You are on page 1of 8

CHAPTER 2: PERSONS LAW The law regulates situations in which persons are involved in order to organize their interests

and avoid conflicts arising from patrimonial legal relations. The dignity of a person, his inviolable rights, the free development of personality and other rights are the basis of political order and social peace (art. 10 CC) PERSONALITY RIGHTS One of the cornerstones of the entire Legal System The right to life and physical and moral integrity, equality, ideological and religious freedom, freedom and security, honour, personal and family privacy, and to the own image, inviolability of home and secrecy of communications, freedom of movement and residence, of speech, press and communication of information. Personality is the capacity of holding rights and assume obligations.

NATURAL PERSONS AND PERSONALITY Human beings are called natural persons and they are considered to be persons since birth. Since birth humans are attributed with personality if: 1) the child has a human figure 2) to live 24h separated from the mother CIVIL AND LEGAL CAPACITY Civil capacity is an essential quality of the person and the dignity thereof. It starts with birth and ends with death. Both points proved by Civil Registry. A person with natural capacity can hold legal rights but cannot administer them himself nor validly execute his rights. Legal capacity can be complete or limited (cannot undertake some acts) These limitations exist for incapacitated persons. They are an exception from the general rule and have to be expressly stated. A person with civil capacity without enough legal capacity would need a representative to act on his behalf (minors-> parents) (tutors, curators) Its the capacity to manage and exercise the rights and obligations that the person holds. Legal age in Spain to have legal capacity is 18 years old and it happens automatically. A person of legal age is capable for all acts of the civil life, safe for the exceptions set in this Code for special cases, which require a special ability to execute them (25 years old to adopt) or which are prohibited (conflict of interests: tutors and curators cant buy goods from the person under guardianship) MINORITY OF AGE Minors have limited legal capacity. Non-emancipated minors cannot give consent and have to be represented by their parents or tutor in order to use their rights and to bind the minors patrimony. Lately there is a trend to consider the minor as

a person who can have a certain scope of legal capacity and it shall be restrictively interpreted. There are some laws that permit the minors to act by themselves or to be taken into account like - f 12: consent to be adopted - f 16: can administer properties, goods acquired through their work - old minors liable for damage caused although it always falls on parents - f 14: can testify, testament capacity - W/o age limit: accept donations or acquire possession of things EMANCIPATION Irrevocable release from the power of control of somebody. - Parents surrender their duties and the right to care, custody and administration of the childs patrimony - A emancipated person has the status of a full legal age person except for the fact that w/o parental or curators consent emancipated minors cannot: Borrow money Encumber or sell immovable property, commercial and industrial establishments, nor goods of extraordinary value - <16 and recorded at the Civil Registry - Emancipation can be granted by: The parents (requires the minors consent in public deed, authorisation of the judge) A judge (the child asks for it, the judge will listen to parents) - The parents or tutors are legal representatives, whereas the curator only completes the lack of capacity of the emancipated minor, he only intervenes in acts that emancipated minors cannot perform on their own Legal age benefit: minor under tutorship is granted emancipation by a judge Marriage - Only the emancipated minor can validly marry - This possibility is very exceptional - The minor has to obtain by a judge a an age dispensation to marry +=14 Independent economic life from the parents - the child has to be economic autonomous from the parents INCAPACITATION Limitation or deprivation of a persons legal capacity by a judge because the person is impaired by a mental or physical impossibility to understand the consequences of his acts. It happens when: - Mental/physical illness or deficiency, disability - Advanced age - Chronic use of drugs These impairments have to be persistent to adopt a durable measure. This is to protect the person from his own acts. The acts are voidable, initially valid but can be declared void. Legal capacity is presumed. A judicial decision is necessary to incapacitate a person w/o it valid contracts can be annulled but its necessary to proof that such inability existed when the act was performed. Different scopes of incapacity: - Deprivation-> representation by tutor

- Restriction -> curator (double consent) The declaration of incapacity must be brought to court by the spouse or person with a similar relation of fact, descendants, ascendants, siblings except for minors: their incapacity can only be requested by parents or tutors The judge may declare the incapacity to be total or partial The incapacity may be revised later if the circumstances change.

PRODIGAL OR PROFLIGATE PERSONS Individuals prone to recklessly waste their own properties and money. Prodigality may only be declared by a judge, like incapacity, although prodigal persons retain their full legal capacity, only subject to the assistance and consent of another person appointed by the judge for the conclusion of certain acts also specified by the judge (e.g., sale of a house). The declaration of prodigality has to be started by persons emotionally dependent from the prodigal. It doesnt protect succession expectations.

LEGAL OR ARTIFICIAL PERSONS Artificial persons are born because the law acknowledges the existence of a real group with supraindividual interests. They can hold rights and have the necessary capacity to enter into legal relations. The law grants them a personality that is independent from the personality of its members. The Spanish Civil Code acknowledges three types of legal persons: associations, foundations, and corporations (art. 35 Cc.). All of them comprise a group of persons organized around a common interest or aim which must be of public or general interest. (The Law could never admit a legal person whose objectives were contrary to the general interest). - Associations are groups of persons organized towards a common goal or around a common interest (e.g., a political party). Companies are a subtype of association (for-profit associations) Foundations are groups of goods and properties attached to the consecution of a particular aim (e.g., a foundation for the research of alien life). Not based on a group of people but on a patrimony destined to sth Corporations are associations created by law and which have a public nature, the study of which belongs to public law. Among them are all the public administrations, from the State to the Autonomic Communities, the Municipalities, the Universities, etc.

ASSOCIATIONS Art. 35 Cc speaks about associations with a general interest, and associations of particular interest (i.e., companies). Associations are regulated by Organic Law 1/2002. Creation: o Any association requires that a group of persons liaise together in order to obtain a common goal which individually would be too difficult (or impossible, or inconvenient) to reach. o The minimum number of persons (natural or legal) required to validly create an association is three. (Art. 5.1 Law 1/2002). All those persons need to have legal capacity (art. 3 Law 1/2002). o The persons constituting the association must approve the by-laws (estatutos) of the association and make a formal declaration of their will to create it, the memorandum of agreement (acta o acuerdo fundacional). o The by-laws are the internal rules of organization of the association, and must define all basic terms that are necessary for it to properly function (and which are required by Law 1/2002), such as the aim of the association (objeto social), its name and address, its capital, rights and obligations of its members, the process of decision making, etc. o Associations must be inscribed in the Public Registry of Associations to the sole effect of making its creation and existence available to the public. Organization: General Assembly: similar to an internal parliament, it includes all members of the associations and must gather at least once every year. It is the only body entitled to decide upon any amendment of the by-laws, to appoint the board of directors, the president, etc., and to make all decisions pertaining to the economy of the association. Board of Directors/Managers: the governing body of the association, in charge of managing it. President: bears the representation of the association towards third parties and presides both the Assembly and the BoD.

o There can be other organs within the association as determined in the by-laws or further agreed by the Assembly, such as a vicepresident(s), general secretary or a financial director. Termination and extinction: Associations can only be terminated by a court ruling, and only in the following cases related to illicit doings: Associations with a criminal objective as a main purpose, or those which later decide or foster committing a crime (e.g., an association created to murder a president). Associations which are licit but use violent means towards the achievement of their main licit purpose (e.g., an association created for promoting Mr. XYZ as president and harasses, blackmails and mames all other candidates to ease the way). Secret or paramilitary organizations, including terrorist groups. Associations which promote racial discrimination

o Besides being terminated, associations can be extinguished by the will of their members, expressed in a written agreement. o Other causes for the extinction of associations are provided for under art. 37 of the Civil code: Expiry of the agreed term for the achievement of its main purpose Achievement of its main purpose Impossibility of achievement of its main purpose

FOUNDATIONS Foundations are legal persons created around money, goods or properties1attached to a specific and individualized purpose on a permanent or constant basis. Foundations are regulated by law.

o The creation of foundations depend solely on the will of the founding person (be it a natural or a legal person), according to which must be managed and administered. o It is absolutely necessary that goods, properties or money (resources, in general) are explicitly attached to the main purpose of the foundation in order for the latter to exist. There is no specific amount of money (or value thereto) to be initially deposited in order to create a foundation: it will depend on the purpose for which it will be used. I.e., it needs to be adequate for the purpose it seeks. o The purpose of the foundation must be of general interest, legal, and be destined to a generic group of people, undetermined in its composition (e.g., university students in general). A foundation the purpose of which is using its capital for the benefit of the relatives of the founding person is not a foundation. o Foundations must have their by-laws detailed in a public deed and further inscribed in the Public Registry of Foundations, in order to acquire personality and be legally created. o Foundations are managed by the Board of Trustees (Patronato), which must comply with the instructions given in the by-laws and respect at all times the will of the founder therein expressed. The board of trustees is generally identified on a personal basis in the bylaws and, for future boards, indirectly (e.g., the Mayor, the Director of the Museum, etc.) o Trustees are supervised by the Administration through a public institution called Protectorado. o Foundations may not spend their assets, particularly those that are attached to the fulfillment of their main purpose. Rather, foundations are supposed to seek additional resources (internal to the foundation, like the annual interest generated by those assets, or external, like donations, legacies or subsidies). o Foundations are non-profit organizations. REPRESENTATION: POWER OF ATTORNEY A person performing acts in the name of another person. Direct representation exists when a person (representative) performs an act of the law in another persons name and behalf so that the effects of such act directly and immediately affect the person represented.

The act executed by the representative shall fall with and be responsibility of the principal. It is necessary that a power of attorney is previously granted to the representative. Voluntary representation: the principal entrusts the representative for him to be able to carry out acts of the law in his name and on his behalf. 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 over children). Act of empowering: act by which the principal grants another person a power to act in his name and on his behalf. Its unilateral and the will of the person appointed is not necessary, only his knowledge, because it is only an authorisation and not an obligation. The mandate is the contract between the principal and the representative that rules the relations between them; whereas the representation is relevant in the relation of the representative and third parties. The representative has to act attending the interest of the principal, if the dominus gives instructions they must be followed by him. 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 (full legal capacity). Emancipated minors can be representatives. For the act of empowering there is freedom of form. It has to be granted in a public deed for certain acts (contract of marriage, litigation, administration of assets). This is because in all these acts the representative has to prove his condition as such to third parties. It has to be reasonable for the third party that the empowering existed. General powers: when the representative can perform all legal acts. Special powers: only certain determined acts. Express powers: to compromise, alienate or mortgage goods. Granted in general terms: only covers acts of administration. Abuse of power: when he performs actions in his own benefit, with a purpose different than the principal. The act of the representative is valid against third parties (unless they didnt act in good faith; knowing the abuse), but he is responsible to the principal. Representation without power: performs an act of the law but without empowering to do so. It can be because it has expired, it never existed or also because the representative is acting outside the scope of such power (falsus procurator). The action doesnt bind the principal, unless he ratifies a posteriori. The falsus procurator is liable against third parties. The act performed by him is irrelevant for the person in whose name it was executed unless he ratifies it. The ratification is a unilateral act in the law. When ratified, the act which was initially ineffective produces all effects as if it had been executed by a person empowered.

Ratification can be expressed or tacit. The ratification is retroactive, the act which is ratified becomes effective for the principal since its conclusion. Extinction of empowering - Can be revoked by the principal and it shall be effective from the moment the representative has knowledge of it. When the power has been granted to contract with certain persons, its revocation cannot prejudice them unless they were given due notice. - Renounced by the representative and it shall be effective from the moment the principal has knowledge of it. However, good faith requires that the representative cannot immediately abandon his task until the principal has been able to take the necessary measures to solve the problem. - In case of death, declaration of prodigality or insolvency of the principal or the representative. INDIRECT REPRESENTATION It exists when there is no contemplatio domini (there is knowledge that the representative acts as such) because the representative acts on behalf of the principal but in his own name. In this case, the principal is not related to the third parties who dont know of his existence. Therefore, towards third parties it is the representative the one assuming the responsibility for the acts executed. He is directly liable to the third person with whom he has contracted, as if the action was his own. As for the principal, when the representative acts in his own name, the former does not have any action against the third party with whom the representative contracted, nor shall that third party have any action against the principal.