Luis Prados Ramos


 To correctly focus what I want to expose, I am going to refer to a conversation I had with a friend a few months ago during a bicycle route through Montsec. He told me that he was worried about his parents, as they are reaching a certain age and because there are many people who try to take advantage of other people's weaknesses, he was worried that someone, gaining their trust, could make them sign some kind of document. , with the purpose of appropriating their assets, now or in the future.

 My answer was two-way.

First of all, I told him that if someone intends to sign a public deed, the Notary has an obligation, sometimes ignored by the general public, but essential in the performance of his work, which is called the judgment of capacity. The Notary in every document must consider the person who signs that he has sufficient mental faculties to know the consequences of what he signs. And if, on the contrary, the Notary considers that the person does not have sufficient judgment, he must refrain from authorizing the document. So that the notarial action itself meant a brake on the actions of unscrupulous people, although I must also say that the situation of anguish or intimidation cannot be appreciated by the Notary.  

  And secondly, that in private documents there is no type of control of the capacity, except that which is carried out mutually by the signatories, so if at any given moment, a document is signed by a person lacking capacity, it would force us to to challenge the corresponding contract, due to nullity, in court.

Continuing the conversation with my friend, he asks me if it would be possible to make some kind of notarial document, by virtue of which, a person limits his capacity, in the sense that his acts are only valid if they are carried out with the consent of another . As the discerning reader can see, what my friend wanted is that his parents could only perform certain acts with his consent. My answer was negative, although I also told him that there are some legal figures, through which similar purposes can be achieved.

This is how the conversation remained, until after a few days, reading some lists of the resolutions issued by the General Directorate of Law and Legal Entities of the Generalitat, I found that the resolution dated November 28, 2012 (DOGC of 14 January 2013) had resolved the issue in the manner that we are going to present.

 1.- The factual assumption is that the owner of a farm grants a deed in which, given the personal circumstances she is going through, limits for a certain time her powers of disposition and encumbrance on a farm, requiring the consent of the a certain person.

 2.- Once the deed has been filed with the Land Registry, the corresponding official alleges that this deed cannot be registered due to the lack of legal provision for the self-limitation of the power to dispose and that the purpose pursued by the grantor of the deed can be achieved through their incapacitation or by going to the figure of assistance regulated in book II CCCat.

 On the contrary, the DGDEJ considers that the deed is registrable: for the following arguments:

 1.- There is no specific legal provision that admits or not the self-limitation of dispositive powers, which should not lead us to non-admissibility, but to admit it on the basis of the application of the general principles of Catalan Law (art.111.1 ), among which is the principle of civil liberty (art. 111.6) and the principle of the possibility of constituting limited real rights in one's own thing, such as owner easement (art. 566.3) and owner usufruct — arts. 561.3-2, letter c), and 561.16-1, letter c).

 2.- If the owner can establish a real right limiting ownership over his own thing, all the more reason he can limit his proprietary powers, as confirmed by art. 545.4-1 by providing that "owners of the property right may voluntarily establish the limitations they deem appropriate in the exercise of the powers that it entails, without other limits than those established by law", without requiring that they be constituted in favor of person other than the owner.

 And finally, it considers that such clauses must contain certain requirements, which derive from articles 428-6 CCCat, which regulates the regime of prohibitions on testamentary disposal and 531.18 CCCat, which regulates donations with charge and which refers to article 428- 6 CCCat. Such requirements are the following:

 a) Its temporary nature.

b) Its free nature.

c) That it obeys a lawful reason.

d) That it does not harm third parties, which does not seem likely to occur in this case, in which the limitation could not oppose an embargo requested by a creditor.

 The matter does not seem as clear to me as DGDEJ says and without the need for large legal arguments, from the moment that a person in application of the principle of civil liberty can carry out a wide range of legal acts, they can also exercise that freedom annul the self-limitations imposed, so that this self-limitation of capacity would be nothing more than a declaration of intent without any legal effectiveness since the owner cannot be bound by his own declaration.

 Finally, I will say that even if a deed such as the one raised in the appeal is considered valid, it must refer to one or more specific properties, so that it can be registered in the Land Registry and have a minimum of publicity, therefore lacking the necessary generality. The figure provided by law for such cases of the so-called assistance, regulated in book II of the Civil Code of Catalonia, by virtue of which and through a judicial procedure, a person needs to be "assisted" by another to perform certain legal acts, so that if there is no such assistance or consent, the acts performed are voidable. In addition, the assistance has an application to all types of acts, which derives from its publicity through the Civil Registry, without which it lacks effects.

 A purpose similar to the case posed by the resolution we are dealing with can be achieved through succession agreements of particular attribution. To define them in a very simple way, they would be those agreements by virtue of which two people agree that upon the death of one of the other, they will acquire a farm or specific assets. This agreement can access the Property Registry and its consequence, and regarding the property to which it refers, the owner cannot carry out any act of disposition without the consent of the beneficiary of the agreement. What happens is that in these cases there are other consequences that must be very well analyzed before making a decision.   




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