A recent ruling by the High Court of Catalonia, dated 22 September 2003, Appeal no. 69/2003, Judgement No. 31, in litigation brought by our office and terms of defense and the legal arguments put forward fully supports this resolution clearly defines the content of a legal institution very usual in the Catalan civil law, the usufruct right to the layout and setting their boundaries distinguishing between arbitrium boni Viriat arbitrium merum and, in the manner set forth below.
The court case actually refers to the transfer of a property for a grandson made by a usufructuary right to file for a price less than half the appraised value of that property. The demand raised by our firm opinion that the usufruct right to the usufructuary provision does not confer unlimited availability of goods, as seemed to understand the other side, but on the contrary its exercise must always be based on good faith provisions of Art 7.1 of the Civil Code. The usufruct right to file, also known in colloquial terms as usufruct of subsistence, is to replace the income that the usufruct insignificant normal flow of goods usually report the usufructuary relic, so that revenue see this is complemented by judicious management and sale of the assets given in usufruct so these disposals to attend the basic purpose intended by the institution, which is to allow the usufructuary maintain a standard of living adequate for their needs.
This is the criterion governing the establishment of funds of this institution, which collects the ruling to the diaphanous interested interpretations made by the opposing party in the sense that the availability of goods and omnímoda was unconditional. Given that the Court of Appeal resolved by setting the following criteria:
First .- The provision allows usufruct right to the disposal of encumbered assets comprising the flow so that the relic usufructuary may apply to the yields obtained satisfaction of their economic needs.
Second .- A transfer for free, or transfer title to formerly onerous but hide a spirit of liberality of all or part circumstance that may be discernible on the agreed cash price and the actual value of the property conveyed and the whole circumstances attached to the operation is not covered by the figure, and must therefore be considered as made without good faith that the Civil Code in Article 7, requires an award for his defense.
Third .- The usufructuary is available with power to act as a good parent, that is, you can proceed with the disposal of the assets given in usufruct when considered objectively needs so require, and I also understand when conducting a legal business translatiu domain or any other reported earnings that may be presented to the mass hereditary and could not understand that would take this circumstance into prejudice the legitimate interests of owners knot, remember, are deprived of the faculty to alienate even his bare property. The usufructuary should seize the business opportunities that may be introduced to increase the value of the mass hereditary and that I will be required based on the principle of acting in good faith and the content of Article 1104, II Civil Code requires that in compliance when the obligation not express, the diligence of a good father.
Fourth .- The action of the usufructuary right to file can not be arbitrary, ie, must respect the decision that establishes the cause and not as usufructuary heir, so the power is not available but limited omnímoda attention to their needs and always with the limit that their behavior can be described as unfair as regards the heirs, namely, the naked owners. Claim that the sale of property held for a grandchild for a price much less than half its appraised value when done before more lives donation of all property in favor of proprietary and daughter mother is a grandson of the action covered by the good faith required by Article 7, 1 Civil Code is certainly unfair. So I understand the ruling of the Superior Court of Justice of Catalonia, dated 22 September 2003.
We aim also prosecuted in the case had established the testator to his widow as usufructuary right to file "to record and sell goods usufructuats, when conscience, without interference from any person he deems necessary. " The wording refers to the unconditional availability, as not required to prove the need to sell, but the ruling finds that the reference to the conscience of the widow does come into play the concept of fairness and loyalty to which we referred above as the action that would carry out a good parent. The ruling states that "... the widow could only usufructuary of disparate assets inherited by way of contracts based on a cause costly,..." The court states that "the acts challenged devices are granted by the usufructuary when abused their powers at the expense of which the bare owner to be qualified as acts carried out by abuse of law".
Five .- The ruling also clearly distinguishes between usufruct and usufruct with power to dispose of waste. In this last figure the bare owner does have a mere expectation of acquiring full ownership of the goods flow relic, as the usufructuary has the power to dispose of such inter vivos without limitation. All that is forbidden is available because of death of their rights.
This is not the situation covered in the figure of the usufruct right to provision, which aims to maintain the living standards of the usufructuary, but not granted an unconditional right to transfer the goods Relict flow. The usufructuary and bare owner acquire their rights from the moment of the establishment of the usufruct belongs from now bare owner that the goods have not been subject to disposition by the usufructuary in the exercise of of which its powers, powers that we have seen are not in any way omnímodes and unlimited, but are clearly set out in the constitution of the usufruct title and the laws that apply, as we discussed, not make the usufructuary right arrangement with the owner of the goods.
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