447. Several theories


447. Various theories

Those who claim the existence of subjective rights are divided as to the nature of their structure, ie, they disagree on the determination of the essential elements of that notion.

Several theories focus on the problem, but there are three main questions:

a) Theory of the Will, for which the individual right is an act of will;

b) Theory of Interest, which holds that the individual right is just an interest protected by law, and

c) Theory of the will and interest combined, according to which the concept that concerns us is not simply an act of will or interest protected by law, but the result of two factors.

448. a) theory will

Its founder was Savigny, and Windscheid, your builder more perfect.

The latter, in his famous work Pandects defines the legal right as a power or dominion granted to the will of the legal system. The order prescribes a rule, order a specific behavior, putting this precept to the free disposal of one in whose favor it is issued. Arising from the norm and may use the particular free to achieve their ends, and if she uses the legal system provides the means to compel the other to the enforcement of that provision. But what matters is the individual’s will: the law, issued the injunction, it is clear for the individual, the abstract standard is specified in a particular subject protection by determining their will, which is decisive for the birth of right. 1

Several objections have been made Windscheid theory and those who follow him. Main observations can not explain where the right exists independently of the will of the owner. And if it is based on the law and it determines the performance of the commandment given in the legal system and made available to the owners, not conceive how the right may also arise in an incompetent, the insane and the child, which no one will or can be the change, if no representatives. Or explain how a person may be entitled to know that you purchased, what happens to the heir who is unaware that it is. Neither explains how the child has rights is in the womb.

449. b) Theory of Interest

The founder of the theory of interest is Ihering, who presented his doctrine mainly in his work The Spirit of Roman Law (“Geist des Römischer Rechts”, volume IV).

Interest theory holds that the existence of rights occurs because of certain ends that the owner needs or wants to achieve. It is they who constitute the substance of legal right. The purposes are but the interests that the law deems worthy of protection. So we can say that right “is a legally protected interest.”

Among other objections to this theory, have asserted the following:

1) The interest is not the essence of law, but only the end of it, because if it is true that to foster an interest (by the way that an interest worthy of legal protection), the system grants rights to the individual, does not lie in it or at least it alone, the essence of subjective rights. This is in any case, besides the time of interest, the possibility for individual action, which can only be done by act of will.

2) How to reconcile the basis of subjective rights in the interest with the fact that in many laws, it is recognized that a right can be exercised by a mere wish, because yes, no interest?

3) There is interest guaranteed by law and not an individual right, as happens with police rules. In these cases it is not any subjective right, but simply, as Ihering says the same, the effect reflects the objective law.

450. c) Theory of the will and interest combined

This theory, which originates in the doctrine of Bekker on the subject of law, argues that the structure of subjective rights has no basis in a pure act of will or interest only in that the law protects, but in both elements together: the will and interest. The first is to specify the individual right, the second is its content. It is unwise to rely on only one or the other. You can not have something concrete without content or content not materialized. Hence, the two theories, the will and interest, are insufficient. Should unite. And we have the theory of the will and interest combinados.2

In all right, then, we must distinguish two elements: the enjoyment, interest or profit, and the power to act to uphold the interest of having. Why the individual right can be defined as “the power to act in an individual or collective interest to do within the limits of the law,” 3 or “the power of man’s will to act to satisfy themselves interests in accordance with the rule of law. “

Supporters of the theory under consideration are, inter alia, Bekker (its founder), Bernatzik, Jellinek, Vanni, Miceli, MM Levi, Richard, Professor Mircea Djuvara Romanian, and above all, M. Michoud Leon in his famous theory of personality moral.4

The critiques of the theory combined are motivated rather by relying on the interest and support as much for the willpower.

We say that individual right is the power of a person to meet their goals or interests under the protection of law. The power or dominion and its membership to a subject of law are essential elements of the right subjetivo.5 This in particular means the recognized power of a person against or against another or others to demand the respect of the enjoyment of property, delivery of a thing or making a servicio.6

It is said that the individual right is the dominion of love, because the will of the owner is free and sovereign to determine if it is exercised or not. When an individual car will collide guilty, is entitled to compensation. But sometimes, that right is asserted if the perpetrator of the deed is a friend, and even more so if it is a friend.



451. Need to classify the individual rights

“Given the multiple different relationships between people as individuals or as members of the state organization, it is easy to understand the variety and multiplicity existing in the series of subjective rights. Thus there is a need for a classification that, based on the common points and differentials, collected in homogeneous groups the various figures and to reduce all organic and systematic unit.This work of classification is very difficult because there are notes or characters that are common to several groups and within each group are figures of rights that have differential characters that do not fit well in a pre-set categories, hence they are several classifications adopted and can say that each author has his own. However, there are broad categories which all agree, remain essential for the construction of any system. To these we have to realize. ” 1

452. Classification that addresses the efficacy and subjective nature of law and classification serves the purpose and content of the

Substantially, we noted two major classifications, as you look at the efficacy and subjective nature of the right or to the object and content.

In the first aspect, the individual rights can be divided:

1) In absolute and relative

2) in native products, and

3) In pure and simple, subject to modalities.

In relation to its object and content se individual rights can be divided into public and private. The latter support a wide classification, which is:

a) Economic Rights and

b) non-pecuniary rights.

1. Individual rights based on their effectiveness and nature

453. Absolute rights and rights concerning

What characterizes the division of subjective rights is the existence of a universal taxpayer, which includes everyone, or a limited liability subject to one or more specific persons. In the first case, we are in the presence of an absolute right, in the second, a right relativo.2

The right way is a universal effectiveness. Can be enforced against anyone. Implies a general duty and negative for all others have the duty to refrain from disturbing the owner.

Examples are the absolute right of personality rights and land rights.

The law of limited effectiveness. May be asserted against one or more specific persons. Only they are obliged to respect the holder to do or not do something, only these people suffer from certain limitations, an obligation which may be positive or negative, depending on the specific content of the benefit to which are required.

Example is the law of personal rights, also known as obligation.

454. Original rights and rights derived

The former are produced independently of the activity of the owner directed or intended to purchase. The latter are obtained as a result of an act of the owner.

Original claims are all related to the individual. And others are derivatives which require the first, and as are the product of an activity of the owner, although it is not accompanied by the will directed precisely adquirirlos.3

455. Communicable and non-transferable rights

The rights are transferable or transferable according admit it or not the possibility of transfer of title to those who belong to another subject. When the transfer of the right is inter vivos transfer is spoken, and when performed by an act of last will, we talk about transmission. But the last word is also used in a generic sense.

The general rule is that all rights may be transferred or transmitted, but “there are some who are so closely tied to the person of the owner who can not undergo a change of subject or at least they can not suffer without denaturation, and therefore called personal rights. ” Belong to them, first of all, the rights that form the content of the personality, and also the right under the state and capacity of individuals, and family rights, including property, some of which are linked closely to the person holder, such as use and occupancy rights “.4

456. Pure and simple rights and rights subject to rules

To understand what rights are pure and simple, which are the rule, it is best previously formed an idea about the arrangements, which often affect the rights.

This word has two meanings, one broad and one narrow. The first denotes all ways of being, all variants that may have rights and suffer. But between these ways of being and among these variants, two singularly important and very frequent use, they come to be the modalities for excellence, the only ones that usually are considered when discussing ways: they are the term and condition.

The term or period is a future event and some of which depend on the exercise or termination of the right. Example: Peter bought a horse, establishing that this delivery will be made on 1 January. Since the conclusion of the contract of sale, I have a right, but until we reach that date, until the term expires, I can not demand the surrender of the object, then suspended within the practice of law.

The condition is an uncertain future event, upon which the birth or termination of a right. Example: You give away one home when the ship “Chile” to Valparaiso. Your right to demand the house be born only when the ship reaches the port. If you never up, never have the right mentioned.

Both the term and the condition can be suspensive and extinct or adjudicative, matter is we’ll play later to discuss legal actions, so now we do not stop.

From the above flows, of course, the definition of rights and conditional rights term, with the former that are subject to a term or period, and second, to a condition.

Pure and simple rights are not subject to any modality.

457. Possible rights

Assumption made and other preliminary notions. Remember that course actually understand the facts or situations-type envisaged by the rule of law, to which, when done, she connects legal effect as the formation of an event of this nature, or the acquisition, modification or extinction of an individual right.

The assumption can be made simple or complex, depending consists of one or more facts. For example, assuming the acquisition of right of inheritance is simple: the death of the deceased. This fact alone is enough for that acquisition, because acceptance of the inheritance which the law requires only confirmatory nature of entitlement and operated by operation of law upon your death. In contrast, the acquisition of right of ownership of a building that is purchased from its current owner, has a complex factual situation, consisting of the purchase agreement with all requirements and formalities and tradition of property rights by registering the deed of agreement in the Register of Real Estate.

As a rule, no right way or born while not all the elements of the case in fact that condition their existence. This requirement of full integration can result from two causes: the necessity imposed by law that all facts occurring simultaneously, or the same value assigned to them when they are generated successively, in the latter case, no duty arises until not perform or comply with the last of these elements.

However, at times, while the right is in training, ie in a state of gestation that have occurred one or some of the successive elements, the legal right granted from now. This, of course, is not the same as that which is being formed, but at your service goes down. Why would such a phenomenon occur? When you meet one or more elements that the law deems of sufficient importance to grant such right designed to protect the final formation, one of those items is qualified subjects will manifest in accordance with the law, the legal act, etc. The conditional right, for example, does not arise until the condition is not met, but as the main element of the conditional right actually has been done, the legal act that is generated, the law allows, before the conditional right is born by the work of fulfilling the condition, a right to implore the necessary steps to preserve and acquire the right to reach the main and final.

458. The classical doctrine of eventual right

According to this doctrine, any conditional right and right are two distinct notions and oppose, only have in common being subjected to an uncertain future event, condition and event, respectively. Transcendentally but differ in that the conditional right is a right that is formed by adding an element having been adventitious, ie, a circumstance not usually required for its completion, and that element affects only the right, and not the constitution of the act which follows and which is a simple fact on the contrary, the contingent right is a right that is formed by the lack of an element that can never fail to attend for its completion, and this element affects the constitution of the act same law that derives the soft law: while the event, the missing element in this law are not met, the legal act itself remains imperfect, it is also and above all establishing a requirement of the act. If, for example, provides evidence that is sold, the seller’s right to the agreed price does not arise because there is no contract until the buyer does not declare that he likes the thing in question (C. Civil, art. 1823) , the declaration of the buyer to please the thing, event, prevent the formation of the contract and, consequently, the law that it may arise. However, if a house is sold and that the price will be paid and it will be delivered if the seller’s son goes to Paris next year, the contract of sale exists, provided that you have fulfilled all the requirements of this contract , so that there are still rights and obligations that flow from it: they will form only if the condition is met.

The practical implication here that takes the traditional doctrine is that the conditional right is retroactive, ie, having verified the condition, the right is said to be not from this time, but previously, from the day held the act or contract, whereas the eventual law can not operate retroactively because it coincides with the complete formation of the act or contract generator, marked both by the day on which the event takes place.

459. Doctrine of the generic notion of possible right

a) General. Under this doctrine, the law eventually would be a general concept, there is room within the conditional right and the right eventually because their difference is not of essence or structure. Indeed, the generic concept of law is any different from that which gives the classical doctrine, defined as a right future for purchase from already protected by the granting of an individual right aimed at the protective purpose.

The eventual law would unfold, then, two rights, an interim and a final one: the interim would be given to prepare the acquisition of future and final, and his character is pure and simple, the final law, the future would emerge and replace the interim when the event (one of whose forms is the condition) is fulfilled. Consequently, what is the right eventual future as their ability to birth depends on the completion of the event, right above the future, provisional, that is pure and simple, has its own existence.

This structure was discovered in both the conditional right as possible for the so-called classical doctrine. Let’s first case in the conditional right. While the condition is not met, the final right there, in fact, the law says that the conditional creditor can not enforce the obligation but the condition verified completely, adding that all that has been paid before verified the condition precedent can be repeated until it has been completed (C. Civil, art. 1485). Moreover, the creditor has the right conditional provisional prepare the final entitlement, the Code expressly states that in the interval between the conditional contract and the fulfillment of the condition, the creditor may implore the conservative orders necessary (art. 1493 .) Focus now possible right called the classical doctrine and take for example the right to accept or reject the inheritance. Going from the base that is acquired only with the acceptance, regardless of the debate about whether our right of inheritance is acquired by operation of law only to the death of the deceased or the acceptance of the heir who operates retroactive to when the estate has been deferred. However, according to the premise, the heir, before accepting, do not acquire the right of definition, the inheritance, the acquisition of this right would be subject to the possibility of acceptance. On the other hand, the heir has the right to prepare provisional future right of that acquisition, as the law expressly states that the purely conservative, the inspection and administration “provisional” urgent, are not acts which itself accounts for the acceptance (art. 1243), ie, the heir has the right to do this act before acceptance, before she becomes entitled to definitive, that of inheritance. A similar situation is in the case of promise. For example, the right of the promisor-seller claimed the price is possible, not born until they conclude the final contract of sale, but in the meantime and after the contract becomes effective promise, the promisor-seller has the right urge the promisor-buyer to conclude the final contract, current law is aimed at acquiring the future right to claim the price.

b) Germ any right and right. Traditionally, we speak of “germ of law” to refer to the conditional right is pending the fulfillment of the condition.Such expression has no legal significance and produces surprise when it says it can spread, because they are not legally conceived the transmission of something other than a right, in its active or passive aspect. Indeed, as noted by supporters of the generic concept of eventual right, it is a law that already presents itself as a provisional actually involved in any future rights protected, and that tends to prepare the advent of the latter. This intelligence is the only one who can understand logic and full extent of the rule that the creditor who dies in the interval between the conditional contract and the fulfillment of the condition, is passed to their heirs, and so does the obligation of the debtor (art. 1492, inc. 1 º).

c) The orbit of any law. Not fall within the realm of law without any rights or expectations only owner or future rights are not protected from now, as the alleged heirs of a person while they live. The terrain of any law is the successive formation of subjective rights has reached a certain stage of gestation or development.

d) The existence and contents of the provisional duty in all cases of eventual right. All rights protected future offers current law, including any specifically named by the classical doctrine: while the event, owing to affect an essential element of the act, not only prevents the birth of the future right but also the act itself, the lack of that element does not preclude the emergence of the current interim law. It derives as a result of meeting minimum legal requirements in the person of interest or the obligation or commitment by the other party.

The provisional duty (which is the present, pure and simple, which precedes the future right before this becomes pure and simple compliance with the event) is directed content powers to prepare and protect the future entitlement and do not enjoy the prerogatives of the latter.

e) The owner is a possible right now. In essence, the individual right is a power attributed to a person, in this particular application receives the abstract norm that confers that power. If any right is a logical consequence is that you must have necessarily support a person. Then rights can not be described any legal situations whose owner does not exist or is not yet determined.

No one denies that the positive law sometimes speak of rights without requiring the actual existence of an owner. The Civil Code is concerned, for example, the rights of the unborn, and says it is suspended until the birth takes place (art. 77). But in all the style of this hypothesis to explain the phenomenon must be sought in another field of ideas, alien to the concept of eventual right.

f) The distinction between the mere expectation and the right eventually. In a broad sense, the term “expectation” the possibility of acquiring a right, protected or not by law. But in a strict sense and more typical, expected or better, simple or mere expectation, is the ability to purchase extra-legal right based on the existence of one or some elements of the factual assumption that acquisition, but without such concurrence be assessed by law to provide protection to the possibility. Indeed, the mere expectation of eventual right differs in that it, unlike the former, contains factual qualified to move themselves to the law to provide protection to the possibility of acquiring the future rights, protection means the granting of so-called provisional duty serves as a means to prepare future entitlement and final.The mere expectation items by themselves without legal significance, hence, the possibility of happen to a person as she is still alive, does not authorize the heir presumptive to ask any conservative measure of the assets of the estate expects to collect death of the deceased.

As there are right, the mere expectations are not transferable, and may be frustrated by a law without its margin to be branded as backward (Law on the retroactive effect of laws, art. 7 º).

g) Justification for the inclusion of the generic conditional right eventually. The doctrine that considers the contingent right as a generic concept agrees with the classic on the difference between event and condition, in that the first affects a component of the act or contract, delaying the formation of the act or the contract itself, and that the second element only affects the formation right, preventing birth course. But notes that the effect or the projection on the genesis of law in both cases is the same: the conditional right will not be born until it meets the future fact that is the condition, however refined it is the act or contract generator and the right eventually not born until they make the missing element to complete formation of the event, the event.

The classical doctrine that opposes the eventual right to conditional consequent distinguishes its earlier statement. The conditional law operates, in principle, retroactive, the law is said to be from the day held the act or contract, and not only from the date of the condition, the contingent right, however, does not operate retroactivity, but from the day the event takes place, namely the improvement of the act or contract. The eventual law doctrine generic replies that this difference does not alter the common nature of temporary and conditional rights, it is a simple difference in the dynamic phase regime of both rights. He adds, yet stressed that the difference in treatment largely disappears when one considers that many conditional rights not act retroactively and that several effects possible rights back. Examples: the fulfillment of conditions precedent, unless a contrary declaration, does not own the fruits to the creditor during the time the condition was pending (art. 1488), whereas the acceptance of the heir (so that this event collect the assets of the estate) goes back to the time effects that have been deferred inheritance (art. 1239).

h) The impact of the doctrine of the generic concept of eventual right. This doctrine concludes that the traditional grading scale or the rights away a step, the conditional rights, which go to join any rights, they have the same character of future rights and protected from the note offering, also common , the mechanism or process to be unchanged following their legal status. In this circumstance all cases constitute a general legal concept. However, do not form a legal category, because the legal system is not uniform or homogeneous for all the possibilities covered by the notion.

The doctrine that reduces to a single concept all future rights protected, shows that where the classical doctrine saw one right in gestation, there are two subjective rights that follow: before completion of the event or condition, a current law, pure and simple, intended to prepare the acquisition and application of the right future performance of the event or condition, disappears the first law, provisional and definitive future emerges with the characters, now, pure and simple.

According to its proponents, this analysis has theoretical and practical consequences, such as giving legal explanation satisfactory to the transfer, transmission and surety of future royalties from protected before they become current.

Special Bibliography

Demog, “Des droits et des Hypotheses éventuels ou ils prennent naissance,” in Revue de Droit Civil TRIMESTRIELLE, 1905, p. 723, and “Nature et effets des droits éventuels” in the same journal, 1906, p. 231. This latest study is translated in Volume IV of our Journal of Law and Jurisprudence.

Filderman, From the condition retroactivité dans les conventions, thesis, Paris, 1935.

REGIS Spin, Les actes de dispositions juridiques relatifs aux Situations futures en droit français et en droit allemand. Les droits éventuels, thesis, Lyon, 1939.

Jambu-Merlin, “Essai sur la retroactivité dans les actes juridiques”, in Revue de Droit Civil TRIMESTRIELLE, 1948, p. 271.

TITULESCO, Essai sur une théorie générale des droits éventuels, Paris, 1907.

Jean-Maurice Verdier, Les droits éventuels. Al’étude Contribution de la formation des droits succesive. This author, whose work, published in 1955 and awarded by the Faculty of Law, Paris, is that to date has improved more than any broad notion of possible rights.

In German law there are several books on the subject. Worth noting that published in 1933 by Michaels, Das Anwartschaftrecht in BGC. According to him, “anwartschaft” is a present, irrevocable right to access a right pure and simple.

In the Chilean literature, RUBEN G. Galecio Bachelor devoted his memory to test a theory of possible rights, Santiago, 1943, although very meritorious work, is no longer delayed, and their consultation should be complemented by more recent work, such as memory SUSANA MUÑOZ R., Theories any rights, Santiago, 1962. In just over 50 pages gives a clear and concise vision of the general part of the monograph of Verdier.

460. Pure and simple rights

We can now, thanks to the definitions and successive elimination, define the concept of pure and simple rights are those that are not subject to any form, whose existence and execution are never suspended, and that from birth they develop normally. Example: a cash sale held between two people, the rights that follow therefrom for the seller and the buyer are pure and simple rights that were born then and whose execution may be required immediately. They are the most current and definitive rights, his life is usually according to their nature.

461. The hierarchy of rights

The above explanations show the existence of a hierarchy of rights:

1 In the top, They are found pure and simple rights that are current and final, perfect, vested with all the attributes, are the rule;

2 ° After the rights are subject to a period (suspension), which are current in their existence, but not its enforceability;

3 º Below are the possible rights, subject to a contingency or condition precedent narrowly. Its biggest flaw is known, its existence is subordinated to an uncertain future event

The list ends with the mere expectations, which are not entitlements, they are not interests which the law approves their protection.

461-a. Subjective rights and legitimate interest

For the interest of an individual is respected and satisfied is to be directly protected by the law, that is, which constitutes a subjective right. However, in recent times, the doctrine and even the laws of some countries like Italy (Constitution, arts. 24, 103 and 113) support the protection of the interests of private individual rights do not matter though, when those interests are closely linked to public interest. One speaks of legitimate interests. It has defined the legitimate interest as “an individual interest closely connected to a general or public interest protected by the system only through the legal protection of the latter interest.” The legitimate interest is an interest protected indirectly.

State bodies, municipalities and other public bodies are obliged to ensure the public or general interest and satisfy him. If they do, individuals, unless the law grants them about any action, lack a legal right to require compliance authority violated rules, at best can do this, make allegations of rape, respective authority may or may not take into account. It is estimated that something else must happen when the public interest is closely linked to individual interest.

Clarify the matter with some examples. If I have a house overlooking the sea and the land owner through deprives me of erecting a building that view, I can not stop it, because I have any right to it. But if a law, for strategic reasons, prohibits any construction on that property, I can require the authority or the courts to enforce the prohibitory law, because its violation, in addition to violating the public interest, also damage the mine. Another example: if you set a dangerous or unhealthy industries on a street in violation of a law prohibiting it, the neighbors, but do not have a corresponding legal right to stop it, can claim a violation of the law, because their individual interests, or is closely linked the general or public.

The figure of legitimate interest abounds, without question, the administrative law of some countries, but it is considered that also has room in Private Law. A case in point: the rules governing the operation of the assembly of a corporation or a corporation are established in the interest of the corporation or society, but any member who is aggrieved by a discussion can ask the judge to annul it if it has been adopted in violation of the above standards challenge which should therefore be upheld to protect a legitimate interest socios.5

In our legal system did not find any regulations on so-called legitimate interest, but since it is also alleged to invoke the general public interest or linked to it, it seems fair and logical to be protected.

2. Individual rights according to subject and content

462. Individual rights and private

This classification is made according to the rule of substantive law that underlies the subjective rights, as it’s public or private law. Therefore, public subjective rights may belong not only the state and other political entities or the public but also private individuals, and vice versa, private rights obligations not only individuals but also the State and other juridical person público.6 political or

Public rights should not be confused with political rights. These are just a kind of those. Political rights, as regards individuals, it reduces to the traditional “suffragii jus” and “jus honorum”, ie voting rights and right to be elected to positions of popular representation. Audiences are, however, multiple and varied nature (right to the collection of taxes, employees’ right to promotion, tenure, etc..), And enter both in the field of constitutional law as the law Administrativo.7

463. Division of private rights, and nonphysical

Leaving aside public subjective rights, we must stop at the high ranking of private rights: rights and nonphysical.

Property law are the ones to contain an economic utility, or, in other words, all those that can be valued in money.

Non-pecuniary rights are those that do not contain an immediate economic utility, and are therefore valuable in money, such as rights of personality and family.

464. Non-pecuniary rights, personal rights and family rights

Within non-pecuniary rights fall into two categories: Personality rights and family rights.

The first are the inherent rights of the individual. It is characterized by originating, ie a person born with; absolute, ie may be exercised against all, “erga omnes”, and are inseparable from the individual, it can not discard them.

Family rights are derived from relationships in which the subject is in the family group with other group members.

1) non-pecuniary Rights

465. a) Rights of personality categories they may be grouped

We note that notwithstanding the explanations that follow, we will deal with the personal rights of individuals to speak.

Personality rights can be grouped into two categories:

a) concerning physical individuality and

b) concerning the moral individuality.

Those concerning physical individuality are intended, first secure our own existence (life), and then, body, health, activity física.8

The rights pertaining to the moral individuality of man must be directed to the honor in its various manifestations, and also include the right to name and activity intelectual.9

“In fact, human activity, especially physics, will lead to property rights, bringing us out of the domain of personality rights as such.In terms of intellectual activity (scientific, literary, artistic, etc..), However the asset or liability involved, nevertheless retains something that makes part of the personality rights. In fact, it represents the work of a man, not anyone. Take, then, get the stamp of a personal activity “.10

466. Is it permissible for a person’s own rights?

Disputes in this regard are great.

According Windscheid and the declared will of the owner is one thing decisive on the legal, when it grants a property right and is also critical in the case of his own person, and in regard to his physical existence, and as his mental existence. The right to life, to bodily integrity, honor, the externalization of mental or physical activities and other rights, not an action involving persons or things outside, represent powers that man has about himself, about his own physical or intellectual strength. Hence the interest in the body, the name on the picture itself, and therefore a right to dispose of one’s life, one’s own body, body parts, etc.11

Against the admission of a person’s own right oppose two major concerns, outlined below.

1. Neither the physical strength nor the mental or intellectual, it is argued, the manifold manifestations of human activity be separated from the man who came and represented as independent entities and separate parts of the person, which is an organic whole incapable of decomposed into the elements or functions that componen.12

2. Willing to consider the same person as the subject of legal right, runs into an impasse, the person giving the two functions simultaneously contradictory and irreconcilable in the legal relationship: the subject and the object of derecho.13 And this is absurd said Coviello, although subject to the person is taken as a whole, and as an object is considered the various parts of the person or their various conditions, the body and the intellectual faculties, physical strength or psíquicas.14

However, according to Ruggiero, the above argument is true “in that an effective separation of the parties is not entirely possible, but it is conceivable abstractly, especially when you consider the personality itself as independent, complex entity, such as subject of rights to be included in the category considered “.15

More specifically, it Ruggiero explains, if you examine the constituent rights of personality in regard to physical or material element, the whole problem boils down to see if the person has a right in the body. And this question is presented under a triple aspect, as is considered: a) the body of the person alive, b) the body, and c) the separate parts of the body.

In the first case can not speak of a property right that the person has over his own body, or an economic right, but a personal right is guaranteed as the right man for the natural faculty aim to have one’s own body’s own life, physical activity itself. If this premise be deducted as a logical consequence of the existence of a right to suicide, self-mutilation or destruction of the fetus as “visceral part, by the mother, is a matter that is resolved by the light of the special rules that each Positive law enacted to limit or suppress it. Limitations exist in any legal system established for reasons of public order or morality, which do not allow certain abuses of freedom even when they fall on their own persona.16

Can not anyone respect for human dignity, give yourself into slavery, even in Roman law, which admitted the abominable institution selling itself is rejected by the high regard in which freedom must be taken, and If it is true that a provision of the Praetorian Edict, maintained to Justinian (Paragraph 4. Inst. 1.3), imposed servitude to the city more than twenty years has been left intentionally sold as a slave to participate in the price of the sale, Slavery was seen as punishment for contempt of their own freedom rather than as recognition of the effectiveness of sales made legal business. Modern law has gone further, effectively denying any convention by which a person becomes bound by a lifetime or for an indefinite period to use their own service activity ajeno.17 And in all countries there are explicit rules that protect a or other arbitrary disposal of personal activity in favor of another.

Not granted under the act of taking your own life and is binding on officials and citizens the duty to provide relief and prevent suicide. He is punished criminally “that suitable or knowingly aid another to commit suicide, if done to death” (Chilean Penal Code, Article 393). The fact that most of the laws the author of attempted suicide is not punished, for the accomplished there was no chance of punishment, one should not conclude the existence of the right to cause death as a power protected by the laws. Not punished because it would be inhumane to add to the moral or physical suffering that motivated the author to adopt such a determination, a new suffering to pena.18 Moreover, science should after all suicide failed to send the author to a psychiatric institution for psychotic forestall the repetition and practice in all cases adequate psychotherapy.

It is not permissible to remove or stop the intrauterine life of the fetus and is punishable as a crime procured abortion, even if it was done by women (Penal Code section 344, item 1), a logical consequence it of the principles and precepts that protect life which is about nacer.19 Our Health Code prohibits abortion (art. 119), unlike some countries that allow for economic or other measures, under certain conditions governing particular.

Could a person holding a contract to dispose of his body, an organ? As we shall see elsewhere, for consideration disposals are not allowed, but the free of charge and if not severely impair the health of the donor. Thus, the case with kidney transplants.

In short, the person has a right to her own body, but for reasons of public order and decency laws state all significant limitations to that right.

As regards the right to dispose of the corpse itself, can not ignore the power that is about all people. But it must be understood with the limitations identified by the substantive law under reasons of hygiene or police, moral or public policy that effectively deprive or limit the provisions that are struggling with what constitutes the natural target cadáver.20

He is known for people who sell or donate his skeleton, and for scientific purposes or to meet sentimental reasons. Account, inter alia, the case of the poet Rubén Darío, who sold his brain after his death.

According to Coviello, 21 living person can have in life to his body, because when the person dies, there will be an impersonal: it will be one thing. And it could have the body for consideration as both free.

As for the rights of the heirs on the body of his predecessor, the same Italian professor says that we must distinguish two situations.

1) The life causing property relationships contracted on its corpse. In this case, the heirs have the rights resulting from the relationship that the deceased had contracted, the heirs are the heirs of the deceased in all economic relations belonging to it at the time of his death. So if the deceased before his death did not get the price he sold his body, shall perceive it to heirs.

Our Health Code only allows for a person to donate his body in life and can only do so for the purposes set out scientific research, university teaching, development of therapeutic products, conducting grafts, organ transplantation for therapeutic purposes (art. 146 .) We do not consider immoral for a person sells his own body, so that, in our view, is unjustified restriction only to dispositions gratuitously. This restriction is justified where other relatives have the body of the deceased. We also found no reason to limit the purposes for which the body will be used, provided they do not conflict with public order and morality. Why transcendent body of a man could not be delivered to a scientific and patriotic for him embalmed and placed in a suitable place to honor and show it at certain times as it was, for example, in Moscow with the remains of Lenin?

2) The deceased had not made any assets related living over his body. In such event, said Coviello, the body does not belong to the heirs, because the body becomes lifeless thing indeed from the time of death was not before, as an integral part of the person, and the heir in such capacity is not has nor can have any proprietary right over the corpse of the deceased, which, therefore, be fully subject to the general rules concerning public order police in the cemeteries.

Our Sanitary Code, as to the disposition of foreign bodies or parts thereof, provides that “the dead bodies in public or private hospitals or facilities that are in the Forensic Medical Service, which they are not claimed within time limit laid down rules, may be reserved for studies and research, and its organs and tissues for therapeutic product development and implementation of grafts. May be destined for the same purposes as the spouse or, failing this, the first-degree relatives of inbreeding in a straight line or second of the collateral (brothers) do not manifest their opposition within the period and in the manner the regulations. May also be used for therapeutic transplantation of organs from cadavers of people whose spouse or, failing this, the relatives in the order specified in Article 42 of the Civil Code, grant permission in a document signed with the director of the hospital facility where death has occurred “(Articles 147 and 148). The said Article 42 states the following order applies to relatives of the deceased: their legitimate blood sexes of age, and if it were a natural child, his father and mother who have been recognized, and its older natural brothers. A lack of blood are considered related. Preferred are the ascending and descending to the side, and between those closest kinship.

Finally, it is indisputable and undisputed existence of a right of ownership over the parties and separated from the body, they become independent and marketable things, and this concept is in principle owned by that person from whose body they are separated. It should also be, as a rule, hold valid legal transactions in relation to members who have forcibly separated from cuerpo.22 For example, if a person must necessarily cut off a leg, she could before the operation, agree to sell, donate , etc.23

467. Right to muscle strength

Everyone has the right on your muscle strength. Can be traded. But the legislature, ensuring their conservation and healthy to avoid abuses that would go to their detriment, limits the hours of work provides that the bags may not exceed a certain number of kilos, in order to prevent excessive strain on the Chargers , etc.

468. Right self-image

The right of the image itself is the power to prevent anyone without permission portray our image and reproduce it or make any use even if it is safe. The right of self-image would be, so to speak, an extension of the right over one’s body.

In general, the laws state that can not be published image of a person or business with her, without her consent and after his death, the relatives of some more or less close.

Certain provisions of our legislation on the right image we will see in Chapter Personality Rights.

It is clear that the photographer can not photograph a person without his consent express or implied, even if the image is not going to make further use. However, a trend that one can oppose refuses to be photographed, unless it further damage. We shall see that the right to obtain and use the self-image is one of the rights of personality, that is, essential, natural and innate in every person by the mere fact of being and as such, does not require recognition explicit law.

The right of self-image as some authors include among the powers that make up the right to privacy, which the Italians call “the riservatezza diritto”, “the right of privacy” Americans and “the Right To Be Left Alone” the English, the right one to be left alone, quiet.

This right to personal privacy or reserve duty care of strangers to observe the purely private sphere of the individual, refraining from giving publicity to the activities of the individual and purely personal and that he does not want disclosure. Obtain the image of a person and use it without his consent constitutes a violation of the right to moral integrity of her or legally reprehensible interference in the area of another very personal. The victim has the right to petition the courts to order the cessation of abuse and, if possible, compensation for damages.

By the way, right on the image itself has exceptions. Justifícanse them not to violate the foundation of it, respect for the moral integrity of the person or their privacy. Consequently, as revealed by comparative law, modern element of integration of national law, is not the consent of the sitter:a) where the reproduction of the image is due to the reputation of the person (artists, intellectuals, athletes) or his position, b) if it requires a higher interest, such as justice or the need to identify a subject lost or misplaced; c) when there is scientific, educational or cultural, d) where the reproduction, says Italian law is related to facts, events, events of public interest or events held in public. However, in cases that make all the letters, portraits, according to the same law should not be exposed or released to the trade if the display or circulation of that brings harm to the honor, reputation or dignity of the person photographed. The injury must be real and objectively tested, “and not rely solely on aesthetics or hypersensitivity of the sitter or his heirs.”

All exceptions must be kept within its purposes and not deviate from them. Scientific pretext could not, for example, published a photograph that came to serve evil designs against the person whose image is reproduced. For similar reason the portrait, for reporting, providing a politician taken to drink raised by his party could not be used without the authorization of the person portrayed in the propaganda of a ‘complex’ winemaker, although illustrating the image with the old proverb “in vino veritas, in wine there is truth …

469. Rights concerning moral individuality

So far we have analyzed the rights to physical individuality, now see those involving moral individuality.

The man is entitled to honor. And when this is over allegations insulting amagado can criminally prosecute the person concerned to the author. And maybe, civilly, if he proves damages or lost profits, substantial cash, demand monetary compensation (Civil Code Article 2331). Elsewhere we deal with more details of this matter.

It also has the individual right to name, to recognize the paternity of his literary works, etc.., All of which further study.

470. Characteristics of personality rights

1) They are from, because the individual is born with them, 2) absolute, because they can exercise “erga omnes” against any person, 3) no direct monetary value, but may result in legal consequences when they are violated (insulting the honor, example), 4) are non-transferable and non-transferable, and 5) are barred.

Although personality rights are transferable, there would be inconvenience to an heir required compensation for violation of a right of personality of the deceased, because here the compensation arises as the deceased was right.

471. b) Family Rights

Family rights are derived from relationships in which the subject is in the family group with other group members. Its basis is marriage, which creates links between spouses, between parents and children and, consequently, the paternal powers and institutions of these extra powers, such as tutela.24 Example: right of parents to demand obedience and respect for their children, etc..

Family rights are divided into two categories: rights properly speaking family, who are not pursuing any pecuniary advantage or benefit, such as quality of a legitimate child, parental rights, and rights of family property, which are influencing in equity and may mean economic benefits. For this situation are economic, and family are precisely because they emanate from family relationships. A typical example of family law heritage is the right of succession. Another example: the right of usufruct is the father of the child’s property.

2) Economic rights

472. Concept and classification

Heritage can be defined as the set of rights and obligations of a person, valuables and money.

Economic rights are, therefore, all aimed at a financial advantage and, therefore, can be seen in money.

Economic rights are classified into two groups: real rights and personal rights, obligation or credit.

473. Real rights and personal rights

Real right (jure in re) is the one that gives the holder an immediate power over the thing, a power that can be full or less full, unlimited or limited. When the first kind, is exercised in its entirety on the thing and leads to the property, which is the most complete real right, when the second species is restricted to certain kinds of economic profit and results smaller real rights, rights in another’s property.

Personal rights are those born of an immediate relationship between two or more persons, whereby one (the debtor) is obliged to a certain benefit (give, do or not do) in favor of another (the creditor). Example: the right of the creditor to return the borrowed money plus interests.

One of the main differences between the two kinds of rights, is that the real can be enforced against anyone, “erga omnes”, while personnel can only be exercised against the person or persons liable. The first is absolute, the second relative. Later we dwell on two rights.

474. Intellectual rights

Previous notion of intangible assets. The doctrine calls those intangibles that do not represent a reality perceived by the senses but only through understanding.

Some of these goods are non-pecuniary rights, as are emanation of personality, and although of great moral value in themselves are not valuable in monetary terms. For example, the legal name. But there are other intangible assets at the same time to be an emanation of personality, have independent equity, literary, musical, inventions, industrial designs, trademarks, designs. All these things have a purely intellectual existence, own and original, without consideration of that conduct or translated into material bodies, such as paper, paintings, statues, machines, books, drawings, etc. The goods of creation and purely intellectual perception that they themselves are the subject of equity-called economic rights in intangibles.

Intellectual rights are aimed at a purely intellectual thing of monetary value. The traditional doctrine of the rights included within real. However, another trend, considering that the differences between material and immaterial things are great in their nature and origin, which explains the rights that are subject to different regulation-receive preferred to form a separate category with the rights levied on intangible things. In 1877, the lawyer who first studied them, the Belgian Edmond Picard, he gave the name of “intellectual rights” .25 These are usually defined as the rights within any monetary value of intangible property and result in a monopoly operating the same. Examples: the rights of literary and artistic property, industrial property, commercial property.

There are intellectual rights, as well as monetary, involves a moral right, as the author as it protects the interests of your work will not be published without his consent, nor altered in any way without your consent.


484. Rights may be waived

Civil Code states that “may forgo the rights conferred by law, provided that only look at the individual interest of resigning, and that his resignation is not prohibited” (art. 12).

The rights have their origin in the will of the law and of individuals. “Only those who are its direct source in the law may be waived? No, you can forgo that stem from other sources, because the code that are likely to waive “the rights conferred by law” refers to all rights granted by law, directly or indirectly and which gives its sanction, not only the rights arising directly from the law, as the enjoyment that is the parent of the child on certain goods. A right that arises from a contract between two people, it can be waived by the owner, because although this right is conferred directly by the same contract, the law recognizes or grants indirectly. Moreover, no obvious reason that they might not have waived the rights whose direct source is a contract.

No rights may be waived only current but also future, ie which then have to be our means, except if the law, for special reasons, forbid, as the case of a succession is not open yet.

484-a. Waiver of laws

Note that laws can not be waived, but the rights conferred by them. To hold otherwise would allow the repeal of the legislative branch by individuals. And this is absurd. In truth, that “waiver of law” is just a way of speaking elliptical, because it is clear that it refers to the waiver of rights conferred by them.

484-b. Rules governing the waiver

Renunciation is not an act under special discipline, can exist by itself or can be the effect of other legal acts. Therefore, we apply the general rules for all legal acts and the special act that is contained and even the right to be concerned. 1

484-c. Definition and characteristics of the waiver

The resignation is a unilateral declaration of the holder of a subjective right that it takes off, he leaves without transferring it to another subject. Is cause of extinction of a right by the sole discretion of its holder.

Which does not cross the law does not preclude someone else take advantage of the waiver, but its advantage stems occasionally and indirectly from the loss of the right of the proprietor, and the right that comes to acquire is not the same as resigning. If, for example, give up my right of ownership of the newspaper I read, throwing to the street and a passer-by picks it up and save, no transfer for me right I belonged, which takes hold of the newspaper another law, which does not by tradition but by occupation.

In opposition to acts involving transfer, transfer to airport or limitation of rights in favor of another, renunciation is an act of abdicating, it is purely and simply detached from the right, without transferring it to anyone.

Have questioned whether a waiver purely abdicate, which is the waiver in the strict sense, can be an indirect donation, subject to the rules on donations. You have answered yes, when she is done with intent liberal and seeks the recipient a material advantage and indicated that although the beneficiary. This applies, for example, the waiver of the right of usufruct has the effect of reinforcing in favor of the bare owner full control. Contrary stated that the consequence of the resignation, return to the owner of the right to enjoy, is not the direct effect of the waiver, which in and of itself produces only termination of the right of usufruct, she derived the principle of elasticity domain, whereby the property, compressed by the usufruct, recovers automatically once the original amplitude limiting it right away.

The waiver has the following characters:

1) It is an act of abdication, as we saw;

2) Unilateral, because perfection requires only the will of the right holder, the applicant;

3) Free of formalities, with the exception of the waiver which relates to property or property rights, which requires a public;

4) Abstract, in the sense that the act stands on its own, regardless of the purpose or motives of the author of the waiver;

5) Irrevocable and

6) Volunteer, usually. Exceptionally, the resignation is not voluntary, as in the case of Article 181 of the Bankruptcy Code, which states that the secured creditors, mortgage, pledge, Anticrético and enjoying the lien may attend the creditors’ meeting and discuss proposals of the Convention. They may also vote to waive the privileges and guarantees of their claims. “The mere fact of voting, said paragraph 3 of that article 181, the waiver matter of law” (the privileges or guarantees).

484-d. Diversity effects

The waiver may be very different in its effects: “what the resigning lost can not be acquired by others (the creditor disclaimers) or can be free (renunciation of an inheritance by the first call), the waiver involves sometimes necessarily increase the legal rights of a third party but does not acquire the same right has been waived, because it gets a limited release which previously suffered (the renunciation of the usufruct, servitude, deliver the thing or the estate of burden or restriction affecting him, the resignation of the debtor’s credit dissociated link) “.2

484-e. Waives rights which the law allows

If a right just look at the individual interest of a person and his resignation is not prohibited, may, in accordance with Article 12, waived, without the need to express, in each case what the law says.

Despite the above rule, in many cases, the legislature expressly permits the waiver of rights. So, you can forgo the usufruct (art. 806, last paragraph), the use or room (Article 812), the easement (Article 885, N º 4 º), the bond (Article 2831, N º 1 º), the mortgage (Article 2434, paragraph 4 º), etc.

484-f. Rights may not be waived

Article 12 flows, a contrario, that may not be waived:

1 The rights conferred in the interests not only individual but also collective interest, which at the same rights are duties and obligations, parental rights, etc., And

2 º resignation Rights which prohibits the law. There are certain rights that despite looking only at interest, may not be waived for various reasons that the legislature had in view. Thus, for example, is forbidden to women in the marriage give the power to request a separation of property you are entitled by law (art. 153), because it was considered likely that, in consideration of her husband and without provide for the accidents that are grounds for the separation of property, such waiver did it recklessly, and if necessary to agree on the separation, was found tied up by their commitment. Moreover, such a waiver would give the weapons to commit crimes husband because he could no longer inspire fear and distorted the careless management of property of women.

484-g. Distinction between waiver and non-exercise of a right

Do not confuse the waiver of a right with no exercise: the first means the stripping of the right and the second involves only a passive state. And there are rights granted by the law that the individual can not put into effect, but in no way has the authority to waive, for example, the ability to test, the right to request termination of the contract of sale for huge damage, etc.

484-h. Express and implied waiver waiver, no presumption of waiver

The waiver of a right may be expressed or implied. The first is formal, so strict and clear. The second result of acts of resigning to indicate their intention to abandon the law, they are incompatible with the exercise.

The waiver of a right can not be presumed. For example, if a person renounces a contract of sale to the eviction action, must not and can also be understood that the renunciation of action for infringement crippling sanitation. And when in doubt, always be interpreted narrowly the waiver, ie only be deemed waived those rights whose neglect appears unequivocally, the others must be regarded not waived. Applying this doctrine to Art 2462, which says: “If the transaction falls on one or more specific objects, the general waiver of any right, action or claim should only be understood in the rights, actions or claims relating to the object or objects that is compromised. “

Only when the law provides for the case, waiver is presumed. Example, the assignee of an inheritance or legacy in default to declare whether it accepts or rejects, it is understood that repudiates (Article 1233).

Moreover, the presumption is not common to any declaration of will.

484-i. General waivers

It is often said that no general waivers are permissible. “A general release is invalid because the statement must identify in a concrete and precise the object referred to and the limits within which the abandonment takes place, but a general waiver is permissible and valid when there is no possibility of ambiguity regarding the object referred to “.3

484-j. Alienation and resignation

The waiver should not be confused with the sale. This is the separation of a person’s right of its holder and attribution of it to another’s will first be stripped of the right in favor of the second, regardless of the economic bottom line.

Two are thus the elements that make up the concept of alienation: the transfer of a right for another and a demonstration of its resolve to that end.

There is alienation, not only when transferring property rights or other rights and the credit, but also when there is a constitution of real rights (usufruct, servitude, farm, mortgage, etc.)..

They are dispositions, because they lack one or another of the elements of this concept, the following acts:

1) The abandonment of a right (because they lack its acquisition by another);

2) The provisions of a will (because there is no separation of the right of the person of the holder: the transfer occurs only when the holder no longer exists), and

3) The acquisition by law of an easement or purchase of works of the statute of limitations (because there is no voluntary act).

Only in a figurative sense, says former professor at the Royal University of Naples, Roberto de Ruggiero, 4 to speak of foreclosure or necessary where the transfer is made without or against the will of the owner (expropriation for public utility , enforcement), as opposed to the volunteer who is true.

The waiver, in the strict sense is the abandonment of a right by the owner, with no intention of transferring it to another. It is clear that this other can appropriate it to find it vacant, but the law does not derive from the above. The neglect can be done with the purpose of acquiring the right one, but this fact has no bearing on the concept and involves no transfer because there is no transfer, meaning that the purchaser is right then the right of resigning.

The resignation is a unilateral act. Therefore, to produce its effects only needs the will of resigning. From this stems the importance of determining whether an act constitutes a waiver or transfer, because in this second case will need to accept the subject to whom the right is transferred.

484-k. Divorced women

A waiver form is a repudiation, defined as a unilateral legal act and abdicated aimed at preventing the acquisition of a right or irrevocably extinguish it without transferring it to another person. Example: the repudiation of an inheritance or bequest, repudiation of the recognition of child natural.5