Legal Relationships, Inheritance, and Fundamental Rights

Posted on Dec 13, 2024 in Law & Jurisprudence

T9: Legal Relationships

The Nature of a Legal Relationship

The law concerns itself with human relations, specifically those legal relationships that hold special significance for the social or political order, or for orderly coexistence. A legal relationship is defined as a situation of mutual and reciprocal connection between two or more persons, governed by the rule of law. This relationship is caused by a fact, either natural or produced by a voluntary act, that aims at the realization of certain benefits.

This definition contains the following elements:

  • Mutual and Reciprocal Linkage: The situation is always correlative, with one corresponding to the other. When a power or right is granted to one subject, a correlative duty is imposed on another. These situations are usually balanced, creating reciprocal rights and obligations.
  • Subjects: A distinction is made between the active subject, who demands the provision, and the passive subject, who has the duty to perform it. Both can be natural or legal persons, and there can be a plurality of subjects.
  • Origin of the Relationship: The relationship can stem from a natural event (a triggering event), such as damage caused by an animal, or from a voluntary act, such as a declaration of will.
  • Regulatory Law: This determines the mutual position of the parties, establishing their rights and duties.
  • Objects of the Relationship: This refers to the provision to be made by each party involved.

Legal Business Relationships

Legal business relationships are established as a result of voluntary and lawful acts. They are classified as follows:

  • Inter Vivos and Mortis Causa: Inter vivos transactions take effect during the lifetime of those who create them (e.g., buying), while mortis causa transactions take effect upon the death of the author of the voluntary act (e.g., a will).
  • Family Law: This includes marriage, personal and property relations between spouses, and parental relations, such as custody of children. Article 39.2 of the Constitution states that all children are equal before the law, regardless of their parentage.
  • Economic and Non-Property: This distinction is based on whether or not the relationship involves something measurable in economic terms. These are further divided into:
    • Consideration: The provision of one party is counterbalanced by the provision of the other.
    • Free: The provision is made without the intention of profit (e.g., bailment).
    • Lucrative: The benefit is the enrichment of one party at the expense of the impoverishment of the other (e.g., donation).

Regarding the principle of equality, both spouses must respect and help each other. They are obligated to live together, be faithful, and provide mutual assistance. The economic system is decided by the contracting parties and can be:

  • Absolute separation of property
  • Profit share
  • Community of property

In the absence of an agreement, the default scheme is community of property.

Inheritance, Donations, Affiliations, and Adoption

  • Adoption Status: This is established by the declaration of the adopter, who wishes to be the parent of the adoptee, and is confirmed by a judge after consulting the Public Prosecutor.
  • Maintenance Among Relatives: The Civil Code mandates certain close relatives to provide support, including livelihood, housing, and education if the recipient is a minor.
  • Guardianship and Curatorship: These institutions provide custody in the absence of parents.

T10: Marriage

Types of Marriage

  • Civil: Performed before a judge, with the law regulating the forms, age, and capacity to marry.
  • Canon: Conducted according to the norms of a religious denomination, often resulting in civil effects.

Marital Crisis and Extinction

  • Dissolution: Occurs upon the death of a spouse or through divorce.
  • Separation: Suspension of cohabitation decreed by a judge at the request of one or both spouses. Prolonged separation can lead to divorce after one year if mutually consented, or after five years if the plaintiff wins the case, even if the other spouse opposes (repudiation or unilateral divorce).
  • Nullity: Declared when there are flaws in the consent or when a standard is not met. Judgments from ecclesiastical courts can have efficacy in the civil sphere.

Economic Regimes in Marriage

  • Absolute Separation of Property: Each spouse retains control of their assets, with an obligation to contribute to family expenses.
  • Profit Sharing: Assets are kept separate, but upon dissolution of the marriage, any excess of current assets over the initial assets is considered a gain to be shared.
  • Community of Property: In the absence of prenuptial agreements, profits made by either spouse are considered common property, except for assets owned before marriage or acquired through inheritance.

Property Ownership and Real Rights

This section discusses the relationship between individuals and things. Possession is treated as a factual situation. If the owner is deprived of their possession, it can be restored through injunctions, which are temporary means of restitution. Ownership represents full power over a thing, as defined in Article 348 of the Civil Code. An owner who loses possession can reclaim the item from the possessor.

Inheritance

Death triggers a change in ownership of property and legal relations. Property is linked more to the family than to the individual. In Roman law, the heir occupies the position of the deceased, inheriting both their property and debts.

Types of Succession

  • Universal Succession: The entire estate is transmitted.
  • Particular Succession: A specific asset is conveyed.
  • Inter Vivos Succession: Replacement of living subjects.
  • Mortis Causa Succession: Transmission due to the death of a person.
  • Testamentary Succession: Follows the will of the testator.
  • Intestate Succession: Occurs in the absence of a will, as determined by law.

Legitima: The portion of the inheritance that children are entitled to, which the testator cannot deprive them of. It comprises two-thirds of the parents’ estate. The testator can allocate one-third as they see fit (improvement portion). The order of inheritance is: descendants, ancestors, spouse, collateral relatives, and finally, the state.

Donations

The law also governs inter vivos gifts. The freedom to donate has limitations:

  • If the donor has insufficient resources to pay creditors.
  • If it diminishes the estate of the heirs.

A donation can be revoked under certain circumstances. An onerous and remunerative donation is one given for services rendered to the donor.

Modes of Acquiring Ownership

Original Modes

  • Occupation: Acquiring property that naturally has no owner, such as animals, hidden treasure, and abandoned movable property (Article 610 of the Civil Code).
  • Accession: When one thing is definitively joined to another principal thing. In relation to rivers, the following cases are distinguished:
    • Alluvium: The owner acquires land gradually deposited by water.
    • Avulsion: A portion of land separated by a river and added to another’s property.
    • Mutation of a Riverbed: An abandoned riverbed is divided in the center, with each part joining the nearest property.

Derivative Modes

  • Usucaption: Acquiring ownership through continuous possession in good faith for three or six years without further conditions (for movable property, Article 1955 of the Civil Code). For real property, possession for 10 years (20 if absent) or 30 years without further conditions is required (Article 1957 of the Civil Code).

Rights in Real Things Outside

Usufruct Rights

The right to use another’s property and enjoy its fruits. The parties involved are the usufructuary and the bare owner. Things are not only material goods but also those providing any service or satisfaction, such as energy, ideas, or inventions (Article 333 of the Civil Code). All things that can be appropriated are considered movable or immovable property.

  • Property: Anything attached to the ground that cannot be separated without deterioration, including machinery, tools, public works, administrative concessions, and easements (Article 334 of the Civil Code).
  • Universals: Sets of things with a certain unity of use, such as a library.
  • Fruits: Consumable items produced by a thing without altering it, including natural fruits (e.g., animals) and civil fruits (e.g., lease payments).

Use and Housing

The right to receive the fruits of another’s property sufficient for the needs of the user and their family, even if the family increases (Article 524 of the Civil Code).

Easement

A levy imposed on one property for the benefit of another belonging to a different owner (Article 530 of the Civil Code).

Warranty Rights

These guarantee the fulfillment of an obligation by granting possession to the creditor or the possibility of selling another’s property to cover the debt.

  • Pledge: Delivery of possession of movable property to secure a debt. Alienation of the pledged item must be at a public auction (Article 1872 of the Civil Code).
  • Mortgage: Applies to real estate, without possession passing to the creditor. The document must be registered in the property registry.
  • Antichresis: The creditor is entitled to receive the fruits of the debtor’s immovable property, applying them to interest and principal of the debt (Article 1881 of the Civil Code).

Acquisition Rights

These allow the holder to acquire a right from the owner or incumbent.

  • Option to Buy: The right to purchase something offered at the same price as another buyer. Heirs, among others, have the right of first refusal.
  • Right of Redemption: Grants the holder the right to subrogation under the conditions stipulated in the contract after the sale has been made. There is a right of redemption for co-owners and neighbors.

Obligations and Contracts

The Obligation

A legal relationship where the debtor agrees with the creditor to perform a benefit, which may involve giving, doing, or not doing something (Article 1088 of the Civil Code). The purpose of any obligation is its performance, providing the creditor with a service or care. Failure to do so requires compensation for damages caused by the breach.

Obligations are extinguished by payment or performance. A contract exists when one or more persons agree to be bound to give something or render a service (Article 1254 of the Civil Code). Three requirements must be met:

  • Consent of the contractors.
  • Subject matter of the contract.
  • Cause of the obligation.

Certain contracts must be in a public document (Article 1280 of the Civil Code), including those aimed at the creation, transmission, modification, or extinguishment of real rights, and leases of such goods for six years or more.

Types of Sales Contracts

  • Sale: The seller agrees to transfer a thing or right to the buyer, who agrees to pay a certain price. It is a bilateral contract with obligations for both parties and is perfected by mere consent, without the need for delivery (Articles 1461 and 1474 of the Civil Code). Sales can be civil or commercial, depending on the governing law.
  • Exchange: Contractors are obliged to give something in exchange for another (Article 1538 of the Civil Code).

Leasing

Leasing can be of things, works, or services (Article 1542 of the Civil Code). One party agrees to give another the enjoyment or use of a thing for a specified time and price (Article 1543 of the Civil Code). The lessor must keep the thing in working order (Article 1554 of the Civil Code), and the tenant must use it with due diligence (Article 1555 of the Civil Code).

Mandate

Under a contract of mandate, a person is obligated to render a service or do something on behalf of another (Article 1079 of the Civil Code). Unless otherwise agreed, the mandate is presumed to be free (Article 1711 of the Civil Code). The principal must pay the fee when appropriate and advance sums required for carrying out the mandate (Articles 1727 and 1728 of the Civil Code).

Loan

The Civil Code regulates two types of loans:

  • Commodatum: The lender delivers a non-expendable thing to the borrower for use and return (Article 1740 of the Civil Code). The lender retains ownership, while the borrower acquires the use but not the fruits (Article 1741 of the Civil Code).
  • Mutuum: The lender delivers money or another fungible thing to the borrower, who must return an equal amount of the same kind and quality (Article 1740 of the Civil Code).

Deposit

Voluntary deposit occurs when delivery is made by the depositor’s will (Article 1763 of the Civil Code). It is a voluntary contract unless otherwise agreed. The depositary must keep the thing and not use it.

Security

Security requires payment by one party or a third party if the first party fails to do so (Article 1822 of the Civil Code). It is a unilateral contract, as the obligation arises only for the guarantor, and it is free.

T8: Fundamental Rights

The law also protects the exercise of fundamental rights. These rights stem from the inherent value of human beings and are known as fundamental rights.

Concept and Name

Fundamental rights are basic rights held by individuals simply by virtue of being human, without any discriminatory circumstances. They are also referred to as human rights, rights of man, or rights of the human person. Other terms include natural rights and fundamental freedoms. Human rights and fundamental rights are the most commonly used terms.

Comparison with Other Individual Rights

  • Subjective Rights: Exercised by the holder against a particular subject.
  • Fundamental Rights: Asserted, in most cases, against the state. The exercise of human rights is often an act of defense against intrusion by the state into an individual’s freedom.

The achievement of these rights has been gradual. The concept of human rights did not emerge clearly until the 17th century, and much progress is still needed in many countries.

Characteristics of Fundamental Rights

Fundamental rights are subjective rights with special relevance. They possess characteristics not shared by other rights:

  • Inalienable: Not affected by prescription.
  • Non-transferable: Cannot be transferred to another owner.
  • Unrenounceable: The subject cannot give up their ownership.
  • Universal: Possessed by all individuals.

Historically, they were also considered absolute and unlimited, as seen in the Declaration of the Rights of Man and of the Citizen during the French Revolution of 1789. Modern doctrine recognizes limitations based on public interest, the common good, and the rights of others.

Guaranteeing Fundamental Rights

The state must provide safeguards to ensure the exercise of fundamental rights. Any rule of law must have procedures for citizens to use when these rights are undermined or nullified.

Assurance Systems

  • Protection and enforcement are entrusted to courts acting at the request of the injured party.
  • Jurisdiction can lie with an ordinary court or, as in Spain, a specific court like the Constitutional Court.
  • Individuals can seek redress through remedies like amparo or unconstitutionality appeals.
  • Internationally, the European Court of Human Rights, established in 1950 by the Rome Convention, provides a forum for addressing violations.
  • The Ombudsman is another instrument of guarantee, although their executive function is limited.

Positivization of Fundamental Rights

Positivization is necessary for the proper exercise of fundamental rights, as courts can only act through the application of legal rules. There are two main doctrinal perspectives:

  • Constitutive Character: Fundamental rights are born when the rule protecting them is proclaimed.
  • Declarative Character: The rule does not create the right but merely recognizes and declares it (this is the more widespread doctrine).

Procedures for Positivization

  • Constitution: As an expression of popular will. The first U.S. Constitution of 1787 did not explicitly address the issue. The first French Constitution of 1791 included a declaration of rights and freedoms, and many subsequent constitutions followed suit.
  • Universal Declaration of Human Rights: Formulated by the UN in 1948, this supra-universal declaration represents the will of all peoples. Its mandatory nature as a standard is debatable, as it may only have a recommendatory nature for states.

Classes of Fundamental Rights

  • Civil Rights: Directly affect the person, including the right to life, physical integrity, property, freedom, dignity, freedom of thought, religious freedom, and the inviolability of the home. Precedents include the Declaration of the People of Virginia (1776) and the French Declaration of the Rights of Man and of the Citizen (1791), which lists equality, freedom, security, and property.
  • Political Rights: Include suffrage, participation in government, control of power, freedom of association and assembly, and public expression of ideas. These rights emerged through constitutional developments during the 19th century, driven by liberal ideology.
  • Economic and Social Rights: Developed after securing freedom rights, focusing on equality beyond mere theoretical formalism. These rights aim for equal participation in the benefits of social life, such as health, education, and housing. They emerged during the 19th century.
  • Cultural Rights: Emerged after World War II, including the right to work, strike, and benefits when working or unemployed.

Brief History of Fundamental Rights

The onset and evolution of fundamental rights are rooted in the modern age. In the Middle Ages, monarchs granted privileges to certain groups sporadically and in a fragmented manner. From the 16th century onward, these privileges were generalized to all subjects. The next step was universalization, with authentic declarations of rights in modern times.

In Europe, France pioneered this movement on August 26, 1789, with the Declaration of the Rights of Man and of the Citizen. After World War II in 1945, similar declarations emerged, but this time from supranational bodies, driven by the war’s terrible experiences. The UN, created by the Charter of San Francisco in 1945, prioritized drafting a code of human rights. On December 10, 1948, it adopted the Universal Declaration of Human Rights.