This entry is a complement to the one that was published in this same blog and that has been quite successful if we value it by the number of entries, calls, queries and files initiated. The entry can be viewed here.
In a very summarized way, what we were asking was what was the situation in which the “interpellatio in iure” remained in Catalonia as a consequence of the entry into force of the Voluntary Jurisdiction Law.
I must also thank the person who provided me with the information, whose anonymity I prefer to maintain, without which it would be impossible to write these lines.
The fact is that there is at least one order issued by a court of first instance in Barcelona that deals with the issue of objective judicial competence, to understand the "interpellatio in iure" based on Catalan law, and in application of article 48 LEC declares itself incompetent to hear the question raised, that is, for a requirement formulated on the basis of article 461-12 CCCat, for a person to state whether he accepted or repudiated an inheritance to which he was called, and that his silence would be interpreted as repudiation.
Without expressly saying so, the consequence of this lack of objective judicial competence will be notarial competence, because otherwise there will be no procedure.
The truth is that the argumentation of the order seems a little poor to me, since it does not enter into assessing why the Civil Code of Catalonia is repealed, by the Voluntary Jurisdiction Law, when it is a matter that is not literally said, and that would require something more of legal reasoning, in my opinion due to the exclusive jurisdiction of the State in procedural matters.
Let us remember what the aforementioned legal precepts say
The Civil Code of Catalonia
"2. The persons interested in the succession, including the creditors of the inheritance or of the so-called, can ask the judge, once a month has elapsed from the denunciation in his favor, to set a term for the person called to state whether he accepts or repudiates the inheritance. 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 Civil Procedure Law
1. The lack of objective competence will be assessed ex officio, as soon as it is noticed, by the court that is hearing the matter.
2. When the court hearing the matter in the second instance or in the process of an extraordinary appeal for procedural or cassation infringement understands that the court before which the first instance was filed lacked objective jurisdiction, it will decree the annulment of all proceedings, leaving the right of the parties to exercise their actions before the type of court that corresponds.
3. In the cases referred to in the preceding paragraphs, the Court Clerk will give a hearing to the parties and the Public Prosecutor for a common period of ten days, resolving the Court by means of an order.
If anyone would like more information or could give me more information, please do not hesitate to contact me.
Lleida on July 20, 2016.