IDCP ch 2.

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INTRODUCTION TO CIVIL PATRIMONIAL LAW

1º Grado en Administración de Empresas

Facultad de Ciencias Sociales y Jurídicas. Campus Getafe

Universidad Carlos III de Madrid
 Reservados todos los derechos.
No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad.
 CHAPTER 2: PERSON´S LAW

1. PERSON´S LAW
Dignity: people are not merchandise
Personality rights or right of publicity (most are fundamental rights): right to life / physical and moral integrity /
equality / ideological and religious freedom / freedom and security / honour / privacy / own image / inviolability of
home / secrecy of communications. Freedom and movement of residence / speech / press / communication.

● Natural persons (persona física): every man is, by nature, a person → subject to legal relations (rights and
duties)
● Artificial persons, juristic person or legal person (persona jurídica): groups of individuals (corporations,
partnerships, associations…) which have their own personality, because the law acknowledges the existence
of interests and goals which cannot be achieved by single individuals. This legal personality is used to
facilitate the intervention in the traffic of a group of people, allowing them to unify their legal relations and act
as an only individual.

2. NATURAL PERSONS AND PERSONALITY

Personality: ability of being subject to rights and obligations
Personality is acquired at the time of birth with life, once the complete loosening from the mother's womb takes place.
(Before birth no legal personality)
To protect all person conceived but not yet born (nasciturus → provides protection without granting personality):
personality starts at birth, but upon conception, a person is considered as born for all effects that a favourable to him,
provided that he is born with human form and lives at least 24h separated from the mother.

3. CIVIL AND LEGAL CAPACITY

Civil or natural capacity (capacidad jurídica):
-capacity of holding rights of all natural persons, because they have personality
-nobody deprived
-starts with birth ends with death (record in Civil Registry)
-person can hold legal rights, but cannot administer them himself nor validly execute them
-need a representative to act on his behalf in order for his actions to have legal effect→ legal representative
(appointed by law).
paternal power or authority: the representative of a minor are his parents
other cases: tutor or guardian

Legal capacity or capacity to act (capacidad de obrar):

-capacity to manage and exercise the rights and obligations that the person holds
-legal age: 18→ come out of paternal power or tutorship
complete capacity:
limited capacity: person cannot undertake by himself acts or some acts with legal effects

Special capacity: requirement or ability (age…)

Prohibitions are set by the law, the reason is that the person who is subject to the prohibition has a special relation
with the act to be performed, so there is a conflict of interests.

4. MINORITY OF AGE
Non-emancipated minors (insufficient age to attain legal capacity) cannot give consent → must be represented by
parents or tutor in order to use their rights and bind the minor’s patrimony.
The capacity of the minor to understand the implications and nature of a contract and its patrimonial influences shall
be considered in order to ascertain whether the minor has capacity to conclude it.
The laws that permit minors to act by themselves, or ask for their opinion to be taken into account, are increasing.
“Old minors” can be liable themselves for the damages caused to others.
At 14 testamentary capacity (can testify) and prepare a will (not holographic).
Accept donations or acquire possession of things without age limit.

5. EMANCIPATION
Emancipation: release from the power or control of somebody
Child emancipated or turns 18→parents surrender parental duties and the right to care, custody and administrate
child’s patrimony.
An emancipated minor has the status of a person of full legal age, but, needs parental or curator's consent: borrow
money and buy or sell immovable property and goods of extreme value.
Emancipation granted +16, irrevocable. Granted by:
a) Parents: minor’s consent required or authorisation of judge
b) Judge: child will ask for it to the judge, who will listen to the parents before granting emancipation. Might be
granted if: parent with custody remarries / parents live apart / cause hinders the exercise of paternal power /
minor under tutorship (legal age benefit)
c) Marriage: only an emancipated minor can validly marry. Minor obtains from judge an age dispensation to
marry ←can be granted from the moment child turns 14
d) Independent economic life from parents: parents consent might be revoked

6. INCAPACITATION
Incapacitation: limitation or deprivation of a person’s legal capacity by a judge because the person is impaired by a
mental or physical impossibility to understand the consequences of his acts. A person can only be incapacitated if he
suffers a persistent disease or mental or physical deficiency which impedes the person from governing himself.
The acts performed are voidable (initially valid but can be declared void if timely challenged due to the lack of the
necessary legal capacity).
Legal capacity is presumed, in order to incapacitate: judicial decision must determine the scope of incapacity.
(deprive=status similar to minor=tutor / restrict=curator / confinement)
When someone is incapacitated, the legal acts performed by him will be voidable no matter if at the time of
performance he has sufficient understanding to execute them.
The declaration of incapacity must be brought to court by the spouse, descendants, ascendants or
siblings. Exception with minors: only requested by those exercising paternal power or tutorship.

Prodigal: persons of legal age who cannot manage their affairs in consequence of a regular disorganized and reckless
conduct that endangers his patrimony.
Declared by a judicial decision.
Started by persons emotionally dependent.
Prodigal retains legal capacity, the judge will appoint a curator who shall give consent in the acts specified.

7. ARTIFICIAL PERSONS
Artificial or judicial persons (personas jurídicas): born because the law acknowledges the existence of a group with
supraindividual interests when they meet the legal requirements they are granted personality. They can hold rights,
enter into legal relations. It shall act in the legal traffic through their bodies, which are individual persons that
represent them.
It has an independent patrimony which shall or shall not be connected to the individuals depending on the type of

Tu crush de apuntes tiene mejores apuntes que este

artificial person.
-public interest

-private interest (civil, commercial, industrial)

7.1 FOUNDATIONS
a) Fundations: philanthropic institutions backed by the State (protectorate) created by a person or group of
persons developing activities for the benefit of the community.
Non-profit, have their patrimony affected in a lasting manner to the consecution of goals of general interest.
Initial patrimony (endowment) must be sufficient to fulfil the foundation’s goals. Min=30.000€ (less if
proven enough).
Ruled by founder, Bylaws and the law.
They are artificial persons but they are not constituted by a group of people.

b) Constituted by a public deed or a founders testament.

Shall have legal personality from the moment of registration.

c) Functioning is set in its Bylaws.

Management and representation correspond to the Board of Managers (min 3), non-remunerated post. Must
watch fulfilment aims and administer patrimony.
Cannot freely dispose of its assets (70% income destined fulfilment goals)
Special accounting and auditing rules, yearly action plan with objectives and activities

7.2 ASSOCIATIONS
a) Associations: artificial persons constituted by a group of individuals who get together to carry out a
purpose. Freedom of association, anybody may create or become a member; nobody forced to create, join
or stay. Non-profit: income destined to fulfilment of goal
Public usefulness association: association non-profit and persues general interest objectives and enjoy
economical and tax benefits.
*Companies (sociedades): for-profit, private or particular benefit.

b) Acquires legal capacity through the agreement of three or more natural or artificial persons who undertake to
join knowledge, means and activities to achieve common and licit purposes. “Constitutional Certificate”
formalised in public or private document.
Promoters and members are personal and joint and severally liable for the obligations contracted with third
parties.

c) Functioning is set in Bylaws.

General Assembly appoints, removes and supervises the activities of the management body. Made up of all
the members and shall meet at least once a year to vote the annual accounts. Simply majority (more votes in
favour than against). Qualified majority (more than half of the votes in favour).
Representation committee, management and representation. Members appointed by General Assembly.
Members have the right to participate in activities, vote and meet in General Assembly and government and
representation bodies.
Members have the obligation to collaborate for the consecution of goals and pay quotas.

Tu crush de apuntes tiene mejores apuntes que este

8. POWER OF ATTORNEY
Power of Attorney: power to act on behalf of another person.

*Power of Attorney granted to a procurator:

procurator: one that manages another’s affairs

Direct representation: a person (representative) performs an act of the law in another persons’ (principal) name and
behalf so the effects of such act directly and immediately affect the person represented.
● Voluntary representation: principal entrusts the representative for him to be able to carry out acts of the law in
his name and on his behalf.
● Legal representation: law appoints someone to represent another person, without taking into account the will
of the person represented.

Act of empowering: unilateral act by which the principal grants another person power to act in his name and his
behalf. Acceptance of person appointed is not necessary.
Representative has to act attending primarily the interest of the principal. If he does not fulfil the instructions the act is
valid and the principle is bound to perform it, but the representative is liable towards the principle and shall have to
compensate him for damages.
To grant a power of attorney the principal has to have the capacity necessary to execute the act in the law for which
he is granting such power.
Freedom of form except: marriage and administration of assets.
Representation can be apparent.
-General powers: granted to perform all legal acts of the principal.
-Special powers: determined acts
To compromise or mortgage goods an express power is granted.

Abuse of power on the part of the representative: when he performs actions following different aims to those for
which he was empowered, generally in his own benefit. It is valid against third parties, but he is responsible to the
principal.

Representation without power: “representative” performs an act of the law in the name of someone but without the
necessary empowering to do so. Because power of attorney has expired, it never existed or it exists but he
“representative” is acting outside the scope of such power.
Does not bind the principal unless he ratifies a posteriori.
Liable against third parties.
Retroactive: the act which is ratified becomes effective for the principal since its conclusion.

Extinction of the empowering:

By the principal at his will. Unilateral act shall be effective the moment the representative knows.
Representative might renounce the power, effective the moment the principal knows. Good faith requires the
representative cannot abandon his task until the principal has been able to take the necessary measures.
In case of divorce, death, prodigality or insolvency. (automatic)
Power can be revoked in most cases, except when the granted PoA is a key element in a bigger agreement (motive of
previous agreement).

Indirect representation: representative acts on behalf of the principal but in his own name. The principal is not
related to third parties, the representative assumes the responsibility.

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The European Court is over any Spanish Court (because of fundamental rights)