Chapter II: Basics
community.
4 .- Legal nature of the community.
We started pointing in the treatment of community in our legislation, that this is treated as a quasi-contract, without prejudice, as we shall see, there are types of conventional home community. The search for the legal nature of the institution always goes through the definition or analysis of the quota.
Thus, to explain the community has come to a theory known primarily in individual rights issue, like that of the interim. In it, and on the basis that there are a number of subjects that relate to one thing, it concludes that there is a real property right, but it, being conditioned by the plurality of subjects, creates a special situation and interim decay makes the law itself.
Thus, having a gathering of different rights and powers of the same thing, it creates a situation in which each community is holding an equal right to exclusive ownership, but in terms of its exercise is limited by the existence of equal rights to their belonging to others commoners. It is then that, through and in the fee, find the measure of concurrence of rights. It is this theory of property Plurimo total, which is the most followed in this matter, compared mainly to the theories of unification, division, or interim status.
The joint ownership of Henry Capitant say, is a real no doubt right, but different domain. Gives every owner the right to acquire some of the fruit or use of the thing in some cases, intervene in the administration, asking for the partition of the commonplace and to oppose acts of alienation they undertake other joint owners.
Our Civil Code to distinguish two types of community, conventional and incidental, as derived from the voluntary agreement or an event outside the control.
can also define the community for its object, singular or universal, and as may be requested or not the division, regular or forced.
For now we see as the arts. 1,437 and 2,284 civil code, it appears that the quasi-contract, agreeing that this is the title where it is in our code, are conceived as a voluntary, non-conventional and lawful which produces obligations.
The quasi is voluntary and is different from the law as a source of obligations, because these are imposed by law independently of the will people.
But it involves facts however volunteers, quasi not the result of a meeting of minds, as it differs from the contract.
overtook as the quasi classical notion has been strongly criticized by the modern doctrine.
In Roman law and in order to systematize some figures that were neither contract nor crime, was referred to obligations that should be considered as if arising from a contract, quasi ex contractures, or as if arising from a crime-quasi ex delicto.
Among the authors who have made the strongest criticism to the classical notion of quasi-contract, is Planiol, who said:
a) The term quasi suggests the idea of \u200b\u200ban institution similar to the contract, which is almost a contract, whose differences would only be incidental or minor. No such thing happens though: the differences between them are deep set.
This contract represents an agreement of wills, in the quasi absent. In turn, the voluntary agreement in the contract creates obligations and determine its effects. Quasi
In contrast, if the will is involved in some way, not their role to create obligations.
b) denies that the quasi Planiol is a voluntary act, for two reasons:
• Why will not rise to the obligation imposed on the perpetrator of the act;
• Because it is often required who has not expressed its consent in any way.
c) The quasi according Planiol, would not be a lawful act. In fact, all quasi-distinguished, as a common trait, unjust enrichment, and therefore unlawful, unfair. Synthesizing
criticism, it is concluded that the quasi contract is not a voluntary act or a lawful act. It would indeed be a fact involuntary and illegal and engenders obligations have their source in the law, which seeks to remedy unjust enrichment.
The legal nature of the community for part of the doctrine is then a quasi despite criticism doctrinal or straight community contract as will occur in the joint ownership.
It is, however, the clearer analysis of the legal nature of the institution from the standpoint of the rights in contest, for which, it is useful to distinguish whether the community operates only on the domain without regard to other property rights or has application in other of them, he hastens to clarify this code, subject responses contain different provisions, on the usufruct, Article 772 states: "It may be a usufruct in favor of two or more persons, who are simultaneously in equal shares or as determined by the constituent; and may in this case the beneficial owners divide among themselves the enjoyment of any agreement so that they seem good, then we gather the community if it has application in the usufruct Regarding the right of use and habitation, Article 812, provides that "The rights of use and occupancy is up and lose the same way that usufruct", we see that it is possible to establish such a right in rem within the framework of community land rights of pledge and mortgage, as much There is no doctrine of community regard to easements, Article 827 of the Civil Code, which holds burning "Split the dominant estate, each one of the new owners will enjoy the easement, but without increasing the burden of the servient tenement, "from which we conclude that the various subjects, which are according to those who are owners of the dominant estate.
In conclusion, the legal nature of the community is determined by the equal rights in whole, for example, there is no community between the trustee and the trustee, since their rights are opposites, and that while penda the condition is the trust, the trustee is the owner, with the right exposure to extinction if it verifies the fact uncertain future, the trustee for its part, while the condition penda only has to be an expectation, a right eventually.
Entonces, la verdadera comunidad, y que es la única que se considera cuando de ella se habla, es la pro indiviso, la pro diviso no es más que un haz de propiedades concurrentes en un mismo objeto, cuyas partes, constitutivas cada una de un derecho perteneciente exclusivamente a un titular distinto, están unidas o coligadas. Con razón se ha dicho que hasta la expresión “comunidad dividida” es cuestionable por contradictoria, sólo puede tomarse como una enérgica manera de hablar para poner en relieve el régimen jurídico de las propiedades individuales o singulares, dirigido a la creación de vínculos que enlazan o conexionan las singulares posiciones jurídicas.
5. Teorías Explanatory institution.
5.2 of the Community.
Without doubt, the two community types are the most important Roman and Germanic community. Types that although they had any concomitant at first, the different historical evolution of different peoples to separate completely handled. In Germanic law the concept of heritage remained away from the ontological notion of unique and focused individual, probably through the whole family (SIPP), facilitating the economic system itself undivided. By contrast, in Roman law, history marked a move away from family members that led to a weakening attachment to the land, expressed in a largely agricultural economic system, in short, the consortium has evolved to support a priori contradictory figure, who was the community incidental, distinctly individualistic.
For the classical regime is essential to share the idea of \u200b\u200bbounding criterion of the powers available to each community. The admission of the occurrence of various parts ideals or quotas on the common thing is stated, for the first time in Escévola Mucio Fifth, as is affirmed by Paul, Ulpian, Papiniano and Pomponio.
Overall, we see how the classical Roman condo itself as "an individualistic system," in which each owner has, independently, and the ius ius faciendi prohibendi, with the peculiarity that if the former exceeds its normal course can come into conflict with the second, which happened premium as similarly in the right groups, with the collegiality of the judiciary ".
also raises the question of whether the ius prohibendi applies only to acts of material available that affect the nature of the thing or, conversely, also extends to cases of legal provision having effect for the whole property or common property. The answer is that for the latter is required or will elconsensus omnium omnium and therefore invalid the act which sanctions this requirement would reduce the need for prohibitive.
After analyzing the various actions of the homeowners and their consequences that make the legal system of pre-classical and classical condo, we shall briefly the procedural protection of it, also making a distinction between actions brought in solidum and that competition pro part. In the past, the most characteristic is undoubtedly the reivindicatio, exercisable in proportion to the respective share in order to assert the individual right to it. Second, the infectivity damni cautio is presented here as a promise to indemnify, pro, the damage caused. Sabino had already Juliano admitted and the returns. Ulpian and Paul, in turn, invoked the authority of Julian to declare that each owner can not claim more than cautio turn, and conversely, they should not rather than by the same party. Like damni cautio infectivity could be requested by one of the homeowners, also one of the heirs could apply, but only for its part, the cautio legatorum as a pledge to run a legacy.
regard to actions in the classical action of interest is the division of the common thing: the actio communi dividundo that in classical times, seek to remove this purpose. The determination of benefits exchange between the condominium is conditional on the division order. Thus, for the recovery of praestationes, permanent communione, in classical times, is interposed other actions, such as action noxal or the expense, and the actio legis aquiliae, possible when damage was caused to the thing shared by one of its co-owners, the actio corruptio services, also brought by a co-owner who had fallen against the value of the common slave or actio frutti. For their part, African and knew Ulpiano employment actions Locati et conductivity when the investors were shared enjoyment of the common farm, leased for periods of one year.
shape or theory of Germanic community in change is characterized by the existence of portions or shares ideals that make the enjoyment and the specific participation of each of its members on the object, may have each his own and considered as a situation incidental and transient, so that each community may at any time the division (discordiarum mater). By contrast, in the Germanic community what is important is the personal relationship behind them, being the amount the element that determines the inclusion in the community and that probably work as a limit on the internal relations of the members while as expectation of a future state divide. But it does not, unlike the Roman law, a particular legal status of commoner available separately allowing the rest of the community group. The provision requires all (hand property in common) and you can not split an individual action during the subsistence of the personal bond that created the situation in the EU. The type of condo
Germanic, was based on agrarian collectivism exercised in Hufe and whose administration was for the Hausherr. At his death, the community property (Vermögensgemeinschaft) continued among all family members, and homeowners in life the father, so not seen adding to a legacy, but the continued possession of the property.
Finally, the study of the legal regulation of closed condominium with the most significant changes made by post-classical and Justinian rights, even when innovation is difficult to separate between them and the other, since the new condominium concept is the result and pointed to an evolution in the Lower Empire and in particular the judicial reform operated with respect to the action of division. Indeed, the actio communi dividundo will aim not only to operate the partition of the common thing, but regular conflicts incurred in its management. The latter, permanent communione. Similarly, the damage caused by a co-owner of the commonplace can be immediately prosecuted in court, through the communi dividundo, filed in the state of undivided.
0 comments:
Post a Comment