Civil Code (approved by Royal Decree of July 24, 1889)
- PRELIMINARY TITLE _ On legal rules, their application and effectiveness
- BOOK I _ On persons
- TITLE ONE _ On Spaniards and foreigners
- TITLE II _ On the birth and extinguishing of civil personality
- TITLE III _ On domicile
- TITLE IV _ On marriage
- CHAPTER ONE On the promise of marriage
- CHAPTER 2º On the requirements of marriage
- CHAPTER 3º On the form of performing the marriage
- CHAPTER 4º On registration of the marriage in the Civil Registry
- CHAPTER 5º On the rights and duties of the spouses
- CHAPTER 6º On the nullity of the marriage
- CHAPTER 7º On separation
- CHAPTER 8º On the dissolution of the marriage
- CHAPTER 9º On effects common to annulment, separation and divorce
- CHAPTER 10º On interim measures as a result of the claim for annulment, separation or divorce
- CHAPTER 11º Law applicable to nullity, separation and divorce
- TITLE V _ On paternity and filiation
- TITLE VI _ On support between relatives
- TITLE VII _ On parent-child relations
- TITLE VIII _ On absence
- TITLE IX _ On incapacitation
- TITLE X _ On guardianship, conservatorship and custody of minors and incapacitated persons
- TITLE XI _ On legal age and emancipation
- TITLE XII _ On the Registry of Civil Status
- BOOK II _ On property, ownership and its modifications
- TITLE ONE _ On the classification of property
- TITLE II _ On ownership
- TITLE III _ On joint ownership
- TITLE IV _ On certain special properties
- TITLE V _ On possession
- TITLE VI _ On usufruct, on use and on habitation
- TITLE VII _ On easements
- TITLE VIII _ On the Property Registry
- BOOK III _ On the different ways of acquiring ownership
- TITLE ONE _ On occupancy
- TITLE II _ On gifts
- TITLE III On successions
- BOOK IV _ On obligations and contracts
- TITLE ONE _ On obligations
- TITLE II _ On contracts
- TITLE III _ On the marriage property regime
- TITLE IV _ On the contract of sale and purchase
- CHAPTER ONE On the nature and form of this contract
- CHAPTER 2º On the capacity to purchase or sell
- CHAPTER 3º On the effects of the contract of sale and purchase when the thing sold is lost
- CHAPTER 4º On the seller’s obligations
- CHAPTER 5º On the purchaser’s obligations
- CHAPTER 6º On termination of the sale
- CHAPTER 7º On the transfer of credits and other incorporeal rights
- CHAPTER 8º General provision
- TITLE V _ On barter
- TITLE VI _ On the lease contract
- TITLE VII _ On ground rents (censos)
- TITLE VIII _ On partnerships
- TITLE IX _ On the mandate
- TITLE X _ On the loan
- TITLE XI _ On deposit
- TITLE XII _On random or chance-based contracts
- TITLE XIII _ On settlements and compromises
- TITLE XIV _ On guaranty
- TITLE XV _ On the contracts of pledge, mortgage and antichresis
- TITLE XVI _ On obligations which are entered into without an agreement
- TITLE XVII _ On the concurrence and priority of credits
- TITLE XVIII _ On prescription
Spanish Civil Code
Colección:Traducciones del derecho español
Edita: © MINISTERIO DE JUSTICIA - SECRETARÍA GENERAL TÉCNICA
NIPO: 051-09-014-0 Traducción jurada realizada por: Dª Sofía de Ramón-Laca Clausen
Maquetación: DIN Impresores, S.L. Cabo Tortosa, 13-15. Pol. Ind Borondo - 28500 - Arganda del Rey (Madrid)
SPANISH CIVIL CODE
On legal rules, their application and effectiveness
Sources of law
- The sources of the Spanish legal system are statutes, customs and general legal principles.
- Any provisions which contradict another of higher rank shall be invalid.
- Customs shall only apply in the absence of applicable statutes, provided that they are not contrary to morals or public policy, and that it is proven. Legal uses which are not merely for the interpretation of a declaration of will shall be considered customs.
- General legal principles shall apply in the absence of applicable statute or custom, without prejudice to the fact that they contribute to shape the legal system.
- Legal rules contained in international treaties shall have no direct application in Spain until they have become part of the domestic legal system by full publication thereof in the Spanish Official State Gazette.
- Case law shall complement the legal system by means of the doctrine repeatedly upheld by the Supreme Court in its interpretation and application of statutes, customs and general legal principles.
- Judges and Courts shall have the inexcusable duty to resolve in any event on the issues brought before them, abiding by system of sources set forth herein.
- Statutes shall enter into force twenty days after their full publication in the Official State Gazette, unless otherwise provided therein.
- Statutes may only be repealed by subsequent statutes. Such repeal shall have the scope expressly provided therein, and shall always extend to any provisions of the new statute on the same matter which are incompatible with the prior statute. Mere abrogation of a statute shall not entail recovery of the force and effect of any provisions repealed thereby.
- Statutes shall not have retroactive effect, unless otherwise provided therein.
Application of legal rules
- Rules shall be construed according to the proper meaning of their wording and in connection with the context, with their historical and legislative background and with the social reality of the time in which they are to be applied, mainly attending to their spirit and purpose.
- Equity must be taken into account in applying rules, but the resolutions of the Courts may only be based exclusively on equity when the law expressly allows this.
1. Where the relevant rules fail to contemplate a specific case, but do regulate another similar one in which the same ratio is perceived, the latter rule shall be applied by analogy.
- Criminal statutes, exceptional statutes and statutes of temporary nature shall not be applied in cases or times other than as expressly provided therein.
- The provisions of this Code shall be of subsidiary application in matters governed by other statutes.
- Unless otherwise provided, for periods stated in number of days, counting from a particular date, the latter shall be excluded from the calculation, which shall begin on the following day; and periods set in number of months or years shall be calculated from date to date. Where on the month of the expiration date there should be no date equivalent to the initial date of the period, the period shall be deemed to expire on the last day of the month.
- Calculation of periods according to civil law shall not exclude non-business days.
General effectiveness of legal rules.
- Ignorance of the law does not excuse from compliance thereof. Error in law shall only have the effects provided in the law.
- The voluntary exclusion of applicable law and the waiver of any rights acknowledged therein shall only be valid when they do not contradict the public interest or public policy or cause a detriment to third parties.
- Acts contrary to mandatory and prohibitive rules shall be null and void by operation of law, save where such rules should provide for a different effect in the event of violation.
- Acts performed pursuant to the text of a legal rule, which pursue a result forbidden by the legal system or contrary thereto shall be considered to be in fraud of the law and shall not prevent the due application of the rule which they purported to avoid.
- Rights must be exercised in accordance with the requirements of good faith.
- The law does not support abuse of rights or antisocial exercise thereof. Any act or omission which, as a result of the author’s intention, its purpose or the circumstances in which it is performed manifestly exceeds the normal limits to exercise a right, with damage to a third party, shall give rise to the corresponding compensation and the adoption of judicial or administrative measures preventing persistence in such abuse.
Rules of private international law
- Criminal, police and public security statutes shall be binding on all persons within Spanish territory.
1. The personal law applicable to an individual shall be determined by his nationality. Such law shall govern capacity and civil status, family rights and duties and mortis causa succession. A change in personal law shall not affect the coming of age acquired in accordance with the former personal law.
- The effects of marriage shall be governed by the personal law common to the spouses at the time of the marriage; in the absence thereof, by the personal law or the law of the place of residence of any of them, chosen by both in an authentic instrument executed prior to the marriage ceremony; in the absence of such election, by the law of the place of habitual residence common to both immediately after the ceremony and, in the absence of such residence, by that of the place of the marriage ceremony. Legal separation and divorce shall be governed by the law provided in article 107.
- Covenants or marriage articles stipulating, amending or replacing the property regime of the marriage shall be valid when they are in accordance with either the law governing the effects of the marriage, or the law of the nationality or habitual residence of either party at the time of execution thereof.
- The nature and content of filiation, including filiation by adoption, and the relations between parents and their children, shall be governed by the personal law of the child and, if this cannot be determined, the law of his habitual residence.
- International adoption shall be governed by the provisions of the International Adoption Law. Likewise, adoptions decreed by foreign authorities shall be effective in Spain in accordance with the provisions of the aforementioned International Adoption Law.
- Guardianship and other institutions to protect incapable persons shall be regulated by the latter’s national law. Notwithstanding the foregoing, provisional or urgent protection measures shall be governed by the law of his habitual residence. The formalities to constitute guardianship and other protection institutions in which Spanish judicial or administrative authorities should participate shall in any event be performed in accordance with Spanish law. Spanish law shall apply to the taking of protective and educational measures relating to abandoned minors or incapable persons within Spanish territory.
- The right to support between relatives shall be governed by the common national law of the giver and the recipient of such support. Notwithstanding the foregoing, the law of the habitual residence of the person claiming such support shall apply where the latter cannot obtain it in accordance with the common national law. In the absence of both such laws, or where neither allows to obtain support, the domestic law of the authority hearing the claim shall apply. In the event of a change in the common nationality or habitual residence of the recipient of support, the new law shall apply from the time of such change.
- Succession mortis causa shall be governed by the national law of the decedent at the time of his death, whatever the nature of the property and the country in which it is located. However, testamentary provisions and covenants relating to future succession executed in accordance with the national law of the testator or bequeather at the time of execution thereof shall remain valid even if another law is to govern the succession. Rights attributed by operation of law to the surviving spouse shall be governed by the same law which governs the effects of marriage, respecting at all times the forced share allocated to the descendants.
- For the purposes of the present chapter, the provisions of the international treaties shall apply to situations of dual nationality provided under Spanish law, and, in the absence of such provisions, the nationality of the last place of habitual residence and, in the absence thereof, the last nationality acquired shall be preferred. In any event, Spanish nationality shall prevail for persons who also hold another nationality that is not provided for in Spanish statutes or international treaties. If such person should hold two or more nationalities, and none should be Spanish, the provisions of the following section shall apply.
- The law of the place of habitual residence shall be deemed to be the personal law of persons without nationality or with indeterminate nationality.
- The personal law corresponding to legal entities shall be determined by their nationality, and shall apply in all matters relating to their capacity, incorporation, representation, operation, transformation, dissolution and termination. In mergers between companies of different nationalities their respective personal laws shall be taken into account.
- Possession, ownership and other rights over immovable property and publicity thereof shall be governed by the law of the place where such property located. The same law shall apply to movable property. For the purposes of creating or assigning rights over goods in transit, the latter shall be deemed to be located at their place of dispatch, unless the sender and the recipient should have expressly or implicitly agreed to deem them to be located at their place of destination.
- Vessels, aircraft and railway transport vehicles, and all rights created thereon, shall be subject to the law of their flag, matriculation or registration. Automobiles and other road transport vehicles shall be subject to the law of the place where they are located.
- The issuance of securities shall be subject to the law of the place where it takes place.
- Intellectual and industrial property rights shall be protected within Spanish territory in accordance with Spanish law, without prejudice to the provisions of international treaties and conventions to which Spain is a party.
- The law to which the parties have expressly submitted shall apply to contractual obligations, provided that it has some connection with the transaction in question; in the absence thereof, the national law common to the parties shall apply; in the absence thereof, that of their common habitual residence and, lastly, the law of the place where the contract has been entered into. Notwithstanding the provisions of the preceding paragraph, in the absence of express submission, contracts relating to immovable property shall be governed by the law of the place of their location, and sale and purchases of material movable property in commercial establishments by the law of the location of such establishments.
- In the absence of express submission by the parties and without prejudice to the provisions of section 1 article 8, obligations resulting from a labour contract shall be governed by the law of the place where the services are provided.
- Gifts shall in any event be governed by the national law of the donor.
- Contracts for valuable consideration entered into in Spain by a foreigner without sufficient capacity according to his national law shall be valid for the purposes of Spanish law if the cause of his lack of capacity should not be recognised under Spanish law. This rule shall not apply to contracts relating to immovable property located abroad.
- Non-contractual obligations shall be governed by the law of the place where the event from which they result took place. The management of another’s business shall be governed by the law of the place of the manager’s main activity. Unjust enrichment shall be governed by the law pursuant to which the transfer of assets in favour of the enriched person took place.
- The law applicable to an obligation shall also govern the requirements for its performance and the consequences of its breach, and the extinction thereof. Notwithstanding the foregoing, the law of the place of performance shall apply to modes of enforcement which require judicial or administrative intervention.
- Legal representation shall be governed by the law regulating the legal relationship from which result the representative’s powers, voluntary representation, in the absence of express submission, by the law of the country where the powers conferred are to be exercised.
1. Forms and solemnities of contracts, wills and other legal acts shall be governed by the law of the country in which they are executed. Notwithstanding the foregoing, those entered into according to the forms and solemnities required by the law applicable to their content, and those entered into in accordance with the personal law of the grantor or the law common to the parties shall also be valid. Likewise, acts and contracts relating to immovable property executed in accordance with the forms and solemnities of the place where the property is located shall also be valid.
If such acts should be executed on board vessels or aircraft during navigation or flight, they shall be deemed entered into in the country of their flag, matriculation or registration. Military vessels and aircraft shall be deemed a part of the territory of the State to which they belong.
- If the law regulating the content of acts and contracts should require a particular form or solemnity for the validity thereof, this shall always apply, even if they are executed abroad.
- Spanish law shall apply to contracts, wills and other legal acts authorised by Spanish diplomatic or consular officers abroad.
- Classification to determine the applicable conflict of laws rule shall always be made in accordance with Spanish law.
- Referral to foreign law shall be deemed made to its material law, without taking into account any renvoi made by its conflict of laws rules to another law other than Spanish law
- In no event shall foreign law apply where it is contrary to public policy.
- The use of a conflict of laws rule to elude a mandatory Spanish law shall be deemed to constitute fraud of the law.
- Where a conflict of laws rule should refer to the legislation of a State in which different legislative systems should coexist, the determination of which one is applicable shall be made in accordance with the legislation of such State.
- The Courts and authorities shall apply Spanish conflict of laws rules ex officio.
Scope of application of coexisting civil law regulations within national territory
- The provisions of this preliminary title, to the extent that they determine the effects of laws and the general rules governing their application, and those of title IV book I, with the exception of the rules in the latter relating to marriage property regime, shall be of general and direct application in all of Spain.
- For the rest, fully respecting any specific or regional law of any provinces or territories in which such law should apply, the provisions of the Civil Code shall apply on a subsidiary basis, in the absence of a subsidiary law in each of them, according to their specific rules.
- Submission to common civil law or to specific or regional law is determined by civil residence.
- Persons born from parents with civil residence within common law territory or in specific or regional law territories shall have the same civil residence as their parents. The non-emancipated adoptee shall acquire the adoptive parents’ civil residence pursuant to the adoption.
- If the parents should have different civil residence upon the birth or adoption of their child, the child shall have the civil residence corresponding to the parent in respect of whom the child’s filiation should have been determined first; in the absence thereof, that of his place of birth and, lastly, the civil residence of common law. Notwithstanding the foregoing, the parents, or the parent who exercises or has been attributed parental authority, may attribute to the child the civil residence of either within six months following the birth or adoption. Deprivation or suspension in the exercise of parental authority, or a change of civil residence of the parents shall not affect the civil residence of their children. In any event, the child, from his fourteenth birthday and until one year after his emancipation, may either opt for the civil residence of his place of birth or the last civil residence of either parent. If he should not have been emancipated, he must be assisted in his choice by his legal representative.
- Marriage does not alter civil residence. Notwithstanding the foregoing, either of the spouses who is not legally or de facto separated may at any time opt for the civil residence of the other.
- Civil residence is acquired:
- By two years’ continued residence, provided that the interested party declares that such is his intention.
- By ten years’ continued residence, without declaration to the contrary during such period. Both declarations shall be noted in the Civil Registry and shall not require to be repeated.
- In case of doubt, the civil residence corresponding to the place of birth shall prevail.
- The foreigner who acquires Spanish nationality must, upon registration of the acquisition of such nationality,
- opt for any of the following civil residences: a) The one corresponding to the place of residence. b) The one corresponding to the place of birth. c) The last civil residence of any of his parents or adoptive parents. d) The spouse’s. Depending on the capacity of the interested party to acquire said nationality, such election shall be made by the relevant person himself or assisted by his legal representative, or by the representative. If nationality should be acquired as a result of a declaration or request by the legal representative, the necessary authorisation must determine which civil residence is to be chosen.
- The foreigner who acquires Spanish nationality by naturalisation shall have the civil residence determined in the Royal Decree granting such naturalisation, taking into account his choice, in accordance with the provisions of the preceding section or other circumstances present in the applicant.
- Recovery of Spanish nationality shall entail recovery of the civil residence held by the interested party at the time of its loss.
- Personal dependence in respect of a region or locality with a proprietary or different civil specialty, within specific or regional legislation applicable to the relevant territory shall be governed by the provisions of the present and of the preceding article.
1. Conflicts of laws which may arise as a result of the coexistence of different civil legislations within national territories shall be resolved according to the rules provided in chapter IV, with the following particularities:
- Personal law shall be as determined by civil residence.
- The provisions of sections 1, 2 and 3 article 12 on classification, referral and public policy shall not apply.
- The widowhood rights provided in the Compilation of Aragon shall correspond to spouses subject to the marriage property regime provided in such Compilation, even if they should later change their civil residence, excluding, in this case, the forced share set forth in the applicable succession law. Expectant widowhood rights shall not be effective against an acquirer for valuable consideration in good faith of any properties not located within the territory where such right is recognised, if the contract should have been entered into outside such territory without noting the transferor’s marriage property regime. The widow’s usufruct shall also correspond to the surviving spouse where the predeceased spouse should have civil residence in Aragon at the time of his death.
- The effects of marriage between Spaniards shall be governed by the applicable Spanish law according to the criteria provided in article 9 and, in the absence thereof, by the Civil Code. In this last case the separation of estates regime provided in the Civil Code shall apply if such kind of regime must apply according to the personal law of both of the spouses.
On Spaniards and foreigners
- The following persons are Spaniards by birth: a) Those born of a Spanish mother or father. b) Those born in Spain of foreign parents if at least one of them should also have been born in Spain. The
- children of a diplomatic or consular officer credentialed in Spain shall be excepted from this rule. c) Those born in Spain of foreign parents if both of them should be without nationality or if the legislation of neither should grant a nationality to the child. d) Those born in Spain of uncertain filiation. For these purposes, minors whose first known place of existence is in Spanish territory shall be presumed born within Spanish territory.
- Filiation or birth in Spain determined after the person is eighteen shall not by themselves constitute grounds to acquire Spanish nationality. The interested party shall then be entitled to opt for Spanish nationality by birth within two years counting from such determination.
Article 18. The possession and continued use of Spanish nationality for ten years, in good faith and based on a title registered in the Civil Registry shall constitute grounds for the consolidation of Spanish nationality, even if the title which originated should be annulled.
- A foreigner younger than eighteen adopted by a Spaniard shall acquire Spanish nationality by birth as of the adoption.
- If the adoptee should be older than eighteen, he may opt for Spanish nationality by birth within two years following the adoption.
1. Persons who are or have been subject to the parental authority of a Spaniard, and those comprised within the last section of articles 17 and 19 shall be entitled to opt for the Spanish nationality.
2. The declaration of option shall be formulated: a) By the legal representative of the person who makes the option where the latter should be younger than fourteen or incapacitated. In this case the option shall require the authorisation of the officer in charge of the Civil Registry of the domicile of the person who makes the declaration, after issuance of an opinion by the Public Prosecutor. Such authorisation shall be granted in the interests of the minor or incapacitated person. b) By the interested party, assisted by his legal representative, if he is older than fourteen or when, in spite of his incapacity, he should be allowed to do so by the incapacitation judgement. c) By the interested party, by himself, if he is emancipated or older than eighteen. The right to exercise the option will expire when he turns twenty, but if he should not be emancipated according to his personal law upon turning eighteen, the period to exercise the option shall be extended until two years after his emancipation.
d) By the interested party, by himself, within two years following recovery of full legal capacity. The case where the right to exercise the option should have expired in accordance with section c) shall be excepted therefrom.
- Spanish nationality shall be acquired by naturalisation, granted discretionally pursuant to Royal Decree, when special circumstances concur in the interested party.
- Spanish nationality shall also be acquired by residence in Spain, in the conditions provided in the following article, and shall be granted by the Minister of Justice, who may refuse it on reasoned grounds of public policy or national interest.
- In both cases, the application may be formulated by: a) The interested party who is emancipated or older than eighteen. b) The person older than fourteen assisted by his legal representative. c) The legal representative of a person younger than fourteen. d) The legal representative of the incapacitated person, or the incapacitated person by himself or duly
- assisted, as results from the incapacitation judgement. In this case and in the former, the legal representative may only formulate the application if he previously obtains an authorisation in accordance with the provisions of letter a) section 2 of the preceding article.
- The granting of nationality pursuant to naturalisation or residence shall expire after one hundred and eighty days if the interested party does not within such period appear before a competent officer to comply with the requirements provided in article 23.
- Granting of nationality pursuant to residence shall require ten years’ residence. Five years shall be sufficient for persons who have obtained asylum or refugees, and two years for citizens by birth of Latin-American countries, Andorra, the Philippines, Equatorial Guinea or Portugal, or for Sephardic Jews.
- One year’s residence shall be sufficient for: a) A person born within Spanish territory. b) A person who has not exercised his option right in due time. c) A person who has been legally subject to guardianship, custody or care by a Spanish citizen or institution
- for two consecutive years, even if such situation should persist at the time of the application. d) The person who, at the time of the application, has been married to a Spaniard for one year and is not legally or de facto separated. e) The widow or widower of a Spaniard if, upon the death of the spouse they should not be legally or de facto separated. f) The person born outside of Spain from a father or mother who were originally Spanish.
- In all cases residence must be legal, ongoing and immediately prior to the application. For the purposes of the provisions of letter d) of the preceding section, the spouse cohabiting with a Spanish diplomatic or consular officer credentialed abroad shall be deemed to have legal residence in Spain.
- The interested party must evidence good civic conduct and a sufficient degree of integration in Spanish society in the proceedings regulated by the Civil Registry legislation.
- The granting or refusal of nationality pursuant to residence shall be open to contentious administrative appeal.
Article 23. The following are common requirements for the validity of the acquisition of Spanish nationality by option, naturalisation or residence: a) For the person older than fourteen and capable of issuing a statement by himself to swear or promise fidelity to the King and obedience to the Constitution and the law. b) For the same person to declare that he renounces his prior nationality. Nationals of the countries mentioned in section 2 article 24 shall be excepted from this requirement. c) For the acquisition to be registered with the Spanish Civil Registry.
- Emancipated persons habitually resident abroad who voluntarily acquire another nationality or who exclusively use their foreign nationality attributed prior to their emancipation shall lose their Spanish nationality.
- Such loss shall take place after the lapse of tree years, counting, respectively, from the acquisition of the foreign nationality or from the emancipation. Acquisition of the nationality of Latin American countries, Andorra, the Philippines, Equatorial Guinea or Portugal shall not be sufficient to cause the loss of Spanish nationality by birth.
- In any event, emancipated Spaniards who expressly renounce their Spanish nationality shall lose it if they have another nationality and have their residence abroad.
- Loss of Spanish nationality shall not take place pursuant to the provisions of this rule if Spain should be at war.
- Spaniards who are not Spanish by birth shall lose their nationality: a) When for a period of three years they should exclusively use the nationality which they should have declared to have renounced upon acquiring Spanish nationality.
- b) When they should voluntarily enter the armed forces or exercise public office in a foreign State against the Government’s express prohibition.
- A final judgement holding that the relevant party has incurred in misrepresentation, concealment or fraud in the acquisition of Spanish nationality shall cause such acquisition’s being null and void, although no prejudicial effects shall result for third parties in good faith. The action for annulment must be exercised by the Public Prosecutor ex officio or pursuant to a complaint, within a period of fifteen years.
1. A person who has lost his Spanish nationality may recover it by meeting the following requirements:
a) Being a legal resident in Spain. This requirement shall not apply to emigrants or to the children of emigrants. In the remaining cases, it may be waived by the Minister of Justice in the event of exceptional circumstances.
b) Declaring before the officer in charge of the Civil Registry his intention to recover Spanish nationality, and c) Registering the recovery in the Civil Registry.
2. Persons incurring in any of the grounds provided in the preceding article may not recover or acquire, as the case may be, Spanish nationality, without the Government’s prior authorisation, to be granted discretionally:
Article 27. Foreigners shall enjoy in Spain the same civil rights as Spaniards, save as provided in specific statutes and Treaties.
Article 28. Corporations, foundations and associations recognised by the law and domiciled in Spain shall have Spanish nationality, provided that they are legal entities in accordance with the provisions of the present Code. Associations domiciled abroad shall have in Spain the consideration and rights determined in the treaties or specific statutes.
On the birth and extinguishing of civil personality
On natural persons
Article 29. Birth determines personality; but the child conceived shall be deemed already born for all purposes favourable to him, provided that he should be born meeting the conditions expressed in the following article.
Article 30. For civil purposes, only the foetus with human appearance that lives for twenty four hours fully separated from the mother’s womb shall be deemed to have been born.
Article 31. In the event of double births, priority in birth shall entitle the first child born to the rights recognised in the law to the firstborn.
Article 32. Civil personality shall be extinguished as a result of death.
Article 33. Between two persons called to succeed each other, in the event of doubt as to which of them died first, the person holding that one or the other died first must prove it; in the absence of evidence, they shall be presumed to have died at the same time, and no transfer of rights from one to the other shall take place.
Article 34. The provisions of title VIII of the present book shall apply to the presumption of the death of the absentee and its effects.
On legal entities
Article 35. The following shall be legal entities:
- Corporations, associations and foundations of public interest recognised by the law. Their personality shall begin from the very moment in which they should have been validly incorporated in accordance with the law.
- Associations of private interest, whether civil, commercial or industrial, to which the law grants legal personality independent of that of each member.
Article 36. Associations mentioned in number 2 of the preceding article shall be governed by the provisions relating to the partnership contract, depending on the nature thereof.
Article 37. The civil capacity of corporations shall be governed by the laws which have created or recognised them; that of associations, by their articles, and that of foundations by their regulations, duly approved by an administrative resolution, where this requirement should be necessary.
Article 38. Legal entities may acquire and possess property of all kinds, and contract obligations and exercise civil and criminal actions, in accordance with the laws and internal regulations. The Church shall be governed in this matter by the provisions of the concordat between both powers, and educational and charitable establishments by the provisions of specific statutes.
Article 39. If, as a result of expiration of their legal term, or as a result of the fulfilment of the purpose for which they were created, or of the impossibility of applying to the former the activity and the means available to them, corporations, associations and foundations should cease to operate, their property shall be allocated as provided in the laws, articles of association or foundational articles. In the absence of any prior provision, such property shall be allocated to the performance of analogous purposes in the interests of the region, province or Municipality principally entitled to receive the benefits of the extinguished institutions.
Article 40. The domicile of natural persons for the purposes of the exercise of civil rights and the performance of civil obligations shall be their place of habitual residence and, as the case may be, their domicile as determined by the Civil Procedural Law. The domicile of diplomats resident abroad as a result of their post, who enjoy the right of extraterritoriality shall be their last domicile in Spanish territory.
Article 41. Where neither the law which created or recognised them or the articles of association or foundational articles should establish the domicile of legal entities, it shall be deemed to be in the place where their legal representation is located, or where they exercise their main institutional functions.
On the promise of marriage
Article 42. The promise of marriage does not give rise to the obligation to marry or to comply with the provisions thereof in the event of failure to perform the marriage. Any claim purporting compliance thereof shall not be granted leave to proceed.
Breach of a certain promise of marriage made by a person of legal age or by an emancipated minor, without cause, shall only give rise to the obligation to compensate the other party for expenses made and obligations contracted in consideration of the promised marriage. This action shall lapse by peremption after one year counting from the date of the refusal to enter into the marriage.
On the requirements of marriage
Men and women are entitled to marry in accordance with the provisions of this Code. Marriage shall have the same requirements and effects when both prospective spouses are of the same or different genders.
Article 45. There shall be no marriage without matrimonial consent. Any condition, term or mode limiting consent shall be deemed not to have been written.
Article 46. The following persons may not marry:
- Non-emancipated minors.
- Persons who are already joined in marriage.
Article 47. The following persons may also not marry each other:
- Direct line relatives by consanguinity or adoption.
- Collateral relatives by consanguinity up to the third degree.
- Persons sentenced as authors of or accomplices in the murder of the spouse of either of them.
Article 48. The Minister of Justice may waive the impediment of murder of the former spouse at the request of one of the parties. The First Instance Judge may waive, with just cause and at the request of one of the parties, impediments relating to third degree collateral consanguinity and the age impediment for persons older than fourteen. The minor and his parents or carers must be heard in proceedings to waive the age impediment. A subsequent waiver shall validate the marriage from the date of its performance, where neither party has applied to the court to have it declared null and void.
On the form of performing the marriage
Article 49. Any Spaniard may marry inside or outside of Spain:
- Before the Judge, Mayor or public officer provided in this Code.
- According to the religious form provided in the law. He may also marry outside of Spain according to the form provided in the law of the place of the marriage ceremony.
Article 50. If both prospective spouses should be foreigners, the marriage may be performed in Spain in according to the form provided for Spaniards, or in compliance with the form set forth in the personal law applicable to either of them.
On marriage performed before a Judge, Mayor or public officer in their stead
Article 51. The following persons shall be competent to authorise the marriage:
- The Judge in charge of the Civil Registry and the Mayor of the municipality where the marriage is performed, or the councillor in favour of whom the latter should have delegated.
- In municipalities where such a Judge should not be in residence, the delegate designated pursuant to applicable regulations.
- The diplomatic or consular officer in charge of the Civil Registry abroad.
Article 52. The following persons may authorise the marriage of persons in danger of death:
- The Judge in charge of the Civil Registry, the delegate or the Mayor, even if the prospective spouses do not reside in the relevant court district.
- In the absence of a Judge, for members of the military in military campaigns, the immediate superior Officer or Chief.
- For marriages performed on board a vessel or aircraft, the Captain or Commander thereof. Such marriage shall not require the prior creation of a record of the proceedings, but shall require the presence of two witnesses of legal age at the ceremony, save in the event of proven impossibility.
Article 53. The validity of the marriage shall not be affected by the incompetence or lack of legitimate appointment of the Judge, Mayor or officer who authorises it, provided that at least one of the spouses should have acted in good faith and the former should exercise their duties publicly.
Article 54. In the event of sufficiently proven serious grounds, the Minister of Justice may authorise a secret marriage. In such case, the record of proceedings shall be processed confidentially, without the publication of edicts or banns.
Article 55. The record of the marriage may authorise that the prospective spouse who does not reside in the district or district of the authorising Judge, Mayor or officer may enter into the marriage by means of an attorney who has been granted a special power of attorney in an authentic instrument, but the personal attendance of the other spouse shall always be required. The power of attorney shall determine the person with whom the marriage is to be performed, expressing the personal circumstances necessary to establish his identity. The power of attorney shall be terminated as a result of revocation by the grantor, resignation of the attorney or the death of either of them. In the event of revocation by the grantor, his statement in an authentic instrument prior to the performance of the marriage shall be sufficient for these purposes. Notice of such revocation shall be immediately given to the authorising Judge, Mayor or officer.
Article 56. Persons wishing to marry must previously evidence, in a record of proceedings processed in accordance with the Civil Registry legislation, that they meet the capacity requirements set forth in this Code. If either of the prospective spouses should be affected by mental deficiencies or anomalies, a medical opinion on his ability to give consent shall be required.
Article 57. The marriage must be performed before the Judge, Mayor or officer corresponding to the domicile of either prospective spouse, and two witnesses of legal age. Consent may also be given, by delegation of the officer in charge of the record of the proceedings, either at the request of the prospective spouses or ex officio, before the Judge, Mayor or officer of another location.
Article 58. The Judge, Mayor or officer, after reading articles 66, 67 and 68 hereof, shall ask each of the prospective spouses whether they consent to marry and effectively marry in such act, and, both of them answering in the affirmative, shall declare them joined in matrimony and shall extend the relevant entry or certificate.
On marriage performed in religious form
Article 59. Matrimonial consent may be given in the form provided by a registered religious confession, in the terms agreed with the State or, in the absence thereof, in the terms provided by State legislation.
Article 60. A marriage performed in accordance with the provisions of Canon Law or in any of the religious forms provided in the preceding article shall have civil effect. The provisions of the following chapter shall apply as relates to the full recognition of such effects.
On registration of the marriage in the Civil Registry
Article 61. Marriage shall have civil effects from the time of its performance. The full recognition thereof shall require registration of the marriage in the Civil Registry. A marriage which has not been registered shall not be prejudicial to the rights acquired in good faith by third parties.
Article 62. The Judge, Mayor or officer before whom the marriage is performed shall, immediately after its performance, make the corresponding entry or certificate, with his signature and that of the spouses and witnesses. Likewise, after having made the entry or issued the certificate, the Judge, Mayor or officer shall deliver to each spouse a document evidencing the performance of the marriage.
Article 63. Registration of the marriage performed in Spain in religious form shall take place by the mere filing of the certification issued by the respective Church or confession, which must express the circumstances required by the Civil Registry legislation. Registration shall be refused where the documents submitted or the entries in the Registry should show that the marriage does not meet the requirements for its validity provided in this title.
Article 64. Registration in the special book carried by the Central Civil Registry shall suffice to recognise a secret marriage, but such marriage shall not be prejudicial to rights acquired by third parties in good faith until publication thereof in the ordinary Civil Registry.
Article 65. Save for the provisions of article 63, in all other cases where the marriage should have been performed without processing the relevant record of the proceedings, the Judge or officer in charge of the Registry must ascertain whether the legal requirements for its performance are met prior to registration thereof.
On the rights and duties of the spouses
Article 66. The spouses are equal in rights and duties.
Article 67. The spouses must respect and assist each other and act in the family interest.
Article 68. The spouses are obliged to live together, to be faithful to one another and to come to one another’s’ aid. They must, furthermore, share domestic responsibilities and the care and attendance of parents and descendants and other dependents in their charge.
Article 69. It shall be presumed, unless there is evidence to the contrary, that the spouses live together.
Article 70. The spouses shall set the marital domicile by common consent and any discrepancy shall be resolved by the Judge, taking into account the family interest.
Article 71. Neither spouse may attribute to himself the representation of the other unless it is conferred.
Article 72. (No content)
On the nullity of the marriage
Article 73. The marriage shall be null and void, whatever the form of its performance:
- Marriage performed without matrimonial consent.
- Marriage performed between the persons mentioned in articles 46 and 47, save in the event of waiver in accordance with article 48.
- Marriage performed without the intervention of the Judge, Mayor or officer before whom it is to be performed, or without the presence of witnesses.
- Marriage performed as a result of error as to the identity of the other spouse, or such personal qualities which, as a result of their importance, should have been decisive in the giving of consent.
- Marriage performed under duress or serious fear.
Article 74. The action for annulment of the marriage shall correspond to the spouses, to the Public Prosecutor or to any person with a direct and legitimate interest therein, save as provided in the following articles.
Article 75. If the grounds for nullity should be age, while the spouse remains underage the action may only be exercised by his parents, guardians or carers and, in any case, by the Public Prosecutor. On coming of age, the action may only be exercised by the spouse who was underage at the time, unless the spouses should have lived together during one year after he came of age.
Article 76. In cases of error, duress or serious fear, the action for annulment may only be exercised by the spouse who suffered the defect of consent. The action shall lapse by peremption and the marriage shall be validated if the spouses should have lived together for a year after the error should have disappeared, or the duress or the grounds for fear should have ceased.
Article 77. (No content)
Article 78. The judge shall not decree the annulment of a marriage as a result of a defect of form, where at least one of the spouses entered into it in good faith, save for the provisions of article 73 number 3.
Article 79. The declaration of the marriage being null and void shall not invalidate any effects already occurred in respect of the children and the spouse or spouses who acted in good faith. Good faith is presumed.
Resolutions issued by Ecclesiastical Courts relating to the annulment of a canonical marriage, or the Pope’s decisions relating to ratified and non-consummated marriages shall be effective under Civil law, at the request of either party, if they are declared to adjust to the Law of the State in a resolution issued by the competent civil Judge in accordance with the conditions mentioned in article 954 of the Civil Procedural Law.
Article 81. Whatever the form of performance of the marriage, judicial separation shall be decreed:
- At the request of both spouses or of one with the consent of the other, after the lapse of three months from the performance of the marriage. The claimant must necessarily attach the proposal of settlement agreement, in accordance with article 90 of this Code.
- At the request of one of the spouses, after the lapse of three months from the performance of the marriage. The lapse of this period shall not be required to file the claim when there is evidence of the existence of risk to the life, physical integrity, freedom, moral integrity or sexual liberty and integrity of the spouse filing the claim or the children in common or any member of the marriage. The claim shall attach a reasoned proposal of the measures which are to regulate the effects of the separation.
Article 82. (No content)
Article 83. The separation judgement gives rise to suspension of the life in common of the married spouses, and ends the possibility of binding the property of the other spouse in the exercise of domestic authority.
Article 84. Reconciliation shall end separation proceedings, and shall render without subsequent force and effect the matters resolved therein, but both spouses must separately make the Judge who hears or has heard the case aware of such reconciliation. Notwithstanding the foregoing, any measures adopted in connection with the children shall be maintained or amended by court resolution, in the event of a just cause which justifies them.
On the dissolution of the marriage
Article 85. The marriage shall be dissolved, whatever the form and time of its performance, by the death or the declaration of death of one of the spouses, and by divorce.
Article 86. Divorce shall be decreed by the court, whatever the form of performance of the marriage, at the request of one of the spouses, of both or of one with the consent of the other, when the requirements and circumstances of article 81 are met.
Article 87. (No content)
Article 88. The divorce action shall be extinguished as a result of the death of either spouse and by reconciliation, which must be express if it takes place after filing the claim. Reconciliation subsequent to the divorce shall have no legal effect, although the divorcees may marry again.
Article 89. Dissolution of the marriage by divorce may only take place by means of judgement declaring the divorce and shall be effective from the judgement’s becoming final. It shall not be prejudicial to third parties in good faith until after registration thereof with the Civil Registry.
On effects common to annulment, separation and divorce
Article 90. The settlement agreement mentioned in articles 81 and 86 of this Code must contain, at least the following items:
a) Care of the children subject to the parental authority of both spouses, the exercise thereof and, as the case may be, the schedule of communications and stays of the children with the parent who does not usually live with them.
b) If deemed necessary, the schedule of visits and communications between grandchildren and
grandparents, always taking into account the interests of the former. c) Attribution of the use of the family home and appurtenances. d) Contribution to the expenses of the marriage and support, and the basis on which it is to be updated,
and security thereof, the case may be. e) Liquidation, where applicable, of the marriage property regime. f) Allowance to be paid, as the case may be, in accordance with article 97, by one of the spouses.
Agreements between the spouses adopted to regulate the consequences of the annulment, separation or divorce shall be approved by the judge, unless they are detrimental to the children or seriously prejudicial to one of the spouses. If the parties propose a visit and communications schedule between grandchildren and grandparents, the judge may approve it after hearing the grandparents, at which hearing the grandparents must give their consent thereto. Rejection of the agreements must be made by a reasoned resolution, and, in this case, the spouses must submit a new proposal for the judge’s consideration, for his approval, where applicable. The agreements may be enforced by summary proceedings as of their judicial approval. The measures adopted by the Judge in the absence of an agreement, or those agreed between the spouses, may be amended by the Judge or by a new settlement agreement, in the event of a substantial alteration of the circumstances. The Judge may set any real or personal security required for the performance of the agreement.
Article 91. In annulment, separation or divorce judgements or the enforcement thereof, the Judge, in the absence of an agreement between the spouses or non-approval thereof, shall determine, in accordance with the provisions of the following articles, any measures which are to replace those already adopted previously in connection with the children, the family home, marital expenses e, liquidation of the marriage property regime and any respective precautions or security, establishing applicable measures if none should have been adopted in respect thereof. These measures may be amended in the event of substantial alteration of the circumstances.
- Separation, annulment and divorce shall not exonerate parents from their obligations to their children.
- When the Judge is to adopt any measure relating to custody, care and education of underage children, he shall ensure compliance with their right to be heard.
- The judgement shall order the deprivation of parental authority when grounds for this should be revealed in the proceedings.
- The parents may agree in the settlement agreement, or the Judge may decide, for the benefit of the children, that parental authority be exercised in whole or in part by one of the spouses.
- Shared care and custody of the children shall be decreed where the parents should request it in the settlement agreement proposal or where both of them should agree on this during the proceedings. The Judge, in decreeing joint custody and after duly motivating his resolution, shall adopt the necessary precautions for the effective compliance of the agreed custody regime, trying not to separate siblings.
- In any event, after decreeing the care and custody regime, the Judge must ask the opinion of the Public Prosecutor and hear minors who have sufficient judgement, where this is deemed necessary ex officio or at the request of the Public Prosecutor, the parties or members of the Court Technical Team, or the minor himself, and evaluate the parties’ allegations at the hearing and the evidence practised therein, and the relationship between the parents themselves and with their children to determine the suitability of the custody regime.
- No joint custody shall be granted when either parent should be subject to criminal proceedings as a result of an attempt against the life, physical integrity, freedom, moral integrity or sexual liberty and integrity of the other spouse or the children who live with both of them. Neither shall it apply where the Judge should observe, from the parties’ allegations and the evidenced practiced, that there is well-founded circumstantial evidence of domestic violence.
- Exceptionally, even in the absence of the circumstances provided in section five of this article, the Judge, at the request of one of the parties, with the favourable report of the Public Prosecutor, may decree the shared care and custody based on the argument that only thus is the minor’s higher interest suitably protected.
- The Judge, before adopting any of the decisions mentioned in the preceding paragraphs, ex officio or ex parte, may ask for the opinion of duly qualified specialists relating to the suitability of the form of exercise of parental authority and the minors’ custody regime.
Article 93. The Judge shall in any event determine each parent’s contribution to pay child support and shall adopt convenient measures to ensure the effectiveness and suitability of the payments to economic circumstances and to the needs of the children from time to time. If children who are of legal age or emancipated but have no own resources should live in the family home, the Judge, in the same resolution, shall set any support which may be due n accordance with articles 142 et seq. of this Code.
Article 94. The parent who does not live with his underage or incapacitated children shall be entitled to visit them, communicate with them and have them in his company. The Judge shall determine the time, manner and place to exercise visitation rights, which may be limited or suspended in the event that serious circumstances should advise it or of serious and repeated breach of the duties imposed by the judicial resolution. Likewise, the Judge may determine, after hearing the parents and grandparents, who must give their consent, rights of communication and visitation between grandparents and grandchildren, in accordance with article 160 of this Code, always keeping in mind the interests of the minor.
Article 95. The final judgement shall give rise to the dissolution of the marriage property regime, as relates to the marriage property. If the judgement of annulment should declare the bad faith of one spouse only, the spouse who has acted in good faith may choose to apply the provisions relating to the participation regime to the liquidation of the marriage property regime, and the spouse acting in bad faith shall not be entitled to participate in the gains obtained by his consort.
Article 96. In the absence of an agreement between the spouses approved by the Judge, use of the family home and the objects of ordinary use therein shall correspond to the children and to the spouse in whose company they remain. Where some children remain in the company of one spouse and the rest with the other, the Judge shall resolve as deemed fit. In the absence of children, it may be resolved that the use of such property for the prudential time thus provided, shall correspond to the non-owner spouse, provided that, under the circumstances, this should be advisable, and that such spouse’s interest should in greater need of protection.
The consent of both parties or, as the case may be, judicial authorisation shall be required to dispose of the home and property mentioned above when their use should correspond to the non-owner spouse.
Article 97. The spouse for whom the separation or divorce should give rise to an economic imbalance in relation with the other’s position, involving a deterioration of his situation prior to the marriage, shall be entitled to compensation, which may consist of a temporary or indefinite allowance or a lump sum settlement, as determined in the settlement agreement or in the judgement In the absence of an agreement between the spouses, the Judge shall determine, pursuant to a judgement, the amount thereof, taking into account the following circumstances:
- Agreements reached by the spouses.
- Age and state of health.
- Professional qualifications and likelihood of getting a job.
- Past and future dedication to the family.
- Collaboration by working in the other spouse’s commercial, industrial or professional activities.
- The duration of the marriage and of their marital cohabitation.
- The possible loss of pension rights.
- Economic wealth and resources and the needs of each spouse. The judicial resolution shall set the bases to update the allowance and any guarantees to ensure its effectiveness.
Article 98. The spouse in good faith whose marriage has been declared null and void shall be entitled to compensation if there has been marital cohabitation, attending to the circumstances provided in article 97.
Article 99. At any time the parties may agree to replace the allowance set by the Judge in accordance with article 97 by the constitution of a life annuity, usufruct over certain property or payment of a capital sum in the form of property or cash.
Article 100. After the setting of the allowance and the bases to update it in the separation or divorce judgement, it may only be amended as a result of material alterations in the fortune of one or the other spouse.
Article 101. The right to receive the allowance shall be extinguished as a result of the removal of the cause which motivated it, or as a result of the creditor’s marrying again or living with another person in a situation akin to marriage. The right to receive the allowance shall not be extinguished by the mere fact of the debtor’s death. Notwithstanding the foregoing, the latter’s heirs may request the Judge to reduce or suppress it if the estate cannot satisfy the requirements of the debt or if it should affect their right to a forced share.
On interim measures as a result of the claim for annulment, separation or divorce
Article 102. Upon admission of the claim for annulment, separation or divorce, the following effects take place by operation of law:
- The spouses may live separately and the presumption of marital cohabitation shall cease.
- Consents and powers of attorney granted by either spouse to the other are revoked. Likewise, save as otherwise agreed, the possibility of binding the exclusive property of the other spouse in the exercise of domestic powers shall cease. For these purposes, either party may request the relevant note to be made in the Civil Registry and, as the case may be, in the Property and Commercial Registries.
Article 103. Upon admission of the claim, the Judge, in the absence of a judicially approved agreement between both spouses shall adopt, after hearing the latter, the following measures:
- To determine, in the interests of the children, with which spouse the children subject to the parental authority of both of them are to remain, and to make the appropriate decisions in accordance with the provisions of this Code and, in particular, the manner in which the spouse who does not exercise the custody and care of the children may comply with his obligation of watching over them, and the time, form and place in which he may communicate with them and have them in his company. Exceptionally, children may be entrusted to grandparents, relatives or other persons who consent to it, and, in the absence thereof, to a suitable institution, conferring on the latter the relevant guardianship duties, which they shall exercise under the judge’s authority. Where there should be a risk of abduction of the minor by one of the spouses or by third parties, the necessary measures may be adopted and, in particular, the following:
- a) Prohibition to exit national territory, save with a prior judicial authorisation. b) Prohibition to issue a passport to the minor, or removal thereof if one should already have been issued. c) Submission of any change of domicile of the minor to prior judicial authorisation.
- To determine, taking into account the family interest most requiring protection, which of the spouses shall continue using the family home and, likewise, after making an inventory thereof, which goods or objects pertaining to the appurtenances are to continue in the home and which are to be taken away by the other spouse, and the appropriate precautionary measures to preserve the rights of each of them.
- To set the contribution of each spouse to the marital expenses, including, if applicable, court costs, setting the basis to update any amounts and set any security, deposits, with holdings or other convenient precautionary measures, to ensure the enforcement of the amounts payable as a result by one spouse to the other. The work performed by one of the spouses to attend to the children in common subject to parental authority shall be considered a contribution to such expenses.
- To determine, attending to the circumstances, any common property which, after making an inventory, is to be delivered to one spouse or the other, and the rules to be observed in the Administration and disposal thereof, and in the mandatory rendering of accounts relating to common property or the part thereof received thereby, and any required thereafter.
- To determine, as the case may be, the arrangements for the administration and disposal of any exclusive property which, as a result of marriage articles or pursuant to a public deed, should be especially earmarked to pay the marital expenses.
Article 104. The spouse proposing to file a claim for annulment, separation or divorce may request the effects and measures mentioned in the two preceding articles. Such effects and measures shall only subsist if, within the following 30 days counting from initial adoption thereof, the relevant claim should be filed before the competent Judge or Court.
Article 105. The spouse who leaves the marital home for a just cause and within 30 days files the claim or request mentioned in the preceding articles shall not be in breach of the duty to cohabit.
Article 106. The effects and measures provided in this chapter shall terminate, in any event, upon replacement thereof by those provided in the judgement or in the event of termination of the proceedings in any other way. Revocation of any consents and powers of attorney shall be deemed to be final.
Law applicable to nullity, separation and divorce
- The nullity of the marriage and its effects shall be determined in accordance with the law applicable to its performance.
- Separation and divorce shall be governed either by the common national law of the spouses at the time of filing the claim; in the absence of a common nationality, by the law of the common habitual residence of the spouses at such time and, in the absence thereof, by the law of the last common habitual residence of the spouses, if one of the spouses should still be a resident in such State. In any event, Spanish law shall apply when one of the spouses is Spanish or a habitual resident in Spain:
a) If none of the laws mentioned above should apply. b) If both spouses, or one with the consent of the other, should request separation or divorce in the claim submitted before a Spanish court. c) If the laws mentioned in the first paragraph of this section should not acknowledge separation or divorce, or should do it in a manner which is discriminatory or contrary to public policy.
On paternity and filiation
On filiation and its effects
Article 108. Filiation may be by birth and by adoption. Filiation by birth may be matrimonial and non- matrimonial. It is matrimonial when the mother and father are married to each other. Matrimonial and non-matrimonial filiation, and adoptive filiation, shall have the same effects, in accordance with the provisions of the present Code.
Article 109. Filiation determines surnames, in accordance with the provisions of the law. Filiation is determined by both lines, the father and mother may decide by common consent the order of transfer of their respective first surname, prior to registration. If this option is not exercised, the provisions of the law shall apply. The order of surnames registered for the oldest child shall govern subsequent registrations of the birth of his siblings from the same union. The child, upon coming of age, may request to alter the order of the surnames.
Article 110. The father and mother, even if they do not hold parental authority, are obliged to care for their underage children and to provide them with support.
Article 111. The parent who fulfils the following circumstances shall be excluded from parental authority and other guardianship duties, and shall not be entitled to any rights by operation of Law in respect of the child or his descendants, or to their estates:
- If he has been sentenced as a result of the relations resulting in the conception, according to a final criminal judgement.
- If filiation was determined judicially against his opposition. In both cases, the child shall not bear the surname of the parent in question unless he or his legal representative should request it.
These restrictions shall cease to have effect by determination of the child’s legal representative, approved by the court, or by the will of the child himself upon reaching full legal capacity. Obligations to look after children and to support them shall subsist notwithstanding the foregoing.
On determination and evidence of filiation
Article 112. Filiation shall be effective from the moment on which it takes place. Its legal determination shall have retroactive effect, provided that such retroactivity is compatible with the nature of such effects and that the Law does not provide otherwise. In any event, acts executed on behalf of the underage or incapable child by his legal representative before determination of filiation shall remain valid.
Article 113. Filiation shall be evidenced by registration in the Civil Registry, by the document or judgement which legally determines it, by the matrimonial presumption of paternity and, in the absence of the preceding means, by possession of status. The provisions of the Civil Registry Law shall apply to the admission of evidence contrary to the registered entry. The determination of filiation shall not be effective where another contradictory filiation should be on record.
Article 114. Filiation entries may be rectified in accordance with the Civil Registry Law, without prejudice to the specific provisions in the present title on actions to challenge filiation. Likewise, entries which contradict the facts declared proven by a criminal judgement may also be rectified at any time.
On determination of matrimonial filiation
Article 115. Maternal and paternal matrimonial filiation shall be legally determined:
- By registration of the birth together with that of the parents’ marriage.
- By a final judgement.
Article 116. Children born after the marriage is performed and before three hundred days after the dissolution thereof, or after the legal or de facto separation of the spouses, shall be presumed to be children of the husband.
Article 117. If the child should be born within 180 days following performance of the marriage, the husband may destroy the presumption by declaring otherwise in a public instrument executed within six months of his becoming aware of the birth. The cases where he should have expressly or implicitly acknowledged his paternity, or should have been aware of the woman’s pregnancy prior to performing the marriage shall be excepted from the foregoing, save when, in the latter case, such declaration in a public instrument should have been executed, with the consent of both spouses, prior to the marriage or subsequently thereto, within six months following the birth of the child.
Article 118. Even in the absence of the presumption of paternity of her husband as a result of the spouses’ legal or de facto separation, filiation may be registered as matrimonial with the consent of both.
Article 119. Filiation shall become matrimonial from the date of the marriage of the parents, when the latter should take place subsequently to the birth of the child, provided that the fact of the filiation should be legally determined in accordance with the provisions of the following section. The provisions of the preceding paragraph shall, as the case may be, benefit the descendants of the deceased child.
On the determination of non-matrimonial filiation
Article 120. Non-matrimonial filiation shall be legally determined:
- By recognition before the officer in charge of the Civil Registry, in a will or in another public document.
- By resolution issued in proceedings processed in accordance with the Civil Registry legislation.
- By final judgement.
- In respect of the mother, where maternal filiation should be provided in the registration of birth performed within the requisite period, in accordance with the provisions of the Civil Registry Law.
Article 121. Recognition made by incapable persons or persons who cannot marry by reason of their age shall require judicial approval, after hearing the Public Prosecutor, to be valid.
Article 122. When a parent should recognise a child separately, he shall not be entitled to declare the identity of the other parent therein, unless this should already be legally determined.
Article 123. Recognition of a child who is of legal age shall not be effective unless the latter’s express or implied consent is obtained.
Article 124. The effectiveness of recognition by a minor or incapable person shall require the express consent of his legal representative or judicial approval, after hearing the Public Prosecutor, and of the legally recognised parent. No consent or approval shall be necessary if recognition should have been made by will or within the period provided to register the birth. The registration of paternity thus practised may be suspended at the mere request of the mother during the year following the birth. If the father should request confirmation of the entry, judicial approval, after hearing the Public Prosecutor, will be required.
Article 125. When the minor’s or incapable person’s parents should be siblings or consanguineous relatives in direct line, upon legal determination of filiation in respect of one, such filiation may only be legally determined in respect of the other prior judicial authorisation, which shall be granted, after hearing the Public Prosecutor, when it should be in the interest of the minor or incapable person. When the latter should reach full capacity, he may, pursuant to statement in a public instrument, invalidate this last determination if he should not have consented to it.
Article 126. Recognition of a child already deceased shall only be effective if his descendants should consent to it, by themselves or by means of their legal representatives.
On filiation actions
Article 127 to 130. (Repealed)
Article 131. Any person with a legitimate interest shall be entitled to claim declaration of a filiation manifested by constant possession of status. The case where the claimed filiation should contradict another filiation legally determined shall be excepted therefrom.
Article 132. In the absence of the corresponding possession of status, the claim of matrimonial filiation, which shall not be subject to a statute of limitations, corresponds to the father, the mother or the child. If the child should die before the lapse of four years from his reaching full capacity, or during the year following discovery of the evidence on which the claim should be based, the action shall pass to his heirs for the time required to complete such periods.
Article 133. The action to claim non-matrimonial filiation, in the absence of the respective possession of status, shall correspond to the child during his whole life.
If the child should die before the lapse of four years from his reaching full capacity, or during the year following discovery of the evidence on which the claim should be based, the action shall pass to his heirs for the time required to complete such periods.
Article 134. Exercise of the claim by the child or the parent, in accordance with the preceding articles, shall in any event allow the challenging of contradictory filiation.
Article 135. (abrogated)
On contesting paternity
Article 136. The husband may exercise the action to contest paternity within one year counting from registration of the filiation with the Civil Registry. Notwithstanding the foregoing, such periods shall not begin to count while the husband is unawares the birth.
If the husband should die before the lapse of the period provided in the preceding paragraph, the action shall correspond to each heir for the time remaining to complete such period. If the husband should die without being aware of the birth, the year shall count from the date on which the heir becomes aware of it.
Article 137. Paternity may be contested by the child during the year following registration of the filiation. If he should be underage or incapable, the period shall count from his coming of age or reaching full legal capacity. Exercise of the action on behalf of the child who is underage or incapacitated shall likewise correspond, during the year following registration of the filiation, to the mother holding parental authority, or to the Public Prosecutor If possession of status of matrimonial filiation should be absent from family relations, the claim may be filed at any time by the child or his heirs.
Article 138. The recognitions which determine matrimonial filiation in accordance with the Law may be contested as a result of a defect of consent, in accordance with the provisions of article 141. The contest of paternity for other causes shall be governed by the rules contained in this section.
Article 139. A woman may contest her maternity by justifying the simulation of the birth, or that the child’s identity is false.
Article 140. If possession of status should be absent from family relations, non-matrimonial paternal or maternal filiation may be contested by those to whom it is prejudicial. In the event of existence of possession of status, the contesting action shall correspond to the person who appears as child or parent, and to those who may be affected by the filiation as forced heirs. The action shall lapse by peremption after four years from the date on which the child, after registration of the filiation, should have the corresponding possession of status. Children shall in any event be entitled to exercise the action for one year after having reached full legal capacity.
Article 141. The action to contest the recognition of a child made under error, duress or intimidation shall correspond to the person who granted such recognition. The action shall lapse by peremption after one year from such recognition or from the time in which the defect of consent ceased, and may be exercised or continued by the latter’s heirs, if he should have deceased, before the lapse of one year.
On support between relatives
Article 142. Support shall be deemed to mean everything which is indispensable for food, shelter, dress and medical assistance. Support shall also comprise education and instruction of the recipient of support while he is underage and even thereafter, when he has not finished his training for a cause not attributable to him. Support shall include pregnancy and delivery expenses, if not otherwise covered.
Article 143. The following persons shall be mutually obliged to give each other support with the scope provided in the preceding article:
- Ascendants and descendants. Siblings shall only owe one another basic living needs, when needed for any reason not attributable to the recipient of support; these shall extend, as the case may be, to the support required for their education.
Article 144. The claim for support, where applicable and where two or more persons should be obliged to provide it shall be made in the following order:
- To the spouse.
- To descendants in the nearest degree.
- To ascendants, also in the nearest degree.
- To siblings, provided that uterine or consanguine siblings shall be obliged in the last place. Degree between descendants and ascendants shall be regulated by the order in which they are called to intestate succession of the person entitled to support.
Article 145. Where the obligation to provide support should fall on two or more persons, payment of the allowance shall be shared between them in proportion to their respective wealth. Notwithstanding the foregoing, in case of urgent need and as a result of special circumstances, the Judge may oblige a single one of them to provide it provisionally, without prejudice to his rights to claim from the remaining obligors the part which corresponds to them. When two or more recipient of supports should claim support at the same time from the same person legally obliged to provide them, and such person should not have sufficient wealth to attend to all of them, the order provided in the preceding article shall be followed, unless the recipient of supports should be the spouse and a child subject to parental authority, in which case the latter shall be preferred over the former.
Article 146. The amount of the support shall be proportional to the estate or resources of the person who provides it and the needs of the person receiving it.
Article 147. Support, in the cases mentioned in the preceding article, shall be proportionally reduced or increased according to the increase or reduction in the needs of the recipient of support and the wealth of the person obliged to satisfy it.
Article 148. The obligation to provide support shall be payable from the time on which the person entitled to receive them should need them to subsist; but they shall not be paid until after the date on which the relevant claim should be filed. Payment shall be verified monthly in advance and, upon the death of the recipient of support, his heirs shall not be obliged to return any amounts received by the latter in advance. The Judge, at the request of the recipient of support or of the Public Prosecutor, shall issue, on an urgent basis, the relevant precautionary measures to ensure payment of the advances made by a public Entity or by another person, and to provide for future needs.
Article 149. The person obliged to provide support may, at his discretion, satisfy it either by paying the allowance set, or receiving and keeping in his own home the person entitled to receive it. This choice shall not be possible to the extent that it contradicts the cohabitation arrangements provided under applicable law or by judicial resolution for the recipient of support. It may also be rejected in the event of just cause or where it should be prejudicial to the interests of the underage recipient of support.
Article 150. The obligation to provide support shall cease with the death of the obligor, even if he should provide it in compliance with a final judgement.
Article 151. The right to receive support cannot be waived or transferred to a third party. Neither may it be offset against the amounts owed by the recipient of support to the person obliged to provide it. However, outstanding support allowances may be subject to set-off and waived, and the right to claim them may be transferred for valuable consideration or as a gift.
Article 152. The obligation to provide support shall also cease:
1. By the death of the recipient of support.
- When the wealth of the person obliged to provide it should have been reduced to a point where he is unable to satisfy it without neglecting his own needs and those of his family
- When the recipient of support is able to carry out a trade, profession or industry, or has obtained a position or improved in wealth, so that the support allowance is no longer necessary for his subsistence.
- When the recipient of support, whether or not a forced heir, should have committed any offence giving rise to disinheritance.
- Where the recipient of support is a descendant of the person obliged to provide support, and the latter’s need should arise from his bad conduct or lack of application at work, while this cause subsists.
Article 153. The preceding provisions shall apply to the remaining cases where, pursuant to this Code, to a will or to an agreement, a person should be entitled to receive support, save as otherwise agreed, ordered by the testator or provided by the law for the relevant special case.
On parent-child relations
Article 154. Non-emancipated children shall be under the parents’ parental authority. Parental authority shall be exercised always for the benefit of the children, according to their personality, and respecting their physical and psychological integrity. This authority comprises the following duties and powers:
- To look after them, to have them in their company, feed them, educate them and provide them with a comprehensive upbringing.
- To represent them and to manage their property. If the children should have sufficient judgement, they must be heard always before adopting decisions that affect them. Parents may, in the exercise of their powers, request the assistance of the authorities.
Article 155. Children must:
- Obey their parents while they remain under their parental authority and always respect them.
- Equitably contribute, according to their possibilities, to the discharge of family expenses while they live with them.
Article 156. Parental authority shall be exercised jointly by both parents, or by one of them with the express or implied consent of the other. Acts performed by one of them according to social practice and circumstances or in situations of urgent need shall be valid. In the event of disagreement, either of them may appear before the Judge, who, after hearing both of them and the child, if he should have sufficient judgement and, as the case may be, if he should be older than twelve, shall confer without further recourse the ability to decide to the father or the mother. In the event of repeated disagreement, or if there should be any other cause which severely hinders the exercise of parental authority, he may confer it in whole or in part to one of the parents, or distribute duties between them. This measure shall remain in force during the period provided, which may never exceed two years. In the cases provided in the preceding paragraphs, in respect of third parties in good faith, each parent shall be presumed to act in the ordinary exercise parental authority with the consent of the other.
In the absence thereof, or as a result of the absence, incapacity or impossibility of one of the parents, parental authority shall be exclusively exercised by the other. If the parents should live separately, parental authority shall be exercised by the parent with whom the child lives. Notwithstanding the foregoing, the Judge, at the duly justified request of the other parent, may, in the interests of the child, confer parental authority to the applicant, to be exercised jointly with the other parent, or distribute between the father and the mother the duties inherent to its exercise.
Article 157. The non-emancipated minor shall exercise parental authority over his children with the assistance of his parents and, in the absence thereof, his guardian; in the event of disagreement or impossibility, with that of the Judge.
Article 158. The Judge, ex officio or at the request of the child, of any relative or of the Public Prosecutor, shall order:
- Suitable measures to ensure the provision of support, and to provide for the future needs of the child by his parents, in the event of breach of such duty.
- Adequate provisions to prevent harmful disturbance to the children in cases of change of the holder of custody.
- Necessary measures to prevent the abduction of underage children by one of the parents or by third parties
- and, in particular, the following: a) Prohibition to exit national territory, save with a prior judicial authorisation. b) Prohibition to issue a passport to the minor, or removal thereof if one should already have been issued. c) Submission to prior judicial authorisation of any change of domicile of the minor.
- Generally, other provisions deemed suitable, to remove the minor from danger or to prevent any damages to him. All these measures may be adopted within any civil or criminal proceedings, or in voluntary jurisdiction proceedings.
Article 159. If the parents live separately and are unable to decide by common consent, the Judge shall decide, always for the benefit of the children, in the custody of which parent the underage children are to remain. The Judge, before taking this measure, shall hear the children who have sufficient judgement and, in any event, those older than twelve.
Article 160. The parents, even if they do not exercise parental authority, are entitled to a relationship with their underage children, except with those adopted by another, in accordance with the provisions of the judicial resolution. Personal relationships between the child and his grandparents and other relatives and close friends may not be prevented without just cause. In the event of opposition, the Judge, at the request of the minor, his grandparents, relatives or close friends, shall decide, attending to the circumstances. He must especially ensure that the measures which may be set to favour relations between grandparents and grandchildren do not enable the infringement of judicial resolutions restricting or suspending relations between the minors and one of the parents.
Article 161. In the case of a minor in foster care, the right of his parents, grandparents and other relatives to visit him and have a relationship with him may be regulated or suspended by the Judge, attending to the circumstances and in the interests of the minor.
Legal representation of children
Article 162. Parents who hold parental authority shall have the legal representation of their underage non- emancipated children. The following cases shall be excepted:
- Acts relating to rights of personality or others which the child, in accordance with the Law and to his maturity, may perform by himself.
- Those where there is a conflict of interest between the parent and the child.
- Those relating to property which is excluded from the parents’ administration. Entering into contracts which oblige the child to perform personal services shall require the child’s consent, if he should have sufficient judgement, without prejudice to the provisions of article 158.
Article 163. Whenever, in any affair, the father’s and mother’s interest should be opposed to that of their non-emancipated children, the latter shall be appointed a defender who shall represent them in court and out of court. This appointment shall also take place when the parents’ interest is opposed to that of the underage emancipated child whose capacity they are required to supplement. If the conflict of interest should exist only in respect of one of the parents, the other shall be entitled to represent the minor or supplement his capacity by operation of Law and without the need for a specific appointment.
On children’s property and its administration
Article 164. Parents shall administer their children’s property with the same diligence as they do their own, in compliance with the general obligations applicable to any administrator, and with the specific obligations set forth in the Mortgage Law. The following property shall be excepted from parental administration:
- Property acquired as a gift, where the grantor should have ordered it expressly. The will of the transferor on the administration of this property and the destination of its fruits shall be strictly complied with.
- Property acquired by succession when one or both of the persons exercising parental authority should have been justly disinherited or should have been unable to inherit as a result of being unworthy, which shall be administered by the person designated by the decedent and, in the absence thereof, successively, by the other parent or by a specially appointed judicial administrator.
- Property acquired by the child older than sixteen by his work or industry. Ordinary acts of administration shall be performed by the child, who shall need the parents’ consent for acts exceeding the former.
Article 165. The fruits of the property of the non-emancipated child, and anything acquired by his work or industry shall always belong to him. Notwithstanding the foregoing, the parents may destine the property of the minor who lives with both or with one of them, in the corresponding part, to the discharge of family expenses, and they shall not be obliged to render accounts of any property consumed for such purposes. For these purposes, the fruits of the property not administered by the parents shall be delivered to then. Fruits of property mentioned in numbers one and two of the preceding article and those gifted or left to children especially for their education or career shall be excepted from the above, but, if the parents should lack of means, they may request the Judge to have an equitable part delivered to them.
Article 166. Parents may not waive the rights held by the children, nor dispose of or encumber any real estate properties, commercial or industrial establishments, precious objects and securities, except for preferred subscription right over shares, save for a just cause of utility or necessity, prior authorisation of the Judge of their domicile, after hearing the Public Prosecutor. Parents must obtain judicial authorisation to reject an inheritance or legacy left to the child. If the Judge should refuse the authorisation, the inheritance may only be accepted under the benefit of inventory. No judicial authorisation shall be required if the minor should be sixteen years of age and should consent in a public document, nor to dispose of securities, provided that the proceeds are reinvested in safe goods or securities.
Article 167. Where the parents’ administration should endanger the net assets of the child, the Judge, at the request of the child himself, of the Public Prosecutor or of any relative of the minor, may issue any orders deemed necessary for the safety and safekeeping of the property, require security or a bond for their continuation in the administration thereof or even appoint an Administrator.
Article 168. Upon termination of parental authority, the children may require the parents to render accounts of the administration performed over the property until then. The action to enforce this obligation shall be statute barred after three years. In the event of loss or impairment of the property as a result of wilful misconduct or gross negligence, the parents shall be liable for any damages suffered.
On termination of parental authority
Article 169. Parental authority shall end:
- By the death or declaration of death of the parents or the child.
- By emancipation.
- By the adoption of the child.
Article 170. The father or the mother may be deprived in whole or in part of their authority pursuant to a judgement on grounds of the breach of the duties inherent thereto, or issued in criminal or matrimonial proceedings. The Courts may, for the benefit and in the interest of the child, decide the recovery of parental authority when the cause which motivated the deprivation should have ceased.
Article 171. Parental authority over children who should have been incapacitated shall be extended, by operation of Law, upon their coming of age. If a child who is of legal age, unmarried, and lives in the company of his parents or of any of them should be incapacitated, parental authority shall be restored, and shall be exercised by the person who would be entitled to do so if the child were underage. Extended parental authority in any of these two forms shall be exercised subject to the specific provisions of the incapacitation resolution and, on a subsidiary basis, to the rules of the present Title. Extended parental authority shall terminate:
- By the death or declaration of death of both parents or the child.
- By adoption of the child.
- By declaration of the incapacity having ceased.
- By marriage of the incapacitated person. If, upon termination of the extended parental authority, the incapacitation should subsist, guardianship or conservatorship shall be appointed, as applicable.
On adoption and other forms of protection of minors
On custody and foster care of minors
- When the public entity entrusted with the protection of minors in the respective territory should become aware that a minor is in a situation of neglect, it shall have by operation of Law the guardianship of such minor, and must adopt the necessary protection measures for his custody, making the Public Prosecutor aware of this, and giving notice to the parents, guardians or carers in due legal form, within forty eight hours. Whenever possible, at the time of giving such notice, they shall be informed in their presence and in a clear and comprehensible manner of the causes which have given rise to the Administration’s intervention and the possible effects of the decision adopted. A situation of neglect shall be deemed to exist de facto as a result of the breach or the impossible or inadequate exercise of the protection duties set forth by the laws for the custody of minors, when they should be deprived of the necessary moral or material assistance. The assumption of guardianship by the public entity shall entail the suspension of parental authority or ordinary guardianship. Notwithstanding the foregoing, acts of patrimonial content performed by the parents or guardians on behalf of the minor which are beneficial to the latter shall be valid.
- When the parents or guardians, as a result of serious circumstances, cannot take care of the minor, they may request the competent public entity to assume his custody for the necessary period of time. The transfer of custody shall be set forth in writing, expressly noting that the parents or guardians have been informed of their responsibilities they continue to hold in respect of the child, and the manner in which such custody will be exercised by the Administration. Any subsequent variation in the form of exercise shall be duly grounded and communicated to the former, and to the Public Prosecutor. Likewise, the public entity shall assume custody when so resolved by the Judge in cases where it is legally applicable.
- Custody assumed at the request of parents or guardians or as a result of guardianship assumed by operation of law shall be performed by means of family foster care or residential care. Family foster care shall be exercised by the person or persons determined by the public entity. Residential care shall be exercised by the Director of the centre where the minor is taken in. Within two months, the parents or guardians of the minor may challenge the administrative resolution deciding the foster care if they consider that the form of care decided is not the most convenient for the minor, or if there should exist other persons within the family circle more suitable to those designated.
- The interest of the minor shall always be sought, and the Administration shall try to achieve his reintegration into his own family, if not contrary to such interest, and to have siblings entrusted to the custody of the same institution or person.
- If serious problems should arise in the cohabitation between the minor and the person or persons who have been entrusted with his custody, the minor or an interested party may request his removal therefrom.
- Resolutions which acknowledge the existence of neglect and declare the assumption of guardianship by operation of law may be appealed before the civil jurisdiction, within the period and subject to the conditions set forth in the Civil Procedural Law, without the need to file a prior administrative claim.
- During a period of two years as from notice of the administrative resolution declaring the existence of neglect, parents who continue to hold parental authority but have been suspended in the exercise thereof in accordance with the provisions of number one of this article shall be entitled to request termination of such suspension, and revocation of the declaration of the minor’s neglect, if, as a result of a change in the circumstances which motivated it, they should understand that they are in a condition to assuming parental authority once again. They shall likewise be entitled to challenge any decisions adopted in respect of the minor’s protection during the same period. After such period has elapsed, their right to request or challenge decisions or measures adopted for the protection of the minor will lapse. Notwithstanding the foregoing, they may inform the public entity and the Public Prosecutor of any change in the circumstances which gave rise to the declaration of neglect.
- The public entity, ex officio, or at the request of the Public Prosecutor or of an interested person or entity, may at all times revoke the declaration of neglect and decide the return of the minor to his family, if he is not integrated in a stable manner in another family, or if it should understand that it is in the best interests of the minor. Such decision shall be notified to the Public Prosecutor.
- Family foster care produces the full participation of the minor in family life and imposes on the foster parent the obligations of taking care of him, having him in his company, feeding him, educating him and providing him with a comprehensive upbringing. This foster care may be exercised by the person or persons who replace the minor’s nuclear family or by the person responsible for the home.
- Foster care shall be executed in writing, with the consent of the public entity, whether or not it holds the guardianship or custody, of the persons who take the minor in, and of the minor if he should be older than twelve years old. When the parents who have not been deprived of parental authority or the guardian should be known, they shall also be required to give or to have given their consent, save in the event of provisional family foster care referred to in section 3 of this article. The document executing the family foster care mentioned in the preceding paragraph shall include the following items:
- The necessary consents.
- Form of the foster care and expected duration thereof.
- Rights and duties of each of the parties and, in particular: a) Regularity of any visits by the family of the minor taken into foster care. b) Coverage of the damage suffered by the minor or any damage which he may cause to third parties by
- the public entity or other persons liable from a civil standpoint. c) Assumption of food and board, education and health care expenses.
- The content of any monitoring to be performed by the public entity, depending on the purpose of the foster care, and the foster family’s undertaking to cooperate.
- Economic compensation to be received by the foster parents, as the case may be.
- It shall be expressly noted whether the foster parents act as professionals or if the foster care is to take place in a functional home.
7. Report by the childcare services. Such document shall be forwarded to Public Prosecutor.
3. If the parents or guardians should not consent or should challenge the foster care, such care may only be decided by the Judge, in the interests of the minor, in accordance with the formalities of the Civil Procedural Law. The proposal of the public entity shall contain the same items mentioned in the preceding number. Notwithstanding the foregoing, the public entity may decide, in the interests of the minor, a provisional family foster care, which will subsist until the relevant judicial resolution is passed. The public entity, after performing the requisite formalities and upon completion of the proceedings, must submit a proposal to the Judge immediately and, in any event, within fifteen days.
4. The foster care of the minor shall cease:
- By judicial resolution.
- By decision of the foster parents, prior notice thereof to the public entity.
- At the request of the guardian or the parents with parental authority wishing to have him in their company.
- By decision of the public entity who holds the guardianship or custody of the minor, when it deems it
necessary to safeguard the interests of the latter, after hearing the foster parents. A judicial resolution of cessation shall be required when the foster care should have been decided by the Judge.
5. All actions of execution and cessation of the foster care shall be practised with mandatory secrecy.
Article 173 bis. Family foster care may adopt the following forms, depending on its purpose:
- Simple family foster care, which shall be provisional, either because, as a result of the minor’s situation, he is expected to be reintegrated in his own family, or until a more stable protection measure is adopted.
- Permanent family foster care, when the age or other circumstances of the minor and his family advise it, and the child care services should have reported favourably on it. In such case, the public entity may request the Judge to confer on the foster parents those faculties of guardianship which facilitate the performance of their responsibilities, attending in any event to the higher interest of the minor.
- Pre-adoptive family foster care, which shall be executed by the public entity upon making the proposal for the adoption of the minor, prior report by the childcare services, to the judicial authority, provided that the foster parents meet the necessary requirements to adopt, have been selected and have given their consent to the adoption before the public entity, and that the minor is in a suitable legal situation to be adopted. The public entity may likewise execute pre-adoptive family foster care when it considers, prior to submitting the adoption proposal, that it is necessary to set a period for the minor to adapt to the family. This period shall be as brief as possible and, in any event, may not exceed one year.
- The Public Prosecutor shall be in charge of the higher supervision of the guardianship, foster care or custody of the minors mentioned in this Section.
- For such purposes, the public entity shall give immediate notice of any new entries of minors and shall forward a copy of the administrative resolutions and execution documents relating to the constitution, variation and cessation of any guardianship, custody and foster care. Likewise it will inform it of any interesting developments in the minor’s circumstances. The Public Prosecutor must check the situation of the minor at least every semester and shall propose to the Judge any protection measures deemed necessary.
- The Public Prosecutor’s vigilance shall not exempt the public entity from its responsibility vis-a-vis the minor and from its obligation to make the Public Prosecutor aware of any anomalies observed.
- Adoption shall require that the prospective adoptive parent is older than 25. In an adoption by both spouses, it will be sufficient for one of them to have reached such age. In any event, the prospective adoptive parents must be at least fourteen years older than the adoptee.
- Only non-emancipated minors may be adopted. As an exception, it will be possible to adopt a person of legal age or an emancipated minor when, immediately prior to the emancipation, there should have existed an uninterrupted situation of foster care or of cohabitation, initiated before the prospective adoptee became fourteen.
- One may not adopt:
- A descendant.
- A relative in the second degree in the collateral line by consanguinity or affinity.
- A ward by his guardian until final approval of the accounts of the guardianship.
- Nobody may be adopted by more than one person, unless the adoption is performed jointly or successively by both spouses. Marriage performed subsequently to the adoption shall allow the spouse to adopt the children of his consort. In the event of death of the adoptive parent, or when the adoptive parent should incur in the grounds for exclusion provided in article 179, a new adoption of the adoptee shall be possible.
- The adoption shall be constituted by judicial resolution, which shall take into account always the interests of the prospective adoptee and the suitability of the prospective adoptive parent or parents for the exercise of parental authority.
- To initiate the adoption proceedings, a prior proposal of the public entity shall be required in favour of the prospective adoptive parent or parents who have been declared suitable to exercise parental authority by the public entity. The declaration of suitability may be prior to the proposal. Notwithstanding the foregoing, no proposal shall be required when the prospective adoptee meets any of the following circumstances:
- Being an orphan and a relative of the prospective adoptive parent in the third degree by consanguinity or affinity.
- Being a child of the consort of the prospective adoptive parent.
- Having been in legal foster care under a measure of a pre-adoptive foster care, or having been under his guardianship for the same time.
- Being of legal age or an emancipated minor.
- In the first three cases of the preceding section, the adoption may be constituted even if the prospective adoptive parent should have deceased, if the latter should already have given his consent before the Judge. In this case, the judicial resolution shall have retroactive effect to the date of such consent.
- The prospective adoptive parent or parents and the adoptee older than twelve must consent to the adoption in the presence of the Judge.
- The following persons must consent to the adoption in the manner set forth in the Civil Procedural Law:
- The spouse of the prospective adoptive parent, save in the event of legal separation pursuant to a final judgement or de facto separation by mutual consent set forth in a public instrument.
- The parents of the prospective adoptee who is not emancipated, unless they should be deprived of parental authority by final judgement or they should incur in a legal cause for such deprivation. Such situation may only be appreciated in contradictory judicial proceedings, which may be processed as provided in article 1827 of the Civil Procedural Law.
Such consent shall not be required when it is impossible for those who must provide it to do so, which impossibility shall be duly grounded in the judicial resolution constituting the adoption. The consent of the mother may not be given until after 30 days have elapsed from the birth.
- The following persons must simply be heard by the Judge:
- 1. Parents who have not been deprived of parental authority where their consent should not be necessary for the adoption.
- The guardian and, as the case may be, the carer or carers.
- The adoptee who is younger than twelve, if he should have sufficient judgement.
- The public entity, in order to appreciate the suitability of the prospective adoptive parent, when the adoptee should have been legally under the former’s foster care for more than one year.
- The adoption gives rise to the extinction of any legal relations between the adoptee and his former family.
- As an exception, legal relations with the family of the parent shall subsist, as applicable, in the following cases:
- When the adoptee should be the child of the spouse of the prospective adoptive parent, even if the consort should have died.
- When only one of the parents has been legally determined, provided that it should have been requested by the prospective adoptive parent, the adoptee older than twelve and the parent whose relation therewith is to persist.
- The provisions of the preceding sections shall be understood to be without prejudice to the provisions relating to matrimonial impediments.
- The Judge, at the request of the Public Prosecutor, of the adoptee or of his legal representative, shall resolve that the adoptive parent who incurs in a cause for deprivation of parental authority shall be excluded from guardianship duties and from the rights to which he is entitled pursuant to the Law in respect of the adoptee or his descendants, or to their estates.
- Upon reaching full capacity, such exclusion may only be requested by the adoptee, within the following two years.
- These restrictions shall cease to be effective by determination of the child himself upon reaching full capacity.
- Adoption is irrevocable.
- The Judge shall resolve the extinction of adoption at the request of the father or the mother who, without fault on their part, should not have taken part in the proceedings in the terms expressed in article 177. The claim shall also be required to be filed within two years following the adoption, and that the requested extinction does not cause serious harm to the minor.
- Termination of the adoption shall not be a cause of loss of nationality or civil residence acquired, nor shall it affect any patrimonial effects which should have taken place before.
- Determination of the filiation corresponding to the adoptee by birth shall not affect adoption.
- Adopted persons, after reaching legal age or while being underage, represented by their parents, shall be entitled to know any data relating to their biological origin. Spanish childcare Public Entities, prior notice to any affected persons, shall provide, through their specialised services, the advice and assistance required by any applicants to bring this right to effect.
Declaration of absence and its effects
Article 181. In any event, upon the disappearance of the person from his domicile or from his last place of residence, without having any further news of him, the Judge may, at the request of the interested party or of
the Public Prosecutor, appoint a defender to protect and represent the disappeared person in court or in any business which does not admit delay without serious detriment. Those cases where the former should already have legal or voluntary representation in accordance with article 183 shall be excepted. The present spouse who is of legal age and not legally separated shall be the ex officio defender and representative of the disappeared person; and, in the absence thereof, the nearest relative up to the fourth degree, also of legal age. In the absence of relatives, lack of presence thereof or notorious urgency, the Judge shall appoint a solvent person with good background, after hearing the Public Prosecutor.
He may also adopt, at his proof discretion, any necessary orders for the preservation of the assets.
Article 182. The following persons shall have the obligation to promote and request the legal declaration of absence, without order of preference:
- The spouse of the absentee who is not legally separated from him.
- Consanguineous relatives up to the fourth degree.
- The Public Prosecutor, ex officio or pursuant to a complaint. Any person who rationally deems to have any right over the property of the disappeared person exercisable during his life or dependent on his death shall also be entitled to request such declaration.
Article 183. A person who has disappeared from his domicile or last place of residence shall be deemed to be under a situation of legal absence:
- After one year has elapsed from the last news of him, or, in the absence thereof, from his disappearance, if he should not have left an attorney with powers of administration over all his property.
- After three years have elapsed, if he should have empowered someone to the administration of all his property. The death or justified resignation of the attorney, or the expiration of the mandate, shall determine legal absence, if, upon occurrence thereof, the whereabouts of the disappeared person should be unknown and one year should have elapsed from the last news of him or, in the absence thereof, from his disappearance. Upon registration of the declaration of absence in the Central Registry, all general or special mandates executed by the absentee shall be terminated by operation of law.
Article 184. Save in the event of a serious reason appreciated by the Judge, the representation of the person declared an absentee, the investigation of his whereabouts, the protection and administration of his property and the performance of his obligations shall correspond to:
- The present spouse of legal age not legally or de facto separated from him.
- His child of legal age; if there should be several, those who lived with the absentee shall be preferred, and an older child shall be preferred over a younger child.
- The nearest youngest ascendant of either line.
- Siblings of legal age who have cohabited as a family with the absentee, with preference of older siblings over younger ones. In the absence of the aforementioned persons, such representation shall correspond, in all its scope, to the solvent person of good background designated by the Judge at his prudent discretion, after hearing the Public Prosecutor.
Article 185. The representative of the person declared an absentee shall be subject to the following obligations:
1. To make an inventory of movable property and to describe any immovable property of his principal. 2.To provide the bond prudentially set by the Judge. The representatives included in numbers 1, 2 and 3 of the preceding article shall be excepted.
3. To preserve and defend the assets of the absentee and obtain from his property any normal returns of which it is capable.
4. To comply with the rules provided in the Civil Procedural Law relating to possession and administration of the absentee’s property. The provisions governing the exercise of guardianship and grounds for ineligibility, removal and excuse of guardians shall apply to the appointed representatives of the absentee, to the extent that they are adapted to their special representation.
Article 186. The legitimate representatives of the person declared an absentee included in numbers 1, 2 and 3 of article 184 shall enjoy the temporary possession of the assets of the absentee and shall be entitled to the liquid products thereof in the amount set forth by the Judge, taking into account the amount of any fruits, rents and benefits, the number of children of the absentee and the obligations to support them, the care and actions required by the representation, any earmarks which encumber the assets and other circumstances of the kind. The legitimate representatives included in number 4 of the aforementioned article shall also enjoy the temporary possession of the assets and shall be entitled to their fruits, rent and benefits in the amount set forth by the Judge, without in any event being entitled to retain more than two thirds of any liquid products, and the remaining third shall be reserved for the absentees or, as the case may be, for his heirs or successors. Temporary possessors of the property of the absentee may not sell, encumber, mortgage or pledge, save in the event of evident need or utility, acknowledged and declared by the Judge, who, in authorising such acts, shall determine the destination to be given to the amount obtained therefrom.
Article 187. If, during the enjoyment of temporary possession or the exercise of the appointed representation, anyone should prove his preferential right to such possession, the current possessor shall be excluded, but the former shall not be entitled to the products but from the date of the filing of the claim. In the event of appearance of the absentee, his assets must be restored to him, but not the products received, save in the event of bad faith, in which case such restitution shall also comprise any fruits received and those which ought to have been received counting from the date on which the absence took place, according to the judicial declaration.
Article 188. If, during the course of the temporary possession or the exercise of the appointed representation, the death of the person declared an absentee should be proved, his succession shall be opened for the benefit of those who, at the time of his death, should have been his voluntary or legitimate successors, and the temporary possessor must deliver the estate of the decedent to them, retaining as his own the products received in the amount provided herein. If a third party should appear, evidencing by means of a public instrument having acquired, pursuant to purchase or by another title, property from the absentee, the representations shall cease in respect of such property, which shall be made available to its legitimate titleholders.
Article 189. The spouse of the absentee shall be entitled to separation of estates.
Article 190. In order to claim a right on behalf of the absentee it is necessary to evidence that this person existed at the time in which his existence was necessary to acquire it.
Article 191. Without prejudice to the provisions of the preceding article, upon opening of a succession to which an absentee should be called, his part shall accrue in favour of his co-heirs, if there is no person entitled to claim it. All of them, as the case may be, must make an inventory of such property, with the intervention of the Public Prosecutor, which shall be reserved until the declaration of death.
Article 192. The provisions of the preceding article shall be understood to be without prejudice of any actions to claim an inheritance or any rights to which the absentee, his representatives or his successors should be entitled. Such rights shall only be extinguished by the passage of the time provided as statute of limitations. Any
entry in the Registry of any immovable property accruing in favour of any co-heirs shall express the circumstance that they remain subject to the provisions of this article and the preceding one.
On the declaration of death
Article 193. The declaration of death shall apply:
- After ten years have elapsed since the last news of the absentee or, in the absence thereof, since his disappearance.
- After five years have elapsed since the last news of him or, in the absence thereof, since his disappearance, if, upon expiration of such period, the absentee should have reached seventy five. The aforementioned periods shall be calculated from the expiration of the calendar year on which the last news of him was received or, in the absence thereof, from the year of his disappearance.
- After two years have elapsed, counted from date to date, from an imminent risk of death as a result of accident or violence, suffered by a person without receiving any news of him subsequently to the accident or the violence. Violence shall be presumed if, in a state of political or social unrest, a person should have disappeared without receiving any news of him during the aforementioned period, provided that six months should have elapsed from the end of such unrest.
Article 194. The declaration of death shall also apply:
- In respect of persons who, belonging to an armed contingent or linked thereto as voluntary ancillary offices of, or as reporters, should have taken part in campaign operations and should have disappeared in them, after the lapse of two years, counted from the date of the peace treaty and, in the absence thereof, from the official declaration of the end of the war.
- In respect of those persons who should be on board a shipwreck or who should have disappeared as a result of immersion in the sea, after the lapse of three months from the ascertainment of the shipwreck or disappearance without having news of them. The shipwreck shall be presumed to have occurred if the vessel does not reach its destination or, if, lacking a fixed destination, it should not return, in both cases after the lapse of six months counting from the last news received of it or, in the absence thereof, from the date of departure of the vessel from the initial port of the journey.
- Of those persons who should be on board an aeroplane crash, after the lapse of three months from the ascertainment of the crash, without having had news of them or, in the event that human remains should have been found, if they should have been unable to be identified. An aeroplane crash shall be deemed to have occurred if, in a flight over the sea, or desert or uninhabited areas, six months should have elapsed from the last news received from the persons or from the aircraft and, in the absence thereof, from the date on which the journey should have begun. If the flight should be in stages, the aforementioned period shall be computed from the point of takeoff from which the last news should have been received.
Article 195. The declaration of death shall put an end to the situation of legal absence, but until such declaration takes place, the absentee shall be presumed to have lived until the time on which he must be reputed to have died, save as otherwise determined in an investigation. Any declaration of death shall express the date from which the death is deemed to have occurred, in accordance with the provisions of the preceding articles, unless there is evidence to the contrary.
Article 196. Upon the declaration of death of the absentee’s becoming final, succession to his estate shall be opened, and such estate shall be adjudicated pursuant to the formalities of testamentary or intestate proceedings, or out of court. The heirs may not dispose of the inheritance pursuant to gift until five years after the declaration of death. Until the lapse of this same period, no legacies, if any, shall be handed over, and the legatees shall not be entitled to request them, save for pious donations for the soul of the deceased, or legacies in favour of Charitable Institutions. The successors shall have the inescapable obligation, even if, there only being one of them, no partition should be necessary, to write a detailed inventory of movable property and a description of any real estate property before a notary public.
Article 197. If, after the declaration of death, the absentee should appear or his existence should be proved, he shall recover his property in its current condition, and shall be entitled to the price of any properties sold, or to any properties acquired with such price, but may not claim from his successors any rents, fruits or products obtained from the properties of his estate, until the day of his presence or of the declaration of not having died.
On the Central Registry of absentees
Article 198. The Central and public absentee registry shall register:
- Judicial declarations of legal absence.
- Judicial declarations of death.
- Legitimate and appointed representations resolved by the courts and termination thereof.
- A mention, including all circumstances thereof, of the place, date, executors and authorising Notary Public of the inventories of movable property and description of immovable properties provided in this title.
- A mention, including all circumstances thereof, of the order conferring such representation, and of the place, date, executors and authorising Notary Public of any public deeds of transfer and encumbrance made, with judicial authorisation, by absentees’ legitimate or appointed representatives; and
- A mention, including all circumstances thereof, of the place, date, executors and authorising Notary Public, of the public deed of description or inventory of properties, and of the public deeds of partition and adjudication executed pursuant to the declaration of death, or the deeds of validation of the partitional papers, as the case may be.
Article 199. No one may be declared incapable save pursuant to a court judgement pursuant to the causes set forth in the Law.
Article 200. Persistent physical or mental illnesses or deficiencies which prevent a person from governing himself shall be causes for incapacitation.
Article 201. Minors may be incapacitated if a cause for incapacitation should apply to them and is reasonably expected to persist after they come of age.
Article 202 to 214. (Abrogated)
On guardianship, conservatorship and custody of minors and incapacitated persons
Article 215. The custody and protection of the person and property, or only of the person or the property of minors or incapacitated persons shall be performed, where applicable, by means of the following:
- The judicial defender.
Article 216. Guardianship duties constitute an obligation, shall be exercised for the benefit of the ward and shall be subject to the supervision of the judicial authority. The Judge, ex officio or at the request of any interested party, may also decree the measures and provisions provided in article 158 of this Code in all cases of guardianship or custody, de facto or pursuant to the law, of minors and incapable persons, to the extent that the latters’ interest should require it.
Article 217. One may only be excused from accepting guardianship positions in the cases provided in the Law.
Article 218. Court resolutions relating to guardianship and conservatorship positions must be registered with the Civil Registry. Such resolutions shall not be enforceable against third parties until the relevant entries have been registered.
Article 219. Registration of the resolutions mentioned in the preceding article shall be made pursuant to the notice served by the judicial authority forthwith to the Officer in charge of the Civil Registry.
Article 220. A person who, in the exercise of a guardianship duty, should suffer any damages without fault on his part shall be entitled to be compensated for such damages with charge to the property of the ward, if he should be unable to obtain compensation otherwise.
Article 221. Persons exercising any guardianship positions are forbidden from:
- Receiving gifts from the ward or his successors, until final approval of his management.
- Representing the ward when acting in his own name or on behalf of a third party in the transaction, there being a conflict of interest.
- Acquiring for valuable consideration property belonging to the ward or transferring property to the latter for valuable consideration.
On guardianship in general
Article 222. The following persons shall be subject to guardianship:
- Non-emancipated minors not subject to parental authority.
- Incapacitated persons when the judgement has ruled it.
- Persons subject to extended parental authority, upon termination thereof, save in the event that conservatorship should apply.
- Minors who are in a situation of neglect.
Article 223. Parents may, pursuant to a will or in a notarial public document, appoint a guardian, establish the guardian’ s supervision bodies, and designate the persons who are to propose them or order any provision relating to the person or property of their underage or incapacitated children. Likewise, any person with sufficient civil capacity, expecting to be judicially incapacitated in the future may, in a public notarial document, adopt any disposition relating to his person or property, including the designation of a guardian. The public documents mentioned in the present article shall be communicated ex officio by the authorising Notary Public to the Civil Registry, to be registered in the entry corresponding to the birth of the interested party. In incapacitation proceedings, the judge shall request a certificate from the Civil Registry and, as the case may be, from the registry of last wills, in order to ascertain the existence of any dispositions mentioned in this article.
Article 224. The provisions mentioned in the preceding article shall be binding on the Judge upon constituting the guardianship, unless the benefit of the minor or incapacitated person should require otherwise, in which case he shall issue a reasoned ruling.
Article 225. In the event of the existence of testamentary dispositions or provisions set forth in a notarial public document executed by the father and by the mother, respectively, both shall apply jointly, to the extent that they should be compatible. If they are not, the Judge shall adopt, in a reasoned ruling, those which he considers most convenient for the ward.
Article 226. Dispositions made in a will or notarial public document concerning guardianship shall be ineffective if, at the time of their adoption, the executor thereof should have been deprived of parental authority.
Article 227. A person disposing of property as a gift in favour of a minor or incapacitated person may establish the rules governing the administration thereof and designate the person or persons who are to exercise it. Duties not conferred upon the administrator shall correspond to the guardian.
Article 228. If the Public Prosecutor or the competent Judge should become aware of any person in the territory of their jurisdiction who ought to be subject to guardianship, the former shall request and the latter shall rule, even ex officio, the constitution of the guardianship.
Article 229. Relatives called to exercise guardianship and the person in whose custody the minor or incapacitated person should live shall be obliged to promote the constitution of the guardianship and, if they should fail to do so, they shall be joint and severally liable for any damages caused.
Article 230. Any person may make the Public Prosecutor or the judicial authority aware of the fact which determines the necessity of the guardianship.
Article 231. The Judge shall constitute the guardianship, after hearing the nearest relatives, any persons deemed convenient and, in any event, the ward, if he should have sufficient judgement, and always if he should be older than twelve.
Article 232. Guardianship shall be exercised under the supervision of the Public Prosecutor, who shall act ex officio or at the request of any interested party. He may require the guardian to inform him of the situation of the minor or incapacitated person and of the state of administration of the guardianship at any time.
Article 233. The Judge may establish, in the resolution constituting the guardianship or in another subsequent resolution, any supervision and control measures deemed suitable for the benefit of the ward. Likewise, he may at any time require the tutor to inform him on the situation of the minor or incapacitated person and the state of administration of the guardianship.
On designation of the guardianship and appointment of the guardian
Article 234. The following persons shall be preferred to appoint a guardian:
- The person designated by the ward himself, in accordance with the second paragraph of article 223.
- The spouse who lives with the ward.
- The parents.
- The person or persons designated by the latter in their testamentary dispositions.
- The descendant, ascendant or sibling designated by the judge. Exceptionally, the Judge, in a reasoned resolution, may alter the order of the preceding paragraph or dispense with all persons mentioned therein, if the benefit of the minor or incapacitated person should require it. Integration in the family life of the guardian shall be deemed beneficial for the minor.
Article 235. In the absence of the persons mentioned in the preceding article, the Judge shall designate as guardian the person he considers to be most suitable, as a result of his relations with the ward and for the benefit of the latter.
Article 236. Guardianship shall be exercised by single guardian, except:
- Where, as a result of special circumstances in the person of the ward or his property, it should be convenient to separate into different positions a guardian for his person and a guardian for his property, each of whom shall act independently within the scope of his competence, although decisions concerning both must be taken jointly.
- Where guardianship corresponds to the father and mother, it shall be exercised by both jointly in an analogous manner to parental authority.
- If a person should be designated guardian of his sibling’s children and it should be considered convenient that the spouse of the guardian should also exercise such guardianship.
- Where the Judge should appoint as guardians the persons designated by the parents of the ward in a will or notarial public document to exercise the guardianship jointly.
Article 237. In the case of number 4 of the preceding article, if the testator should have expressly provided it, and, in the case of number 2, if the parents should request it, the Judge may, upon appointing the guardians, rule that they may exercise the powers inherent to the guardianship joint and severally. In the absence of such kind of appointment, in all remaining cases and without prejudice to the provisions of numbers 1 and 2, the powers of the guardianship entrusted to several guardians must be exercised by them acting jointly, but any acts performed with the agreement of the largest number shall be valid. In the absence of such agreement, the Judge, after hearing the guardians and the ward if he should have sufficient judgement, shall rule, without further appeal, whatever he deems convenient. In the event that disagreements should be repeated and should seriously hinder the exercise of the guardianship, the Judge may reorganise the operation thereof and even appoint a new guardian.
Article 237 bis. If the guardians should have been granted powers to act jointly and any of them should incur in an incompatibility or conflict of interest in respect of any acts or contracts, these may be performed by the other guardian or, if there should be several, by the rest of them jointly.
Article 238. In cases where, for any reason, any of the guardians should be removed, the guardianship shall subsist with the remaining guardians, unless otherwise expressly provided upon making the appointment.
Article 239. The guardianship of neglected minors shall correspond by operation of Law to the entity mentioned in article 172. Notwithstanding the foregoing, a guardian shall be appointed in accordance with the ordinary rules in the event of existence of persons who, as a result of their relations with the minor or other circumstances, may assume the guardianship for the benefit of the former. The public entity entrusted with the guardianship of incapable persons in the respective territory when none of the persons provided in article 234 should be appointed guardian, shall assume by operation of law the guardianship of the incapable person when the latter should be in a situation of neglect. A de facto situation of neglect shall be deemed to exist as a result of the breach or of the impossible or inadequate exercise of the duties attributed in accordance with the laws, when such incapable persons are deprived of the necessary moral or material assistance.
Article 240. If it should be necessary to designate a guardian for several siblings, the Judge shall try to appoint a single person.
Article 241. All persons who are in full possession of their civil rights and who do not incur in any of the grounds for ineligibility set forth in the following articles may be guardians.
Article 242. Likewise, not-for-profit legal entities whose purposes include the protection of minors and incapacitated persons may also be guardians.
Article 243. The following persons may not be guardians:
- Persons deprived or suspended from the exercise of parental authority or from the rights of providing custody and education, in whole or in part, pursuant to a judicial resolution.
- Persons who have been legally removed from a prior guardianship.
- Persons sentenced to a term of imprisonment, while they are serving their sentence.
- Persons sentenced for any crime which makes one justiﬁably suppose that they shall not perform the guardianship properly.
Article 244. The following persons may also not be guardians:
- Persons who incur in absolute de facto impossibility.
- Persons who have a manifest enmity with the minor or incapacitated person.
- Persons of bad conduct or those with no known way of making a living.
- Persons with a major conflict of interest with the minor or incapacitated person, who are currently in litigation against him or in an action concerning civil status or title to property, or those who should owe him considerable sums.
- Bankrupt persons who have not been discharged, save in the event that the guardianship should only be over the ward’s person.
Article 245. Likewise, persons expressly excluded by the father or the mother in their testamentary dispositions or those provided in a notarial document may also not be guardians, unless the Judge, in a motivated resolution, should rule otherwise for the benefit of the minor or the incapacitated person.
Article 246. The grounds for ineligibility contemplated in articles 243.4 and 244.4 shall not apply to guardians designated pursuant to the testamentary dispositions of the parents when the latter should have been aware of them at the time of making the designation, unless the Judge, in a reasoned resolution, should rule otherwise for the benefit of the minor or the incapacitated person.
Article 247. Persons who, after their designation, should incur in a legal ground for ineligibility, or should conduct themselves ill in the exercise of the guardianship, by breaching the duties inherent to their position or notorious ineptitude in the exercise thereof, or when serious and ongoing problems should arise in their life together with the ward, shall be removed from the guardianship.
Article 248. The Judge, ex officio or at the request of the Public Prosecutor, of the ward or of another interested person, shall rule the removal of the guardian, after hearing the latter if, being summoned, he should appear in court. Likewise, the ward shall be heard if he should have sufficient judgement.
Article 249. During the processing of the removal proceedings, the Judge may suspend the guardian from his duties and appoint a judicial defender for the ward.
Article 250. After the judicial declaration of removal, a new guardian shall be appointed as provided in this Code.
Article 251. The performance of guardianship duties may be excused when, for reasons of age, illness, personal or professional occupations, as a result of the absence of any kind of tie between the guardian and the ward or for any other reason, the exercise of the position should be exceedingly burdensome. Legal entities may be excused where they lack sufficient resources for the proper performance of the guardianship.
Article 252. The interested party who alleges an excuse must do so within fifteen days counting from the date on which he became aware of the appointment.
Article 253. The guardian may be excused from continuing to exercise the guardianship, provided that there should be a person meeting similar conditions to replace him, when, during the exercise thereof, any of the excuses contemplated in article 251 should arise.
Article 254. The provisions of the preceding article shall not apply to guardianship entrusted to legal entities.
Article 255. If the excuse should arise subsequently, it may be alleged at any time.
Article 256. While the resolution relating to the excuse is pending, the person who has alleged it shall be obliged to exercise his duties. If he should fail to do so, the Judge shall appoint a defender to replace him, and the replaced guardian shall be liable for any expenses caused by the excuse proceedings if the excuse should be rejected.
Article 257. The guardian designated pursuant to a will who should be excused from the guardianship at the time of his appointment shall lose any property left by the testator in consideration of the appointment.
Article 258. Upon admission of the excuse, a new guardian shall be appointed.
On the exercise of the guardianshi
Article 259. The judicial authority shall vest the appointed guardian in his duties.
Article 260. The Judge may require the guardian to provide a bond securing the performance of his obligations and shall determine the form and amount thereof. Notwithstanding the foregoing, the public entity that undertakes the guardianship of a minor by operation of law or performs such guardianship as a result of a judicial resolution shall not be required to provide a bond.
Article 261. The Judge may also, at any time and for a just cause, render ineffective or amend in whole or in part any security provided.
Article 262. The guardian shall be obliged to make an inventory of the property of the ward within sixty days, counting from the date on which he should have taken possession of his duties.
Article 263. The judicial authority may extend this period in a reasoned resolution if there are grounds to do so.
Article 264. The inventory shall be made in court with the intervention of the Public Prosecutor, summoning any persons which the Judge deems convenient.
Article 265. Any money, jewellery, precious objects and securities or documents which, in the opinion of the judicial authority, should not remain in the guardian’s possession, shall be consigned in an establishment destined for such purposes. Any expenses resulting from the foregoing measures shall be borne by the ward’s property.
Article 266. The guardian who does not include in the inventory any credits held against the ward shall be deemed to waive his right thereto.
Article 267. The guardian is the representative of the minor or incapacitated person, save for such acts which the latter may perform by himself, pursuant to the express provision of the Law or of the incapacitation judgement.
Article 268. Guardians shall exercise their position in accordance with the personality of their wards, respecting their physical and psychological integrity. When it should be necessary they may request the assistance of the authority for the exercise of their guardianship.
Article 269. The guardian shall be obliged to watch over his ward and, in particular:
- To provide him with support.
- To educate the minor and provide him with a comprehensive upbringing.
- To promote the ward’s acquisition or recovery of civil capacity, and his insertion into society.
- To inform me Judge on an annual basis on the minor’s or incapacitated person’s situation and to render accounts of his administration on an annual basis.
Article 270. The single guardian and, as the case may be, the guardian of the ward’s property, is the legal administrator of the patrimony of the ward and is obliged to exercise such administration with the diligence of an orderly paterfamilias.
Article 271. The guardian shall require judicial authorisation:
- To confine the ward in a mental health or special education or training establishment.
- To dispose of or encumber real estate properties, commercial or industrial undertakings, precious objects and securities belonging to minors or incapacitated persons, or to enter into contracts or perform acts which are acts of disposal and are capable of registration. The sale of preferred subscription rights relating to shares shall be excepted from the above.
- To waive rights, and to settle or submit to arbitration any matters in which the ward should have an interest.
- To accept any inheritance without the benefit of inventory, or to reject the inheritance or liberalities.
- To make extraordinary expenses in property.
- To file a claim in the name of the ward, save for urgent matters or those involving a small amount.
- To lease property for a period exceeding six years.
- To lend and borrow money.
- To dispose as a gift of property or rights belonging to the ward.
- To assign to third parties any credits held by the ward against him, or to acquire for valuable consideration any credits against the ward held by third parties.
Article 272. Partition of the estate or the division of common property performed by the guardian shall not require judicial authorisation, but, once practised, shall require judicial approval.
Article 273. Before authorising or approving any of the acts included in the two preceding articles, the Judge shall hear the Public Prosecutor and the ward, if he should be older than twelve or if the Judge should deem it convenient, and shall commission any reports requested or any he deems suitable.
Article 274. The guardian shall be entitled to remuneration, provided that the assets of the ward should allow it. The Judge shall be in charge of setting the amount thereof and the manner of perceiving it, for which he shall take into account the work to be performed and the value and returns of the property, to the extent possible attempting to achieve an amount of the remuneration not lower than 4% or higher than 20% of the net yield of the property.
Article 275. Only parents, in their testamentary dispositions, may establish that the guardian is entitled to appropriate the fruits of the ward’s property in exchange for providing support, save if the Judge, in a duly reasoned resolution, should rule otherwise.
On termination of the guardianship and final rendering of accounts
Article 276. Guardianship shall terminate:
- When the minor turns eighteen, unless he should have been judicially incapacitated previously.
- By adoption of the underage ward.
- By the death of the ward.
- By the granting of the benefit of legal age to the minor.
Article 277. Guardianship shall also terminate:
- If it should have arisen as a result of deprivation or suspension parental authority, when the holder of such authority should recover it.
- Upon issuance of the judicial resolution ending the incapacitation or amending the incapacitation judgement, replacing the guardianship by a conservatorship.
Article 278. The guardian shall continue in the exercise of his position if the underage ward should have been incapacitated before coming of age, in accordance with the provisions of the incapacitation judgement.
Article 279. Upon ceasing in his duties, the guardian must render general justified accounts of his administration to the judicial authority, within three months, which period may be extended by any period required if there is a just cause for it. The action to require the rendering of accounts shall be subject to statute of limitations after five years from expiration of the period to perform it.
Article 280. Before issuing its resolution approving the accounts, the Judge shall hear the new guardian or, as the case may be the conservator or the judicial defender, and the ward or his heirs.
Article 281. Necessary expenses pertaining to the rendering of accounts shall be borne by the ward.
Article 282. The balance of the general account shall accrue legal interest, in favour or against the guardian.
Article 283. If the balance should be in favour of the guardian, it shall accrue legal interest from the date on which payment should be demanded of the ward, after delivering his property to him.
Article 284. If the balance should be against the guardian, it shall accrue legal interest as from the approval of the account.
Article 285. Judicial approval shall not prevent the exercise of any legal remedies to which the guardian and the ward or their successors may be reciprocally entitled as a result of the guardianship.
Article 286. The following persons shall be subject to conservatorship:
- Emancipated minors whose parents should have died or become unable to exercise the assistance provided in the Law.
- Persons who have obtained the benefit of legal age.
- Persons declared to be prodigal.
Article 287. Likewise a conservator shall be appointed for persons whose incapacitation judgement or, as the case may be, judicial resolution amending the former, should place them under this form of protection, based on their degree of discernment.
Article 288. In the cases mentioned in article 286, conservatorship shall have no other purpose than the participation of the conservator in the act which the minors or prodigal persons cannot perform by themselves.
Article 289. Conservatorship over incapacitated persons shall have as its purpose the conservator’s assisting in those acts expressly provided in the judgement which established it.
Article 290. If the incapacitation judgement should not have specified those acts in which the intervention of the conservator should be necessary, such intervention shall be deemed to extend to the same acts for which guardians require judicial authorisation, according to this Code.
Article 291. The rules governing appointment, ineligibility, excuse and removal applicable to guardians shall apply to conservators. Bankrupt persons who have not been discharged may not be conservators.
Article 292. If the person subject to conservatorship should have previously been subject to guardianship, the same person who was his guardian shall hold the position of conservator, unless otherwise provided by the Judge.
Article 293. Legal acts performed without the intervention of the conservator, where the latter is required, shall be voidable at the request of the conservator himself or of the ward, in accordance with articles 1301 et seq. of this Code.
On conservatorship over prodigal persons
Article 294 -296. [Abrogated]
Article 297. The acts of the person declared to be prodigal performed prior to the claim requesting declaration of prodigality may not be challenged on these grounds.
Article 298. [Abrogated]
On the judicial defender
Article 299. The judicial defender shall be appointed to represent and protect the interests of persons who are in any of the following cases:
- In the event of a conflict of interest on any matter between the minors or incapacitated persons and their legal representatives or the conservator. In the event of joint guardianship exercised by both parents, when a conflict of interest should exist only with one of them, the other, by operation of law and without the need for a special appointment, shall be entitled to represent and protect the minor or incapacitated person.
- In the event that, for any reason, the guardian or conservator should fail to perform his duties, until termination of the cause of such failure or designation of another person for the position.
- In all other cases provided in this Code.
Article 299 bis. From the time of the awareness that a person ought to be subject to guardianship and until the issuance of the judicial resolution ending the proceedings, the Public Prosecutor shall assume his representation and defence. In such case, where, as well as the care of his person, such person’s property must also be administered, the Judge may designate an administrator thereof, who must render account of his management upon termination thereof.
Article 300. The Judge shall, in voluntary jurisdiction proceedings, ex officio or at the request of the Public Prosecutor, of the minor himself or of any person capable of appearing at court, shall appoint as defender whoever he deems most suitable for the position.
Article 301. The same grounds for ineligibility, excuses and causes for removal applicable to guardians and conservators shall apply to the defender.
Article 302. The judicial defender shall have the powers granted by the Judge, to whom he must render account of his management upon termination thereof.
On de facto custody
Article 303. Without prejudice to the provisions of articles 203 and 228, when the judicial authority should become aware of the existence of a de facto carer, it may request him to inform on the situation of the person and property of the minor or the allegedly incapable person and his actions in connection therewith, and may also set any control and supervision measures deemed suitable.
Article 304. Acts performed by the de facto carer in the interest of the minor or allegedly incapable person may not be challenged if they are to his benefit.
Article 305. (No content)
Article 306. The provisions of article 220 concerning the guardian shall apply to the de facto carer.
Article 307 -313. (No content)
On legal age and emancipation
Article 314. Emancipation takes place:
- By coming of age.
- By marriage of the minor.
- By concession granted by persons exercising parental authority.
- By concession granted by the court.
Article 315. Legal age begins upon turning eighteen. The date of birth shall be included in full for the calculation of legal age.
Article 316. Marriage shall result in emancipation by operation of law.
Article 317. Emancipation by concession granted by the persons exercising parental authority shall require that the minor has turned sixteen and consents to the emancipation. Such emancipation shall be executed pursuant to public deed, or by appearing before the Judge in charge of the Registry.
Article 318. The granting of emancipation must be registered in the Civil Registry, and until then shall not be effective vis-à-vis third parties. Emancipation may not be revoked once granted.
Article 319. A child older than sixteen who should live independently of his parents with their consent shall be deemed emancipated for all purposes. The parents may revoke this consent.
Article 320. The Judge may grant the emancipation of children older than sixteen if they should request it, after hearing the parents:
- When the person exercising parental authority should marry or live together in marital fashion with a person other than the other parent.
- When the parents should be separated.
- In the event of any cause which seriously hinders the exercise of parental authority.
Article 321. The Judge, after receiving the Public Prosecutor’s report, may also grant the benefit of legal age to the person subject to guardianship who is older than sixteen and who should request it.
Article 322. A person who is of legal age has capacity for all acts of civil life, save for the exceptions set forth in this Code for special cases.
Article 323. Emancipation qualifies the minor to govern his person and property as if he were of legal age, but until he comes of age the emancipated minor may not borrow money, encumber or dispose of immovable properties and commercial or industrial undertakings or objects of extraordinary value without his parents’ consent and, in the absence of both, without his conservator’s consent. The emancipated minor may appear in court by himself. The provisions of this article shall also apply to the minor who has judicially obtained the benefit of legal age.
Article 324. For the married minor to dispose of or encumber immovable properties, commercial or industrial undertakings or objects of extraordinary value which are common to both spouses, the consent of both spouses shall suffice if the other spouse should be of legal age; if the other spouse should also be underage, the consent of the parents or conservators of both shall also be required.
On the Registry of Civil Status
Article 325. Acts relating to the civil status of persons shall be registered in the Registry destined for such purposes.
Article 326. The Registry of Civil Status shall comprise all registrations or entries of births, marriages, emancipations, recognitions and legalisations, deaths, naturalisations and civil residence, and shall be entrusted to the municipal Judges or other officers of the civil jurisdiction in Spain, and consular or diplomatic Agents abroad.
Article 327. The Registry records shall constitute proof of civil status, which may only be supported by other evidence in the event that the former should never have existed, or if the Registry books should have disappeared, or if they should be challenged before the Courts.
Article 328. It shall not be necessary to physically present the newborn before the officer in charge of the Registry to register the birth, a statement by the person obliged to register the birth being sufficient. This statement shall include all circumstances required by the law; and shall be signed by the author, or two witnesses at his request, if he should be unable to sign.
Article 329. In canonical marriages, the spouses shall be obliged to provide to the Public officer attending the wedding all necessary information for the registration thereof with the Civil Registry. Data relating to banns, impediments and dispensation thereof shall be excepted therefrom, and shall not be included in the entry.
Article 330. Naturalisations shall have no legal effect whatsoever until registration thereof with the Registry, whatever the supporting evidence and the date on which they should have been granted.
Article 331. Municipal and first instance Judges, as the case may be, may punish any infringements of the provisions relating to the Civil Registry which do not constitute a crime or misdemeanour with a 20 to 100 peseta fine.
Article 332. Law of June 17, 1870 shall continue to apply to the extent that it has not been amended by the preceding articles.
On property, ownership and its modifications
On the classification of property
Article 333. All things which are or may be subject to appropriation are considered movable or immovable property.
On immovable property
Article 334. The following are immovable property:
- Land, buildings, roads and constructions of all kinds which are joined to the ground.
- Trees and plants and pending fruits, while they are joined to the earth or form integral part of an immovable property.
- Anything which is joined to an immovable property on a fixed basis, so that it cannot be separated therefrom without breaking the material or impairing the object.
- Statues, reliefs, paintings or other objects of use or ornamentation, placed on buildings or on land by the owner of the immovable property, in such a way that reveals the purpose of uniting them to the land on a permanent basis.
- Machines, vessels, instruments or utensils destined by the owner of the property to the industry or undertaking performed in the building or landed property, and which are directly destined to satisfy the needs of the undertaking itself.
- Animal farms, dovecotes, beehives, fish tanks or analogous hatcheries, when the owner has placed or preserved them for the purpose of keeping them joined to the property or forming part thereof on a permanent basis.
- Fertilisers destined for the cultivation of landed property, located in the land where it is to be used.
- Mines, quarries and dumps, while their matter remains joined to the source, and flowing or stagnant waters.
- Docks and constructions which, even if they float, are destined, as a result of their purpose and conditions, to remain in a fixed point of the river, lake or coast.
- Administrative concessions to perform public works, and easements and other rights in rem pertaining to immovable property.
On movable property
Article 335. Property capable of appropriation not included in the preceding chapter and, generally, all property which may be transported from one point to another without impairment of the immovable object to which it is joined shall be deemed to movable property.
Article 336. Income or pensions, whether life or hereditary annuities, attached to a person or family, provided that they do not encumber with a real lien an immovable object, positions subject to disposal, contracts relating to public services and certificates and securities representing mortgage loans shall also be considered movable property.
Article 337. Movable property shall be fungible or non-fungible. Property which cannot be properly used according to its nature without being consumed shall belong to the first species; other property shall belong to the second species.
On property based on the persons to which it belongs
Article 338. Property is either of public domain or private property.
Article 339. The following property is of public domain:
- Property destined for public use, such as roads, canals, rivers, torrents, ports and bridges built by the State, riverbanks, shores, bays and other analogous property.
- Property exclusively owned by the State, which is not for public use, and which is destined to any public services or to the fostering of national wealth, such as city walls, fortresses and other civil works for the defence of the territory, and mines, until the granting of a concession thereon.
Article 340. All other property belonging to the State in which the circumstances expressed in the preceding article do not concur shall be deemed to private property.
Article 341. When property of public domain ceases to be destined to general use or to the requirements of the defence of the territory, it shall become part of the property owned by the State.
Article 342. Property belonging to the Royal Patrimony shall be governed by a specific statute, and, for all matters not provided therein, by the general provisions governing private property set forth in this Code.
Article 343. Property belonging to provinces and towns is divided into property for public use and patrimonial property.
Article 344. In provinces and villages, provincial and neighbourhood parks, squares, streets, public fountains and waters, promenades and general service public works paid by the same villages or provinces shall be deemed property for public use. All remaining property held by one or the other shall be patrimonial property and shall be governed by the provisions of this Code, save as otherwise provided in specific statutes.
Article 345. Besides the patrimonial property of the State, the Province and the Municipality, property individually or jointly belonging to individuals shall be private property.
Provisions common to the three preceding chapters
Article 346. When, in a provision of law, or pursuant to an individual statement, the expression immovable property or things, or movable property or things should be used, the property listed in Chapter 1 and in Chapter 2, respectively, shall be deemed comprised therein. When only the word “movables” should be used, money, credits, commercial paper, securities, jewellery, scientific or artistic collections, books, medals, weapons, clothing, horses or carriages and their harness, grain, stock and merchandise, or other things the principal destination whereof is not to furnish or adorn rooms shall not be deemed comprised therein, save in the event that the context of the law or individual provision clearly provides otherwise.
Article 347. Where in any sale, legacy, gift or other disposition in which there is a reference to movable or immovable property, possession or ownership thereof should be transferred with everything located therein, any cash, securities, credits and shares whose documents are located within the transferred property shall not be deemed comprised therein, unless the intention to extend the transfer to such securities and rights should be clearly expressed.
On ownership in general
Article 348. Ownership is the right to enjoy and dispose of a thing, without greater limitations than those set forth in the laws. The owner shall have an action against the holder and the possessor of the property to claim it.
Article 349. Nobody may be deprived of his property save by the competent Authority and for on justified grounds of public utility, always after the relevant compensation. In the absence of this requirement, Judges shall protect and, as the case may be, restore such person’s possessions.
Article 350. The owner of a plot of land is the owner of the surface and of what is underneath it, and may perform therein any building works, plantations and excavations which may be convenient, save for any easements, and subject to the provisions of the laws relating to mining and waters and police regulations.
Article 351. Hidden treasure shall belong to the owner of the land in which it is found. Notwithstanding the foregoing, when the discovery should be made by chance in another’s property, or in State property, half shall correspond to the discoverer. If the objects discovered should be of interest to science or art, the State may acquire them for their fair value, which shall be distributed in accordance with the above provisions.
Article 352. For the purposes provided in the law, treasure shall be deemed to mean the hidden and ignored deposit of money, jewellery or other precious objects, whose legitimate ownership is unknown.
On the right of accession
Article 353. Ownership of the property shall, pursuant to the right of accession, entitle the owner to everything produced thereby, or naturally or artificially joined or incorporated thereto.
On the right of accession in respect of the products of the property
Article 354. The following shall belong to the owner:
- Natural fruits.
- Industrial fruits.
- Civil fruits.
Article 355. Natural fruits are the spontaneous produce of the land, and the brood and other products of animals. Industrial fruits are those produced by plots of land of any kind as a result of cultivation or work. Civil fruits are the rent on buildings, the lease on land and the amount of perpetual or life annuities or other analogous income.
Article 356. The person who receives the fruits has the obligation of paying the expenses made by a third party for their production, collection and preservation.
Article 357. Only fruits which are manifest or born shall be deemed natural or industrial fruits. As relates to animals, it will suffice if they are in their mother’s womb, even if they are not yet born.
On the right of accession in respect of immovable property
Article 358. Anything built, planted or sown on another’s plot of land and any improvements or repairs made therein shall belong to the owner thereof, subject to the provisions of the following articles.
Article 359. Any works, sowings and plantations shall be presumed made by the owner at his expense, unless there is evidence to the contrary.
Article 360. The owner of the land who performs therein, by himself or by another, plantations, constructions or works with another’s materials, must pay the value thereof; and, if he should have acted in bad faith, he shall also be obliged to compensate any damages. The owner of the materials shall be entitled to remove them only if he can do so without impairment of the construction, or without destroying the plantations, constructions or works performed.
Article 361. The owner of the land on which another should build, sow or plant in good faith shall be entitled to appropriate the works, sowings or plantations, after paying the compensation set forth in articles 453 and 454, or to make the person who manufactured or planted it pay the price of the land, and the person who sowed it, the corresponding rent.
Article 362. The person who builds, plants or sows in bad faith on another’s land shall lose what he has built, planted or sown without being entitled to compensation.
Article 363. The owner of the land on which another has built, planted or sown in bad faith may request the demolition of the works or the uprooting of the plantation and sowing, returning things to their original condition at the expense of the person who built, planted or sowed.
Article 364. In the event of bad faith not only on the part of the person who builds, sows or plants on another’s land, but also on the part of the owner of the latter, the rights of one and the other shall be the same as if both had acted in good faith. The owner shall be deemed to have acted in bad faith whenever the deed should have been performed in his full sight, with his awareness and forbearance, and without opposition.
Article 365. If the materials, plants or seeds should belong to a third party who has not acted in bad faith, the owner of the land must be liable for their value on a subsidiary basis, only in the event that the person who used them does not have sufficient property to pay. This provision shall not apply if the owner should exercise the right provided in article 363.
Article 366. The accretion gradually obtained by riverbanks as a result of the water currents shall belong to the owners of the land and properties adjoining such banks.
Article 367. The owners of landed properties adjoining ponds or lagoons do not acquire the land uncovered by the natural decrease of the waters, nor lose the land flooded by the waters in extraordinary rises.
Article 368. Where the current of a river, stream or torrent should segregate from the bank of a landed property a known portion of land and should transport it to another property, the owner of the property to which the segregated part belonged shall remain the owner thereof.
Article 369. Trees which are uprooted and transported by the current of the waters shall belong to the owner of the land to which they are taken, if the former owners should not claim them within one month. If they should claim them, they must pay any expenses incurred in gathering them in or putting them in a safe place.
Article 370. Riverbeds which are abandoned as a result of natural variations in the course of the waters shall belong to the owners of the lands of the riverbanks, in their respective lengths. If the abandoned riverbeds should have separated plots of land belonging to different owners, the new dividing line shall be equidistant from such properties.
Article 371. Islands formed in the seas adjacent to the coasts of Spain and in navigable and floatable rivers belong to the State.
Article 372. Where a navigable and floatable river should vary its direction naturally, and open a new course in a private landed property, this course shall become part of the public domain. The owner of the property shall recover it when the waters should leave it dry again, either naturally or as a result of any legally authorised works for such purposes.
Article 373. Islands which are formed in rivers by successive accumulation of debris belong to the owners of the nearest banks or shores, or to those of both banks if the island should be in the middle of the river, and the island shall then be divided longitudinally in half. If a single island thus formed should be further away from one bank than from the other, the owner of the nearest bank shall own all of it.
Article 374. When the river current should divide it into two branches, leaving a plot of land or part of it isolated, its owner shall remain owner thereof. He shall likewise keep it if a portion of land is separated from the property by the current.
On the right of accession in respect of movable property
Article 375. When two movable things belonging to different owners are joined in such a manner that they form a single thing, without bad faith, the owner of the principal thing shall acquire the accessory thing, compensating the former owner for its value.
Article 376. Between two things which have been incorporated together, the thing to which the other has been joined as an adornment, or for its use or perfection shall be deemed the principal thing.
Article 377. If, pursuant to the rule of the preceding article, it should be impossible to determine which of two things incorporated together is the principal thing, the thing of greater value shall be deemed principal, and, between two things of equal value, the one with the greater volume. In paintings and sculpture, in writings, printed documents, engravings and lithographs, the table, the metal, the stone, the canvas, the paper or the parchment shall be deemed accessory.
Article 378. When the things joined together can be separated without impairment, the respective owners may demand their separation. However, when the thing joined for the use, embellishment or perfection of another is much more precious than the principal thing, the owner of the former may demand separation thereof, even if the thing to which it was incorporated suffers any impairment.
Article 379. When the owner of the accessory things has incorporated it in bad faith, he shall lose the incorporated thing and shall be obliged to compensate the owner of the principal thing for any damages suffered. It the owner of the principal thing should have acted in bad faith, the owner of the accessory thing shall be entitled to choose between the former paying its value or the separation of the thing belonging to him, even if it should be necessary to destroy the principal thing; in both cases, compensation of damages shall also apply. If either owner should have performed the incorporation in the other’s sight, with his awareness and forbearance, and without opposition, their respective rights shall be determined as if they had acted in good faith.
Article 380. Whenever the owner of the materials employed without his consent should be entitled to compensation, he may request that this consist of delivery of a thing equal to the one employed in species and value, and all circumstances thereof, or the price thereof, according to expert appraisal.
Article 381. If, at the will of their owners, two things of the same or different species should be mixed, or if the mix should take place by chance, and in this last case the things should not be capable of separation without impairment, each owner shall acquire a proportional right to the part which corresponds to it based on the value of the things mixed or commingled.
Article 382. If, at the will of one owner only, but in good faith, two things of equal or different species should be mixed or commingled, the rights of the owners shall be determined according to the provisions of the preceding article.
If the person who performed the mix or commingling acted in bad faith, he shall lose the thing belonging to him which was mixed or commingled, and shall also be obliged to compensate any damages caused to the owner of the thing with which he performed the mix.
Article 383. The person who, acting in good faith, has used another’s materials in whole or in part to create a new work, shall be entitled to appropriate the work, compensating the owner of the materials for their value. If the materials should be more precious or of greater value than the work for which it was used, the owner of the former may, at his discretion, keep the new species, after compensating the value of the work, or request compensation for the materials. If bad faith should have intervened in the creation of a new species, the owner of the materials shall be entitled to keep the work without paying the author anything, or to request the latter to compensate him for the value of the materials and any damages caused.
On survey and marking of boundaries
Article 384. Every owner shall be entitled to mark the boundaries of his property, summoning the owners of the adjoining plots. Holders of rights in rem shall have the same right.
Article 385. The marking of boundaries shall be performed in accordance with the deeds held by each owner and, in the absence of sufficient title, as results from the possession of the adjoining owners.
Article 386. If the deeds should fail to determine the limits or area belonged to each owner, and the matter should not be capable of resolution in reference to possession or by another means of evidence, the marking of boundaries shall be performed by distributing in equal parts the land subject to dispute.
Article 387. If the deeds of the adjoining owners should indicate a greater or lower area than that which comprises the whole of the land, the excess or shortfall shall be distributed proportionally.
On the right to enclose rural properties
Article 388. Any owner may enclose or fence his landed properties by means of walls, ditches, live or dead hedges, or in any other way, without prejudice to any easements constituted thereon.
On ruinous buildings and trees which threaten to fall down
Article 389. If a building, wall, column or any other construction should threaten to collapse, its owner shall be obliged to undertake its demolition or perform the necessary works to prevent its collapse. If the owner of the ruinous building should not perform this, the Authorities may have it demolished at his expense.
Article 390. Where a sturdy tree should threaten to fall down in such a manner that it may cause damage to another’s landed property or to any passersby on a public or private road, the owner of the tree shall be obliged to uproot and remove it; and, if he should fail to do so, it shall be done at his expense by order of the Authorities.
Article 391. In the case of the two preceding articles, if the building or tree should fall down, the provisions of articles 1907 and 1908 shall apply.
On joint ownership
Article 392. There is joint ownership where ownership of a thing or right belongs pro indiviso to several persons. In the absence of a contract or of specific regulations, joint ownership shall be governed by the provisions of this title.
Article 393. The participants’ share in both benefits and charges shall be proportional to their respective interest. Portions corresponding to the participants of the community shall be presumed equal, unless evidence to the contrary is provided.
Article 394. Each participant may use the things owned in common, provided that he does so in accordance with their destination and in a manner which does not damage the interests of the community, or prevent coparticipants from using them according to their right.
Article 395. Every co-owner shall be entitled to oblige the participants to contribute to preservation expenses of the common thing or right. Only the person who renounces his part of the property shall be exempt from this obligation.
Article 396. The different flats or premises in a building, or the parts thereof capable of independent use, as a result of having their own exit to communal elements of the former or to the public road, may be subject to separate ownership, which shall carry an inherent co-ownership right over the communal elements of the building, which are all those necessary for its suitable use and enjoyment, such as the land, surface, foundations and roofs; structural elements, among them pillars, beams, frameworks and load-bearing walls; facades, with the external adornments of terraces, balconies and windows, including their look or configuration, the closing elements which form them and their external coatings; the foyer, stairs, caretaker’s cubicles, corridors, passageways, walls, pits, patios, wells and the spaces destined for lift shafts, tanks, meters, telephone or other communal services or facilities, even those which should be of exclusive use; lifts and facilities, conduits and pipes for drainage purposes and for the supply of water, gas or electricity, even for solar energy; and for hot water, heating, air conditioning, ventilation or smoke extraction; for fire detection and prevention purposes; for entry-phones and other security facilities of the buildings, and shared aerials and other facilities for audiovisual or telecommunications services, until they reach private spaces; easements and any other material or legal elements which are indivisible as a result of their nature or destination. The parts which are co-owned shall in no event to be capable of division, and may only be disposed of, encumbered or attached together with the exclusively owned specific portion to which they are inseparably attached. In the event of disposal of a flat or premises, the owners of the rest shall not be entitled to rights of pre-emption or first refusal. This form of ownership shall be governed by specific statutory provisions and, to the extent that they should permit, by the will of the interested parties.
Article 397. None of the co-owners may make alterations in the thing owned in common without the others’ consent, even though advantages for all of them should be had as a result thereof.
Article 398. The agreement of the majority of the participants shall be required for the administration and better enjoyment of the thing owned in common. There shall be no majority unless the resolution is passed by participants representing the majority of the interests constituting the subject matter of the joint ownership. In the absence of a majority, or if the resolution passed thereby should be seriously detrimental to the persons interested in the thing owned in common, the Judge shall provide what he deems suitable, at the request of any party, even by appointing an Administrator. When a part of the thing should belong exclusively to a participant or to some of them, and another should be owned in common, the provisions of the preceding paragraph shall only apply to the latter.
Article 399. Each co-owner shall have full ownership of his part and of the fruits and benefits corresponding to him, and may, as a result thereof, dispose of it, assign it or mortgage it and even delegate its use to another, save if they should be personal rights. However, the effect of the disposal or the mortgage in relation with the co-owners shall be limited to the portion awarded thereto in the division upon termination of the joint ownership.
Article 400. No co-owner shall be obliged to remain in the joint ownership. Each of them may request any time the division of the thing owned in common. Notwithstanding the foregoing, the covenant to preserve the thing undivided for a specific period, which shall not exceed ten years, shall be valid. This period may be extended by a new covenant.
Article 401. Notwithstanding the provisions of the preceding article, the co-owners may not request the division of the thing owned in common when, if they should do so, it should become useless for its intended destination. If it should be a building whose characteristics should allow it, at the request of any of the co-owners, the division may take place by awarding separate flats or premises, with their attached communal elements, in the manner provided in article 396.
Article 402. The division of the thing owned in common may be performed by the interested parties, or by arbitrators or amicable compounders appointed at the will of the participants. If it should be performed by arbitrators or amicable compounders, they must create portions which are proportional to the rights of each of them, avoiding to the extent possible any supplements in cash.
Article 403. Creditors or assignees of the participants may attend the division of the thing owned in common and challenge any division performed without their attendance. However, they may not challenge the division which has already been completed, save in the event of fraud, or in the event that it should have taken place notwithstanding their formally filed opposition to prevent it, and always excepting the rights of the debtor or of the assignor to uphold its validity.
Article 404. Where the thing should be in essence indivisible, and the co-owners should not agree on its being awarded to one of them, compensating the rest, it shall be sold, and its price shall be distributed among them.
Article 405. The division of the thing owned in common shall not prejudice a third party, who shall retain any mortgage rights, easements or other rights in rem belonging to him prior to the division. Personal rights belonging to a third party against the joint ownership shall likewise remain in force notwithstanding the division.
Article 406. The rules concerning the partition of the estate shall apply to division between the participants in the joint ownership.
On certain special properties
On ownership of water
Article 407. The following waters are of public domain:
- Rivers and their natural courses.
- Continuous or discontinuous waters of springs and streams flowing in their natural courses, and the riverbeds.
- Waters which spring in a continuous or discontinuous manner in land which is of public domain.
- Lakes and lagoons created by nature in public land, and their rivulets.
- Rainwater which flows on cliffs or watercourses, where the course is also of public domain.
- Underground waters in public land.
- Water found in areas where public engineering works are taking place, even if performed by a concessionaire.
- Waters which spring in a continuous or discontinuous manner from the private property of individuals, of the State, the province or villages, from the time they exit such properties.
- Any excess from fountains, drains and public establishments.
Article 408. The following waters are private property:
- Continuous or discontinuous waters which spring from privately owned plots of land, while they remain in such land.
- Lakes and lagoons and their rivulets, created by nature in such plots of land.
- Underground waters located in such plots of land.
- Rainwater which falls therein, while it does not exit their boundaries.
- The beds of continuous or discontinuous running waters formed by rainwater, and those of any streams which flow through land and properties which are not public domain. In any irrigation channel or aqueduct, the water, the bed, the boxes and the banks shall be considered an integral part of the plot of land or the building for which the waters are destined. The owners of the plots of land through which or through whose boundaries the aqueduct should pass may not allege ownership thereof, nor any right to use its bed or banks, unless it is based on deeds of ownership which express the right or ownership claimed thereby.
On the use of public waters
Article 409. The use of public waters is acquired:
- By administrative concession.
- By twenty years’ prescription. The limits of the rights and obligations of such uses shall be, in the first case, as results from the terms of the concession and, in the second, from the manner and form in which the waters have been used.
Article 410. Any concession to use waters is understood without prejudice to the rights of third parties.
Article 411. The right to use public waters shall terminate as a result of expiration of the concession and by lack of use for twenty years.
On the use of private waters
Article 412. The owner of a plot of land in which a continuous or discontinuous spring or stream should be born may use its waters while they pass through it; but the remaining waters shall become public, and their use shall be governed by the special Law of Waters.
Article 413. Private property over rivulets of rainwater shall not authorise to perform tasks or works to change their course to the detriment of a third party, nor such works whose destruction may cause such detriment by the force of the current.
Article 414. Nobody may enter private property to search for waters or use them without licence from the owners.
Article 415. The ownership rights held by the owner of a plot of land over the waters which spring from it shall not prejudice any rights legitimately acquired to use them by the owners of lower plots.
Article 416. Any owner of a plot of land shall be entitled to build within his property deposits to preserve rainwater, provided that he does not cause any detriment to the public or to a third party.
On underground waters
Article 417. Only the owner of a plot of land or another person with his licence may investigate underground waters therein. The investigation of underground waters in land belonging to the public domain may only be done with an administrative licence.
Article 418. Waters surfaced in accordance with the special Law of Waters belong to the person who brought them to the surface.
Article 419. If the owner of the waters surfaced should abandon them to their natural course, they shall become part of the public domain.
Article 420. The owner of a plot of land in which defensive works have been performed to contain the water or where, as a result of the variation of their course, it should be necessary to build them again, shall be obliged, at his discretion, to make any necessary repairs or constructions or to tolerate the performance thereof, without detriment to him, by the owners of the plots of land which may experience or be manifestly exposed to damage.
Article 421. The provisions of the preceding article shall apply to the case where it is necessary to clear any plot of land from materials whose accumulation or collapse should prevent the course of the waters with damage or danger to a third party.
Article 422. All owners who participate in the benefit resulting from the works mentioned in the two preceding articles shall be obliged to contribute to the expenses thereof in proportion to their interest. Those who should have caused the damage by their fault shall be liable for any expenses.
Article 423. Ownership and use of waters belonging to corporations or individuals shall be subject to the Expropriation Law for reasons of public utility.
Article 424. The provisions of this title shall not prejudice rights acquired prior hereto, or the private ownership of the owners of waters, irrigation canals, springs or streams pursuant to which they use, sell or exchange them as private property.
Article 425. For all that is not expressly provided in this chapter, the provisions of the special Law on Waters shall apply.
Article 426. Any Spaniard or foreigner may freely perform in land of public domain samplings or excavations not exceeding 10 m in breadth or depth for the purpose of discovering minerals; but he must give prior notice thereof to the local Authorities. On private property no sampling may be performed without the authorisation of the owner or his representative.
Article 427. The limits of the rights mentioned in the preceding article, prior formalities and conditions for the exercise thereof, designation of materials to be considered minerals and determination of the rights corresponding to the owner of the land and to the discoverers of the minerals in the event of a concession, shall be governed by the special Mining Law.
On intellectual property
Article 428. The owner of a literary, scientific or artistic work shall be entitled to exploit it and dispose of it at will.
Article 429. The intellectual property law sets forth the persons to whom this right belongs, the manner of its exercise and its duration. In cases not provided or resolved by such specific statute, the general rules provided in this Code relating to property shall apply.
On possession and its species
Article 430. Natural possession is the holding of a thing or the enjoyment of a right by a person. Simple possession is that same holding or enjoyment joined with the intention of having the thing or right as one’s own.
Article 431. Possession is exercised on things or rights by the same person who holds and enjoys them, or by another in his name.
Article 432. Possession of property and rights may be held in one of two capacities: either as owner, or as holder of the thing or right, to preserve or enjoy them, while ownership belongs to another person.
Article 433. The person who is unaware that there is a defect which invalidates his title or manner of acquisition shall be deemed a possessor in good faith. Otherwise he shall be deemed a possessor in bad faith.
Article 434. Good faith is always presumed, and the person asserting a possessor’s bad faith shall have the burden of proving it.
Article 435. Possession acquired in good faith shall not lose this nature save if and when there are acts which evidence that the possessor is not unaware that he possesses the thing improperly.
Article 436. It shall be presumed that possession continues to be enjoyed in the same capacity in which it was acquired, unless there is evidence to the contrary.
Article 437. Only things and rights which are capable of appropriation may be subject to possession.
On acquisition of possession
Article 438. Possession is acquired by material occupation of the thing or right possessed, or by the latter becoming subject to our will, or pursuant to the acts and legal formalities set forth to acquire such right.
Article 439. Possession may be acquired by the same person who is to enjoy it, his legal representative, his attorney or by a third party without mandate; but this last case possession shall not be deemed to have been acquired until the person in whose name the act of possession has been verified should ratify it.
Article 440. Possession of hereditary property shall be deemed transferred to the heir without interruption from the time of death of the decedent, in the event that the former should finally accept the inheritance. The person who validly rejects an inheritance shall be deemed never to have possessed it.
Article 441. In no event may possession be acquired violently where there is a possessor who opposes this. A person who believes he has an action or right to deprive another of holding a thing, if the holder refuse to deliver it, must request the assistance of the competent Authority.
Article 442. A person succeeding by inheritance shall not suffer the consequences of his principal’s defective possession, if it is not proven that he was aware of the defects which affected it; however, the effects of possession in good faith shall only benefit him from the date of his decedent’s death.
Article 443. Minors and incapacitated persons may acquire possession over things; but they shall require the assistance of their legitimate representatives to use the rights arisen in their favour as a result of such possession.
Article 444. Acts which are merely tolerated, and those which are performed in a clandestine fashion and without the possessor of the thing being aware of them, or with violence, shall not affect possession.
Article 445. Possession, as a fact, may not be acknowledged in favour of two different persons, other than in cases of pro indiviso. If a dispute should arise on the fact of possession, the current possessor shall be preferred; if there should be two possessors, the oldest shall be preferred; if the dates of possession should be the same, the possessor who presents a title shall be preferred; and, all these conditions being equal, the thing shall be deposited or consigned with the court, until the possession or ownership thereof is determined pursuant to the corresponding proceedings.
On the effects of possession
Article 446. Any possessor is entitled to be respected in his possession; and, if he should be disturbed in it, he must be protected or such possession must be restored to him by the means set forth in procedural laws.
Article 447. Only possession acquired and enjoyed in the capacity of owner may serve as title to acquire ownership.
Article 448. The possessor in the capacity of owner has a legal presumption of possessing based on just title, and cannot be obliged to exhibit it.
Article 449. Possession of a real property shall involve possession of the furniture and objects located therein, unless it should be expressed or evidenced that they are to be excluded.
Article 450. Each participant of thing possessed in common shall be deemed to have possessed exclusively the part which, upon dividing the thing, should be allocated to him, during the whole period during which it remained undivided. Interruption in the possession of the whole or part of the thing possessed in common shall be to the equal detriment of all.
Article 451. The possessor in good faith shall make any fruits received his own unless he is legally interrupted in his possession. Natural and industrial fruits shall be deemed received from the time on which they arise or are separated. Civil fruits shall be deemed accrued on a daily basis, and shall belong to the possessor in good faith in such proportion.
Article 452. If at the time on which good faith should cease, any natural or industrial fruits should be pending, the possessor shall be entitled to recover any expenses made for their production, and also to the part of the liquid product of the harvest proportional to the time of his possession. Charges shall be allocated pro rata in the same manner among two possessors.
The owner of the thing may, if he wishes to, grant the possessor in good faith the power to finish cultivation and gathering of any fruits which are pending, as compensation for the part of the cultivation expenses and the liquid proceeds which belong to him; the possessor in good faith who for any reason does not wish to accept this grant, shall forfeit the right to be compensated in another manner.
Article 453. Necessary expenses shall be paid to every possessor; but only the possessor in good faith may retain the thing until satisfaction thereof. Useful expenses shall be paid to the possessor in good faith, who shall be entitled to the same right of retention, and the person who should have prevailed in the dispute over possession may choose to satisfy the amount of the expenses, or pay the increase in value of the thing as a result thereof.
Article 454. Purely luxurious or merely recreational expenses shall not be payable to the possessor in good faith; but he may take away any adornments with which he has embellished the principal thing if it should not suffer any impairment, and if his successor in possession does not prefer to pay the amount of the relevant expenses.
Article 455. The possessor in bad faith shall pay any fruits received and those which the legitimate possessor could have received, and shall only be entitled to be repaid any necessary expenses made for the preservation of the thing. Expenses made for luxurious and recreational improvements shall not be paid to the possessor in bad faith; but he may take the objects in which such expenses have been invested, provided that the thing suffers no impairment, and that the legitimate possessor does not prefer to keep them by paying their value at the time of becoming their possessor.
Article 456. Improvements resulting from nature or from time shall always inure to the benefit of the person who has won possession.
Article 457. The possessor in good faith shall not be liable for the impairment or loss of thing possessed, outside cases where he should be proved to have acted with malice. The possessor in bad faith shall be liable for impairment or loss in any case, and even for those caused by force majeure when he should have maliciously delayed delivery of the thing to its legitimate possessor.
Article 458. The person who obtains possession is not obliged to pay improvements which have ceased to exist upon acquiring the thing.
Article 459. The current possessor who proves having previously possessed the thing shall be presumed to have possessed it also during the time in between, unless evidence to the contrary is provided.
Article 460. The possessor may lose his possession:
- By abandonment of the thing.
- By assignment made in favour of another for valuable consideration or as a gift.
- By total destruction or loss of the thing, or as a result of its becoming beyond the bounds of commerce.
- By another’s possession, even against the will of the former possessor, if such new possession should have lasted more than one year.
Article 461. Possession of movable property shall not be deemed lost while it remains in the power of the possessor, even if the latter should accidentally be unaware of its whereabouts.
Article 462. Possession of immovable property and rights in rem shall only be deemed to have been lost or transferred, for the purposes of prescription to the detriment of a third-party, subject to the provisions of the Mortgage Law.
Article 463. Acts relating to possession, performed or consented by the person possessing a thing belonging to another as mere holder, to enjoy it or retain it in any capacity, shall not bind the owner nor inure to his detriment, unless the latter should have expressly granted to the former powers to perform them or should subsequently ratify them.
Article 464. Possession of movable property, acquired in good faith, is equivalent to title. Notwithstanding the foregoing, any person who has lost movable property or has been deprived of it illegally may claim it from its possessor. If the possessor of the lost or stolen movable property should have acquired it in good faith at a public sale, the owner may not have it restored to him without reimbursing the price paid for it. The owner of things pawned in Pawnshops created with governmental authorisation may not recover them, irrespective of who pawned them, without first reimbursing the Establishment the amount of the pledge and any interest payable. As relates to things acquired in an Exchange, fair or market, or from a legally established trader who regularly trades in analogous objects, the provisions of the Commercial Code shall apply.
Article 465. Wild animals are only possessed while they are in one’s power; domesticated or tamed animals shall be deemed tame or domestic pets, if they are in the habit of returning to the home of their possessor.
Article 466. A person who lawfully recovers the possession improperly lost shall be deemed for all purposes which may inure to his benefit to have enjoyed it without interruption.
On usufruct, on use and on habitation
On usufruct in general
Article 467. Usufruct entitles one to enjoy another’s property with the obligation to preserve its form and substance, unless otherwise authorised by the deed pursuant to which it was created or the law.
Article 468. Usufruct is created by law, by the will of individuals expressed in acts inter vivos or in a last will and testament and by prescription.
Article 469. Usufruct may be created in respect of all or part of the fruits of the thing, in favour of one or several persons, simultaneously or successively, and in any event from or until a certain day, absolutely or subject to a condition. It may also be created over a right, provided that it is not a strictly personal or a non-transferable right.
Article 470. The rights and obligations of the usufructuary shall be as determined in the deed constituting the usufruct; in the event of absence or insufficiency thereof, the provisions contained in the two following sections shall be observed.
On the rights of the usufructuary
Article 471. The usufructuary shall be entitled to receive all natural, industrial and civil fruits of the property subject to the usufruct. He shall be considered a stranger in respect of any treasures found on the property.
Article 472. Natural or industrial fruits which are pending at the start of the usufruct shall belong to the usufructuary. Those which are pending at end of the usufruct shall belong to the owner. In the above cases, the usufructuary, at the start of the usufruct, shall have no obligation to pay the owner any expenses made; but the owner shall be obliged to pay at the end of the usufruct, with the proceeds of the pending fruits, ordinary expenses incurred for cultivation, sowing and other similar expenses made by the usufructuary. The provisions of this article shall not prejudice the rights of a third party acquired at the start or at the end of the usufruct.
Article 473. If the usufructuary should have leased the land or properties given in usufruct and the latter should end prior to the end of the lease, he or his heirs and successors shall only receive the proportional part of the rent payable by the lessee.
Article 474. Civil fruits shall be deemed perceived per day, and shall belong to the usufructuary in proportion to the duration of the usufruct.
Article 475. If the usufruct is created over the right to receive a regular income or allowance, either in cash, or in fruits, or the interest on bearer notes or securities, each instalment shall be deemed products or fruits of the former right If it should consist of the enjoyment of the profits of a share in an industrial or commercial undertaking, without a fixed distribution date, such profit shall have the same consideration. In both cases the products shall be distributed as civil fruits, and shall be allocated as provided in the preceding article.
Article 476. In a plot of land which contains mines, the product of any mines discovered, granted or exploited at the start of the usufruct shall not correspond to the usufructuary unless expressly granted in the deed which created it, or unless the usufruct is universal. The usufructuary may, however, extract stones, lime and plaster from quarries for any repairs or works which he should be obliged to perform or which should be necessary.
Article 477. Notwithstanding the provisions of the preceding article, in a legal usufruct the usufructuary may exploit any mines discovered, granted or exploited existing in the property, keeping half of the resulting profits after deducting any expenses, which shall be paid by halves with the owner.
Article 478. The condition of usufructuary shall not deprive the person who holds it from the right granted to every person by the Mining Law to discover and obtain the concession of any mines existing in plots of land subject to usufruct, in the manner and under the conditions set forth in the same Law.
Article 479. The usufructuary shall be entitled to enjoy any increase in the thing subject to usufruct by accretion, any easements in its favour and generally all benefits inherent thereto.
Article 480. The usufructuary may use himself the thing subject to usufruct, lease it to another and dispose of his right of usufruct, even as a gift, but all contracts entered into as such usufructuary shall be terminated at
the end of the usufruct, save the lease of rural properties, which shall be deemed to subsist during the agricultural year.
Article 481. If the usufruct should comprise things which, although not consumed, are slowly impaired pursuant to wear and tear, the usufructuary shall be entitled to avail himself of them, using them in accordance with their purpose, and shall only be obliged to return them at the end of the usufruct in their current condition; but with the obligation to compensate the owner for any impairment suffered as a result of his wilful misconduct or negligence.
Article 482. If the usufruct should comprise things which cannot be used without consuming them, the usufructuary shall be entitled to avail himself of them with the obligation to pay their value upon expiration of the usufruct, if it should have been estimated. If it should not have been estimated, he shall be entitled to return them in the same amount or quality or to pay their current price at the end of the usufruct.
Article 483. The usufructuary of vineyards, olive groves or other trees or bushes may avail himself of any dead stumps and even of any which should be broken or uprooted by accident, with the obligation to replace them with others.
Article 484. If, as a result of an extraordinary accident or event, the vines, olive groves or other trees or bushes should have disappeared in such a considerable number that their replacement should be impossible or excessively burdensome, the usufructuary may leave the dead, fallen or broken stumps at the owner’s disposal and require the latter to remove them and leave the land bare.
Article 485. The usufructuary of woodland shall enjoy all the benefits produced thereby according to its nature. In timber or construction timber woodland, the usufructuary may perform any ordinary cutting or felling usually performed by the owner and, in the absence thereof, shall perform it in accordance with local custom as relates to manner, portions and season. In any event any felling or cutting shall be performed so as not to cause a detriment to the preservation of the property. In timber nurseries the usufructuary may perform the necessary selective felling so that the timber which remains may develop conveniently. Other than as provided in the preceding paragraphs, the usufructuary may not fell trees by the root other than to replace or improve any of the things subject to usufruct, and in this case, he shall give the owner prior notice of the need to perform such works.
Article 486. The usufructuary of an action to claim a plot of land or a right in rem or movable property shall be entitled to exercise it and to force the owner of the action to grant him powers of representation for such purpose and to provide any available means of evidence. If, as a result of the exercise of the action, he should acquire the thing subject to claim, the usufruct shall only be limited to the fruits, and the ownership shall be vested in the owner.
Article 487. The usufructuary may perform in the property constituting the subject matter of the usufruct any useful or recreational improvements deemed convenient, provided that he does not alter its form or substance; however, he shall not be entitled to compensation for this purpose. He may, notwithstanding the foregoing, remove such improvements, if it should be possible to do so without detriment to the property.
Article 488. The usufructuary may offset any damages to the property against any improvements performed therein.
Article 489. The owner of property held by another pursuant to usufruct may dispose of it, but not alter its form or substance, nor perform anything in it which may be to the detriment of the usufructuary.
Article 490. The usufructuary of part of the thing possessed in common shall exercise all rights corresponding to the owner thereof relating to its administration and to the perception of fruits or interest. If the joint ownership should cease as a result of division of the thing possessed in common, the usufructuary shall hold the usufruct of the part awarded to the owner or co-owner.
On the obligations of the usufructuary
Article 491. The usufructuary, prior to beginning his enjoyment of the property, shall be obliged to do the following:
- To make an inventory of the property, summoning the owner or his legitimate representative for such purposes, obtaining appraisals of movable property and describing the condition of immovable property.
- To provide a bond, undertaking to comply with the obligations provided in this section.
Article 492. The provisions of number 2 of the preceding article shall not apply to the seller or donor who has reserved usufruct over the property sold or given, nor to parents who are usufructuaries of property belonging to their children, nor to the surviving spouse in respect of his legal share in usufruct, unless the parents or the spouse should subsequently marry.
Article 493. The usufructuary, whatever his title to the usufruct, may be excused of the obligation to make an inventory or provide a bond, where no detriment to anybody should result therefrom.
Article 494. If the usufructuary should fail to provide a bond in those cases where it is obliged to do so, the owner may request that any immovable property be placed under administration, that any movable property be sold, that any commercial paper, nominative or bearer credit facilities be registered in as account entries or be deposited in a Bank or public establishment and that any equity or cash sums and the price of disposal of any movable property be invested in blue-chip securities. The interest on the price of movable property and of commercial paper and securities and the products of the property placed under administration shall belong to the usufructuary. If the owner should prefer it, he may also, while the usufructuary does not provide a bond or if he is excused from doing so, retain in his possession the property subject to usufruct as administrator thereof, with the obligation to deliver to the usufructuary the liquid products thereof, after deducting the sum agreed or judicially decreed in consideration of such administration.
Article 495. If the usufructuary who has not provided a bond should demand, under oath, delivery of any furniture necessary for his use, and that he be provided with habitation for himself and his family in a house included in the usufruct, the Judge may assent to this request, after consulting the circumstances of the case. The same shall be understood in respect of any instruments, tools and other movable property necessary for the business he conducts. If the owner should wish that certain movable property not be sold because of its artistic merit or sentimental value, he may request delivery thereof, securing payment of the legal interest on its appraisal value.
Article 496. Upon delivery of the bond by the usufructuary, he shall be entitled to all products from the date on which he ought to have begun to receive them, in accordance with the deed which created the usufruct.
Article 497. The usufructuary must care for the things given in usufruct as an orderly paterfamilias.
Article 498. The usufructuary who disposes of or leases his usufruct right shall be liable for the impairment suffered by the things subject to usufruct as a result of the fault or negligence of the person replacing him.
Article 499. If the usufruct should be constituted over a herd or drove of livestock, the usufructuary shall be obliged to replace with the calves the heads of cattle which ordinarily die on an annual basis, or which should be missing as a result of harmful rapacious animals. If the livestock over which the usufruct should have been constituted should perish completely, without fault by the usufructuary, as a result of contagion or another uncommon event, the usufructuary shall meet his obligations by delivering to the owner any remains which should have been saved from this misfortune. If the herd should perish in part, also by accident and without fault by the usufructuary, the usufruct shall continue over the part which is preserved. If the usufruct should relate to sterile cattle, it shall be considered, as regards its effects, as if it had been constituted over a fungible thing.
Article 500. The usufructuary shall be obliged to make ordinary repairs required by the things given in usufruct. Ordinary repairs shall be deemed to mean those required as a result of any impairments or damage resulting from the natural use of things which are indispensable for their preservation. If he should fail to perform them after being demanded to do so by the owner, the latter may perform them by himself at the usufructuary’s expense.
Article 501. Extraordinary repairs shall be borne by the owner. The usufructuary is obliged to give the latter notice thereof in case of urgent need to perform them.
Article 502. If the owner should perform extraordinary repairs, he shall be entitled to request the usufructuary to pay legal interest on the amount invested therein for the duration of the usufruct. If he should fail to perform them when they should be indispensable for the subsistence of the thing, the usufructuary may perform them; but he shall be entitled to demand the owner, upon expiration of the usufruct, to pay the increase in value of the property as a result of such works. If the owner should refuse to satisfy such amount, the usufructuary shall be entitled to retain the thing until he is reimbursed with its products.
Article 503. The owner may perform any works and improvements of which the property subject to usufruct is capable, or new plantations therein if it should be a rural property, provided that the value of the usufruct should not be reduced or the right of the usufructuary damaged as a result of such acts.
Article 504 . Payment of charges and annual contributions and of those which are deemed to tax the fruits shall be borne by the usufructuary for the duration of the usufruct.
Article 505. Contributions imposed during the usufruct directly over the capital shall be borne by the owner. If the latter should have paid them, the usufructuary must pay interest corresponding to the sums paid for such purpose and, if the usufructuary should have advanced payment thereof, he must receive the amount thereof at the end of the usufruct.
Article 506. If the usufruct should be constituted over a whole patrimony, and, upon its creation the owner should have debts, the provisions of articles 642 and 643 in respect of gifts shall apply, both as relates to the subsistence of the usufruct and to the usufructuary’s obligation to pay them. The same provision shall apply in the event that the owner should be obliged, upon creation of the usufruct, to pay regular amounts, even if the principal thereof should be unknown.
Article 507. The usufructuary may claim by himself any matured credits which form part of the usufruct if he should have provided or should provide the corresponding bond. If he should be excused from providing a bond or should have been unable to provide it, or if the bond provided should not be sufficient, he shall require the owner’s authorisation to collect such credits, or that of the Judge in the absence of the former. The usufructuary who has provided a bond may give the capital any destination he deems convenient. The usufructuary who has not provided a bond must place such capital so as to generate interest by common consent with the owner; in the absence of an agreement between both, with judicial authorisation; and, in any event, with sufficient guarantees to preserve the integrity of the capital subject to usufruct.
Article 508. The universal usufructuary must pay in full the legacy consisting of a life annuity or support allowance. The usufructuary of a proportional share of the inheritance shall pay it in proportion to his share. In neither of these two cases shall the owner be obliged to reimburse him. The usufructuary of one or more specific things shall only pay the legacy when the annuity or allowance should be specifically created over the former.
Article 509. The usufructuary of a mortgaged property shall not be obliged to pay the debts for the security whereof the mortgage was established. If the property should be attached or judicially sold for the payment of the debt, the owner shall be liable to the usufructuary for the latter’s losses by reason thereof.
Article 510. If the usufruct should be for the whole or a proportional share of an inheritance, the usufructuary may anticipate the sums corresponding to the property subject to usufruct for the payment of the debts of the estate: and shall be entitled to require the return thereof, without interest, from the owner, upon expiration of the usufruct. If the usufructuary should refuse to make such an advance, the owner may request that the part of the property subject to usufruct necessary to pay such sums be sold, or pay them out of his own money, and in this last case shall be entitled to request from the usufructuary the corresponding interest.
Article 511. The usufructuary shall be obliged to give the owner notice of any third-party acts of which it should become aware capable of injuring the rights of ownership, and, if he should fail to do so, shall be liable for any damages, as if they had been caused by his fault.
Article 512. The usufructuary shall bear the expenses, costs and rulings of any litigation relating to the usufruct.
On ways of extinguishing the usufruct
Article 513. The usufruct shall be extinguished:
- By the death of the usufructuary.
- By expiration of the period for which it was constituted, or performance of the condition subsequent set forth in the deed creating the usufruct.
- By the coincidence of the usufruct and ownership in the same person.
- By the renunciation of the usufructuary.
- By total loss of the thing constituting the subject matter of the usufruct.
- By termination of the right of the person who constituted the usufruct.
- By prescription.
Article 514. If the thing given in usufruct should be lost only in part, such right shall continue in the remaining particle.
Article 515. A usufruct may not be created in favour of a village or Corporation or Company for more than 30 years. If one should have been created, and before such time the village should be abandoned, or the Corporation or the Company dissolved, the usufruct shall be extinguished by reason thereof.
Article 516. The usufruct granted for the time it takes a third party to reach a certain age shall subsist for the preset number of years, even if the third party should die beforehand, unless such usufruct should have been expressly granted only on the basis of the existence of such person.
Article 517. If the usufruct should be created over a property of which a building forms part and such building should be destroyed in any way, the usufructuary shall be entitled to enjoy the land and materials. The same shall happen when the usufruct should be created only over a building and the latter should be destroyed. However, in such case, if the owner should wish to build another building, he shall be entitled to occupy the land and to avail himself of the materials, being obliged to pay the usufructuary, for the duration of the usufruct, the interest on the sums corresponding to the value of the land and materials.
Article 518. If the usufructuary should purchase with the owner insurance over a plot of land given in usufruct, in the event of loss, the former shall continue in the enjoyment of the new building if it should be built, or shall receive the interest on the insurance indemnity if it should not be in the owner’s interest to rebuild. If the owner should have refused to contribute to the insurance on the plot of land, and the usufructuary should have purchased it by himself, the latter shall be entitled to receive the insurance indemnity in full in the event of loss, but with the obligation to invest it in rebuilding the property. If the usufructuary should have refused to contribute to the insurance, and the owner should have purchased it by himself, the latter shall receive the insurance indemnity in full in the event of loss, always excepting the right granted to the usufructuary in the preceding article.
Article 519. If the thing subject to usufruct were expropriated for public use, the owner shall be obliged either to replace it with another of equal value and under analogous conditions, or to pay the usufructuary the legal interest on the amount of the indemnity for the duration of the usufruct. If the owner should choose the latter option, he must guarantee payment thereof.
Article 520. The usufruct shall not be extinguished as a result of misuse of the thing subject to usufruct; however, if such abuse should cause considerable damage to the owner, the latter may request delivery of the thing, undertaking to pay the usufructuary on an annual basis the net product thereof, after deducting any expenses and the fee set for the performance of his administration duties.
Article 521. The usufruct created in favour of several persons alive at the time of its creation shall not be extinguished until the death of the last surviving person.
Article 522. Upon expiration of the usufruct, the thing subject to usufruct shall be delivered to the owner, save for the right of retention assisting the usufructuary or his heirs for any disbursements to be repaid. Upon verification of such delivery, the bond or mortgage shall be cancelled.
On use and habitation
Article 523. The rights and obligations of the usuary and of the person entitled to habitation shall be regulated by the deed constituting these rights; and, in the absence thereof, by the following provisions.
Article 524. Use entitles a person to receive, out of the fruits of a thing belonging to another, those which are sufficient for the needs of the usuary and his family, even if the latter should increase in size. Habitation entitles a person to occupy in another’s house the necessary rooms for himself and the persons in his family.
Article 525. The rights of use and habitation may not be leased or transferred to another pursuant to any kind of title.
Article 526. A person entitled to use of a livestock flock or drove may benefit from the young, milk and wool thereof to the extent sufficient for consumption by himself and his family, and of the manure necessary to fertilise the land cultivated by him.
Article 527. If the usuary should consume all fruits of a thing belonging to another, or the person entitled to habitation should occupy the whole house, he shall be obliged to pay cultivation expenses, ordinary repairs for the purposes of preserving the thing and to pay contributions, in the same way as the usufructuary. If he should only receive a part of the fruits or live in part of the house, he must not contribute anything, provided that the owner is left with a part of the fruits or benefits sufficient to cover expenses and charges. If they should not be sufficient, the former shall pay the shortfall.
Article 528. The provisions governing usufruct shall apply to the rights of use and habitation to the extent that they do not oppose the provisions of the present chapter.
Article 529. The rights of use and habitation shall be extinguished on the same grounds as usufruct, and also as a result of serious abuse of the thing and the rooms.
On easements in general
On the different kind of easements which may be established over properties
Article 530. An easement is an encumbrance imposed on an immovable property for the benefit of another belonging to a different owner. The immovable property in whose favour the easement is constituted is called dominant tenement; the property suffering it is the servient tenement.
Article 531. Easements may also be established for the benefit of one or several persons or a community to whom the encumbered property does not belong.
Article 532. Easements may be continuous or discontinuous, apparent or non-apparent. Continuous easements are those the use whereof is or may be incessant, without intervention of any human act. Discontinuous easements are those which are used in longer or shorter intervals, and which depend on human acts. Apparent easements are those which are publicly announced and are continuously in sight by external signs which reveal the use and benefit thereof. Non-apparent easements are those which present no external indication whatsoever of their existence.
Article 533. Easements can also be positive or negative. A positive easement is that which imposes on the owner of the servient tenement the obligation to allow something to be done or to do it himself, and a negative easement is that which forbids the owner of the servient tenement to do something which would be lawful without the easement.
Article 534. Easements are inseparable from the property to which they actively or passively belong.
Article 535. Easements are indivisible. If the servient tenement is divided between two or more persons, the easement shall not be amended, and each of them shall be obliged to tolerate it in the part which corresponds to him. If the dominant tenement is divided between two or more persons, the titleholder of each portion may use the easement in full, not altering the place of its use, or otherwise making it more burdensome.
Article 536. Easements are established pursuant to the law or to the will of the owners. The former shall be called statutory easements and the latter voluntary easements.
On the ways of acquiring easements
Article 537. Continuous and apparent easements are required pursuant to title, or by 20 years’ prescription.
Article 538. In order to acquire by prescription the easements mentioned the preceding article, possession shall be counted: for positive easements from the date on which the owner of the dominant tenement or the person who has taken advantage of the easement should have begun to exercise it over the servient tenement; and in negative easements, from the date on which the owner of the dominant tenement should have forbidden, pursuant to a formal act, the owner of the servient tenement to perform the deed which would be lawful without the easement.
Article 539. Continuous and non-apparent and discontinuous easements, whether or not apparent, may only be acquired pursuant to title.
Article 540. Only a public deed of acknowledgement by the owner of the servient tenement, or a final judgement may compensate for the lack of a deed constituting the easement which cannot be acquired by prescription.
Article 541. The existence of an apparent sign of the easement between two properties, established by the owner of both, shall be considered, in the event of disposal of one of them, to constitute title for the easement to continue on an active and passive basis, unless, at the time of the split in ownership of both properties, the owner should express otherwise in the deed of disposal of either of them, or if such sign should be removed before execution of the public deed.
Article 542. When an easement is established, all rights necessary for its use are deemed to have been granted.
Rights and obligations of the owners of the dominant tenement and the servient tenement
Article 543. The owner of the dominant tenement may perform, at his expense, in the servient tenement the necessary works for the use and preservation of the easement, but without altering it or making it more burdensome. He must choose for such purposes the most convenient time and manner in order to cause the least possible inconvenience to the owner of the servient tenement.
Article 544. If there should be several dominant tenements, the owners of all of them shall be obliged to contribute to the expenses mentioned in the preceding article, in proportion to the benefit derived by each of them from the works. The owner who does not wish to contribute may be exonerated by renouncing the easement for the benefit of the rest. If the owner of the servient tenement should in any way use the easement, he shall be obliged to contribute to such expenses in the aforementioned proportion, unless otherwise agreed.
Article 545. The owner of the servient tenement may not in any way impair the use of an existing easement. However, if, as a result of the place originally allocated, or the manner initially established to use the easement, it should become very inconvenient for the owner of the servient tenement or should prevent him from performing therein important works, repairs or improvements, it may be altered at his expense, provided that he offers another place or manner which is equally convenient, and which does not result in any detriment to the owner of the dominant tenement or to those who are entitled to use the easement.
On the ways of extinguishing easements
Article 546. Easements are extinguished:
- By coincidence in the same person of ownership of the dominant tenement and the servient tenement.
- By failure to use it for 20 years. This period shall begin to count, for discontinuous easements, from the date on which the easement should have ceased to be used; and, for continuous easements, from the date on which an act contrary to the easement should have taken place.
- Where the properties should be in such a condition that the easement cannot be used; but the latter shall revive if, thereafter, the condition of the properties should allow its use, unless, when such use should again be possible, sufficient time should have elapsed for prescription purposes, in accordance with the provisions of the preceding number.
- Upon arrival of the relevant date or the performance of the condition, if the easement should be temporary or conditional.
- By renunciation of the owner of the dominant tenement.
- By redemption agreed between the owner of the dominant tenement and the servient tenement.
Article 547. The manner in which the easement is performed may be subject to prescription just as the easement itself, and in the same way.
Article 548. If the dominant tenement should belong to several persons in common, use of the easement by one of them shall prevent prescription in respect of the rest.
On statutory easements
Article 549. Easements imposed by the law are for purposes of public benefit or in the interest of individuals.
Article 550. All matters concerning easements established for public or communal utility shall be governed by the specific statutes and regulations which establish them and, in the absence thereof, by the provisions of the present title.
Article 551. Easements imposed by the law in the interest of individuals or for reasons of private benefit shall be governed by the provisions of the present title, without prejudice to the provisions of any statutes, regulations and general or local urban or rural policing ordinances. These easements may be amended by agreement between the interested parties where this is not forbidden by the law or results in detriment to a third party.
On easements relating to waters
Article 552. Lower plots are subject to receiving the waters which naturally descend, without human intervention, from higher plots, and the soil or stones dragged in their wake. The owner of the lower plot may not perform works which prevent the easement, nor may the owner of the higher property perform works which make it more burdensome.
Article 553. Riverbanks, even if they are private property, are subject to the easement of public use in an area amounting to three metres of their whole length and margins for the general interests of navigation, flotation, fishing and salvage. Plots of land adjoining the banks of navigable or floatable rivers are also subject to the easement of providing a tow path exclusively for river navigation and flotation purposes. If it should be necessary to occupy private land for such purpose, the corresponding compensation shall be paid.
Article 554. Where the diversion or taking of waters from a river or stream, or the use of other continuous or discontinuous currents should require building a dam, and the person who is to construct it does not own the banks or land on which he needs to support it, he may establish a easement to set up a dam support bracket, after paying the corresponding compensation.
Article 555. Mandatory easements for the drawing of waters or water troughs for animals may only be imposed on grounds of public benefit in favour of any village or hamlet, after paying the corresponding compensation.
Article 556. Mandatory easements for the drawing of waters or water troughs for animals entail the obligation by the servient tenements to give a right of way to persons and cattle after the point where they are to be used, and the compensation must extend to this service.
Article 557. Any person who wishes to avail himself of the water available to him for a property belonging to him is entitled to make it pass through intermediate plots of land, with the obligation to compensate their owners, and also the owners of the lower plots d to which the waters may be filtered or may fall.
Article 558. A person who purports to use the rights granted in the preceding article shall be obliged:
- To evidence that he can avail himself of the water and that it is sufficient for the use to which it is destined.
- To demonstrate that the right of way required is the most convenient and least burdensome for third parties.
- To compensate the owner of the servient tenement in the manner determined by statutes and regulations.
Article 559. Aqueduct easements cannot be imposed for reasons of private interest over buildings, their patios or rooms, or over existing gardens or vegetable gardens.
Article 560. The aqueduct easement shall not prevent the owner of the servient tenement from closing and fencing it, or from building over the same aqueduct in a manner which does not prejudice the latter or make it impossible to effect the necessary repairs and cleaning thereof.
Article 561. For the purposes provided in the law, the aqueduct easement shall be deemed continuous and apparent, even if the passage of water is not constant, or if its use depends on the needs of the dominant tenement, or of watering turns set in terms of days or hours.
Article 562. A person who, in order to water or improve his property, should need to build a lock or divider in the channel where he is to receive the water, may require the owners of the margins to allow construction thereof, after paying any damages, including damages suffered by such owners and other farmers as a result of the new easement.
Article 563. The creation, scope, form and conditions of the water easements mentioned in this section shall be governed by the specific statute on this issue in all matters not provided in this Code.
On the right of way
Article 564. The owner of the property or land located between others belonging to third parties without exit to a public road is entitled to demand a right of way through the neighbouring properties, after paying the corresponding compensation. If this easement should be created so that its use may be continuous to serve all of the dominant tenement’s needs by establishing a permanent path, the compensation shall consist of the value of the land occupied, and of the damage caused to the servient tenement. When it should be limited to the right of way necessary for the cultivation of a property located between others and to collect its harvest through the servient tenement without a permanent path, the compensation shall consist of paying the damages caused by the encumbrance.
Article 565. The right of way must be given through the point which is least detrimental to the servient tenement and, to the extent that it can be conciliators with the preceding rule, through the shortest distance from the dominant tenement to the public road.
Article 566. The width of the right of way shall be sufficient to meet the needs of the dominant tenement.
Article 567. If, after acquisition of property as a result of sale, exchange or partition, such property should be enclosed between others belonging to the seller, exchanger or co-participant, the latter shall be obliged to give right of way without compensation, unless otherwise agreed.
Article 568. If the right of way granted to a property should cease to be necessary as a result of its owner’s having joined it to another which is adjacent to the public road, the owner of the servient tenement may request termination of the easement, returning what he received as compensation. The same shall be understood in the event that a new path should be opened giving access to the property.
Article 569. If it should be indispensable to pass materials through another’s plot of land or to place scaffolding or other objects pertaining to building works in order to build or repair any buildings, the owner of the latter plot shall be obliged to consent, receiving compensation corresponding to any damage suffered.
Article 570. Existing rights of way for farm animals, known as passages for sheep, trails for cattle or footpaths or any others, as well as water trough, resting place and shelter easements, shall be governed by the ordinances and regulations of the industry and, in the absence thereof, by the uses and customs of the land. Without prejudice to any rights legitimately acquired, the sheep passage cannot in any event exceed the width of 75 m, the cattle trail 37 m 50 cm and the footpath 20 m. Where it should be necessary to establish a mandatory right of way or water trough easement for livestock, the provisions of this section and of articles 555 and 556 shall apply. In this case its width may not exceed 10 m.
On party wall easements
Article 571. Party wall easements shall be governed by the provisions of this title and by local ordinances and uses to the extent that they do not oppose them, or where nothing is provided herein.
Article 572. A party wall easement shall be presumed to exist, unless there is title, external sign or evidence to the contrary:
- In the walls dividing two adjoining buildings up to the common point of elevation.
- In the dividing walls of gardens or yards within a village or in the country.
- In the walls, fences and live hedges that divide rural properties.
Article 573. An external sign contrary to the party wall easement shall be deemed to exist:
- Where the dividing walls of buildings have windows or openings.
- Where the dividing wall is on one side plumb and square in the whole of its facing, and on the other has the same appearance in its higher end, edging outwards in its lower particle.
- Where the whole wall is built on land belonging to one of the properties, and not halfway between the two adjacent properties.
- Where it bears the load of the beams, floors and structures of one of the properties and not of the adjacent one.
- Where the dividing wall between patios, gardens and properties is built so that the coping pours water into one of the properties only.
- Where the dividing wall, built of masonry, should have stones, called passing stones, which from distance to distance should protrude from the surface only on one side and not on the other.
- Where properties adjacent to others that are defended by live hedges or fences are not enclosed.
In all these cases, ownership over the walls, fences or hedges shall be deemed to belong exclusively to the owner of the property or land in whose favour the presumption has been established based on any of the aforementioned signs.
Article 574. Ditches or irrigation channels opened between properties are also presumed to be party walls, unless a otherwise evidenced pursuant to title or sign. There is a sign contrary to the existence of a party wall where the soil or brush taken to dig the ditch or to clean it is on one side only, in which case ownership of the ditch shall belong exclusively to the owner of the property in whose favour this external sign appears.
Article 575. The reparation and construction of party walls and maintenance of party wall fences, live hedges, ditches and channels shall be borne by all owners of the properties in whose favour the party wall is deemed to exist, in proportion to the rights pertaining to each of them. Notwithstanding the foregoing, any owner may be dispensed from contributing to this burden by renouncing the party wall easement, save in the event that the party wall should support a building belonging to him.
Article 576. If the owner of the building supported by a party wall should wish to demolish it, he may likewise renounce the party wall easement, but he shall bear all repairs and building works necessary to prevent, in this particular instance only, any damage which the demolition may cause to the party wall.
Article 577. Any owner may raise the party wall at his expense, compensating any damages caused by the building works, even if they are temporary. He shall also bear the wall’s preservation expenses, to the extent that it has increased in height, or its foundations have been deepened compared to its previous condition; likewise, he must pay a compensation for the increase in the expense of preserving the party wall as a result of the increase in height or depth. If the party wall should not withstand the higher elevation, the owner who wishes to raise it shall have the obligation to reconstruct it at his expense; and, if it should be necessary to make it thicker for such purposes, he must provide the space from his own land.
Article 578. The remaining owners who have not contributed to increase the wall’s height, depth or thickness, may, however, acquire party wall rights therein, by paying proportionally the amount of the building works and half of the value of the land on which the increased thickness was built.
Article 579. Each owner of a party wall may use it in proportion to his right in the joint ownership; he may, therefore, support his building on the party wall, or introduce beams up to half of its width, without, however, preventing the communal and respective use of the remaining party wall owners. In order to use this right, the party wall owner must previously obtain the consent of the other parties with an interest in the party wall; and, if he should fail to obtain it, the necessary conditions required for the new building not to harm the rights of such other parties shall be set by experts.
On the easement of light and view
Article 580. No owner may make in a party wall any window or opening without the other’s consent.
Article 581. The owner of a non-party wall adjacent to another’s property may open therein windows or make openings to receive light at the height of the top joists or immediately next to the roof, of the size of a 30 centimetre square and in any event with an inset iron grille on the wall and a wire net.
Notwithstanding the foregoing, the owner of the land or property adjacent to the wall on which the openings should have been made may close them if he acquires the party wall, unless otherwise agreed. He may also cover them by building on his land or by building a wall adjacent to the one on which such opening should have been made or window opened.
Article 582. It is forbidden to open windows with straight-line views, or balconies or other similar outcroppings over a neighbouring property, unless there is two metres distance between the wall on which they are built and such property. It is also forbidden to have sideways or oblique views over the same property unless there is a 60 centimetre distance.
Article 583. The distance is mentioned in the preceding article shall be counted, for straight-line views, from the exterior line of the wall for openings which do not include outcroppings, from the line of such outcroppings, if there should be any, and, for oblique views, from the line of separation between both properties.
Article 584. The provisions of article 582 shall not apply to buildings separated by a public road.
Article 585. In the event of acquisition, pursuant to any title, of the right to have direct views, balconies or windowed balconies over the adjoining property, the owner of the servient tenement may not built at less than three metres’ distance, which measurement shall be taken as indicated in article 583.
On drainage of buildings
Article 586. The owner of the building shall be obliged to build his roofs or covering so that rainwater falls on his own land, or on the street or a public place, and not on his neighbour’s land. Even if it should fall on his own land, the owner shall be obliged to collect the waters so that they do not cause detriment to the adjoining property.
Article 587. The owner of the property which bears the easement of receiving rainwater from the roofs may build receiving the waters on his own roof or providing them with another way out, in accordance with local ordinances or customs, in a manner which does not result in any encumbrance or detriment for the dominant tenement.
Article 588. Where the yard or patio of a house is located between others and it should not be possible to find a way out for rainwater collected in such house through the same, the establishment of a drainage easement may be demanded, letting the waters pass through the point of the adjoining plots of land where its exit is easiest, and building the drain conducts in the manner which causes least detriment to the servient tenement, after paying the corresponding compensation.
On distances and intermediate works for certain constructions and plantations
Article 589. It is forbidden to build or plant near strongholds or fortresses without submitting to the conditions required by the specific statutes, ordinances and regulations on the matter.
Article 590. Nobody may build near a wall belonging to another or a party wall wells, drains, aqueducts, ovens, forges, chimneys, stables, deposits of corrosive materials, artefacts which moved by steam engine, or
machines which, by themselves, or as a result of their products are dangerous or harmful, without keeping the distances provided in applicable regulations and local customs, and without performing the necessary protective works, subject to the conditions provided by the same regulations as to the manner of performing them. In the absence of regulations, the precautions deemed necessary to prevent any damage to the neighbouring properties or buildings shall be taken, after the issuance of an expert report.
Article 591. No trees may be planted near another’s land but at the distance authorised by local ordinances or local custom and, in the absence thereof, at a distance of two metres from the line dividing the properties, if the plantation concerns tall trees, and at a distance of 50 centimetres if the plantation is of bushes or small trees. Any owner is entitled to request the uprooting of any trees which hereinafter should be planted at a shorter distance from his property.
Article 592. If the branches of certain trees should extend over a neighbouring property, gardens or patios, the owner of the latter shall be entitled to claim that they be cut, to the extent that they extend over his property and, if the roots of neighbouring trees should extend into land belonging to another, the owner of the land into which they have been introduced may cut them himself within his property.
Article 593. Trees existing in a live hedge constituting a party wall are also presumed to constitute a party wall, and either owner is entitled to request their removal. Trees which serve as landmarks shall be excepted from the foregoing, and may not be uprooted unless it is with the common consent of the neighbouring owners.
On voluntary easements
Article 594. Any owner of a property may establish therein any easements he deems convenient, in the manner and form he deems fit, provided that he does not infringe the laws or public policy.
Article 595. The owner of the property whose usufruct belongs to another may impose on it, without the usufructuary’s consent, any easements which do not detriment the usufruct’s rights.
Article 596. Where one person holds direct ownership over a property and the other its useful ownership, no perpetual voluntary easement may be created upon it without the consent of both owners.
Article 597. The consent of all co-owners shall be required to impose an easement over a pro indiviso property. The granting of easement made only by some of them shall be suspended until the last of all participants or co-owners should grant it. However, the granting made by one of the co-owners separately from the others bind the grantor and his successors, even if they should be legatees, not to prevent the exercise of the right granted.
Article 598. The deed of the easement and, as the case may be, possession of an easement acquired by prescription, shall determine the rights of the dominant tenement and the obligations of the servient tenement. In the absence thereof, the easement shall be governed by the provisions of the present title which apply to it.
Article 599. If the owner of the servient tenement should have undertaken, upon creation of the easement, to bear the expense of the necessary works for the use and preservation thereof, he may be released from this encumbrance by abandoning his plot of land to the owner of the dominant tenement.
Article 600. Communal grazing easements may hereinafter only be created by express granting on the part of the owners, resulting from a contract or a last will and testament, and not in favour of universal group of individuals or over a universal group of properties, but in favour of specific individuals and over landed properties which are also specific and determined. The easement created in accordance with this article shall be governed by its deed of creation.
Article 601. Communal grazing on public land, whether belonging to Municipalities or to the State, shall be governed by administrative laws.
Article 602. If there should be communal grazing rights between the neighbours of one or several villages, the owner who fences a property with a wall or hedge shall release it from the easement. However, the remaining easements constituted on the property shall remain in force. The owner who fences his property shall keep his communal grazing rights over other properties which have not been fenced.
Article 603. The owner of land encumbered with a grazing easement may redeem this encumbrance by paying its value to those entitled to the easement. In the absence of an agreement, the capital required to redeem the easement shall be set at 4% of the annual value of the grazing, as determined by expert appraisal.
Article 604. The provisions of the preceding articles shall apply to easements for the use of firewood and other products of privately owned woodland.
On the Property Registry
Article 605. The purpose of the property Registry is the registration or entry of acts and contracts relating to ownership and other rights in rem over immovable properties.
Article 606. Deeds of ownership or other rights in rem over immovable properties which are not duly registered or entered in the Property Registry shall not prejudice third parties.
Article 607. The Property Registry shall be public for anyone who has a known interest in finding out the condition of the immovable properties or rights in rem registered or entered therein.
Article 608. The provisions of the Mortgage Law shall apply to determine which deeds are subject to registration or entry, the form, effects and termination thereof, the manner of managing the Registry and the value of its book entries.
On the different ways of acquiring ownership
Article 609. Ownership is acquired by occupancy. Ownership and other rights over property are acquired by law, by gift, by testate and intestate succession and as a result of certain contracts by tradition. They may also be acquired by prescription.
Article 610. Property capable of appropriation without an owner, such as game or wild fish, hidden treasure and abandoned movable things are acquired by occupancy.
Article 611. Hunting and fishing law is governed by specific statutes.
Article 612. The owner of a swarm of bees shall be entitled to pursue it over another’s property, compensating the possessor of the latter for any damage caused. If the property should be fenced, he shall require the owner’s consent to enter it. When the owner should fails to pursue the swarm or should cease doing so for two consecutive days, the possessor of the property may take or retain it. The owner of tame animals may also claim them within twenty days, counting from their being taken by another. After the lapse of this period, they shall belong to the person who has taken and kept them.
Article 613. Doves, rabbits and fish that pass from their respective breeding place to another belonging to a different owner shall become the property of the latter, provided that they have not been attracted by an artifice or fraud.
Article 614. A person who by chance discovers a hidden treasure in another’s property, shall have the right granted pursuant to article 351 of this Code.
Article 615. A person who finds a movable thing, which is not a treasure, must return it to its former possessor. If such possessor should be unknown, he must immediately consign it in the possession of the Mayor of the village where it was found. The Mayor shall publish the finding as per local custom, on two consecutive Sundays. If the movable thing cannot be preserved without impairment or without making expenses which considerably reduce its value, it shall be sold in a public auction after the lapse of eight days from the second announcement without the owner having appeared, and the proceeds shall be deposited. After two years counting from the second publication without the owner having appeared, the thing found or its value shall be awarded to the person who found it. Both such person and the owner shall be obliged, each as applicable, to pay any expenses.
Article 616. If the owner should appear in time, he shall be obliged to pay, as a prize to the person who found it, one tenth of the amount or the price of the thing found. Where the value of the finding should exceed 2000 pesetas, the prize shall be reduced to one twentieth in respect of the excess.
Article 617. Rights over objects thrown into the sea or objects which the waves should bring to the beach, of whatever nature or over the plants and grasses which grow on its shores shall be determined by specific statutes.
On the nature of gifts
Article 618. A gift is an active liberality whereby a person gratuitously disposes of the thing in favour of another person, who accepts it.
Article 619. Likewise, the gift made to a person for his merits or for services rendered to the donor shall also be deemed such, provided that they do not constitute payable debts, as also gifts where the donee is imposed an encumbrance of lesser value than the thing given.
Article 620. Gifts which are to be effective at the death of the donor shall have the same nature as testamentary dispositions, and shall be governed by the rules set forth in the chapter on testamentary succession.
Article 621. Gifts which are to be effective entre vivos shall be governed by the general provisions on contracts and obligations in all matters not provided for in this title.
Article 622. Gifts made for valuable consideration shall be governed by the rules relating to contracts, and remuneratory gifts by the provisions of the present title, as relates to the part exceeding the value of the burden imposed.
Article 623. Gifts are perfected from the time when the donor becomes aware of the donee’s acceptance.
On persons entitled to make or receive gifts
Article 624. All persons with the capacity to contract and dispose of their property may make gifts.
Article 625. All persons who are not especially incapacitated by the law for such purposes may accept gifts.
Article 626. Persons without the capacity to contract may not accept conditional gifts or gifts made for valuable consideration without the intervention of their legitimate representatives.
Article 627. Gifts made to conceived but unborn infants may be accepted by the persons who would legitimately represent them if they had already been born.
Article 628. Gifts made to ineligible persons are null and void, even if they have been simulated under the appearance of another contract by using a trustee.
Article 629. The gift is not binding on the donor, or effective, until acceptance thereof.
Article 630. The donee must accept the donation by himself, or by means of an authorised person with a special power of attorney, or with a general and sufficient power of attorney, under penalty of nullity of the gift.
Article 631. Persons who accept a gift on behalf of others who cannot accept it by themselves shall be obliged to give the notice and make the entry mentioned in article 633.
Article 632. The gift of a movable thing may be made orally or in writing. An oral gift shall require simultaneous delivery of the thing given. In the absence of this requirement, it shall not be effective unless it is both made and accepted in writing.
Article 633. For the gift of an immovable property to be valid, it must be performed in a public deed, individually expressing the properties given and the value of any charges to be paid by the donee. Acceptance may be given on the same public deed of gift or in another separate public deed; but it shall not be effective if it does not take place during the life of the donor. If it should be given in a separate public deed, the acceptance must be notified to the donor in an authentic instrument, and this formality shall be noted in both public deeds.
On the effects and limitations of gifts
Article 634. The gift may comprise all current properties of the donor, or parts of them, as long as the donor reserves, pursuant to full ownership or usufruct, whatever he requires to live in a condition corresponding to his circumstances.
Article 635. The gift may not comprise future property. Future property shall be deemed to mean property which the donor cannot dispose of at the time of making the gift.
Article 636. Notwithstanding the provisions of article 634, nobody may give or receive pursuant to gift more than he may give or receive pursuant to testament. The gift shall be deemed ineffective to the extent that it exceeds this measure.
Article 637. When the gift should have been made to several persons jointly, it shall be deemed to have been given in equal parts; and no right of accretion shall exist between them, unless otherwise provided by the donor. Gifts made jointly to husband and wife shall be excepted from the foregoing provision, and such right of accretion shall exist between them, unless otherwise provided by the donor.
Article 638. The donee shall be subrogated in all rights and remedies corresponding to the donor in the event of dispossession. Notwithstanding the foregoing, the latter shall not be obliged to clear the title of the things given, save if the gift should have been for valuable consideration, in which case the donor shall be liable for dispossession up to the amount of the encumbrance.
Article 639. The donor may reserve to himself the power to dispose of some of the properties given, or of an amount charged thereto; but, if he should die without having exercised this right, the reserved properties or amounts shall belong to the donee.
Article 640. The donor may also give the ownership of the property to one person and the usufruct thereon to another or others, with the limitations set forth in article 781 of this Code.
Article 641. The reversion of the gift only in favour of the donor may be provided for any events and circumstances, but the reversion in favour of other persons may only be provided in the same cases and with the same limitations as provided in this Code for testamentary substitutions. A reversion provided by the donor in favour of a third party contrary to the provisions of the preceding paragraph shall be null and void; but it shall not result in the nullity of the gift.
Article 642. If the gift should have been made imposing on the donee the obligation to pay the donor’s debts, the former shall only be deemed obliged to pay debts contracted beforehand, unless otherwise provided in the relevant clause.
Article 643. In the absence of stipulation in respect of the payment of debts, the donee shall only be liable for them where the gift should have been made in fraud of creditors. The gift shall always be presumed to have been made in fraud of creditors when the donor, in making it, has not reserved sufficient property to pay prior debts.
On the revocation and reduction of gifts
Article 644. Any gift made inter vivos by a person who has no children or descendants shall be revocable in the event of the mere occurrence of any of the following:
- The donor’s having children, even if they should be posthumous, after making the gift.
- That the donor’s child thought dead at the time of making the gift should turn out to be alive.
Article 645. After rescission of the gift as a result of any surviving children, the gifted properties, or their value, if the donee should have sold them, shall be returned to the donor. If the property should be mortgaged, the donor may release the mortgage by paying the amount secured thereby, and shall be entitled to claim such amount from the donee. When the property should be unable to be returned, it shall be appraised according to its value at the time of making the gift.
Article 646. The remedy of revocation as a result of subsequently born or surviving children shall be statute barred after five years, counting from the time of learning of the birth of the last child or of the existence of the child believed dead. This remedy cannot be waived and is transferred, by the death of the donor, to his children and descendants.
Article 647. The gift shall be revoked at the request of the donor, when the donee has failed to comply with any of the conditions imposed by the former. In this case, the gifted property shall be returned to the donor, and any disposals thereof made by the donee and any mortgages executed thereon shall be null and void, with the limitation set forth in the Mortgage Law as relates to third parties.
Article 648. The gift may also be revoked, at the request of the donor, on grounds of ingratitude in the following cases:
- If the donee should commit any crime against the donor’s person, honour or property.
- If the donee should attribute to the donor any of the crimes which give rise to ex officio proceedings or public charges, even if he should provide proof; unless the crime should have been committed against the donee, his spouse, or children under his authority.
- If he should unduly refuse to give the donor support.
Article 649. Upon revocation of the gift by reason of ingratitude, any prior disposals and mortgages prior to the entry of the claim for revocation in the Property Registry shall subsist. Subsequent ones shall be null and void.
Article 650. In the case provided in the first paragraph of the preceding article, the donor shall be entitled to request from the donee the value of the property disposed of which cannot be claimed from third parties, or the amount by which they should have been mortgaged. The time of the gift shall be taken into account to establish the value of such property.
Article 651. In the event of revocation on any of the grounds expressed in article 644, or on grounds of ingratitude, and in the event of reduction thereof as a result of its being inofficious, the donee shall not return the fruits obtained prior to the filing of the claim. If the revocation should be based on having failed to comply with any of the conditions imposed by the gift, the donee shall return, as well as the gifted properties, the fruits which it should have received after ceasing to meet the condition.
Article 652. The remedy granted to the donor on grounds of ingratitude may not be waived in advance. This remedy shall be statute barred after one year counting from the date on which the donor became aware of the fact and of the possibility to exercise the remedy.
Article 653. This remedy shall not be transferred to the donor’s heirs if the latter, being able to do so, should not have exercised it. Neither may it be exercised against the donee’s heir, unless, upon the death of the former, the claim should already have been filed.
Article 654. Gifts which, in accordance with the provisions of article 636, should be found to be inofficious after calculating the net value of the donor’s property at the time of his death, must be reduced by the excess; but this reduction shall not prevent their effectiveness during the life of the donor, or the donee from appropriating the fruits. The provisions of this chapter and of articles 820 and 821 of the present Code shall apply to the reduction of gifts.
Article 655. Only persons entitled to a forced share or to a proportional share in the inheritance and their heirs or successors shall be entitled to request the reduction of gifts. Persons comprised in the preceding paragraph may not waive their rights during the life of the donor, by express statement or by giving their consent to the gift. Donees, legatees of a thing other than a proportional share in the inheritance and the deceased’s creditors may not request the reduction or benefit from it.
Article 656. If, in the event of there being two or more gifts, the disposable part of the inheritance should not be sufficient to cover them, the most recent gifts shall be cancelled or reduced to cover the excess.
Article 657. The rights to a person’s succession are transferred from the time of his death.
Article 658. Succession takes place pursuant to the will of a person expressed in a testament and, in the absence thereof, by operation of law. The first is called testamentary succession, and the second legal succession. Succession may also take place in one part pursuant to the will of a person and in the other by operation of law.
Article 659. The estate comprises all properties, rights and obligations belonging to a person, unless they are extinguished as a result of his death.
Article 660. The person who succeeds pursuant to universal title shall be called heir, and the person who succeeds pursuant to specific title shall be called legatee.
Article 661. Heirs succeed the deceased pursuant to the sole fact of his death in all his rights and obligations.
Article 662. All persons who are not expressly forbidden to do so by the law may make a will.
On the capacity to dispose of property pursuant to will
Article 663. The following persons are incapable of making a will:
- Persons under fourteen years of age of both sexes.
- Any person who usually or accidentally is not of sound mind.
Article 664. The will made before the person’s insanity shall be valid.
Article 665. Whenever a person incapacitated pursuant to a judgement which does not contain a ruling concerning his capacity to make a will should wish to do so, the Notary Public shall designate two physicians to previously examine him, and shall not authorise it unless they vouch for his capacity.
Article 666. The only factor which shall be taken into account to assess the testator’s capacity is his condition at the time of making the will.
On wills in general
Article 667. The act whereby a person disposes of all his property or part of it for after his death is called a will.
Article 668. The testator may dispose of his property by inheritance or by legacy. If there should be any doubt, the disposition shall be valid as inheritance even if the testator did not materially use the word heir, if his intention on this issue should be clear.
Article 669. Two or more persons may not make a will jointly or in the same instrument, irrespective of whether they do so for their reciprocal benefit, or for the benefit of a third party.
Article 670. Making a will is a strictly personal: it may not be left, in whole or in part, to the discretion of a third party, nor may it be made by means of an attorney or proxy. The subsistence of the appointment of heirs or legatees may also not be left at the discretion of a third party, and neither may the designation of the portions in which they are to succeed, when they should have been called by name.
Article 671. The testator may entrust to a third party the distribution of the amounts left generally to specific classes, such as relatives, the poor or charitable establishments, and the election of the persons or establishments to which they are to be allocated.
Article 672. Any disposition made by the testator relating to the appointment of an heir, bequests or legacies, with reference to private instruments or papers which after his death should appear within or outside his domicile, shall be null and void if such instruments or papers do not meet the requirements provided for holographic wills.
Article 673. A will made under violence, fraudulent misrepresentation or fraud shall be null and void.
Article 674. A person who, by fraudulent misrepresentation or fraud or with violence, should prevent another person, of whom he is the intestate heir, from freely making a testamentary disposition, shall be deprived of his inheritance rights, without prejudice to any criminal liability in which he may have incurred.
Article 675. Any testamentary disposition must be understood according to the literal meaning of its words, unless it should clearly appear that the testator’s intention was another. In the event of doubt, what seems better to conform to the testator’s intention, according to the wording of the will, shall be observed. The testator may not forbid the contesting of the will in cases where it is null and void as provided in the law.
On the form of wills
Article 676. A will may be common or special. The common will may be holographic, open or closed.
Article 677. The military will, the maritime will and the will made in a foreign country shall be deemed special wills.
Article 678. A will shall be called holographic when the testator writes it by himself in the form and with the prerequisites set forth in article 688.
Article 679. A will shall be open whenever the testator should declare his last will in the presence of the persons who are to authorise the act, who are made aware of the dispositions made therein.
Article 680. A will shall be closed when the testator, without revealing his last will, declares that it is contained in the document presented to the persons who are to authorise the act.
Article 681. The following persons may not act as witnesses in wills:
- Minors, save as provided in article 701.
- Blind persons and wholly deaf or mute persons.
- Persons who do not understand the language of the testator.
- Persons who are of unsound mind.
- The spouse or relatives within the fourth degree of consanguinity or the second degree of affinity of the authorising Notary Public, and persons who have an employment relationship with the latter.
Article 682. In an open testament, heirs and legatees named therein, their spouses, or the relatives of the former within the fourth degree of consanguinity or the second degree of affinity may also not be witnesses. This prohibition does not include legatees or their spouses or relatives where the legacy is of a movable object or an amount of scarce importance in relation to the estate.
Article 683. For a witness to be declared ineligible, it is necessary that the cause of his incapacity should exist at the time of making the will.
Article 684. Where the testator should express his will in a language not known to the Notary Public, the presence of an interpreter chosen by the former shall be required to translate the testamentary disposition to the official language used by the Notary Public in the place of execution. The instrument shall be written in both languages, with indication of which language was employed by the testator. The open will and the deed of the closed will shall be written in the foreign language in which the testator has expressed himself and in the official language used by the Notary Public, even if the latter should know the former language.
Article 685. The Notary Public must know the testator and, if he does not know him, he shall identify his person by means of two witnesses who know him and who are known to the same Notary Public, or by means of documents issued by the public authorities for the purpose of identifying persons. The Notary Public must also ensure that, in his opinion, the testator has the necessary legal capacity to make a will. In the cases of article 700 and 701, the witnesses shall have the obligation of knowing the testator, and shall attempt to ascertain his capacity.
Article 686. If it should not be possible to identify the person of the testator as provided in the preceding article, the Notary Public, or the witnesses, as the case may be, shall declare such circumstance, with mention of the documents submitted by the testator for such purpose and his personal characteristics. If the will should be challenged on such grounds, the person upholding its validity shall have the burden of proving the testator’s identity.
Article 687. The will in whose execution the formalities respectively established in this chapter have not been observed shall be null and void.
On the holographic will
Article 688. The holographic will may only be made by persons who are of legal age. In order to be valid, this will must be written out in full and signed by the testator, with expression of the year, month and day on which it is made. If it should contain words which have been crossed out, amended or written between the lines, the testator shall save such changes underneath his signature. Foreigners may make a holographic will in their own language.
Article 689. The holographic will must be legalised, and shall be submitted for these purposes to the Judge of first instance of the last domicile of the testator, or of the place of his death, within five years counting from the date of his death. It shall not be valid without this prerequisite.
Article 690. The person in whose possession such will has been consigned must submit it to the Court as soon as he has news of the testator’s death and, if he should fail to do so within the following 10 days, shall be liable for any damages caused by such delay. Any person with an interest in the will as heir, legatee, executor or in any other capacity may also submit it.
Article 691. After the holographic will has been submitted, and the death of the testator has been evidenced, the Judge shall open it, if it should be in a closed envelope, shall initial all pages thereof together with his clerk,
and shall ascertain its identity by means of three witnesses who know the handwriting and signature of the testator and who declare that they have no rational doubts that this is a will written and signed by the testator’s own hand. In the absence of suitable witnesses, or in the event that the witnesses who are examined should show doubts, and provided that the Judge deems it convenient, the handwriting may be appraised by experts.
Article 692. The surviving spouse, if any, the descendants and ascendants of the testator and, in the absence of both, his siblings, shall be summoned to practice the formalities expressed in the preceding article. If these persons should not reside within the court district, or if their existence should be ignored, or if, being minors or incapacitated persons, they should have no legitimate representatives, the Public Prosecutor shall be summoned. The persons summoned may be present in the practice of such formalities and make any relevant observations orally on the authenticity of the will at such time.
Article 693. If the Judge deems the identity of the will to have been proven, he shall resolve on its legalisation, including any formalities practised therein, in the files of the corresponding Notary Public, who shall give the interested parties any copies or extracts which may apply. Otherwise, he shall refuse its legalisation. Whatever the Judge’s resolution, it shall be enforced, notwithstanding any opposition, saving the right of the interested parties to challenge it in the relevant proceedings.
On the open will
Article 694. The open will must be made before a Notary Public qualified to act in the place where it is made. Only the cases expressly determined in the same Section shall be excepted from this rule.
Article 695. The testator shall express, orally or in writing, his last will to the Notary Public. Upon the Notary’s drafting the will in accordance with such statements, and with expression of the place, year, month, day and time of its execution, and after warning the testator of his right to read it by himself, the Notary Public shall read it out loud for the testator to declare whether it conforms to his intentions. If so, it shall be signed in the same act by the testator who is able to do so and, as the case may be, by the witnesses and other persons required to appear. If the testator declares that he does not know how to or is unable to sign, one of the two witnesses shall do it for him at his request.
Article 696. The Notary Public shall witness knowing the testator or having duly identified him and, otherwise, shall make the statement provided in article 686. He shall also note that, in his opinion, the testator has the necessary legal capacity to make a will.
Article 697. Two suitable witnesses must be present in the act of making the will:
- When the testator declares that he does not know how to or is unable to sign the will.
- When the testator, although he is able to sign it, is blind, or declares that he does not know how to or is unable to read the will by himself. If the testator who does not know how to or is unable to read should be entirely deaf, the witnesses shall read the testament in the presence of the Notary Public, and must declare that it coincides with the declared intention.
- When the testator or the Notary Public should request it.
Article 698. The following persons must be present at the act of making the will:
- The witnesses of the testator’s identity, if any, who may also act as instrumental witnesses.
- The physicians who have examined the incapacitated testator.
- The interpreter who has translated the will of the testator to the official language employed by the Notary Public.
Article 699. All formalities expressed on this Section shall be performed in a single act, which shall begin with the reading of the will, without any interruption being allowed, unless it is motivated by a fleeting incident.
Article 700. If the testator should be in imminent danger of death, the will may be executed before five suitable witnesses, without the need for a Notary Public.
Article 701. In the event of an epidemic, the will may also be executed without intervention of a Notary Public, before three witnesses older than sixteen.
Article 702. In the cases of the two preceding articles, the will shall be written down, if possible; if not, the will shall be valid even if the witnesses do not know how to write.
Article 703. A will made in accordance with the provisions of the three preceding articles shall be ineffective if two months should elapse from the time when the testator is no longer in danger of death, or the epidemic has ceased. Where the testator should die within such period, the testament shall also be ineffective if, within three months following the death, the interested parties do not appear before the competent Court to raise it to public deed, irrespective of whether it was executed in writing, or orally.
Article 704. Wills made without the authorisation of a Notary Public shall be ineffective if not raised public deed and legalised as provided in the Civil Procedural Law.
Article 705. Upon an open will’s being declared null and void as a result of not observing the solemnities set forth for each specific case, the Notary Public who has authorised it shall be liable for any damages incurred, if the fault should result from his malice, inexcusable negligence or ignorance.
On the closed will
Article 706. The closed will must be executed in writing. If the testator should write it in his own hand, he shall put his signature at the end. If it should be written by any mechanical means or by another person at the testator’s request, the latter shall sign in all pages thereof and at the end of the will. Where the testator does not know how to or is unable to sign, another person shall do so at his request at the end and in all pages thereof, expressing the cause of the impossibility. In any event, prior to his signature, any words amended, crossed out or written between the lines shall be validated.
Article 707. The following solemnities shall be observed in the execution of the closed will:
- The paper which contains the will shall be put inside the closed and sealed envelope, so that the former may not be taken out without breaking the latter.
- The testator shall appear with the closed and sealed will, or shall close it and seal it in the act, before the Notary Public who is to authorise it.
- The testator shall represent, in the presence of the Notary Public, by himself or by means of the interpreter provided in article 684, that the envelope which he submits contains his will, expressing whether it is written and signed by him, or whether it is written in another’s hand or by any mechanical means and signed at the end and in all pages thereof by him or by another person at his request.
- On the envelope of the will, the Notary Public shall extend the corresponding deed of execution, expressing the number and mark of the seals with which it has been closed, and witnessing that he knows the testator or
has identified his person in the manner provided in article since 685 and 686, and that the testator, in his opinion, has the necessary legal capacity to make a will.
- Having issued and read the deed, the testator who is able to do so and, as the case may be, the persons who must be present shall sign it, and the Notary Public shall authorise it with his stamp and signature. If the testator should declare that he does not know how to or is unable to sign, one of the two suitable witnesses who must be present in this case shall do so for him and at his request.
- The deed shall also express this circumstance, as well as the place, time, date, month and year of execution thereof.
- Two suitable witnesses shall be present in the act of execution, if the testator or the Notary Public should request it.
Article 708. Blind persons and persons who do not know how to or are unable to read may not make a closed will.
Article 709. Persons who cannot express themselves orally, but who are able to write, may make a closed will, observing the following formalities:
- The will must be signed by the testator. As concerns the remaining requirements, the provisions of article 706 shall apply.
- Upon submitting it, the testator shall write on the upper part of the envelope, in the presence of the Notary Public, that inside it is his will, expressing how it is written and that it has been signed by him.
- The deed of execution shall be extended below the words written by the testator, and the Notary Public shall witness having complied with the provisions of the preceding number and the remaining provisions of article 707 which apply to the case at hand.
Article 710. After authorisation of the closed will, the Notary Public shall deliver it to the testator, after including in his ordinary official files an authorised copy of the deed of execution.
Article 711. The testator may keep in his possession the closed will, or entrust it to the care of a trusted person, or consign it in the possession of the authorising Notary Public, to be kept in his files. In this last case, the Notary Public shall give the testator a receipt and shall enter in his ordinary files, in the margin or below the copy of the deed of execution, that the will is in his possession. If the testator should subsequently withdraw it, he shall sign a receipt below such note.
Article 712. The Notary Public or the person who holds in his possession a closed will must submit it to the competent Judge when he becomes aware of the death of the testator. If he should fail to do so within ten days, he shall be liable for any damages resulting from his negligence.
Article 713. A person who, by wilful misconduct, should fail to submit the closed will in his possession within the period provided in the second paragraph of the preceding article, as well as the liability provided therein, shall lose any right to the inheritance, if he should have any as intestate heir or as testamentary heir or legatee. This same penalty shall be incurred by the person who by wilful misconduct should remove the closed will from the testator’s domicile or that of the person in whose custody or deposit it has been left, and the person who hides it, breaks it or otherwise renders it useless, without prejudice to any applicable criminal liability.
Article 714. The provisions of the Civil Procedural Law shall be observed for the opening and legalisation of the closed will.
Article 715. The closed will shall be null and void if the formalities set forth in this section should not have been observed in its execution; and the Notary Public who authorises it shall be liable for any damages arisen, if it
should be proved that the fault resulted from his malice, inexcusable negligence or ignorance. However, it shall be valid as a holographic will if it should be entirely written and signed by the testator and if it should meet the remaining conditions inherent to this kind will.
On the military will
Article 716. In time of war, any members of the military in campaign, volunteers, hostages, prisoners and other individuals employed in the Army, or following it, may make a will before an Official who has at least, the category of Captain. This provision shall apply to individuals in an army which is in a foreign country. If the testator should be ill or wounded, he may make the will before the Chaplain or Physician who attends him. If he should be with a detachment, he may make the will before his superior, even if he is a subaltern. In all cases mentioned in this article, the presence of two suitable witnesses shall always be necessary.
Article 717. The persons mentioned in the preceding article may also make a closed will before a War commissary, who shall in this case perform the duties of a Notary Public, observing the provisions of articles 706 et seq.
Article 718. Wills made in accordance with the two preceding articles must be forwarded as soon as possible to the general headquarters, and by the latter to the Minister of War. The Minister, if the testator should have died, shall forward the will to the Judge of the deceased’s last domicile, and, if he should not know such domicile, to the Dean of the Judges of Madrid, to summon ex officio the heirs and other parties interested in the succession. These persons must request to raise the will to public deed and to legalise it, in the manner provided in the Civil Procedural Law. If the will should be closed, the Judge shall proceed to open it ex officio in the manner provided in such Law, with the summons and intervention of the Public Prosecutor, and, after it has been opened, he shall give notice thereof to the heirs and other interested parties.
Article 719. Wills mentioned in article 716 shall become void four months after the testator ceases to be part of the campaign.
Article 720. During a battle, assault, combat and, generally, in any imminent danger of warlike actions, a military will may be executed orally before two witnesses. However, this will shall become ineffective if the testator should be saved from the danger in consideration of which he made the will. Even if he should not be saved, the will shall be ineffective if it is not legalised by the witnesses before the War auditor or officer of the Ministry of Justice following the Army, subsequently proceeding in the manner provided in article 718.
Article 721. If the military will should be a closed will, the provisions of article 706 and 707 shall be observed; however, it shall be executed before the Officer and the two witnesses required for the open will pursuant to article 716, and all of them must sign the deed of execution, as well as the testator, if he should be able to.
On the maritime will
Article 722. Open or closed wills made by persons on board in a maritime journey, shall be executed in the following manner: If the vessel should be a warship, before the Paymaster or the person performing his duties, in the presence of two suitable witnesses, who can see and understand the testator. The Commander of the vessel, or the person acting in his stead, shall, further, give his approval. In merchant ships, the will shall be authorised by the Captain, or the person acting in his stead, with the attendance of two suitable witnesses. In both cases, the witnesses shall be chosen among the passengers, if any; but one of them, at least, must be able to sign, and shall do so for himself and for the testator, if the latter does not know how to or is unable to do so. If the will should be an open will, the provisions of article 695 shall likewise be observed, and, if it should be a closed will, the provisions of the sixth section of this chapter shall be observed, excluding the provisions relating to the number of witnesses and the intervention of the Notary Public.
Article 723. The will of the Paymaster of a warship and of the Captain of a merchant ship shall be authorised by the person who is to replace them in their position, observing, for all else, the provisions of the preceding article.
Article 724. Open wills made in the open sea shall be kept in the Commander’s or Captain’s custody, and a mention thereof shall be made in the Logbook. The same mention shall be made of holographic and closed wills.
Article 725. If the vessel should arrive at a foreign port where there is a Diplomatic or consular agent of Spain, the Commander of the warship, or the Captain of the merchant ship, shall deliver to such Agent a copy of the open will, or the deed of execution of the closed will, and the note taken in the Logbook. The copy of the will or the deed must include the same signatures as the original, if the persons who signed it are alive and on board; otherwise, it shall be authorised by the Paymaster or Captain who received the will, or the person acting in their stead, and shall also be signed by those of the persons who took part in the will who are currently on board. The Diplomatic or consular agent shall procure that the formality of delivery is laid down in writing and, having closed and sealed the copy of the will or that of the deed of execution in the event of a closed will, shall forward it, together with the note taken in the Logbook, to the Minister of the Navy by the corresponding channels, and the Minister shall order its deposit in the Files of his Ministry. The Commander or Captain who delivers the copy shall receive from the Diplomatic or consular agent a certificate of having performed such delivery, and shall make a note thereof in the Logbook.
Article 726. When the vessel, whether a warship or a merchant ship, arrives to the first port in the Kingdom, the Commander or Captain shall deliver the original will, closed and sealed, to the local naval Authority, with a copy of the note taken in the Logbook; and, if the testator should have died, a certificate evidencing the death. Delivery shall be evidenced in the manner provided in the preceding article, and the naval Authority shall forward it all without delay to the Minister of the Navy.
Article 727. If the testator should have died and the will should be an open will, the Minister of the Navy shall perform the actions provided in article 718.
Article 728. Where the will has been executed by a foreigner on board a Spanish vessel, the Minister of the Navy shall forward the will to the Minister of the State, to forward it as applicable by diplomatic channels.
Article 729. If the will should be holographic, and the testator should have died during the journey, the Commander or Captain shall keep the will in his custody, making a mention thereof in the Logbook, and shall deliver it to the local naval Authority, in the manner and for the purposes provided in the preceding article, when the vessel should arrive to the first port in the Kingdom. The same shall be done when the will is a closed will, if the testator had it in his possession at the time of his death.
Article 730. Open and closed wills made in accordance with the provisions of this section shall become void after four months, counting from the time where the testator should disembark at a point where he is able to make a will in an ordinary manner.
Article 731. If there should be danger of shipwreck, the provisions of article 720 shall apply to the crew and passengers of warships or merchant ships.
On the will made in a foreign country
Article 732. Spaniards may make a will outside national territory, subject to the forms set forth by the laws of the country in which they are located. They may also make a will in the open sea during their journey in a foreign vessel, subject to the laws of the Nation to which the vessel belongs. They may also make a holographic will, in accordance with article 688, even in countries whose laws do not admit such a will.
Article 733. The joint will, forbidden by article 669, made by Spaniards in a foreign country shall not be valid, even if authorised by the laws of the Nation where it should have been executed.
Article 734. Spaniards who are in a foreign country may also make an open or closed will in a foreign country before the diplomatic or consular office of Spain who performs notarial duties at the place where it is executed. In these cases, all formalities set forth in Sections five and six of this chapter shall be respectively observed.
Article 735. The diplomatic or consular Agent shall forward a copy of the open will or of the deed of execution of the closed will, authorised with his signature and seal, to the Ministry of the State, to be consigned in his Files.
Article 736. The diplomatic or consular Agent in whose possession a Spaniard should have consigned his holographic or closed will, shall forward it to the Ministry of the State upon the death of the testator, together with the death certificate. The Ministry of the State shall publish in the “Madrid Gazette” news of the death, so that parties interested in the estate may collect the will and legalise it in the manner provided.
On the revocation and ineffectiveness of wills
Article 737. All testamentary dispositions are essentially revocable, even if the testator should express in the will his intention or resolution not to revoke them. Clauses which cancel future dispositions and those where the testator should order the invalidity of the revocation of the will unless it should be performed using certain words or signs shall be deemed not written.
Article 738. The will may not be revoked in the whole or in part unless the solemnities required to make a will are observed.
Article 739. The prior will shall be revoked by operation of law by a subsequent perfect will, if the testator does not express in the latter his intention to have the former subsist in whole or in particle. Notwithstanding the foregoing, the prior will shall recover its legal force if the testator should subsequently revoke the subsequent will, and should expressly declare his intention that the former will be valid.
Article 740. The revocation shall be effective even if the second will should become void as a result of the incapacity of the heir or legatees appointed therein, or as a result of waiver by the former or the latter.
Article 741. The recognition of a child shall not lose its legal force even if the will in which it was made should be revoked, or it should not contain other dispositions, or the other dispositions contained in the will should be null and void.
Article 742. The closed will which appears at the testator’s domicile with the cover or seals broken, or with the signatures authorising it erased, scratched out or amended shall be deemed revoked. Notwithstanding the foregoing, this will shall be valid if it should be evidenced that the damage should have taken place without intention or awareness on the part of the testator, or upon the latter’s being of unsound mind; however, if the cover or the seals should be broken, for the will to be valid, it shall also be necessary to prove its authenticity. If the will should be in the possession of another person, if the cover or the seals should be broken the defect shall be deemed be such person’s fault, and the will shall not be valid unless its authenticity is proved; and, if both should be unharmed, but the signatures should have been erased, scratched out or amended, the will shall be valid unless it should be evidenced that the document was delivered by the testator in such condition.
Article 743. Wills shall become void and testamentary dispositions shall be ineffective, in whole or in part, only in the cases expressly provided in this Code.
On capacity to succeed by testament or ab intestato
Article 744. Persons who are not incapacitated by the law may succeed by testament or ab intestato.
Article 745. The following persons are incapable of succeeding:
- Abortive creatures, understanding as such those which do not meet the circumstances expressed in article 30.
- Associations or corporations which are not permitted under the law.
Article 746. Churches and church councils, provincial governments and provinces, town councils and municipalities, hospitals, charitable and public instruction establishments, associations authorised or recognised by the law and other legal entities may acquire by testament subject to the provisions of article 38.
Article 747. If the testator should dispose of all or part of his property for religious services or charitable works for the benefit of his soul, in an indeterminate manner and without specifying the allocation thereof, the executors
shall sell his property and shall distribute the amount thereof, giving half to the local Bishop so that he may allocate it to the aforementioned services and to the requirements and needs of the Church, and the other half to the relevant Civil Governor to give to the charitable establishments of the deceased’s domicile, and, in the absence thereof, those of the province.
Article 748. The disposition made in favour of a public establishment subject to a condition or imposing an encumbrance shall only be valid with the Government’s approval.
Article 749. Dispositions made in favour of the poor in general, without designating specific persons or locations, shall be deemed limited to the poor of the domicile of the testator at the time of his death, unless it should clearly result that his intention was another. The qualification of who are the poor and the distribution of the property shall be made by the person designated by the testator or, in the absence thereof, by the executors and, in the absence thereof, by the parish priest, the mayor and the municipal judge, who will resolve by majority vote any doubts which may arise. The same shall be done where the testator has disposed of his property in favour of the poor of a specific parish or village.
Article 750. Any disposition in favour of an unidentified person shall be null and void, unless such person may become identified as a result of any event.
Article 751. A disposition made generally in favour of the testator’s relatives shall be deemed made in favour of those nearest in degree.
Article 752. Testamentary dispositions made by the testator during his last illness in favour of the priest who confessed him, the latter’s relatives to the fourth degree, or his church, diocese, community or institution shall have no force or effect.
Article 753. A testamentary disposition in favour of the guardian or conservator of the testator shall have no force or effect, unless it has been made after final approval of the accounts or, if it should not be necessary to render accounts, after termination of the guardianship or conservatorship. Notwithstanding the foregoing, dispositions made in favour of the guardian or conservator who is an ascendant, descendant, brother, sister or spouse of the testator shall be valid.
Article 754. The testator may not dispose of all or part of his estate in favour of the Notary Public authorising his will, or the spouse, relatives or relatives by marriage of the latter up to the fourth degree, with the exception provided in article 682. This prohibition shall apply to witnesses of an open will, executed with or without a Notary Public. The provisions hereof shall also apply to witnesses and persons before whom special wills are executed.
Article 755. A testamentary disposition in favour of an incapable person shall be null and void, even if it should be disguised in the form of a contract for valuable consideration, or should be made on behalf of a trustee.
Article 756. The following persons are incapable of succeeding on grounds of unworthiness:
- Parents who should abandon, prostitute or corrupt their children.
- A person who is sentenced in court for an attempt to take the life of the testator, his spouse, descendants or ascendants. If the offender should be a forced heir, he shall forfeit his right to his forced share.
- A person who has accused the testator of a crime for which the law provides a sentence of long-term jail or imprisonment (presidio o prisión mayor), where the accusation is declared to be a calumny.
- The overage heir who, being aware of the testator’s violent death, should not have reported it within one month to the authorities, unless the authorities should have already acted ex officio. This prohibition shall cease in cases where, according to the law, there is no obligation to make an accusation.
- A person who, by threats, fraud or violence, should force the testator to make a will or to change it.
- A person who, with the same means, should prevent another from making a will, or from revoking a will previously made, or should replace, hide or alter another subsequent will.
Article 757. The grounds of unworthiness shall cease to be effective if the testator was aware of them at the time of making the will or if, having become aware of them later, he should forgive them in a public document.