2. Person's Law

Question 1

Personality rights

Answer 1

They are fundamental rights, and they comprise different manifestations of human dignity.

Question 2

To be subject of rights and obligations

Answer 2

it is necessary to be a person.

Question 3

Personality is acquired…

Answer 3

…at the time of birth.
Thus, a human being before birth does not have legal personality.

Question 4

For an unborn person,

Answer 4

they are considered as born for all aspects that are favourable to them (e.g. receive donations, or receive property of things).
This was approved to protect the person conceived but not yet born (nasciturus), without actually recognising personality.

Question 5

Civil/natural capacity is

Answer 5

the capacity to hold legal rights and obligations.
Nobody can be deprived of civil capacity.

Question 6

Civil capacity starts and ends:

Answer 6

Starts with birth, and ends with death. Both have to be recorded in the Civil Registry.

Question 7

Legal capacity: definition; when is it acquired

Answer 7

Capacity to manage and exercise the rights and obligations that the person holds.
Acquired at 18 years old. The person comes out of paternal power/tutorship.

Question 8

A person with civil capacity but no legal capacity

Answer 8

They need a representative to act on their behalf in order for his actions to have civil effects.
This legal representative is appointed by law.

Question 9

Minors:

Answer 9

They have civil capacity but no legal capacity.
Their representatives are their parents: paternal power.

Question 10

A person with civil capacity can…

Answer 10

…enter into binding contracts or commit other legal acts.

Question 11

Legal capacity is limited when

Answer 11

a person cannot undertake by themselves acts with legal effects.
e.g. some incapacitated persons.
These special cases have to be expressly stated and should be restrictively interpreted.

Question 12

Special capacity is required

Answer 12

to perform some legal acts, because there are cases where it is considered that it is necessary to have a special ability to execute them.
e.g. to be 25 years old in order to adopt children.

Question 13

Existence of prohibitions

Answer 13

Prohibition to carry out some acts by some specific persons who, in principle, would have the necessary capacity to execute them.
These prohibitions are set by law.
Reasoning: the person has special relation with the act to be performed, and therefore there is a conflict of interests.

Question 14

Minors can give consent.

Answer 14

FALSE
They have to be represented by their parents in order to use their rights and to bind the minor’s patrimony.

Question 15

Minors have no legal capacity

Answer 15

FALSE
They acquire their legal capacity gradually.
With times, manors can do things on their own (e.g. a 15 year old buys a pen).

Question 16

Minors can validly contract in cases of little economic weight due to their characteristic are normal of their age, and are in accordance with the social usages.

Answer 16

TRUE
e.g. yes a pen, no an apartment.

Question 17

The minors opinion is taken into account:

Answer 17

· Consent is necessary in order to enter into contracts that oblige the child to perform personal services.
· at 12 y/o, they give consent to be adopted.
at 16 y/o, they can administer the properties and goods that they have acquired through their work.

Question 18

Definition emancipation

Answer 18

Means release from the power of control of somebody. They have the status of a person of full legal age.

Question 19

The emancipated minor has the status of a person of full legal age.

Answer 19

TRUE, but with 2 exceptions:
a) They cannot borrow money.
b) They cannot encumber or sell immovable property, commercial, and industrial establishments, nor goods of an extraordinary value.
They cannot do these without the parental or the curator’s consent.

Question 20

Emancipation can only be given to children of

Answer 20

16 y/o or older.

Question 21

Emancipation status can be acquired through different ways:

Answer 21

a) Granted by parents.
It requires the minor’s consent in a public deed, or the authorisation of a judge.

b) Granted by a judge.
The child asks for it to the judge, and they will grant it if:
i) the parent exercising the paternal power remarries.
ii) the parents live apart.
iii) there is a cause that gravely hinders paternal power.
iv) minor is under tutorship. (if granted in this case, it is call legal age benefit).

c) Marriage.
Very exceptional, as only emancipated minors can marry. Thus, the only possibility of emancipation through marriage happens when the minor obtains from a judge an age dispensation to marry (from 14 y/o).

d) Independent economic life from parents.
The child has to be economically autonomous from the parents.

Question 22

Definition incapacitation

Answer 22

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 their acts.

Question 23

A person can only be incapacitated if

Answer 23

they suffer from a persistent disease or deficiency of a physical or mental nature that impedes the person from governing themselves.

[mental illness/deficiency, physical illness/disability, advanced age, chronic use of drugs, or other anomalies].

Question 24

The acts performed by an incapacitated person

Answer 24

are voidable. This means that they are initially valid, but can be declared void if timely challenged due to the lack of the necessary legal capacity.

Question 25

Legal acts are voidable:

Answer 25

a) INCAPACITATED:
Always, no matter if at the time of performance they had sufficient understanding to execute their acts.
b) NO INCAPACITATION:
They are concluded valid, except if there is proof that such inability existed when the act was performed.

Question 26

2 types of incapacitation:

Answer 26

a) Judge deprives the person from legal capacity.
They will be appointed a tutor to represent the incapable.
b) Judge restricts capacity.
They will be appointed a curator, who will assist the incapable only in those acts expressly fixed in the judicial decision, and in which case a double consent is necessary.

Question 27

Declaration of incapacity must be brought to court by:

Answer 27

spouse, or person with a similar relation of fact.
Except for minors, their incapacity can only be requested by those with paternal power.

Question 28

Definition prodigal

Answer 28

A person who, though of legal age, cannot manage his affairs in consequence of regular disorganised and reckless conduct that endangers his patrimony.
The judge appoints a curator who shall give consent for the prodigal’s act specified by the decision.

Question 29

Foundations; what are they based on?

Answer 29

They are based on a patrimony destined to achieve a special goal.
They develop activities for the benefit of the community, looking to satisfy the general interest.

Question 30

How are foundations supervised, and by who?

Answer 30

By the protectorate, a public entity that supervises the correct exercise of the foundation’s aims and the proper allocation of its economical resources.

Question 31

Endowment necessary for foundations:

Answer 31

Minimum of 30,000€. It can be less if it is proven to be sufficient to fulfil the foundation’s goals.

Question 32

A minimum of what % of the income of foundations is destined to the fulfilment of the goal?

Answer 32

70%.

Question 33

Associations are based on what?

Answer 33

A group of minimum 3 persons who get together to carry out a purpose; these persons have to be of legal working age and capacitated to own an association.º

Question 34

What are the interests of associations? Are they for or non-profit?

Answer 34

The interests could be general or private.
They are non-profit; if they are for-profit, they are companies.

Question 35

Is registration in the Constitutional Certificate necessary in order to obtain legal capacity?

Answer 35

No, it is necessary to obtain legal PERSONALITY;
It isn’t necessary for legal CAPACITY, but yes for it to be effective against 3rd parties; the members of associations that aren’t registered are personally and joint and severally liable against third parties.

Question 36

Definition representation:

Answer 36

A persons entrusts another person so that the latter can execute legal acts in the former’s name.

Question 37

Direct voluntary representation is

Answer 37

that the principal entrusts the representative to carry out an action on his behalf.

Question 38

Direct involuntary representation is

Answer 38

that the law appoints someone to represent another person without considering the will of the person represented (eg parents over children).º

Question 39

Definition mandate

Answer 39

Contract between the principal and the representation that rules the relation between them.

Question 40

The act of empowering:

Answer 40

· Is unilateral, does not need acceptance from the representative.
· The principal must have the capacity necessary to execute the act.
· Emancipated minors can be representatives.
· Express power is needed in order to compromise, alienate or mortgage goods (different from “in general terms”).
· There is no special from but it is required through a public deed in the case of any act that has to be drawn to the public deed (e.g. marriages, litigation, administration of assets)

Question 41

Indirect representation:

Answer 41

The representative acts on his own name, assuming responsibility. No contemplatio domini. The principal is not related to third parties who do not know of his existence.

Question 42

What is contemplatio domini?

Answer 42

There is knowledge that the representative acts as such and in the name and on behalf of another person who will be bound by the acts.

Question 43

In the case of abuse of power from the representative:

Answer 43

The acts are valid, but the representative is responsible to the principal, and shall have to compensate him for damages.

Question 44

“Representation” without power:

Answer 44

The actions performed do not have any consequences for the principal. He is liable against 3rd parties unless the act is ratified.

The act which is ratified becomes effective for the principal since its conclusion.

Question 45

Extinction of empowerment other than the general rule (expiry of power):

Answer 45

· Power revoked by the principal.
· Power renounced by the representative.
In both of these cases, it is effective when the other person knows it (bc of good faith, the representative will continue his tasks until the principal has been able to take the necessary measures to solve the problem).
· In the case of death, declaration of prodigality or insolvency of the principal or the representative.