THE “INTERPELLATIO IN IURE” IN CATALONIA.

THE “INTERPELLATIO IN IURE” IN CATALONIA.

 

The interpellation in iure It aims to solve the problem that arises when an heir does not express himself about whether or not he really wants the inheritance, to which he has been called by will or by law. To avoid the damages that may result for "others", the silence of the heir, through the "interpellation in iure this silence can be considered as an acceptance or repudiation of the inheritance.

The "interpellatio in iure" in the Civil Code.

It is a figure of Roman Law that, through Las Partidas, passed to article 1005 Civil Code, which its original wording of 1889 said:

“When urging, in court, a third party interested so that the heir accepts or repudiates the inheritance, the judge must indicate to the heir a term, which does not exceed thirty days, so that he can make his statement; warned that if he does not do so, the inheritance will be deemed accepted."

The requirements that were indicated (until recent times) for the exercise of the "interpellation in iure" were:

a) It had to be done through the courts, but not in a trial, but through an act of voluntary jurisdiction;

b) The third party concerned should be understood as the creditors of the deceased and those of the heirs, as well as co-heirs, substitutes, legatees and possible intestate heirs;

and c) the term was freely established by the judge within thirty days, and as a procedural term it could be extended.

The "interpellatio in iure" in Catalan law (vid PD of this entry)

The interpellation in iure It is also known by Catalan law, which regulated it in its article 257 of the Compilation of 1960, passed to the Inheritance Code of 1990, and the Civil Code of Catalonia, which in its article 461-12 says (valid until the 28th of February 2017) that

"2. The persons interested in the succession, including the creditors of the inheritance or the call, can request the judge, once a month has elapsed from the denunciation in their favor, to set a period for the call to state whether he accepts or repudiates the Heritage. This term cannot exceed two months. 3. Once the term set by the judge has expired without the caller having accepted the inheritance in a public deed or before the judge, it is understood that he repudiates it, unless he is a minor or incompetent, in which case it is understood that accepts it for the benefit of inventory.”

The differences between common law and Catalan.

The fundamental difference between both regulations, as can be seen, is the different consideration of silence, since it supposes pure and simple acceptance in the Civil Code (common or of Castilla) and repudiation in Catalan Law.

The Voluntary Jurisdiction Law. From the Judge to the Notary.

The regulations of the Civil Code have been modified as a consequence of the Voluntary Jurisdiction Law, giving a new wording to article 1005, which says

“Any interested party who proves his interest in the heir accepting or repudiating the inheritance may go to the Notary so that he notifies the caller that he has a period of thirty calendar days to accept purely or simply, or for the benefit of inventory, or to repudiate the inheritance. The Notary will also indicate that if he does not express his will within said period, the inheritance will be understood to be accepted purely and simply.

In other words, while maintaining the figure, the body before which it is processed changes, which becomes the Notary Public, instead of the Judge, as before.

And what happens in Catalonia?

The question we ask ourselves is whether within Catalan law the interpellation in iure It must continue to be done before the judge, or it must be done before a Notary, since article 461-12 CCCat has not been changed in its wording by the Voluntary Jurisdiction Law.

The following lines are dedicated to trying to argue an answer.

The negative stance to the possibility of carrying out the interpellation in iure in Catalonia, through a notary, would derive:

a.- From the literal tenor of the law, and therefore if “ubi lex non distinguit, nec nos distinguire debemus”, should continue to be done through the courts.

b.- That it is a civil rule, because it is within the Civil Code of Catalonia, and in accordance with its article 111-2 "In its application, the civil law of Catalonia must be interpreted and must be integrated in accordance with the general principles that inform it, taking into account the Catalan legal tradition."

The favorable posture to the possibility of carrying out theinterpellation in iure in Catalonia, through a notary, would derive:

a.- The Civil Law of Catalonia can regulate the substantive aspects of a legal figure, but not the procedural ones, except for exceptions that we will see.

b.- The Voluntary Jurisdiction Law is promulgated, according to the twentieth additional provision, under the exclusive jurisdiction of the State in matters of procedural legislation in accordance with article 149.1.6 of the Spanish Constitution. Accordingly, if the possibility of carrying out the “interpellation in iure”, through a notary is a matter of procedural order, it must be applied throughout the national territory.

On this issue, it is convenient to refer to the doctrine of the Constitutional Court on procedural legislation, which states:

In the first place, that the attribution to the State of exclusive competence over procedural legislation responds to the need to safeguard the uniformity of jurisdictional instruments [SSTC 71/1982, of November 30, FJ 20; 83/1986, of June 26, FJ 2; 173/1998, of July 23, FJ 16 c)].

Secondly, that the competence assumed by the Autonomous Communities under the protection contained in article 149.1.6 CE does not allow them, without further ado, to introduce procedural rules into their legal system for the mere fact of having promulgated regulations of substantive law in the exercise of its powers, that is, to innovate the procedural system in relation to the legal defense of those rights and interests that materially regulate, which would be equivalent to emptying the content or depriving of all meaning to the specificity with which the procedural matter is see in art. 149.1.6 CE, but, as indicated by the expression "necessary specialties" of the aforementioned constitutional precept, only those procedural innovations that are inevitably deduced, from the perspective of judicial defense, of the substantive legal claims configured by the norm remain to be introduced. by virtue of the particularities of the Law created by the Autonomous Community itself, or, in other words, the procedural singularities that are allowed to the Autonomous Communities must be limited to those that, due to the direct connection with the particularities of the autonomous substantive Law , are required by these (SSTC 71/1982, of November 30, FJ 20; 83/1986, of June 26, FJ 2; 121/1992, of September 28, FJ 4; 127/1999, of July, FJ 5), corresponding to the regional legislator or, failing that, to those who assume the defense of the Law in its contested case, offer sufficient justification on the need to alter the procedural rules commonly applicable as they are required by the particularities of the Autonomous substantive law, except that from the very examination of the Law these "necessary specialties" can be deduced or inferred (STC 127/1999, of July 1, FJ 5).

c.- Despite what was stated in the previous section, this doctrine of the Constitutional Court makes sense when it is intended to introduce a new procedural regulation where there was none before. In the case of the “interpellation in iure”, its unconstitutionality was never raised because it was in accordance with the regulation of the Civil Code. Therefore, it should be considered whether as a consequence of the Voluntary Jurisdiction Law there is some kind of unconstitutionality that has arisen. The Constitutional Court has also referred to this matter, which has established the so-called mediate or indirect unconstitutionality doctrine for deriving the possible constitutional violation, not from the direct incompatibility of the contested provisions with the Constitution, but from their possible contradiction with basic state precepts. In accordance with reiterated doctrine (SSTC 113/2010, of November 24, FJ 2; 7/2012, of January 18), for said constitutional infraction to exist, the concurrence of two circumstances is necessary: that the state norm infringed by the law autonomy is, in the material and formal double sense, a basic norm and, therefore, legitimately dictated under the corresponding competence title that the Constitution has reserved to the State; as well as, secondly, that the contradiction between both regulations, state and regional, is effective and insurmountable by way of interpretation.

Accordingly, we should determine if the “interpellation in iure” by means of a notary becomes, as a consequence of the Voluntary Jurisdiction Law, what is called a basic norm. In my opinion, from the moment it deals with a procedural aspect of inheritance law, it must be recognized as a basic rule. On the other hand, if this criterion is not accepted, it would result that the "interpellation in iure” in Catalonia, it would lack timely procedural processing, as in fact can happen with other figures of Catalan law, which refer to voluntary jurisdiction acts, but that with the new law does not deal with (The benefit of separation of assets in inheritance law or assistance in matters of family law). In these cases, it would be possible for the Generaliat to legislate on the matter, under the exceptions of article 149.1.6 CE.

Secondly, it would be necessary to assess whether the contradiction between the legislation of the Civil Code (Common or of Castilla) and the Civil Code of Catalonia is effective and insurmountable by way of interpretation. And I think that this question must also be answered clearly, in the sense that the incompatibility exists, from the moment in which the jurisdiction is either notarial or judicial, having to choose one or the other.

Epilogue.

I am writing these lines to try to call attention to a problem that we have in the Notaries of Catalonia, and that with the law in hand we cannot provide a solution, since Notaries do not have the power to establish the authentic interpretation of the Law. This topic, however, is of great importance, to be taken into consideration, either by the Parliament of Catalonia, or through some type of joint interpretation agreement between the different professional associations affected and the judiciary, or through of any resolution of the “General Directorate of Registries and Notaries” and/or the “General Directorate of Laws and Legal Entities”.

In Lleida on October 18, two thousand and fifteen.

PS.- Law 3/2017 of February 15 modifies article 461-12 of the Catalonia Civil Code, recognizing notarial competence. Says this article:

The right of the person called to accept or repudiate the inheritance is not subject to a term.
The persons interested in the succession, including the creditors of the inheritance or of the call, may request the notary, once a month has elapsed from the denunciation, to personally request the call so that, within a period of two months , state whether he accepts or repudiates the inheritance, with express warning that, if he does not accept it, it is understood that he repudiates it.
The personal request to the call must be made at least twice on different days. If this request is unsuccessful, the notary must make the request by certified mail and, in the event that it cannot be notified, it must be done through edicts published in the two newspapers with the largest circulation.
Once the two-month period has elapsed without the caller having accepted the inheritance in a public deed, it is understood that he repudiates it, unless he is a minor or a person with judicially modified capacity, in which case it is understood that he accepts it. for the benefit of inventory.

In Lleida on July 2, two thousand and seventeen

Leave a Comment

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.