Apuntes Derecho PRIMER CUATRI 1RO CARRERA PDF

Preview

Summary

Apuntes derecho civil en ingles para los temas correspondientes al primer cuatrimestre de ADE en la universidad Cralos III de madrid...

Description

Alicia García-Vallaure Fernández Universidad Carlos III de Madrid

PATRIMONIAL CIVIL LAW: Lesson 1: Patrimonial Law as a part of civil Law; Economic Public Order. The Civil Law is the part of the legal system made of norms and institutions that rule relations between individuals within the community. It covers persons and their civil status, persons’ patrimony, the exchange of goods and services, familiar relationships and the mortis causa succession. The Patrimonial Law is a part of Civil Law made of norms that rules individuals’ economic activities. The areas covered by it are: Allocation of goods to individuals, exchange of goods and provision of services by certain individuals to others. The Economic Public Order is the action of Administration in order to organize the economic structure of the society and contains the basic rules or simple guidelines any economic system of society is based on. As well as the political public order, the economic public order is not immutable, and it changes depending on the principles that inspire the economic organization of a country in a certain moment of time. The principles which constitute the current Spanish Economic Public Order are: ● Private Property: The Spanish Constitution defines private property as one of the rights of citizens, but it already establishes that it is limited by the social function. So, the social function of the right of property shall determine the limits of its content in accordance with the law. Furthermore, the Spanish Constitution protects certain goods due to their importance for the social welfare and the general interest. ● Economic freedom: It brings along with the rights to a free market, freedom of contract and free enterprise. All these concepts are interrelated. Free market entails that the means of production can be in private hands and there is freedom in the production and exchange of goods and services. However, markets are not absolutely free and the State might intervene to protect the public good. Freedom of contract is the right to choose one’s contracting parties and trade with them on the terms and conditions they find appropriate. Contracts permit individuals to create their own rules, adapted to their special situation. The State may regulate or forbid contracts which may hinder the public good or interest. Free enterprise is the right to create and conduct a business without the intervention of the State. It is recognized in the Spanish Constitution. Moreover, the public authorities guarantee and protect its exercise and the defense of productivity in accordance with the demands of the general economy. ● Exchange principle: The economic order is based in the exchange of goods and services, and so legal rules have to be established to regulate such exchange. It has to be based on a valid and true cause or it shall be dimed to be unlawful. Furthermore, it has to tend to the greatest equilibrium possible between the performances of the parties. It is true that the price is established by the market, but the equilibrium is the natural tendency of every exchange. ● Moral sense and the principle of good faith: Covenants and agreements have to be performed as they were agreed. However, there is a tendency to moralize the acts of the law with the incorporation of moral as one of the limits to the freedom of contract. Moreover, the moralization of legal economic relations is based on the principle of good faith, which has a double face. On the one hand, an active manifestation, which entails the honest intention to refrain from taking any unfair advantage of another. On the other hand, a passive, manifested of the confidence in the correct behavior of the other party. So, someone acts in good faith when he acts with an honest purpose and believing in the honesty of the other party. It is therefore a standard of behaviour that undertakes the necessity to perform obligations in a correct way. ● Legal certainty: For the economic public order to exist it is necessary that the persons that intervene in the market are confident as to the certainty of the legal rules applicable to their situation. Only if this certainty exists can they understand the consequences arising from a certain situation, business or project. Not only it means that individuals can plan their business and transactions and foresee the consequences thereof, but also that they are protected from an arbitrary use of power. Therefore legal certainty makes individuals confident that the legal order is going to be maintained.

1

Lesson 2: Law of persons. Civil capacity; Legal capacity; Artificial persons; Representation. Legal concept of person: Persons are those who have personality (civil capacity). From a legal point of view every man is, by nature, a person. And therefore the Legal System acknowledges the personality of every individual. Civil capacity ( personalidad – capacidad jurídica – capacidad de derechos ) is the ability to hold legal rights and obligations; so, the person has the ability to be the subject of rights and duties. But human beings are not only subjects of rights and obligations for the Civil Law, certain groups of individuals are recognized by law as persons and the law grants them personality (corporations, partnerships, associations, foundations…). These groups of individuals are also capable of holding rights and assume obligations and they are called “artificial persons” ( persona jurídica) as opposed to “natural persons” (persona física). ● When does civil capacity start? Personality starts at birth, once the cut of the umbilical cord has taken place, but the child conceived shall be deemed already born for all purposes favourable to him. This provision was enacted to protect the conceived-but-not-yet-born (nasciturus). Therefore, the nasciturus can among other things, receive donations or succeed, as these are effects favourable to him. Gifts made to the conceived-but-not-yet-born may be accepted by the persons who would legitimately represent them if they had already been born. The woman who is pregnant, even if she should be rich in her own right, might be supported taking into consideration the share of the property to which the child shall be entitled. In the absence of a surviving spouse or siblings or children of siblings, the relatives in the line shall inherit. Finally, civil capacity shall be extinguished as a result of death. Legal Capacity or “capacity to act” is the capacity to manage and exercise the rights and obligations that the person holds. A person with civil capacity without enough legal capacity would need a representative to act on his behalf in order for his actions to have civil effects. In the case of minors, it will be for the parents to represent the minor. Legal Capacity is acquired by turning 18 and the date of birth shall be included in full for the calculation of legal age. At 18 a person is presumed to have sufficient mental and physical development to be able to execute legal acts. This majority of age does not require any kind of acknowledgement whatsoever; it happens automatically when the person turns 18 by coming out of paternal power or tutorship. There are exceptions such as adoption, which shall require that the adoptive parent is older than 25. This because it is considered that it is necessary to have a special ability for it. ● Legal Capacity can be complete or limited. The legal capacity can be limited in the case that the person cannot in general undertake by himself act with legal effects or there are just some acts that the person cannot undertake. These limitations exist for incapacitated persons. ⮚ Capacity of minors: Minors have their legal capacity limited and acquire their legal capacity gradually and not at the very moment of turning 18: ● With 12: The adoptee older than 12 must consent to the adoption in the presence of the Judge. ● With 14: Persons under 14 are incapable of making a will; but the holographic will may only be made by persons who are of legal age. ● With 16: The Judge may grant the emancipation of children older than 16 if they request it. The Judge may also grant the benefit of legal age to the person subject to guardianship who is older than 16 and request it. In the event of an epidemic, the will of an older than 16 may also be executed. Property acquired by the child older than 16 by his work shall be excepted from parental administration. No judicial authorization shall be required if the minor should be 16. Minors and incapacitated persons may acquire possession over thing. Persons without the capacity to contract may not accept gifts made for valuable consideration without the intervention of their legitimate representatives. ● With regard to contracts entered into by minors: Non-emancipated minors cannot give consent. Minors cannot enter into contract without parents’ authority except in those in accordance to his maturity.

2

⮚ Emancipation: It takes place when parents surrender their parental duties and the right to care, custody and administration of the child’s patrimony (in this sense, majority of age also produces emancipation, but in the Code, emancipation is more often used to refer to the special status). Once granted, the emancipation is irrevocable. How emancipation can be acquired? 1. Coming of age (it is not correct, so it is when the minor is over 16). 2. Marriage of the minor (contradiction of the Civil Code): Marriage shall result in emancipation. Only the emancipated minor can validly marry. It will only happen when the minor obtains from a judge an age dispensation to marry, which can be granted from the moment the child turns 14. 3. Emancipation granted by parents: Emancipation by concession granted by the persons exercising parental authority shall require that the minor has turned 16 and consents to the emancipation. 4. Emancipation granted by a judge: The Judge may grant the emancipation of children older than 16 if they should request it: When the person exercising parental authority should marry or live together with a person other than the other parent; when the parents should be separated; and in the event of any cause which seriously hinders the exercise of parental authority. In this case, the child has to ask for it to the judge who will listen to the parents before granting the emancipation. 5. Independent economic life from parents: A child older than 16 who should live independently of his parents with their consent shall be considered emancipated. ● Capacity of emancipated minors: Emancipation qualifies the minor to govern his person and property as if he were of legal age, but until he comes of age the emancipated minor may not borrow or lend money, encumber or sell immovable properties and commercial or industrial undertakings or extraordinary value goods without the parental or curator’s consent. (Note: If he is married and his partner is legal age, he/she is the tutor). ● The benefit of legal age: Civil status that is equal to emancipation but applied to those minors who are not under parental authority. The Judge may also grant the benefit of legal age to the minor who is under tutorship, older than 16 and request it. ● Incapacitation: It is the limitation or deprivation of a person’s legal capacity by a judge because the person is impaired by a mental or physical impossibility to understand the consequences of his acts. Judgment is needed. Without a judicial decision declaring the incapacity anybody can conclude valid contracts and, to annul such contracts due to the person’s inability to govern himself, it is necessary to proof that such inability existed when the act was performed. Causes: Persistent physical or mental illnesses or deficiencies which prevent the person from governing himself shall be causes for emancipation. Effects: When someone has been incapacitated, the legal acts performed by him will be voidable. The decision can: 1. Tutor: deprive the person from legal capacity, in which case he will have a status similar to a minor, or only restrict his capacity, limiting the acts that the incapable cannot perform. The tutor is the representative of the minor or incapacitated person. Non-emancipated minors not subject to parental authority shall be subject to tutorship. 2. Curator: who only controls the incapacitated and in which case a double consent is necessary, that of the incapacitated person and of the curator. A curator shall be appointed for persons whose incapacitation judgment should place them under this form of protection. Curatorship over incapacitated persons shall have as its purpose the curator’s assisting in those acts expressly provided in the judgment which established it. 3. Parents: The parental authority can be extended when the minor achieves the age of majority but suffers from impairment. We will then speak of “extended paternal power”. This because minors can be incapacitated before turning 18 and it is reasonably foreseeable that the impairment shall persist when attaining majority.

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. As incapacity, prodigality has to be declared by a judicial decision. Although the prodigal retains legal capacity, the judge will appoint a curator who shall give consent for the prodigal’s acts specified by the decision.

3

Artificial persons: The law grants personality of “artificial or juridical persons” ( personas jurídicas), and therefore, they can hold rights and have the necessary capacity to enter into legal relations. Types: 1. Public Law artificial persons: - Corporations (State, Autonomous Communities, Municipalities…). 2. Private Law artificial persons: - Foundations (patrimonial essence): They are regulated by Law 50/2002 of December, 26 (Foundations Law or FL). Foundations are non-profit organizations which, due to the founders will, have their patrimony affected in a lasting manner to the consecution of goals of a general interest. They cannot in any event have as their goal the benefit of the founder or managers, their spouses, relatives or artificial persons that do not have goals of a general interest. It is necessary that economical resources are explicitly attached to the interests pursued by the foundation so that it can exist. Endowment (dotación): It is the initial patrimony of a foundation. It has to be sufficient as to fulfil the foundation’s goals. The minimum endowment to create a foundation consists of goods and rights amounting to at least 30,000€, although it might be inferior if it proves to be sufficient. Constitution: Foundations can be constituted by an inter vivos (through a Public deed) act or a mortis causa (by the founders’ testament). The foundation shall have legal personality from the moment of registration of the Articles of Incorporation with the Foundations Registry. Functioning: It is set in the By-Laws. The management and representation of the foundation corresponds to the Board of Managers (Patronato), who has to watch for the fulfillment of the foundation’s aims and has to administer the patrimony of the foundation. Other acts, such as control, are responsibility of the Protectorate (Protectorado). ⮚ Associations (personal essence): In general, groups of persons searching to attain a common goal. a) For-profit: Companies (sociedades). They tend to obtain profits from their activities (private interest). b) Non-profit: Associations. They can be a public or private interest depending on whether the aim that they pursue promotes the welfare of the community or a private or particular benefit. They are regulated by Law 1/2002 of March, 22 (Associations Law or AL). Associations are non-profit organizations which are constituted by a group of individuals who join to carry out a purpose. They have a personal essence and can have a general or private interest. The income obtained through the exercise of the association’s economical activities has to be destined to the fulfillment of the goals. Constitution: Associations acquire legal capacity through the agreement of 3 or more natural or artificial persons who join to achieve common purposes. Therefore, associations acquire personality from the moment this agreement is expressed and enacted in the “Constitutional Certificate”. So, registration is not necessary to get legal capacity, but only to be effective against third parties. Functioning: It is set in the By-Laws. The main body of an association is the General Assembly, which is the supreme body of government and appoints, removes and supervises the activities of the management of the association. It is made up of all the members of the association and shall meet at least once a year to vote the annual accounts. On the other hand, the management and representation of the association correspond to a Representation Committee, which can only be constituted by members of the association appointed by the General Assembly. Direct Representation - power of attorney: It exists when a person (agent/representative) performs an act of the law in another person’s (principal) name and behalf so that the effects of such act directly and immediately affect the person represented. When representation exists, the act executed by the representative shall fall with and be responsibility of the principal. Voluntary representation vs. legal representation: In “voluntary representation” it is the principal who entrusts the representative for him to be able to carry out acts of the law in his name and on his behalf. In “legal representation” the law appoints someone to represent another person, without taking into account the will of the person represented, and it is also the law that defines the powers of the representative (parents, tutors…). Representation vs. Mandate: In mandate there is not representation, so there is no legal relation between a principal and third parties. In mandate contract one person provides a service or does something on account or on behalf of another. (Note: We can find mandatory with representation).

4

Act of empowering: It is the act by which the principal grants another person a power to act in his name and on his behalf. The acceptance of the person appointed is not required, it is only an authorization to act in the name and on behalf of the principal, the knowledge of the existence of the empowering by the representative is sufficient. To grant a power of attorney the principal has to have the capacity necessary to execute the act in the law for which he is granting such power because the rights and obligations derived from the act of the representative shall bind him. Moreover, for the act of empowering there is freedom of form. The mandate may be express or implied. An express mandate may be executed to a public or private instrument, and even verbally. Acceptance may also be express or implied. Abuse of power: There is abuse of power on the part of the representative when he performs actions following different aims to those for which he was empowered, generally in his own benefit. “Representation” without power: When the representative performs an act on the law in the name of someone but without the necessary empowering to do so. It can be because the power of attorney has expired, because it never existed or, also, because a power exists but the representative is acting outside of such power. A person who acts without power is a falsus procurator, and the action performed by him does not have any consequences for the principal. So, the falsus procurator is liable against third parties and the principal shall not be bound insofar as the attorney has exceeded the mandate. The attorney shall not also be liable to the party with whom he contracts except where he expressly undertakes to be liable or exceeds the limits of the mandate without making the other party aware of his powers. However, the limits of mandate shall not be considered exceeded if the mandate should be complied with in a manner which is more advantageous to the principal. Extinction of empowerment: Apart from the general rules (expiry of the power of fulfilment of the task of the representative) there are other special causes: the power can be revoked...