppose the compensation of all debts he had with the assignor until
the moment of knowledge
2)change in creditor(subrogation of the credit) - third party who payeed for the debtor,
become a new creditor
Happens when
~third party pays a debt with the agreement of the debtor
~third party who is interested in the fulfilment pays
~a creditor pays to the preferred creditor
3)change in debtor(transfer of debts)

~can happen without the debtor’s knowledge
~creditor must accept the change
~people who played as guarantees must accept the change
-objective(change in object or main circumstances: time, pace, etc)

Mz Al E Loan Bank Conar
deposit
-->
.
Contract
10 12 2014
.
.
2014) rat)
compensation -> 6 10 14
.
.
efficia files lawsnit February

- aw is
Loan Bank, S.A. states that when the lawsuit was started
the term for the deposit had already elapsed and therefore
at that time the compensation had taken place by virtue of
article 1.202 of the Civil Code.
Compensation has a requirements>

>both must be expired!!!!!! > the second debt was not expired!!!!!!!
>debtor and creditor are also debtor and creditor of each other > YES
Chapter 8
Non-performance of an obligation
Exists whenever there is no performance, lack of performance, con ravers ion of an obligation.
Non-performance with libility
1. TOTAL BREACH
When : debtor has not performed an obligation and cannot perform it in the future (because: it is
impossible, creditor does not want to, debtor dos not want to although he can)
2. DEFECTIVE PERFORMANCE
When : the performance is not what parties agreed (because it is defective or partial)
! If bilateral - creditor can ask to terminate contract(if defect is of importance)/creditor can refuse to
perform its obligation until the correct performance by the debtor
3. DEBTOR’S DELINQUENCY
Delay of performance - debtor has not performed on time but the creditor is STILL INTERESTED in the
performance.
Delay of performance is NOT always entails debtor’s delinquency
Delinquency requirements:
*Obligation is liquid and expired
*Delay has to be due to the debtors negligence
*Creditor performed interpellation (demanded payment) -not require special form, can be judicial or
extrajudicial
interpellation is not necessary and delinquency automatically exists when:

>law provides so
(ex: borrower uses the thing borrowed for a different purpose, borrower keeps the thing in
possession after the loan is finished, commercial obligations)
>obligation so declares
(ex: parties agreed that delay in performance gives rise to the debtor’s delinquency)
>it can be inferred from the circumstances
(ex: time of performance was important for the creditor, but not essential)
- essential time = total breach
*If BILATERAL > delinquency start from the moment one person performed his obligation
Effects of debtor’s delinquency:

*If creditor is interested > debtor must perform his obligation
*debtor has to pay compensation for damages caused by the delay
*if credit monetary > damages=interest
!Creditor can grant to the debtor new term of performance (moratorium)

!Creditor can renounce of the debtor’s delinquency
!Debtor’s delinquency ends when the creditor incurs delinquency himself
4. FAULT OF NEGLIGENCE '
When : debtor is careless and neglectful
*when obligation dos not require a special diligence > diligence has to be exercised like “good family
parent” (normal diligence)
*hight degree of negligence = gross negligence.
!!!might be considered equivalent to a DECEIT, because it is difficult to prove deceit!!!
*medium degree = ordinary negligence
*low degree = slight negligence
How to prove ?
-if obligation TO GIVE > DEBTOR must prove that his conduct was diligent
-if obligation is TO DO > CREDITOR must prove debtor’s negligence
!!!Spanish court usually asks the debtor to proof!!!!

!!!Court and parties can mitigate or graduate liability!!!
but to certain limits (ex: cannot create an agreement renouncing debtor’s liability because you leave the
performance in hands of one party)
5. DECEIT
When : conscious and deliberate non-performance (no matter id there is no intention to harm)
!Deceit MUST BE PROVEN by creditor, NEVER PRESUMED
!Court CANNOT mitigate or graduate liability
Non-performance without liability
6. ACT OF GOD AND FORCE MAJEURE (events completely outside the debtor’s contol)
They liberate the debtor (debtor must prove it)
When not liberate?

-the parties agreed so
-it is stated by law
-if GENERIC OBLIGATION
Action for performance - creditor has the right to ask for performance thereof
>if obligation is to give a special thing > creditor can ask for delivery
>if generic > creditor can ask to fulfil obligation at the debtor’s expence
>if fungible(взаимозаменяемый) > should be performed by a third person at the debtor’s expense
>if not to do smth > can be asked to be undone (if not possible > pay for damages)
>creditor can ask for equivalent in money + compensation for damages
TERMINATION OF BILATERAL OBLIGATION
Can be terminated if one of the parties does not perform and :
*party who claims for the termination has to have performed his part of agreement/has to be in a
position to perform/his non-performance has been caused by the non-performance of th other party
*the other party des not perform or performed incorrectly/partially (in these cases, defect has to be
of importance)
*obligation has to be principal (sometimes can be accessory that impedes principle obligation)
(ex: selling of a welling without the first occupation permit)
Other term of termination a bilateral obligation
!Creditor can choose between the performance and termination. If he chooses performance and
performance became impossible, creditor CAN ask for termination.
!Termination is admitted even extra-judicially
(ex: the party may just send a notice to the other party stating that, taking into account the lack of performance, he
considers the relation terminated)
!Termination does not have a term
EFFECTS OF TERMINATION
1. Retroactive - the obligatory relation is extinguished as if it did not exist; the effects of the obligation are
undone as from the BEGINNING of the obligation.
I go hand in hand exept
S
2. Restitutory - the parties have to return to each other anything that they had exchange as a
CONSEQUENCE of the obligatory relation
PERIODIC EXECUTION - has ONLY restitutory effects exneenc -

withoutpetactive
(ex: the termination of a lease contract does not entail the return of the periodic payments received by the
lessor before the termination because those payments correspond to the use of the good that the lesee
has so far enjoyed)
COMPENSATION OF THE DAMAGES

*creditor must prove the damage suffered
*compensation should leave the creditor in th same position a if the obligation had been properly fulfilled
>if debtor not consciously breached the obligation > liable for the damages foreseen
>if debtor is acted with the deceit > liable for all the damages
*compensation for damages = value of the loss + loss of profit ( + moral damage (existence and scoop must be
proven)
extreme
changes
that make a
net
Case 1:
a) No, because he didn't fulfill his obligations, just partially. He only paid 2 days, not 5. The
hotel will ask for compensation of damages. The requirements in article 1.124 are not
fulfilled. There is breach from hugo and the hotel can ask for compensation and the paid
of the 5 nights
b) It is not a case of force majeure because it is perfectly foreseeable. It is just a
circumstance that can exempt the non-performing party from liability because the causes
are third ones, natural catastrophe
c) He has to pay the 600 claimed by the hotel and it can ask for interests
performed
terminate the contract
hotel
obligation
its
-
, Mugo cannot
1) No, the hotel is not wright a they are bonded by a contract with the
couple and the performance of the hotel was defective, so they must
compensate to the couple damages incurred. It is irrelevant that tht care
driving is “free” However, if the defective performance was due to the
company “One time, car services” , hotel can claim for damages
2)Yes, it will be successful. You can claim for moral damages in the
contract.
3)Yes, because the second party has a defective performance (it is

bilateral - she pays pice, store deliveries the dress, she performed, but
the store has not properly performed) It is irrelevant that she wore the
dress and she can claim for the compensation for the damages and
claim for thee compensation of damages.
-
1)Even though it was not stated in the contract, by using the rule of integration, we can say that it is,
because she specifically made some works to give it the use of the dwelling and to sell to as such. He
informed Mr Emma that he wants to live in it.
2)Rain is not a force majure, uf it was a tornado that destroyed most buildings of the city, then it is a force
majure. But the seller can prevent it and this is nothing out of the ordinary, it is foreseen and omitable.
3)It is a dolus, she did not obtain a permission for the works to convert it in a dwelling becase it cannot be
used as such and she was fully aware of it. She used dolus to sail it for the higher price. There is a
for hidden⑳
-
.
h
: .8 warranty
⑳
damages
vices·or defects.d He can claim for termination of a contract for thee compensation for
!!!!!!!!!!READ TERMINATION OF BILATERAL OBLIGATION!!!!!!!!!!!!!!!
Chapter 9
Contracts in particular
CONTRACT OF SALE AND BARTER
Sale > exchange of a certain thing for a certain price / Barter > exchange thing for a thing
Characteristics of the contract of sale

*it is bilateral
*is perfected through a consent
*pure obligatory nature > no immediate exchange of ownership, for the ownership to exist, delivery must &
take place
(a contract of sale is perfected since there is agreement of the parties to execute it, even if the thing and
the price have not been delivered yet)
*it is onerous
Elements of the contract of sale

1) Personal elements : sale is concluded between the seller and buyer
Prohibited sales - considered null and void:
*tutors and guardians to 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 to buy goods subject to litigation.
2) Real elements: Immovableproperty

:
>Object (things, rights, immaterial property) - · we have earnes
(ganoz
the settler desides to terminate
-
Requirements: if -
beforthe
- return earnestx2
-Existence - has to exist or be possible to exist signing - seller

the
keeps earnest
*if the thing was lost- sale have no affects if -
buyer
*if partially perished -buyer can withdraw from the contract / ask for the sill existing part
-Lawfulness - thing a subject to be transferred
-Determination - object must be determined
>Price (sum of money) - agreement without price is INVALID -
Requirements:
-has to be real (dos NOT mean fair)
-has to be certain (fixed or subject of determination)
->
I
either-ixed
or
stated howitwillbe
*cannot be left to the will of one party calculated not
*price is considere certain if it is fixed with reference to another certain thing
by
and
open
·
*price is considere certain if it is left for a specified person to fix it willdetermine E

ty
far
one
: .
-has to be paid in money or smth representing money
3)Formal elements
>Freedom of form (some contracts require special form)
Obligations of the buyer
-Pay the price established at the time and place established
>no established time and place = payment is simultaneous to the delivery of the thing
>deferred payment = buyer has the thing before paying price
WHY?
~parties agreed so
~the thing sold produces fruits or income
~buyer is in a state of delinquency
- payment usually has an explicit time period
*if the thing is movable > lack of payment on time = contract termination
*if immovable > seller must give a notice of thee termination = buyer has a chance to pay before the notice
-buyer pays for te expenses incurred
-buyer has an obligation to receive the thing bought
-
>“agreement for the retention of title” (if the payment was deferred) = buyer possess the thing
and use it but the title of ownership has the seller until the buyer pays the totality of the price
Suspension of the payment (seller will not return the money received, just the buyer will not pay the rest)
*if the buyer is disturbed in the possession of the thing
*if the buyer has a well-grounded fear that he will be disturb e by a foreclosure of mortgage or vindicators action
Obligations of the seller.

&
He also pays expenses for the public deed, but th first copy pays buyer
-Delivery of the thing in the same state it was at the time of contract perfection with all the fruits
produced from a perfection, with all the accessories to make it work and the instruction of use.
Delivery can be: real material delivery, fictional (in the Public Deed), symbolic (keys of the house)
Suspension of the delivery

*buyer has not paid the price
*payment has been postponed and the vendor discovers hat the buyer is insolvent
-Warranty - seller is responsible towards the buyer if

*any third-party with the better right than buyer claims for the thing (warranty of eviction)
~seller is liable in case of eviction even if it was not said in the contract
eliminated
~warranty can be eliminated (not if acted in a bad faith) > still have to refund money even if liability is
in the contract
Requirements for the warranty of eviction:
(a) loss of the thing sold because a Court declares so
(b) the right of the third party is prior to the sale
(c) notification to the seller of the action for eviction started by the third party.
*thing cannot be used due to internal defect (warranty for hidden vices or defects)
!!!!!!!!term to start the action against the seller’s for the hidden vices of the thing sold is of 6 months from the delivery!!!!!!!
!!!!!!does not implied to CONSUMER GOODS!!!!!!!
~ warranty can be waived in the contract, but not if the seller knew of the defect at the time of the sale
e
doesperthe i Ich Requirements for the warranty of hidden vices defects:
warranty
it
~
not hidden (a) vice (defect) is hidden

·2
if viee was
~ seller is liable
abouta
even
t
hough (b) grave: the defect has to be of such an importance that the buyer
would not have bought the thing if he knew of the vice.
vice
he dist it know
.
if seller knew -> compensation (c) defect is prior to the contract of sale
Effects of warranty for hidden vices or defects:

^buyer can terminate the contract
^buyer can ask for te price reduction
Risks of the contract of sale
When the thing sold is damaged or lost without the seller’s fault after signing the contract but
before the delivery.
*if the thing is generic - seller is NOT liberated
*if the thing is specific (or generic but sold for a single price or without regard for its weight, number or
measure) - buyer still have to y the price no matter if he is not going to receive the thing.
(This is because the Code provides that the fruits belong to the buyer since perfection, and, if he gets the
benefits of the thing from the moment of perfection, he should also get the risks thereof)
en
However, a considerable part of the doctrine understands that it should be for the seller to bear the risk of the
loss of the thing before delivery due to the fact that ownership is not transmitted until delivery, and that the
buyer shall only bear the risk of loss of the fruits thereof.
Transfer of ownership:
For the ownership to be transferred the delivery of the thing is necessary.
Double sale - seller sales the same thing to various persons

*If the thing is movable - property is transferred to the first person who takes possession of the thing in a
good faith.
*If the thing is immovable - the property thereof is transmitted to
>the first person who registrates the property in the Property Registry
>if no registration > first person who took possession of immovable in a good faith
>if no possession > to the person who holds the oldest title
Sale of consumer goods

-Conformity with the contract : (if there is no conformity, buyer can go against te seller or, if not possible,
against the producer to obtain repair, replacement, reduction in price or termination)
!!!!Seller is label for the lack of conformity within 2 years, for the second hand goods we can establish any term not less
than 1 year, buyer must inform the seller within 2 month from the moment he had knowledge of inconformity, seller/
producer has a term of 1 year o repair/replace the thing!!!!
-Guarantee - is voluntary, commercial guarantee never substitutes legal guarantee but adds to it (they are independent and
compatible)
Donation - contract by which the owner transfers the title of possession to another person without
receiving anything in exchange.
Characteristics:
- Unilateral
- Contract is perfected when the donor has the knowledge of the acceptance by the donee.
- Th donation itself transfers the ownership to the donee. [de is not
livery necessary
-
Cause/Consideration - aim
oflib
Capacity to donate: Capacity to receive donation:
*person must have a legal capacity *civil capacity is sufficient
*if donation is CONDITIONAL or ONEROUS, donee
must have legal capacity
Form of donations - is necessary (otherwise the contract is null and void)
> If the thing is movable, form can be:
*verbal: requires simultaneous delivery of the thing
*written: effective ably if the acceptance is also written
> If he thing is immovable:
*donation and acceptance must be made in a Public Deed
Types of donations
1) Pure - donor gives smth with total liberty and without receiving anything in exchange
2) Modalis - impose burden to a donee (may be economic or not, must have a value less than a donation)
(If you stop smoking, I will give you a car)
3) Remuneratory - given in gratitude to the person for the service to the donor (a bottle of champagne for the doctor)
Limit for the donations:

~NO WARRANTY for eviction or hidden vices - donor is not liable in case of eviction unless there is a deceit
on his part
~all assets CANNOT be donated, donor must have sufficient to live as he has been living so far
~nobody can donate more than he can give through testament
cannot be donated donation e protect legitim
· future things [ifoverpassed will
Donations made jointly to several persons:

~ if not specified, shall be divided in equal parts
~ if one of the donees does not accept, his part NOT increase the parts of the other donees
~ if donations made jointly to husband and wife, if one of them does not accept, his part WILL INCREASE
the part of the other.
DONATIONS ARE IRREVOCABLE, UNLESS:

* subsequent appearance or birth of a child to the donor;
* non-performance by the donee of the modus
* Ingratitude (commit a crime against the donor / start a criminal action against the donor / unduly (незаслуженно)
deny the donor maintenance or support.
Lease or rental - contract through which a party is obliged to give to the other the
temporary use of the thing in e hang for a price.
Civil Code only regulates the lease of the real property
Capacity for the lessor: Capacity of the lessee;
*capacity to administer the good *capacity to enter the contract (CAN emancipated minors)
*if a lease is more than for 6 years > considers as n act of
disposition (canNOT be undertaken by emancipated minor)
Object : all kind of things can be leased, including some rights, with the exception of fungible things that
are consumed by their use
Time: duration has to be determined, not necessary to have a fixed term

-if the term is not established shall be understood regarding periods of payment (price has
been fixed for a year = annual, for a month = monthly)
Form : does not require a special form.
Obligations of the lessor:
*has to deliver the thing in a good condition
*has to keeps thing in the state necessary for its use (make all repairs)
*maintain the lessee in thee lawful and peaceful possession of the thing + give a warranty for eviction
and hidden vices the lease
- cannot alter the thing during
the disturbanceif thirdparty
!not liable for any disturbance caused by the third party! for
liable a
-
->
has a
to distanb (e
might .
g .
mor
Hager)
Obligations of the lessee:
*has to pay the rent
*has to use thing as agreed (if not agreed, in a manner according with the nature of the thing)
*communicate to the lessor ny injuries
*liable for the deterioration during the lease
*has to return the thing at the end of the lease.
!If the lease was made for a fixed point of time, it expires on expiry date, WITHOUT the need of a notice!!!
!!If the lessee continues to use the thing for 15 days after the end of the contract without the warning of the lessor
> means new contract with the same clauses
A
Muc
- nu
B
u
nee
-
2) Delivery must take place (can be symbolic - keys / can be fictional -Public deed). He is not an
owner of the house.
1)No, because he is not an owner.
3)He will file a claim for a breach of contact and can ask for performance or termination with
compensation of damages in both cases. (Moreover, it is stated in the contract tha it can be raised
to a public dee whenever the buyer asks for it)
1) Yes, it is a breach of contract.

2) Fire is NOT an act of force majeure. So, he must compensate.
3) they can ask for the contract termination or for performance with compensation of dmages
(price payed back + interest + compensation for wrappings + prestige ….. )
1)His claim should prevail because he received a
completely indifferent
e thing. It is a total breach of
contract. Defective performance.
2) You can claim for warranty of hidden vices or
defects, you can claim for it only for 6 month.
(Moreover, the vice is not hidden

Fo the mistake to invalidate the contract
⑯
&
Unit 10
Contract of provision of services
Obligations: one party is obliged to pay for the service (paying can be claimed for 3 years)+ cooperate so
that the service can be provided / other party has to provide the service (can use assistnce)
Characteristics:
*onerous / bilateral / concentual / freedom of form
*certain price (if was not fixed - shall be fixed with the reference to the market price for this service)
*obligation to use mans (use best resources and make the bet fort to attain certain nd
*can be indefinite but NOT lifelong
*client is usually confident on the manner of providing service
Object - performance (NOT result)
Construction contracts “contracts of work” - contract of carrying out a

work for the benefit of another. Work must be performed as agreed, in order to modify the final result NEW
agreement is necessary
Obligations :
*Contractor has an obligation to achieve a certain result + to deliver the work to the owner
*Owner has an obligation to receive the work ( reception can be tacit or explicit )
Object : final result (can be anything : dress, paining, bat, building)
Price: determined or subject of determination
>lump sum (fixed price for the total work)
>fix by units (when wok is carried out by pieces or units)
!!!! After the plan of the work was agreed, constructor CANNOT raise the price, no matter if the wages or the materials has incased!!!!!
!!!Contractor has thee right to retain the thing until the price is paid!!!!
!!!Owner can desist of the work at any time, but he have to pay for expenses!!!
Term : established by parties, modifications on the work do not entail the alteration of the term established
in the contract, unless the modification consists in the increase of the work.
Risks : *if the work s lost before the delivery due to act of God or Force majeure > BUILDER ASSUME LOSS
(owner does not pay the price)
Breach of the contract : when contractor does not deliver the work or the work has deffects
>owner must proof defect (NOT the fault of constructor)
Other regulations:
>Construction Agents are liable not only to the first owner but also to the third party who subsequently
acquire the building or parts thereof.
>Liability of construction agents is JOINT, but if we cannot find who made a mistake > liability is joint and
several
>Liability has different periods depending on the defect !!!!Article 1.591!!!
other construction
& Promoter joint and severally liable with etgents .
is
~If materials are provided by constructor > can be a contract of sale or o a contract of work
(If the production is more important than obligation to deliver the thing > construction contract)
the
·
Construction (aw regulates only damages
in
suffered building .
Mandatory
-
!!!!not confuse with representation!!!!!

Mandatory must do exactly what a client asked him to do. He dos NOT has autonomy and decision-
making power as a representative has.
Types of mandatory:
*mandate without representation
*mandate with representation (mandator is responsible for consequences and liable third-parties)
Characteristics:
*mandatory SUBSTITUTES mandator (not provision of services where there is no substitution)
*naturally gratuitos, but often onerous
*mandatorImust act in the interest of the mandator
*based on the confidence between the parties
*NO special form, can b expressed or tacit
!Even emancipad minors can act as mandatory !
Obligations of the mandator:

*to pay the price
*advance to the mandatory money needed for the execution of the mandate
*compensate all the damages suffered in complying with the mandate
Obligations of the mandatory: A

liability defends
whether mandate is
overous of not
on
*execute the mandatory properly, carrying all the instructions of mandator( he is liable for all the
damages caused to mandator other for deceit or fault)
*respect the limits of mandator (if the limits are overpassed > act is INEFFECTIVE > mandatory is bind
by consequences and liable to the third party)
*report to the mandato all the actions and give varying he receive due to the mandate
Partnership - artificial person in which several persons get together to undertake

an economic activity for profit and share the profits thereof (lacking an agreement how to share >
sharing in proportion to their contribution)
Characteristics
*trust between partners (condition of partner cannot be transferred, If one partner die > partnership is
extinguished)
*lawful object = activity (if it was unlawful> partnership dissolved and all the gangs allotted to the
charity)
*affectio societatis (permanent will to join work, losses, liabilities)
Legal personality : if their agreements are public > has legal personality, if private > NO, rules as
joint ownership
Irregular partnership : those which do not have legal personality because they ar privat or have
defects in form of constitution.

Management of the partnership
*established in the contract - power is irrevocable / established afterwards - can be revoked
*managers has to be partners
*not established in thee contract :
>all of the partners can manage partnership/use assets
>canNOT alter immovables without consent of others
>obliged to pay necessary expenses
Debt and liability : are joint (when the patrimony of the partnership is not sufficient to cover its
debts, the partners shall be liable with their own patrimony in proportion to their contributions)
Dissolution and liquidation of partnership: process of liquidation is necessary

Why can be liquidated?
-death/insolvency/incapacitation/prodigality of one of the partners
-will of ANY of the partners
-expiry of the term
-termination of the business for which it as constituted
Loan
*real contract (consent + delivery = perfection of contract)
*unilateral
1)Loan for use - loan for a SPECIFIC, NON-FUNGIBLE THING
~lender keeps property thereof
~gratuitos (if the price for use is paid > lease contract)
~lender canNOT ask for the return before the due date, unless there is an “UGENT NEED”
~if duration is not agreed, should be determined by :
*use agreed
*custom of land (car will be loaned while my friend is on holidays)
*nothing agreed = bailor or may claim or return when he want
~Obligations of the borrower: -
*return the thing at the same condition as it was received

*preserve the thing borrowed + pay for ordinary expenses
~Borrower is/must not:
*not retain the thing
*not pay for extraordin any expenses
*not liable for the “wear date tear” suffered by the thing
2)Mutuo or simple loan - loan for MONEY or other FUNGIBLE THING
~borrower acquires ownership thereof
~emancipated minor Ned PARNTS’ AUTHORISATION
~may be gratuitos or onerous
~interest can be included: > contract is null if :
*interest is extremely excessive
*borrower accepted interest due to distress or inexperience
*amount of loan is less than stated in contract
~guarantee can be personal (suretyship) or real (mortgage)
~Obligations of the borrower:
*return to the creditor an equal amount of the same kind and quality
&Consumer credit Law : ^pre-contractual obligation to inform consumer

^consumer has a right for early repayment
Suretyship contract
~third person binds himself to perform for the debtor in case he fails to perform
~accessory obligation
~performed by consent
~unilateral
~NEVER PRESUMED, always clearly stated
Co-suretyship - several guarantors of the SAME DEBTOR for SAME DEBT.

~creditor can ask each guarantor only for its part
Question
from ease
the benefit of discussion, the

study
^Subject: surety and CREDITOR, debtor’s intervention is not necessary possibility for the guarantor to refuse
!!!!!!!emancipated minor CAN be surety!!!!!!!!! to perform until all of the debtor’s
Ôbject: obligation guaranteed assets does not exist if the suretyship

^Form: freedom of form has been expressly agreed as joint
and several. In this case, the creditor
has the right to go against any of
Rights and obligations of the surety
them, debtor or guarantor, for the
~responsible for he performance if the debtor does not perform
~can oblige himself to less but not more than the principle debt collection of his credit.
~can refuse to perform while debtor has enough patrimony
!!!!if joint and several, BENEFIT OF DISCUSSION NOT EXIST!!!!!!! ⑲@
·°
@*
⑤
~can oppose to any exception that debtor can oppose (except personal exceptions)
Relation bet ween debtor and guarantor:

~surety can choose :
*action of reimbursement (what was paid + interest + damages +expenses) from
the moment PAYMENT WAS COMMUNICATED to the debtor
*subrogate in te rights of the creditor
~surety can ask to “release him from surety” = give a guarantee that debtor will be able to repay surety
ONLY IF: C2 1843 . . .
*debtor was sued for payment

*debtor is bankrupt or insolvent
*when the term was set therefore and the term has come
*term to pay is expired
*after 10 years if the term was not fixed
!!!!!if surety made payment without saying it to debtor and debtor also payed, surety can go ONLY AGAINST CREDITOR!!!!!!!
!!!!!if the surety payed before the due date in deffered payment, can ask for reimbursement ONLY AFTER THE DUE DATE!!!!! /
chapter 10
Case 1
After the death of her father in a car crash in January 2016, Maria contracts a lawyer to take all the
necessary steps to claim to the insurance company of the car that produced the accident a
compensation for the damages suffered for the loss of her father. On May 3, 2016, the lawyer sends a
registered post to the insurance company asking for such compensation and stating that, if they did not
receive a reply, they would start a lawsuit. There are some disagreements between Maria and the
lawyer as to the amount to be claimed as compensation that lead to dispense with his services and
hire a new lawyer, Mr. Six, in September 2016. Mr. Six has several unsuccessful telephone
conversations with the insurance company to try to get a compensation without having to go to court.
As a result, on May 13, 2017 they start a lawsuit asking the insurance company to compensate the
damages to which Maria was entitled for the death of her father. The case is dismissed because the
claim is time barred. The statute of limitation for the claim was one year and the last act interrupting
such time limit took place more than a year before starting the lawsuit.
5)What kind of contract is there between a lawyer and the client that he is going to defend in court?
Does the lawyer have an obligation to achieve a result?
~It is a contract of provision of services. Lawyer has an obligation to use all the means and make the
best effort, but they object of the contract is a performance, nor result. He does not obliged to achieve
it.
6)Which are the lawyer’s duties towards his client? Does the client have any duties towards his lawyer?
~Lawyer : use all the means + has to perform himself + act with diligence
~Client: pay for the service + cooperate so that the service can be provided
7)Can Maria ask from Mr. Six a compensation for the damage suffered for the dismissal of the claim?
Is there a causation between the delay in starting the suit and the damage suffered by Maria? Is her
damage measurable?
~yes, due to the fact that he acted WITHOUT diligence s he filed the claim late
~no, there is no causation between the delay and damage cause by te death of her father.
~yes
8)Can she ask anything from the first lawyer?

~no, the lawyer acted diligently, he did not do smth wrong. The termination was due to disagreement.
Unit 11
Non-contractual / Civil liability
~when there is no contract between persons, but one person suffers harm as a result of an act or omission
of act of other person
~it is a breach of general rule of conduct or damages through fault of negligence
~compensation (in natura / monetary / both) must be payed
~punitive damages (those that punish the party) do not exist in Spain
~non-contractual liability can be decided by different courts (Criminal, Labour, Spanish Constitution)
depending on act
Requirements for non-contractual liability
1)Unlawful act or omission - any positive (a worker hits sb while manipulating a crane) or negative
(train controller does not close the access to the railway), conscious or unintentional act or omission,
breach of any rule or general principal not to harm others that should have been prevented, that caused
damages to sb.
!!It is NOT considere unlawful if a person was regularly exercising a right or has a defence, such as:
^self-defence
ûnder necessity (damage to prevent bigger damage)
^with consent of a victim (not contrary to the law or good moral)
^by lawful authorisation recognised by statue or regulation (ex: licence)
2)Fault of negligence - damage is attributable to the agent because of the omission of necessary
diligence to prevent damage.
Fraud / dolus > criminal liability, considered by Criminal Court
*Circumstances of the particular case, person, time, place must be considered

*Person who suffers the damage must proof that damage is due to the fault of agent
!!!!!BUT court strengthening principle pro damnato!!!!!!!!
>Reversed burden of proof (person who caused damage must proof)
>Elevated standard of diligence (extreme prudence must be shown in order to not be liable)
*Strict liability criterion - when someone earns a profit from dangerous activity, he is liable for
I peremed ferl
zagime)
-
damages independently of diligence observed

>when a strict liability is adopted in a field, parallel rule to contract insurance
3)Damage - harm/loss/diminution caused by the fault of another person.

* we can compensate value of loss + loss of profit (must be proven and evaluated with certainly)
!!!!!UNCERTAIN damage cannot be compensated!!!!!!!
(ex: race horse that suffers a car accident and cannot participate in the competition so it is unknown
whether he have won the race and the price. That possibility cannot be compensated)
* we can compensate economic and personal damages (+ moral/non-pecuniary loss even to artificial
persons)
Moral damages:
^grief/sadness (loss of a dear person)
^lesion to personality rights (reputation, honour)
^nuisances (noises, smells)
* damages from road traffic accidents have tables with exact amounts of compensation
4) Causation -link between the conduct and damage has to exist and can be attributed to the agent
with sufficient certainty.
*victim must prove the cause
*It can be difficult to ascertain cause:
>”proximity of the cause” - cause is the one closest to damage
>”adequate causation” - cause is the one that normally produces that damage
*when it is not known who of several persons caused the damage and to what extent > all of
them are liable for the totality of the damage
!!!!!!They can claim between each other!!!!!!
Interferences in the causation (can mitigate or graduate liability)
& Act of God or force majure
& Intervention of a third party
îf causation totally broken by the 3rd party > no liability
îf both actions produced damage > compensation distributed tween them both
& Contributory negligence “concurrence of faults” - both are negligent
^compensation must be reduced taking into account imprudent conduct of victim
&Fault of the victim = no lability for the agent
Liability for others - liability for damages caused by agents under your control.
*direct (ONLY responsible is sued directly by victim)
*numerus clausus (arises ONLY when):
1. Parent and tutors for their children, minors, incapables… (fault in educando)
Requirements:
^child is under the guard
^child was negligent
^child caused the damage
->
fault-based rgime
~if parents are separated > sue parent with whom child lives / sue parent under whose
care it was when damage occurred ' Victim x
both
of the parents
can sue
~in principle, if parent prove their diligence, they are not liable. In reality, almost impossible to do it
(Ex: absence, prohibition of activity, inevitability > NOT graduate liability)
~minors between 14 and 18 are JOINT AND SEVERALLY liable for CRIMINAL actions
!!Court reduce compensation if parents prove their diligence!!!!!
2. Owners / managers of schools for students (fault in eligiendo/vigilando)

Requirements:
^student is underaged
^damage id during school time or extracurricular activities (even outside the school)
~liable only the owner of the school ~ if teacher’ fault, owner can recover what he paid
~ not liable
if the
diligence proved Idolus
gross negligenes)
is
on
3. Employers for employees (fault in eligendo)

Requirements:
^dependency (exist even if the job is unpaid). !NO dependency in subcontracting!
^while on duty
^fault of employee
~liable only employee.
h ~if employee’s fault, employer cn recover what he paid
ability
(contractual putation]
worker, not third-party
damage af
- auffers
-
vietim
fault of
Case 1: «See TV» contracts a professional cameraman, called Carlos, to make a TV program about the
ski resort «Snow and Sunshine». The cameraman contracts the services of «Helisun» for this
company to organize his transport to the resort so that he can take some aereal shots. Helisun uses
for the transport a helicopter that Helisun rents from «Airiss» a company that owns helicopters that it
rents for commercial purposes. Helisun has an accident insurance policy with the company FINIX. The
helicopter is flown by Arthur, a pilot who works for Airiss. Helisun gives the orders and the flying
instructions, but the pilot has the last word about the execution of the flight. The pilot makes some
reckless manoeuvres for the cameraman to be able to take more special shots. He flies very low
between the mountains no matter if it is very windy, in areas where there is people skiing and very
close to the rocky walls of the mountains. A strong gust of wind provokes the fall of the aircraft. The
pilot and the cameraman suffer serious injuries as a consequence of the accident.
9) Is there a causal relation between the behaviour of the pilot and the damage?
~Yes
10) Do you think that the cameraman can start a lawsuit asking for damages? Against whom should
he start the action? The owner of the helicopter? Helisun because he trusted the helicopter company?
The pilot? The insurance company? All of them?
~Can claim for contractual liability with Helison
~Start action against the Airiss (owner of the helicopter) as employers are liable for the actions of
their employees.
~Carlos can claim against Arthur and against Airiss through extra contractual liability
11) Is the fall of the helicopter a case of force majeure? If it was, what would be the consequence?
~Pilot acted without dilignce, so it is not a force majure .
~If it was, the consequence woul be no liability
Case 2: Four people are going to try the summer’s highlight nautical attraction called «banana split» at
the beach of Fuengirola. The attraction consists of a float (with capacity for 10 passengers who sit on top)
with the shape of a banana which is pulled by a motor boat. The fun consists on the users of the float to
run the risk of falling to the water because of the movement caused by the speed. In this case, the four
passengers use the first four seats of the banana split. After a brusque turn and being all the weight
concentrated in the front part of the attraction, the last passenger was tossed flying to the front hitting
the lady who was seated just in front of him. The lady suffered several injuries and her hospital
expenses amount to 6,000 Euros. The lady sues the driver of the motor boat, the company that owns the
attraction and its insurance company.
1) Do you think that the law suit shall prosper? Against all of the defendants?
~her claim against the driver will not succeed because he was driving diligently
~he lawsuit against the company will not succeed (extraontractual liability, libility for others) bcuase the
employee was acted diligently
!!!However, if we consider that there is a specific way to seat people in this case and driver did not do
that, he acted negligently and therefore we could sue the company!!!!
2) Did the lady assume the risk of being injured when she decided to sit on the banana split?
~Yes, but not due to the damage of being bad seated (if there were some strict rules how to seat the
people and they acted negligently, she should not assume such risk)
Unit 12 -
13
Real rights or rights in REM

Real right - immediate and direct power over a thing that others have to tolerate (immdiate
influence)
Difference bet ween cereal right and credit right
- ↳
Real right Credit right

1. right over a thing (inherent to thing) 1. right to ask or a particular behaviour
2. effective against the third party
2. effective only against the debtor
3. for the transfer of real right delivery of the 3. for the transfer of credit right consent is
thing is necessary (title + modus) sufficient
4. types established by law 4. principle of autonomy of will
5. exercise of real right consolidates it 5. loss of thing can have different consequences
5. loss of thing entails loss of right (depending on the fault of thee debtor)
6. real rights are subjects to be registered in 6. credit rights cannot be registered
a Property Registry
Characteristics (faculties) of the real rights: ⑧ 0 wher

zig
hts :
*Direct power (can satisfy my interest without the need of sb) position
ht
* dis
(hansferent
*Exclusion power (can exclude anybody’s action over the right)
*Efficacy erga omnes (third parties must respect my right)
exelucause
rig and enjoy
*
*Universal and pursuit power (holder of he right has the power to look for the thing wherever and
whoever posses it)
!!!Possession of the thing is not necessary for the right to exist!!!!!
Types of real rights:

1. Total (complete) real right - all aspects of ownership (right of propertyS
2. Limited real rights (iura in re aliena) - partial power over the thing that is a property of sb else.
(Only a part of faculties, classified regarding faculty granted)
~Limited real rights of enjoyment
*Usufruct - person can use the thing and receive all the fruits under the obligation to
preserve its form and substance (unless otherwise permitted)
“Owner keeps ownership
be transmitted spouse)
of
the shath
“Lifelong usufruct
lifelong us
fact cannot
widow
after
*Use - person can receive as much fruits as necessary for his and his family needs
(even if the family will increase)
*Habitation - person and his family can use the necessary number of rooms for him
and his family as a dwelling, !!!without the prejudice to the property!!!
*Easement - right held by one person toUse the lend of umother person for a specific
purpose (ex: utilities like gas, water, electricity. Wires can go through sb’s land)
“Dominant tenement - immovable that haas a right to impose a burden
“Srvient tenement - land that is subject to easement (serve to access dominant)
Servient Dominant
↓
~Limited real rights of acquisition
*Option - right to buy a certain property for a fixed price during a certain time
“Option binds the offerer to sell, but does NOT obligate options
2 to purchase
*First refusal - chance to buy before anyone else does

(if someone else offering me more money for my house, i need to say to the person
who holds the right about an offer and he has a chance to buy it for that price)
!!!difference is that Option right can be exercised at any time during the option period while the right of
First refusal buyer must wait unlit the seller decides to sell !!!!!
*Redemption - person can acquire thing that has already been sold to third party for
the same price and on the same conditions that it was sold.
(Allows individuals who have defaulted on their mortgages to reclaim their property)
~Limited real rights of guarantee - the faculty to sell a good in guarantee for the performance of an
obligation. The creditor of such obligation is the holder of the real right who may sell the thing if, upon expiry, the obligation
guaranteed is not performed.
!!!!!forfeiture
! D
obd
·& is PROHIBITED in Spain - means that creditor MUST sell the thing, he cannot leave it to himself!!!!!
*Mortgage - immovable property as a guarantee for performance
&object - immovable goods and rights over them
^we CAN mortgage movable goods (motor vehicles), it is like pledge without transfer = must be registered
&constitution and extinction must be registrated in a Public Deed,
&accessory obligation
&can be assigned
&mortgage extends to improvements in house
&mortgage is a preferred credit
&debtor can :
^ mortgage several immovables for one credit, (the part of the credit that every
immovable secure, must be defined)
^ use the thing (possession and ownership is not transferred)
^ sell the thing (if he fails to pay, the third party will lose the thing cuz the
mortgagee will sell it)
^ establish several mortgages over the same property (first or senior mortgage
has preference)
&creditor canNOT:
^possess. ^receive fruits.
âppropriate thing if credit is not paid (must sell =FORECLOSURE)
~FORCLUSURE needs special judicial proceedings
~action has to be started within 20 years
~money obtained from sale must be destined to cover the first debt, then
rest deposited to cover other debts, rest must be returned to debtor
&creditor can:
âct against deterioration (go to Judge and ask mortgagest to take necessary
measures to avoid diminution of the value of the thing)
*Pledge - delivery of the movable property by the pledger (debtor) to pledgee (creditor) as a
guarantee for performance
&all movable goods in comercio + credits can be pledged (money = irregular pledge)
&delivery of the thing is needed for the validity
êxception: goods the position of which is necessary for the profession or business of
the debtor. In this case, MUST be registered in a public registry.
&form - apply general provisions (BUT TO BE VALID AGAINST THIRD-PARTIES, DATE
THEEOF MUST B RECORDED IN A PUBLIC DEED)
&creditor must take care of the thing
&creditor can recover all expenses for the preservation of thing
&creditor is liable for the loss and deterioration
&creditor cannot use the thing, cannot use fruits (if he use fruits > must reduce interest ; no
interest > give fruits to debtor), cannot appropriate the thing if the obligation is not performed (MUST SELL IT)
&pledge is a preferred credit (pledgee can recover money before other creditors)
&accessory obligation
Acquisition of real rights
Can be acquired :
A) Original acquisition (primary) - from scratch
1. Occupancy (original way of acquiring property) - taking hold of a thing that does not belong to
anybody !!!!ONLY APPLIES TO MOVABLE GOODS!!!
*immovables that does not belong to anybody = property of the state
2. Accession - one party steals from another the “thing” and alters it by adding raw materials to the stolen
owner of a property becomes entitled to everything the property produces and to
property, thus increasing the value of the property. all that is added or united to it, either naturally of artificially.
(Ex: I built a house on a land that is not mine. THE BUILDING BELONGS TO THE OWNER OF TH LAND ~ BUT she the value of the
miltin with. Builder us + bey the
construction is MUCH BIGGER than the land, construction belongs to the builder) ifit was
a
goodI- O
the
land
3. Usucapio- acquisitions of the property through long, undisturbed possession. payingprice
market
REQUIREMENTS:
*alleging to b the owner(intention~desire to hold the right)
*possession must be public(notorious), peaceable(nobody has to oppose to it) and uninterrupted
-for a
certain
2f:
periodoftime
1955-1960
&Ordinary usucapio - acquiring ownership by uninterrupted position in. GOOD FAITH (he thinks that he is
the true owner, he does not know about defects in title or that the owner was not a real on) and JUST TITLE
*Movable goods ^3 years
*Immovable goods. ^10 years if the owner is present
^20 years if the owner is absent, dead or resides in a foreign country
&Extraordinary usucapio - NO CONDITIONS (can be even stolen) no entra
*Movables ^6 years
*Immovables ^30 years
B) Derivative acquisition (secondary)- from sb who had it before

*inter vivos - donation
*mortis causa - succession
Hestamentary begal)or
How can you loose property?
*Ineffectiveness of the acquisition act
*Expropriation
*Abandonment of the good by the owner
*Voluntary transfer of the good
Property registry - register that gives publicity to ·@real

eat rights over immovable goods. !
It is a legal guarantee for security and certainty of the traffic.
*everybody has access to Proerty Registry
*registration is NOT compulsory (only mortgage is compulsory)
*only Public deeds, final court decisions an some administr. Public docs can alter the registry
Rued by principles:
1) Speciality (all the rights over immovables and their extent are recorded)
2) Demand (record has to be asked for)
3) Legality (defective titles do not have access to registry)
4) Priority (FIRST act presented have precedence over posterior EVEN IF THE SECOND ONE IS OF A
PREVIOUS DATE) + titles that are incompatible with the registered ones will not have access to the
registry)
5) Legitimation (records are presumed to be accurate) Leights aze prseemed belong
to to the
registered owne
6) Successive record (new ownership has to link with the one appearing in registry)
Kinds of entries
*Presentation entry - title which presentation ha to produce a record. State date and time.
*Recording / Registration entry - constitution, modification, transfer, extinción of real righ
*Provisional notations - temporary entry due to doubtful situation of the right
*Marginal entry - notes in the margin of the sheet that are used to ⑧elate records, make small
modifications…
*Cancellation entries - cancel previous entry
Effects of registration:
1) Protects the owner
*Registered owner can recove lost possession which is being hold by possessor without legal title
*If a person wats to attack ownership, must prove that it is not true (nullity or cancellation)
2) Protects third party who acquire “public faith”. “official authority”
Requirements:
*third party buys from a person who is registered as an owner
*third party acted in a good faith
*acquisition is onerous
logality)
of BUT!
*acquisition is valid (INvalid is with illicit cause or a total stimulation) invalid (lack ted
not valida
*third party registered his right
.
are ener
subsequent bey rs are

!!If requirements are met no matter that the rights of previous owner are annulled or resolved!!
B
A sells house to B. B has not yet registered. A barters the same house to C in exchange for the ↑
drugs. If C occupies the house B can claim for it and succeed.

BUT if C registered his right and sold the house to D. (D does not know about illicity) D will have the
house even if B will claim for it.
Private property right (total/complete right)- right to joy nd dispose the thing with
only limits established by law.
*right of property is not affected by temporary lost of ownership
*limits of the rival property have “social function” - also consider the general interest
~limits to the right of enjoyment (“neighbourhood relations” - you cannot cause nuisance
to neighbours)
~limits to transfer (transfer of historical artefacts + special property)
Actions to protect the right of property:
1) Action to recover possession
proprietary has to :
~identify thing
defendent mustgive back the thing
~proof the right of property (if the defendant has a title, Judge decide which one prevails)
2) Action to quiet title
must declare
that no body
needed to stop disputes about the property, to “quiet” any claims to the title
Judge night
stop exercis limited alright has
limited
"
3) Declaratory action ~
person
must
al
.a
can
declare existence of the right and acknowledgement of the right by a defender.

!!!!NOT asking for the recovery of possession, s he must prove the right of property but not
possession of defendant!!
Joint ownership - when 2 or mor people have a right of property over a thing
*can have legal origin (existence of several heirs) or arise from the will of parties (jointly buy smth)
*each proprietary holds individual interest i the whole and is an owner of a quota
*enjoyment and expenses are distributed in proportion to quotas
*for the administration, the majority must agree (if not, Judge decide what to do, can even appoint administrator)
*ANY owner can ask for a division (unless it is impossible)
*Horizontal property (Comunidad d vecinos) - owners of different dwelling have a joint ownership over the common
elements (lift, stairs, facade)
~ quota is allocated to every dwelling (percentage of ownership) {unta is stated in the
Charter Constitution of the Property}
ja
~ participation and expenses are determined by the quota
~ owners must respect the rights of other owners, allow access to the property for
repairs, accept repairs for the service of the building….
~ governmental bodies:
^general assembly
-must meet once a year to approve budget accounts
-decisions are recorded in the book
-majority {of quotas} is necessary to make decisions (“majority” depends on decision)
^president and vice president (one of the owners)
^secretary
âdministrator
Special properties:
*water
*ports
*minerals
*mountains
*horizontal property
*intellectual property “copyright”
-moral rights - cannot be transferred or renounced
-patrimonial / exploration rights
Case 1: Mrs. Pérez has inherited from her grandfather the property on an apartment where her
grandmother who is 93 years old still has her residence. Convinced that her grandmother is not going to
live long, she concludes in June 2011 in a private document a contract of sale of the apartment for the
price of 200,000 Euros. When the private document is signed, Mrs. Pérez receives from the buyer the
amount of 50,000 Euros on account of the price. The rest (150,000 Euros) the buyer shall have to pay in the
next 3 years (50,000 Euros per year) because they agree that the house shall not be delivered until June
2014 when the private document shall be raised to a Public Deed. In October 2011, 3 months after the
signature of the contract, the buyer sends notice to Mrs. Pérez’s grandmother asking her to immediately
leave the dwelling and warning her that, in case she does not leave, he shall take the appropriate legal
measures in the exercise of his right of property of the house.
Is the buyer right on his claim to the grandmother?

~No, as they have agreed that the house will be delivered in 3-years time. Now h is not the owner as the
delivery did not took place
We need title (agreement) and modus (delivery) for the ownership to take place
Could he, in the concept of proprietary exercise any legal actions?

He is not a proprietary
Unit 14
Family law
Economic system of marriage / matrimonial property regime - group of rules stated by law
to regulate different patrimonial issues arising from the matrimony. No matrimony can exist without it
*spouses can set their own economic regime via marital agreement
*if spouses do not set their own regime, law provides it
~economic system depends on te region of Spain where spouses live after marriage (no residence > where the marriage was constituted)
Types of economic systems:

~COMMUNITY OF GAINS (main system) - creation of a joint patrimony, independent from patrimony of
each spouse.
âll gains during the marriage are joint property “community property”,so mutual agreement is
required for administration of joint goods (except potestas)
GAINS OR ACQUETS ARE:
“ salary, gambling gains, pension, unemployment benefit
⑲
“ fruits an products of acquets and separate property + dividends from shares
“ property bought with community property assets (under onerous title)
“ enterprises and establishments created during the marriage with common assets
“ property donated to spouses jointly
“ goods to which spouses attribute the quality of acquets (no matter source of the price)
“ property acquired through a joint right of redemption (!!!if the joint right of ⑧
redemption is exercised with a separate property, one spouse must reimburse
^burdens that have to be paid with community property + debts contracted by one spouse for
listed purposes entails that common gains are joint and severally liable with the personal -
⑧
..
-
patrimony of BOTH spouses:

1 /
-
“Domestic burdens potestas with the assets

[community pr assets joint and severally liable
.
are
if the debt was incurred in the exercise of the domestic potestas (art. 1.365.1 CC), the patrimony of the other spouse shall be subsidiary liable
“ support common children ofcontracting sponse .]
If children are not common and live with family > pay with community property
If children are not common and DO NOT liv with family > pay with community property but reimbursement after divorce
“ exploitation of business or exercise of the profession of each spouse
“ COMMONLY AGREED donations (if not, donate separate assets)
“ purchase of acquets + management of separate property
“ non-contractual liability (unless it was deceit or gross negligence)
“obligations contracted by one spouse with the express consent of the other
“in case of de facto separation to pay for childen’s expenses
[ifthey do fall categories above]

not in
^debts of each spouse must be faced with separate goods (BUT if the debtor dos not have enough
property, common gains will be used. Another spouse can demand dissolution of the community CC 1373
^patrimony before the marriage + listed stuff are separate properties

SEPARATE PROPERTY IS:
“goods and right of every spouse before marriage
⑲
“property acquired by a spouse under gratuitos title (donation, inheritance)
“goods acquired at the expense or in substitution of separate goods
‘property bought with a right ofredemption belonging to one spouse (if bought with common assets. > reimbursement)
“Clothing an objects of a personal use WITHOUT extraordinary value
“Instruments for work (unless they are a part of common enterprise)
“Intellectual property (gains from it are common gains)
“Personal rights
& ⑧
-
S
“Compensations awarded to one spouse for damages to his person or his personal property
nee
I
^community proper'ty should be managed jointly
“acts performed by one spouse without consent of other
are VOIDABLE, but can be ratified
“GRATUITOS acts without consent of other NULL AND VOID
“If a spouse cannot give or unjustly refuses to give consent > go to the judge (judge will decide
for interest of family)
“Consent is not needed:
*Ordinary administration of personal property / work expenses (knowledge is needed)
*Assets that appear under personal name
*If spouse is a tutor of sb
unable to at the moment
*Another spouse abandoned family give
consent
sponce
* is
*De facto separation
*Urgent expences
^community property can be dissolved:

1. Automatically
*divorse
- death of the spouse
*annulment of the marriage
*separation of spouses ordered by Judge smth else
property
to
their
I community
t-com
ifpiozspousescreditors
,
*agreement of new regime in marital agreement

2. Ordered by judge
->
change agreemen
ty communityproperty
satis the credit with
.
3. Ordered by spouse if another spouse is :

*incapacitated. *prodigal. *absent. *insolvent. *abandoned family
^liquidation procedure -procedure after dissolution of community
transpanus
calculated
“if smth left after paying debts (firstly alimentary) divide in half (they can ask for specific goods to
⑱
⑩
#@π frommunity
assets and debts are
debts havepreudena)
↑ o
a
repayment ↑ in(alimentary
be included
debts o
their share) CC 1406 + 1405 f on is a creditor of the other to be included withperferen
3
umaining is tashfaertain
divided in and to Ispouses
half given spouses to other
have
possibility
in their
goods
share
pective
goods exploitation
res
use/place Iwork/economic(in
-
goods of
personalspeer/ habitual isidents
o
dad rase is
~SEPARATION SYSTEM (Catalonia, Balearic Islands) - each spouse keeps property, administration and managed by one
free disposal of the assets (no joint patrimony)

îf a spouse contracts a domestic debt, he is liable (assts of other spouse are guarantee “subsidiary”)
îf a spouse contracts NONdomestic debt, ONLY he is liable
êach spouse has to contribute to meet the burdens of the marriage (no agreement -
contribution IN PROPORTION TO THEIR MEANS!!!!!!)
^separation - spouses keep their own property
-must be proven which property belongs to whom (if impossible > presumed that it belongs to both “pro indiviso”)
-reimbursement of any amounts the other might have spent in the burdens , any kind of debts granted between them, etc, must be made
(housework is also a contribution that gives rise to compensation during separation)
For that purpose, the difference between the initial patrimony and the final
patrimony of each spouse is calculated. If the difference is positive, there
~PARTICIPATION SYSTEM (!!!!must be agreed on!!!!) - separation regime during the matrimony, but
is an earning.
during the divorce, the spouse who has earned less has theeh right to participate in earnings of the other
âfter divorce, the party who earned more becomes debtor and has to pay 50% of his superior
earnings to his ex
Primary matrimonial regime - rules that work independently of the economic system
*any of spouses can carry out acts to meet the ordinary family necessities potestas 1
for domesticprotestates
debt
+imme
*consent of both spouses is necessary for the disposal of the famly’s dwelling
-
·
(!!NO MATTER if it belong only to one of spouses!!!)
Marital agreement - agreement in which spouses determine economic system of their
marriage. They can agree on existing economic system or set a new one ad hoc
*form: special form + Public Deed
*in order to be effective against third parties > must b registered with Civil Regisry
*if agreement was ineffective > presumed to be the one of the region
*can take place:
~before marriage (prenuptial agreement)
-becomes ineffective if the marriage not takes place within 1 year
~after marriage
-cannot prejudice creditors whose rights was acquired prior to the change
*atypical marital agreement - marital agreement with acts that related or NOT RELATED to the matrimony
(ex: recognition of a child)
Chapter 14 practice
The student has to proceed to the liquidation of the economic system of marriage of Peter, a
dentist, and Maria, a writer, who married in Madrid in 2007 without a matrimonial agreement and
are now willing to divorce. The liquidation must state to whom does each good or asset belong to
or, in its case, who has to pay the debt and if any kind of reimbursements are due. The inventory
of the assets and liabilities of the system is the following:
1. An apartment bought by Peter before the marriage in 2002 and which is now the family’s
dwelling.
!
(communityproparty) V
2. A car bought by Peter in 2006. Etens
-I car
(separateproperty)
3. An apartment, bought by Peter in 2009 with the money earned as a dentist in 2008 and were he
now has his dentist consulting room.
Communityproperty
4. Peter’s dentist instruments and tools. Before the marriage he bought instruments for 20,000
Euros and in 2009 for the new consulting room he bought instruments worth 30,000 Euros.
bough before separate

What he
whatafter matty
-
bong
;
he
if
5. 50,000 Euros deposited in a current account that Maria has received as author rights for her
last novel in 2009.
community property
6. A plot outside Madrid that Maria has inherited from an aunt in 2008 valued 500,000 Euros.
separate property
7. A bike that Maria uses to move around the city which she bought in 2008 with the 2,000 Euros
she received as payment for an article for the newspaper The Madrid Times.
communityproperty
8. A fur coat that her mother gave to Maria in 2009 worth 1,500 Euros.
Mllaria'sproperty
9. In 2010 Maria had a bike accident as a consequence of which she received compensation from
the insurance company of 3,000 Euros.
separate property (compensation ofdamage to theperson)

10. Maria also sings in a gospel group that is being quite successful. They have recently
published an album and she has received 25,000 Euros from the music company.
communityproperty
11. Last month Maria forgot to close the bathroom tap and the apartment underneath suffered
damages that amount to Euros 1,500.
communityproperty
12. Peter was lucky and won 100,000 Euros in the Red Cross extraordinary lottery in 2010.
community property
Unit 15
↑
Succession Law
Succession Law - regulates coming into estate of a deceased person. (Property / rights + debts /
obligations)
*Testamentary / voluntary succession - succession through talent or will

*Legal / intestate (ab intestato) - when a person left no will and successors are appointed by law
~Universal succession - all the rights + obligations of decedent

HEIR = UNIVERSAL SUCCESSOR
~Singular succession - succession only of one article of property or a single right
LEGATEE = SINGULAR SUCCESSOR
-Legacies can be disposed only by testament
-Legacy
e acquire only goods without debts
<can acquire debt only if decedent specifically states it, but he is liable only to the extent of
the value of legacy
Heir - receives the entire property of the decedent that he did not lave to other persons. shall manage
state, claim for all goods, pay debts..
*Heir al law - heir appointed by law in case of intestacy (when a person dis without laving a will)
*Testamentary heir - heir appointed by testament
~Fideicommissary substitution - heir has to conserve inheritance and transfer it to a third party, who
shall be the new heir.
*valid if the do NOT go further than 2 generations (son {heir}, grandson, great-grandson)
*valid if were made to person alive when de deceased dies (if great-great grandson is alive)
~Coparcenary / Community property - when there are several heirs and they inherit as co-heirs,
each person is undivided owner of the part, all parts form community property. Joint ownership
-
~Partision - division of the coparcenary
Acceptance of inheritance
*Heir acquires his position from the moment he ACCEPTED
*Yacente (hereditas iacet) - patrimony before the acceptance by the heirs (patrimony without an owner)
*Effects of acceptance retroact to the moment of death (when person accepts the inheritance, he acquires
rights from the moment of death of the decedent)
*If person called to the inheritance dis before acceptance or renouncement, the right is transmitted to his
heirs
Characteristics of acceptance
*retroactive
*indivisible (cannot accept a part of inheritance or put conditions on it)
*irrevocable (cannot be challenged unless has vices of consent or when unknown testament appears)
*pure
~Acceptance entails confusion of patrimonies (CREDITORS ARE NOT JEOPARDISED)

!!Unconditional acceptance - heir is responsible for all debts and charges of the estate with the inherited
patrimony + his patrimony. (Universal patrimony liability)
~can be expressed or tacit
The benefit of inventory - heir is liable ↑
only for the debts of the decedent only with ⑲herited
his
patrimony.
*heir has the possibility to ask for enjoyment of the “benefit of inventory”
*benefit of inventory entails separate administration
*heir must make a formal testament before a Notary Public to enjoy the right
*for testament to be effective, true and faithful inventory (complete record of all acts - debts - inheritance to
legatees) of the succession has to be made
-must start within 30days and finish within another 60. period may be extended ⑧
9nevr more than 1 year)
Heir can
-Accept with the benefit of inventory
-Request the making of inventory before making decision to understand if it is of his interest to accept or
reject succession (the night to deate)
Time for acceptance (days from the moment of knowledge of his position)
*if heir has a part or all assets in possession > 10 days (if resides in the same place when decedent dies)
> 30 days (if not)
*if does not have assets in possession, time start to count from the moment of acquirence
*if he does not acquire, can opt for the benefit as long as he can claim for inheritance.
When heir looses the benefit of inventory? > must be understood that he accepted unconditionally
*removed any of goods of the inheritance
*does not comply with the terms established
*asked to evaluate inventory and does not communicated his decision to Notary within 30 days
*deliberately failed to include assets in the inventory
afterinven a e
*trasferred without authorisation any assets before having paid debts and legacies
Testamentary succession
*testator /testate - person who makes will
*testament (will) must be authorised by law
Characteristics of testament
*Unilateral (only stator make disposition of patrimony)
*Personal (cannot bee made jointly, cannot be made via representative)
chari
choose
organizations
!!!third party can distribute sums that testator leaves to determined groups) lex donatety-person
mil to
can
: / leave
where to
*Formal (no form = null and void)

*Revocable during the life (even if h⑲nade a will not to revoke)
Everybody can make a will EXEPT:

*Minors under 14 (no holographic) de facto
*Persons permanently or accidentally out of the mind (NOT necessary to be incapacitated. Incapacitated
can make a will if 2 doctors declare his capacity to do so)
↳
appointed by the eNotary
Kinds of testament
*Common / ordinary testament - general requirements of form, can be used by anyone
-Holographic - entirely written by hand, dated and signed
-
“Legal age required
(Judjetolegalize)
“presented to the notary within 5 years after death
“person who disposes it must present within 10 days from the moment of knowledge
“person who disposes is liable for the delay The Notary shall open the holographic testament, sign all its pages,
-Open testament - testator expresses his will to notary orally or in writing

verify the identity of the testator, and he shall finally order the
testament to be incorporated to a protocol.
me
“Notary has to certify that he believes that testator has sufficient capacity to testate
“if testament is null because formalities are not followed, notary is liable
!!!!2 WITNESSES HAVE TO ATTEND EXECUTION IF:!!! will shall be
by
stator
signed
+
->
~testator cannot or does not know how to sign witnesses

must rad loud
~testator is deaf, blind, does not know how to read eNotary
a
radifh)
*
Istator also
~testator or the Notary request presence of witnesses want to
can
[closed sealed envelope] +
-Closed testament - written by the testator, closed by him, given to the Notary,, who does not know the
-
be written not)
content Ccan be handwritten not
bylifhim - can or
explain ytestator)
or
he cannot other and
at the end) all the
pages) sign to sbperson signs
-
(igh
“testatorsign
can keep closed testament himself or entrust or notary
“if sb does not present within 10 days from te moment of death, he is liable for damages
“if sb fails to present with deceit,he is liable + looses the right to inheritance
!!!!PERSON IS NOT ALLOWED TO MAKE IT IF:!!!!
-
without to
~person is blind prejudice any
eriminal liabili
~person does not know how to read ty
*Special testaments - more or less formal, used by persons in special circumstances
foreign country -to be in a
ifwounded /ill before Chaplain/Physician

-Military (made by soldiers during war)
- to
y
fore
capitan)
official
make will be
lat hast
an
-
if detachment before any superior
-
-Maritime (made on voyage by those on board) ↓2 witnesses always necessary

are
!!!
-Made in a foreign country or in a foreign vessel Can NOT make a joint will even
ifauthorised by the
Law
ofthe country of
[Spanish)
latestfroga heby lawin ifcountywheretheybyauthloaungpifict "firs especting
he it to counsellor -
not admitted give -> location

leven
e a
all
SpanishL formalities
law
Executors
_
- shall carry out directions and requests of the will
When several executors are appointed:
-Successively - one person is executor in case the other is not (because he did not accept, did not
enough capacity)
-Smultaniously - can act jointly or joint and severally
-if testator did not specify - jointly
Characteristics:
*voluntary - if person does not renounce within 6 days > acceptance presumed
*if renounced without justified cause > shall loose what testator might have left to him (unless he has a
right to legitime(
*execution cannot be delegated
*if testator did not establish term - 1 year term (might be prorogued )
If testator did not establish duties of executors:

*arrange pay for the funeral
*pay legacies that are in cash
*supervise execution of will
*maintain validity of the testament
*take precautions
Legitime - portion of assets which testator cannot dispose of because they are reserved by law
for legitimate heirs
*Disinheritance is only possible CC 852-855
'
Legitimate heirs:
~Children (decedents) I mustdivide I between
equally
children
* 2/3 - called “long legitime” equally distributed among chide en
all decedents
*1/3 - children. 1/3 - decedents (“short legitime”). -distributed among
wis h
~
my zandchildren +
!last 1/3 is “third of betterment or improvement” - can be given to anyone - Call the
children)
any of
~Parents (ascendants) parents between to them
equally
*if they are the only ones with the right of legitime > 1/2 if only sparent everything s [
Imust
give
*if they + widow - 1/3 to him If grandparents
one-side
to them) ,
_ equally (if only

~Widow/er - unless legally or de facto separated (always has a right of usufruct)
*if widow is the only one with the right of legitime (no decedents or ascendentes) - right to usufruct os 2/3
*if there are only childeren - usufruct of the 1/3 (third of betterment)
*if only parents - usufruct of 1/2
S
Legal succession or succession ab intestato - when a person

dies without making a will
When legal succession takes place?

*no will / will is null / will lost validity
*when the will des not include all the assets
*when appointed heir is incapable to inherit
*if heir dies
*if heir repudiates inheritance mee)
Order of the legal succession:
1) Descendants
*all equally divided between children (inheritance “per capita”)
*if a child dis before a parent, his children divide equally his part (right of representation)
2)Ascendents
*if person had no children > his father and mother inherit equal shares (if only 1 alive > inherit everything
*if parents are dead > grandparents
2)Spouse
*if no descendants or ascendants > all to spouse (unless legally or de facto separated)
3)Collaterals
*if none of te previos ones > siblings and their children (LIMIT = COUSINS OR GREAT -NEPHEWS)
4)The State
*if no previously mentioned ones > state
(ALWAYS INHERIT UNDER THE BENEFIT OF INVENTORY)
Freed No will
heizshif *
X
other's to
5 50 %
of
*
+
to
X*
all
-
⑮
⑭ ~
⑧ equally 25
t 1


Wuolah Free Introduction To The Patrimonial Law

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Wuolah Free Introduction To The Patrimonial Law

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Introduction-to-the-patrimonial-...

Introducción al derecho civil patrimonial

1º Grado en Administración de Empresas

Facultad de Ciencias Sociales y Jurídicas. Campus Getafe

Reservados todos los derechos.

Patrimonial Law as a part of Civil Law / Economic Public Order

-the civil status of people

Law of persons. Civil capacity; Legal capacity; Artificial persons;

1)Civil capacity - inherent constitutional and statutory rights (life/integrity/security/freedom)

- Granted by a judge – 80%

INCAPACITATION - the limitation or deprivation of a person’s legal capacity by a judge

*What types of incapacitation exist?

goals) to whom the law grants personality (corporations, partnerships, associations,

(Defence el of human rights, social assistance, defence of environment)

An association is a group of people who get together to pursue a lawful aim.

you 14 with the

*It DOESN’T HAVE TO be registered but it is recommendable. -I

>>> EXAM>>>>UNDRSTAND THE DIFFERENCES BETWEEN ASSOCIATIONS AND FOUNDATIONS,

- Voluntary - I appoint a representative

No, a minor cannot sign contracts

If the minor is emancipated, he can sign a contract

If he emancipated he can rent

4. And if he wants to mortgage the house, is your answer the same?

Applicable articles: 323, 1.259 and 1.727 of the Civil Code.

No, attorney need to act attending the benefit of a principle.

& Elements ofcontract

3.1. ESSENTIAL ELEMENTS

The object has to be:

The accidental elements are:

Form - not essential element of the contract

if there is no time limit,

5. CONTRACTS WITH GENERAL CONDITIONS OF SALE - adhesion contracts

❖ It forbids certain clauses such as an excessive duration of the contract.

WHAT TO DO WHEN IT’S IMPOSSIBLE TO SOLVE THE DOUBTS?

1. Auto-integration - integration inspired in the general rules established in the contract

EFFECTIVENESS OF CONTRACTS - rules that regulates relations between parties

”Relativity of contracts” - contracts shall bind only the parties

Categories of infective contracts:

*Partial nullity (only a part of a contract is void)

Tan be etainedfor year

Why a contract can be voidable?

1) Only affected person can confirm (not require agreement of both) -

incompatible with contract’s voidability)

the contract an effective

When contracts suffer rescission? (cases):

1) The contract states that he can adat the structure

contract clear literal

Monetary compensation . need to be done

The contract is NOT void

2 I Yes it be considered mell andvoid because

of the essential element is

All the shareholders must

Thecourt willtake the

Obligation has 2 edges:

Duty of performance (prestación).- what is due by the debtor(object)

Elements of the obligation: only to have civila facity

>Positive obligation - obligation to give or do smth

~Cumulative - several objects and all of them are subjects to demand

*Principal obligation -duty of performance is the main object.

2. Depending on the bond

& Unilateral obligation- one party has a duty of performance

(the obligation togive car

What effects conditions may have?