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Introduction to ROC Civil Code (2011) 男男 by Dr Chi-Chung Kao UNIT - Basic concept of law Broadest definition → common rules recognised and followed by members of society Broad definition → regulation made by state organisations, including legislation passed by legislatures, and executive order and regulation legislated by executive agencies Narrow definition → regulation enacted by state legislatures through specific law-making process Basic categories of law Administrative law → regulation of legal relationship between state organisations and the people Criminal law → regulating criminal offences and liability Civil law → including law of contract and property law (adopted by continental legal systems) in a single civil code Commercial law → under certain legal systems commercial law is a separate category to civil law; law of contract would be considered as “commercial” law; a separate commercial code The concept of ROC Civil Code The Civil Code contains provisions regulating people’s legal relations with regard to affairs transpired in their daily life The Code is divided into five Books, including the general principle of civil law, the law of obligations, property law, family law, and law of inheritance and will The Code was based on the continental legal system therefore contains law of contract in the Book of obligations, making the Code “commercial” as well Legal relations in the Civil Code = relations of rights and obligation Rights → the status, capability, and power of a person to enjoy a specific legal interest Obligation → opposite to rights, a burden on a person to perform or not to perform certain act ● under most circumstances, in a given legal relation, rights and obligations usually occur in pairs; one party’s right means the opposite party’s obligation ex: Tom lent one million dollar to Jack → a contract of loan was established between the parties (a defined legal relation) → specific rights and obligations arise between the parties → Tom became the creditor to Jack, Jack became the debtor to Tom → Tom has the right to ask Jack to repay the money → Jack has the obligation to repay the money to Tom Categories of rights In terms of the content of the rights Proprietary rights → a right that is of computable economic or monetary value, usually is part of a person’s estate, asset, or property, and is generally transferable a Right to prestation (payment of money or rendering of a service) → a specific party demands the other specific party to perform certain acts, such as payment of money or delivery of service, such right (on the other hand the obligation of the other party) only exists between the two parties b Real right (right in rem) → the right to control, dispose, or use specific tangible property and enjoy the interest thereof c Intellectual property right →Rights related to intangible intellectual creation, such as patent, trademark and copyright • ex: Mike purchased a motorbike from Riders Motors Shop A contract of sale was formed between mike and RMS From RMS’s viewpoint, RMS has the obligation to deliver the bike to Mike, but RMS has the right to claim payment of the price of the bike from Mike From Mike’s viewpoint, Mike has the obligation to pay the price, but has the right to demand delivery of the purchased bike These rights and obligations only exist between RMS and Mike, the parties to the purchase contract → right to prestation After the bike was registered in mike’s name, mike became the owner of the bike therefore has the right of ownership of the bike → real right If mike wrote an article about the bike, he became the owner of the copyright of that article → intellectual property right Personal rights (right arising from a person’s legal status) → rights closely linked to the elements of a person’s character, personality, and identity a rights related to personality → life, liberty, reputation, health, etc b rights related to identity → parental custody, cohabitation of married couple, fidelity of married couple In terms of the function of the rights claims → a right to demand a specific party to act or not to act, such a the right of prestation right of disposal → the right to control, dispose, or use specific subject-matters, such as real right, intellectual property right right of counterplea → the right to refuse payment or performance upon the other party’s claim • ex: art 144.I → counterplea based on expiration of prescription against claim of prestation John stayed at King’s Hotel from 1st to 7th Jan 2005 (a contract of lease of the room established between John and KH) and the payable rental was NT$10,000 KH was John’s creditor in terms of rental and was entitled to claim payment of rental from John However, KH did not exercise its claim of prestation until after more than years on 1st Feb 2007 According to art 127.1, John is entitled to a counterplea that the prescription of KH’s claim of prestation has expired, therefore, John is entitled to refuse payment of rental Fundamental principle of the civil code Party autonomy → a person is allowed, subject to the mandatory provisions of the code, to form or establish specific legal relations (relations of rights and obligations) with property or the other person based on his free will Restrictions on the principle of party autonomy → art 148.I, II a public policy → most public policy considerations have been put into the code in the form of mandatory provisions, which if breached would render the offending legal act or relation invalid, void and null (art 148.I) • ex: art 205 → creditor not entitled to claim interest beyond 20% per year even agreed by the debtor ← heavy interest rate is against public policy ← discouraging loanshark • ex: contract of sale of weapon / prostitution → against unwritten public policy (in Civil Code) → illegal subject-matter ← criminal offence (under Penal Code) b prohibition of the abusive exercise of rights → a person is entitled to exercise his legal right protected by the provisions of the code, but the exercise of rights can not be abusive, for example, with the intention to cause harm or unreasonable inconvenience to others • ex: Giant Corporation constructed a 30-floor office building next to Peter’s land, GC’s building however trespassed into Peter’s land for square meter Peter as the owner of his own land is entitled to demand removal of any trespass, but in this case if he demands the demolition of the entire GC building for the one square meter trespass it would be out of proportion therefore an abusive exercise of his right as a land owner UNIT - Persons Legal definition of persons → characters who are recognised by law as being entitled to exercise their rights (and to carry out performance), and to enjoy certain legal status, and to form legal relations with each other through specific juridical acts → subject of rights and obligations The Civil Code recognises two types of persons → natural persons and juridical persons Natural person 1.1 Legal capacity → the qualification and status for a natural person to be a subject of rights and obligations → being a natural person → qualified as a subject of rights and obligations Art of the Civil Code → The legal capacity of a person commences from the moment of live birth and terminates at death 1.1.1 Commencement of legal capacity of natural persons – live birth Definition of live birth → majority opinions take the view of the theory of independent breath of a child → a child is capable of breathing on his own after being born and severed from his mother → live birth • ex: Mary gave birth to Little Joe, the umbilical cord was cut, and LJ started to breathe on his own Unfortunately LJ died for unknown reason two hours later → live birth satisfied → nevertheless LJ acquired legal capacity during that two hours → LJ became a subject of rights and obligations recognised by law during that two hours ← in theory LJ is capable of exercising his rights as well as performance his obligations (NOTE: how would LJ enter into legal relations as a minor without capacity to actually carry out juridical acts is a question related to the issue of capacity for juridical acts, and will be discussed later) • Question: Does an unborn child inside a pregnant woman’s womb have the legal capacity as a subject of rights and obligations? → According to the live birth requirement, legal capacity starts from live birth → unborn child have not been born yet → not acquiring legal capacity yet??? → BUT if considered not having legal capacity due to not being born yet → insufficient protection for the unborn child’s benefit ← although the child has not been born, he is already a living subject inside the womb → unreasonable to deny him his legal capacity → in the case that a child’s father passed away prior to the child’s birth, if the law does not recognise the unborn child’s legal capacity, the child will not be entitled to inherit his father because the child is not a subject of rights and obligation thus could not legally acquire any right → against the child’s legal interest → in the case that the child was injured inside the womb due to external harm done to the mother by a third party’s tortious act, if the law does not recognise the unborn child’s legal capacity, the child could not claim that his right to health (personal right) was infringed because the child was not a subject of rights and obligations → his mother cold not claim damages on the child’s behalf from the tortfeasor → against the child’s legal interest Art → An unborn child is considered as if it were already born with regard to its interests, except it was subsequently born dead → by law, legal capacity is granted to unborn child prior to birth with regard to matters that are for the unborn child’s interests, with two conditions a legal capacity is only granted for the unborn child’s advantages, not disadvantages → the purpose of art is to protect an unborn child’s interests, not to bring any disadvantages to the unborn child, therefore: → obligations cannot be imposed upon an unborn child → parents as guardians cannot waive on the unborn child’ behalf his right b legal capacity is granted to the unborn child subject to a subsequent live birth → legal capacity is granted with the presumption that the child will be born live subsequently, therefore his legal capacity is granted in advance for him to enjoy any possible legal interests → if the child is born dead then there is no need to protect his interest → the granted legal capacity shall be revoked and any interest acquired by the dead child shall be returned 1.1.2 Termination of legal capacity of natural persons – death Once a natural person dies, he loses the qualification and status as a subject of rights and obligations → impossible for a dead person to engaged in any legal relations with other persons → impossible to exercise rights or perform obligations → legal capacity no longer exists ◎ criteria for the determination of death a traditional theory → stop of heart beat b latest theory → stop of brain wave / brain activity ◎ the importance of deciding the precise time of death It matters if certain rights or obligations are acquired by or imposed upon a person → suppose A was hit by a car driven by B and A was dead on the spot → A’s legal capacity terminated at the moment of his death → A would not acquire a right to claim damages from B → A’s heirs would not inherit any right to claim damages from B → suppose A was hit by B and was seriously injured and died two weeks later → with regard to the physical harm caused by B and the expenses of medical treatment incurred thereof, A acquired a right to claim damages → after A died, his right to claim damaged would be inherited by A’s heirs 1.2 Capacity for juridical acts (capacity) A natural person with legal capacity is recognised by law as a subject of rights and obligations → capable of entering into legal relations with other persons through juridical acts → entitled to exercise rights or obliged to perform obligations BUT → not every person with legal capacity can actually carry out legitimately valid juridical acts by himself → A person with legal capacity as a subject of rights and obligation must further acquire the capacity for juridical acts in order to legitimately carry out valid juridical acts → depending on a person’s judgement, the ability to comprehend the meaning of his behaviours and the legal consequences thereof ● Comparison Legal capacity → a legal status of a person to acquire rights or bear obligations → abstract, general capacity Capacity (for juridical acts) → a qualification for a person to acquire rights or bear obligations by himself through juridical acts → concrete capacity → a person not having the capacity for juridical act CANNOT carry out juridical acts by himself → BUT still a subject of rights and obligations → entering into legal relations with other persons by guardians acting on his behalf → still acquire rights or bear obligations through the guardian’s juridical acts, or through his own juridical acts with consent from his guardian Natural persons ↓ with legal capacity with capacity (for juridical acts) ↓ entering into legal relations through his own acts without capacity for juridical acts ↓ entering into legal relations through the acts of his guardians ● Criteria for the determination of capacity (for juridical acts) → objective standards → ages 1.2.1 Minors without capacity Natural persons under the age of seven years old → without sound judgement and comprehension of daily and legal affairs → denial of capacity (for juridical acts) by law for their protection → art.13.I → The minor, who has not reached their seventh year of age, has no capacity to make juridical acts → art 75 → The expression of intent of a person who has no capacity to make juridical acts is void… → art 76 → A person who has no capacity to make juridical acts shall be represented by his guardian for making or receiving an expression of intent 1.2.2 Minors with limited capacity Natural persons of seven years old and above but not reach the age of twenty years old → partial judgement and ability → partial capacity granted by law Art 13.II → The minor, who is over seven years of age, has a limited capacity to make juridical acts The scope of limited capacity: a Art 78 → A unilateral act made by a person limited in capacity to make juridical acts without the approval of his guardian is void b Art 79 → A contract made by a person limited in capacity to make juridical acts without the approval of his guardian is valid upon the acknowledgement of the guardian NOTE: because in a contract an innocent opposite party is involved, his legal interests in having a contract legitimately formed also require protection → unresnable to declare the contract void due to one party being a minor with limited capacity ← the defective contractual act by the minor with limited capacity could be mended with acknowledgement of the guardian ←→ where a minor with limited capacity carried out a unilateral act → no opposite party involved → sole protection for the minor → unilateral act is void • Exceptions – circumstances under which a minor with limited capacity will be granted FULL capacity → juridical acts carried out by a minor with limited capacity without his guardian’s approval or recognition will be valid a art.83 → A juridical act made by a person who is limited in capacity to make juridical acts is valid if such person has induced the other party, by using fraudulent means, to believe that he had capacity to make juridical acts or that he had obtained the approval of his guardian b art 84 → A person who is limited in capacity to make juridical acts is able to dispose of the property which his guardian has approved him to dispose of it c art 85.I → If the guardian of a person who is limited in capacity to make juridical acts has approved the latter to run business independently, such person has capacity to make juridical acts concerning the said business d art 13.III → The married minor has the capacity to make juridical acts ◎ the above situations indicate that there is no necessity to protect minors under the given circumstances e art 77 → The making or receiving of an expression of intent of a person who is limited in capacity to make juridical acts must be approved by his guardian, except when the expression of intent relates to the pure acquisition of a legal advantage, or to the necessaries of life according to his age and status ◎ the above situation indicate that there is no disadvantage to the minor’s legal interest under the given circumstances 1.2.3 Adults with full capacity Adults of the age of twenty years old and above → presumed to have sound judgement and sufficient understanding and comprehension of the meaning and consequence of his own behaviours → full capacity for juridical acts (art 12) ◎ Exceptions → Temporary deprivation of capacity → adults presumed to have full capacity BUT if specific juridical acts are carried out while in the mental state of insanity, unconsciousness, or infirmity → capacity will be temporarily deprived for that specific circumstance Art 75 → …An expression (note: a composing element of juridical act) is also void which is made by a person who, though not without capacity to make juridical acts, in a condition of unconsciousness or mental disorder → Permanent deprivation of capacity → interdiction Art 14 → A person who is in such a state of insanity or some other infirmity that he can not deal with his own affairs may be interdicted by the court upon the application of the person himself, or his spouse, or two of his nearest relatives, or the public prosecutor The interdiction shall be revoked when the cause thereof ends existence Art 15 → Those who are interdicted have no capacity to make juridical acts Juridical persons 10 OR → reasonable care having been exercised → liability lifted 3.4 relief available in tort cases primary relief → recovery → the victim is entitled to ask the tortfeasor to perform a restoration to the status quo before the damage / injury → art 213.I OR the victim may claim the expenses necessary for recovery if the victim chooses to carry out the recovery himself → art 213.III secondary relief → compensation based on market value → if it is impossible or impractical to restore to status quo before damage / injury → art 215 ex: A’s painting worth $1,000,000, damaged by B, repair work costs $300,000 → A can ask B to repair the painting, or alternatively A can hire someone to repair the painting and claim the $300,000 repair expense from B suppose the painting is repaired, but nevertheless devalued to $900,000, A is entitled to claim compensation of $100,000 for the loss of a decrease of the painting’s value 3.5 rules for the scope of compensation for tort 3.5.1 direct damage and lost profit art.216 → … the compensation shall be limited to the injury actually suffered and the interests which have been lost direct damage → a decrease in monetary value lost profit → loss regarding interest that could have been acquired / received by the victim in the future but becomes impossible due to the tortfeasor’s act ex: A owns a painting worth $150,000 on the market, A agrees to sell the painting to B for $200,000, C accidentally destroys the painting → the scope of compensation includes the direct damage of the market value of the painting → $150,000, and the lost profit A would have had earned from the transaction if the painting have not been destroyed by C→ the extra $50,000 → total compensation of $200,000 3.5.2 deduction of interest from the damage art 216-1 → if there are injury suffered and interests acquired derived from 44 the same reason, the interests acquired shall be deducted from the amount of the compensation claimed → when calculating the amount of compensation, if the victim somehow receive certain interest due to the very same reason which causes the damage, the interest should be deducted from the total amount of compensation ex: from the above case, if A agrees to cover delivery cost of $10,000, since the painting is destroyed thus no deal → no delivery cost → A would only have earned $190,000 from the $200,000 deal if the painting were not destroyed as A would have to pay for the $10,000 delivery cost → A gains the interest of not having to pay for $10,000 delivery cost → A can only claim $190,000 3.5.3 contributory negligence by the victim under circumstances where the victim himself also contributes to the ccurrence or aggravation of the damage → the victim is partially responsible for the tort → the scope of compensation by the tortfeasor is reduced to exclude the damage caused by the victim himself as that NOT all the damage is caused by the tortfeasor alone → the victim has to bear the partial loss caused by himself art.217.I → if the injured person has negligently contributed in causing or aggravating the injury, the court may reduce or release the amount of the compensation ex: A walks across the street without following the traffic light and is hit by a car driven by B, who over-speeds thus unable to stop before hitting A → B commits a tort infringing A’s personal right (right to health) → B is negligent as over-speeding, BUT A himself is also negligent as not following traffic light → suppose A’s negligence contributes to 20% of his injury → A can only claim compensation for 80% of his injury from B similarly, A is hit by B‘s car, if A receives medical treatment within a reasonable period, the medical bill would only cost $10,000, BUT A refuses medical treatment without any reason until one month later, causing his injury to deteriorate and the medical bill rises to $20,000 → A can only claim compensation of the initial treatment cost of $10,000 as the additional cost of another $10,000 is due to A’s own negligence (of not receiving treatment in time) therefore should be excluded from the scope of compensation 45 Obligation by consent – contract 4.1 the concept contract → a juridical act concluded by two mutual and matching expression of intent by two parties (art.153.I) party A → expression of intent → contract ← expression of intent ← party B 4.1.1 contract can be concluded by express or implied intent, but NOT by simple silence 4.1.2 the parties agree on the essential elements of the contract, but not on the non-essential elements, the contract is presumed to be concluded (art 153.II) → essential elements → the composing elements for a contract to be concluded, such as subject-matter and price for a sale contract → other factors, such as time and place of delivery / performance, are non-essential elements ex: Mike walks into a electronic store, the salesperson presents a notebook to Mike, Mike does not respond → an expression of intent from the seller but no expression of intent from Mike → no contract if the salesperson asks Mike to buy a BENQ notebook for the price of $30K, Mike agrees → sale contract presumed to be concluded as essential elements (subject-matter and price) are ascertained 4.2 offer and acceptance (expression of intent that may constitute contract) offer → an expression of intent with the purpose to induce an acceptance from the opposite party to conclude a contract acceptance → an expression of intent to consent to the offer as the content of the contract by the recipient of offer an acceptance must match the offer completely for the contract to be concluded, if the recipient modifies the content of the offer, such an expression of intent will NOT be treated as an acceptance, BUT a refusal to the original offer and a counteroffer (art 260.II) ex: A says to B “sale of mobile phone for $5k” → offer if B says “ok, $5k to buy the mobile phone from you” → acceptance 46 if B replies “hmm, how about $4k for the mobile phone” → content modified, not an acceptance → refusal to A’s original offer and a new offer from B to buy the mobile phone for $4k → no contract by the $5k offer 4.3 legal effects of offer 4.3.1 the offerer is bound by his own offer (art 154.I) → the offerer cannot withdraw or alter his offer before that offer expires → if the recipient of the offer expresses an corresponding acceptance, and that acceptance arrives at the offerer, a contract is concluded 4.3.2 an offer expires if: → the offer is refused ex: A expresses an intent to sell a bike for $3k to B, B replies “no thx” refusal to the offer → offer expires if B replies “$3k is too expansive, how about $2k?” → counteroffer → refusal to the original offer → A’s original offer expires → offer with time limit and is not accepted within the time limit ex: A expresses an intent to B “sale of mp3 for $5k, reply in days” → B does not reply in days → A’s offer expires → if B replies after week “willing to buy your mp3 for $5k” → a later acceptance → counteroffer (art 160.I) → offer without time limit → conversational offer → expires if opposite party does not respond immediately → non conversational offer → expires if opposite party does not respond with a reasonable period ex: A talks to B face to face “sale of mp3 for $3k”, B does not respond → A’s offer expires if A writes to B “sale of mp3 for $3k”, after days, no respond from B → A’s offer expires 4.4 inducement of offer an inducement of offer is an expression of intent to attract other party to express an offer to the first party → essential elements of contract NOT contained → NOT an offer ex: A asks B “do you have a spare mp3 to sell?” → an inducement to attract B to express an offer of “I would like to sell a mp3 for $x to you” 47 party A → inducement of offer → party B party A ← offer ← party B party A → acceptance → party B ● does the following instances constitute offer? a PizzaHut sends adverts to you b drinks displayed with price in vender machine c supermarket’s promotion advert shows sale items with note “limited quantity” d goods displayed on the shelve with price tag in 7-11 4.5 Breach of contract – the concept after an offer and an acceptance match, a contract is formed, then a legal relation of obligations by consent is established between the parties Under the contract one party, as a creditor, can ask for specific performance from the other party, as a debtor, and vice verse however, if the debtor is unable to perform according to the content of the contract, the contract is considered as breached whether the party who breach the contract is subject to liability depending on whether that party fails to perform intentionally/negligently or not (art.220) ex: sale of mobile phone between S (seller) and B (buyer) with regard to obligation of delivery of the phone Seller is the debtor buyer the creditor with regard to the obligation of payment Buyer is the debtor seller I the creditor 4.6 Types of breach of contract 4.6.1 Non-performance ● legal effect of non-performance depending on who is at fault both party no fault → contract annulled one party at fault only → compensation to the other party who is not at fault 4.6.2 Delayed performance obligation not performance at the exact time agreed or after the notification requiring performance by the creditor (art.229) ● legal effect of delayed performance 48 a debtor’s liability of compensation (art.231) including direct damage and loss profit b creditor’s right to revoke the contract (art 254) 4.6.3 Incomplete performance (art.227) obligation performed, but only partially ● legal effect of incomplete performance depending on the actual situation, the rules for non-performance or delayed performance would apply a amendable → delayed performance b not amendable → non-performance 49 UNIT - Family law regulation concerning the identities, rights and obligations between relatives, including those between husband and wife, parents and children, etc Types of relatives (kinship) 1.1 Spouse → husband and wife are spouses → the origin of relatives → the most fundamental type of relative 1.2 Blood relatives → relatives with blood relationship, with two subcategories: natural blood relatives / blood relatives by law natural blood relatives → come from the same ancestors with the same natural blood line, such as parents, siblings blood relatives by law → no natural blood link → construed by law as blood relatives → construed blood relatives, such as foster parents and children lineal blood relatives / collateral blood relatives lineal blood relatives → art 967.I → blood relatives who are in a vertical relation on the blood line, including: → from whom a person is descended → parents, grandparents, great grandparents, etc →descendants from a person → children, grandchildren, etc collateral blood relatives → art 967.II → blood relatives who are in a horizontal relation on the blood line → with the same ancestor → siblings (same parents), cousins (same grandparents), uncles and aunts (same parents with parents) 1.3 Relatives by marriage (in-laws) → relatives connected through marriage → confined to a reasonable scope → art 969 1.3.1 Spouse of blood relatives ex: husband or wife of siblings 1.3.2 Blood relatives of spouse ex: parents or siblings of husband or wife 1.3.3 Spouse of blood relative of spouse ex: husband or wife of siblings of spouse note: NOT including blood relatives of spouse of blood relatives, otherwise 50 the scope of relatives by marriage may be too wide Degree of relationship 2.1 Lineal blood relatives → art 968 → one generation (upwards and downwards) = one degree A’s grandparents ↑ A’s parents ↑ A ↓ A’s children ↓ A’s grandchildren 2.2 Collateral blood relatives → art 968 → counting upwards from self to the same lineal ancestor then downwards to that relatives → the total number of generations = degrees A’s grandparents A’s grandparents ↙ ↘ ↙ ↘ A’s uncles, aunts A’s father A’s mother A’s uncles, aunts ↓ ↙ ↘ ↓ A’s cousins A’s siblings A A’s cousins 2.3 Relatives by marriage (art 970) → see the spouses as one person to determine the type and degree of relative 2.3.1 Spouse of blood relatives → by the type and degree of that blood relative ex: the relation between John’s brother’s wife and John is seen as the relation between John’s brother and John → John’s brother and John are collateral blood relatives of second degree → John’s brother’s wife and John are collateral relative by marriage of second degree 2.3.2 Blood relatives of spouse → by the type and degree of the spouse ex: A and A’s wife’s parents → determined by the type and degree between A’s wife and her parents → A’s wife and her parents → lineal blood relative of first degree → A and A’s wife’s parent → lineal relative by marriage of first degree 51 ex: A and A’s husband’s siblings → A’s husband and his siblings → collateral blood relatives of second degree → A and A’s husband’s siblings → collateral relative by marriage of second degree 2.3.3 Spouse of blood relatives of spouse → by the type and degree between spouse and the spouse of spouse’s blood relatives ex: A and A’s wife’s sister’s husband → A’s wife and her sister’s husband → A’s wife and her sister → collateral blood relatives of second degree → A and A’s wife’s sister’s husband → collateral relative by marriage of second degree Note: the purpose of degree of relationship is to determined whether two persons are relatives that are prohibited to marriage → art 983 Marriage through marriage → relationship of spouses established between husband and wife → relationship of relatives by marriage (in-laws) established between husband’s and wife’s family 3.1 Substantive requirements 3.1.1 Capacity for marriage (art 980) → male of 18 yrs old or above, female of 16 yrs old or above → approval from guardians if not reach majority (20 yrs old) → otherwise the marriage is defective and subject to rescission 3.1.2 NOT relatives prohibited to marriage (art 983) → prohibition of marriage between close relatives → moral and eugenics concerns ex: lineal blood relatives, lineal relatives by marriage, collateral blood relatives within sixth degrees mandatory provisions → void marriage if violated 3.1.3 NO relation of guardianship between the parties (art 984) → to prevent the abuse of guardian’s superior status and power → marriage rescindable if violated (art 991) 3.1.4 NOT overlapping marriage (art 985.I) overlapping marriage → a second marriage overlapping with a first valid marriage → the latter is void 52 marrying more than one person at once is also prohibited (art 985.II) → marriage void → to protect monogamy 3.1.5 marriage NOT concluded while in a situation of unconsciousness or mental disorder (art 996) → to ensure the freedom of will → marriage rescindable if violated 3.1.6 marriage NOT under duress or by fraud (art 997) → same as 3.1.5 note: art.998 → the rescission of a marriage DOES NOT has retrospective effect → any child born during marriage is legitimate even though the marriage is later rescinded → to protect the legal status of children so that their legitimacy will not be affected by changed circumstances → as long as a child is born during his / her parents’marriage → legitimate → WILL NOT become illegitimate despite his / her parents’ marriage is subsequently rescinded 3.2 Formal requirements (art.982) → comparing with old version (open ceremony, two witnesses, no compulsory registration) 3.2.1 Wedding certificate 3.2.2 Signature of two witnesses on the certificate 3.2.3 Marriage registration with the household authority under the old provisions marriage registration is not required for marriage to be valid, but divorce requires registration → couple wanting a divorce would have to register with their marriage in the first place before they could register their divorce Legal effects of marriage specific relation of rights and obligations established between husband and wife after a valid marriage 4.1 Right to surname → husband and wife keeps their own surname (art 1000) 4.2 Obligation to cohabit (art 1001) → if violated, CANNOT be enforced → only serves as grounds of divorce by judicial decree 4.3 Domicile (art 1002) → determined by mutual agreement or court order (regarding whether one spouse has performed the obligation to cohabit or not) 4.4 Right to represent each other in daily household affairs (art 1003) 53 → husband and wife share the burden of household expenses and are jointly liable for debts regarding household expenses (art 1003-1) 4.5 Mutual obligation to maintain each other (art 1116-1) → an obligation to keep spouse in a living condition as the other is → NOT just to save spouse from poverty 54 UNIT - Law of inheritance Main issue → when one natural person dies, who will inherit the property or assume the debt left by the deceased? deceased → the “person” who ceased being a subject of right and obligation, and whose proprietary relation is to be inherited by his/her heir heir → the person who inherits the proprietary relation (including property and debt) from the deceased according to the civil code Right to inherit → the legal status / qualification of a heir to receive or assume the proprietary relation from the deceased → prior to succession → the right to be a heir in the future (expectative right) → an abstract right to inherit → upon succession → the heir exclusively receives or assumes all proprietary relation from the deceased → substantive right to inherit Commencement of succession/open of succession upon the death of the deceased → once a person dies, he loses the status of a subject of rights and obligations → his proprietary relation must be assumed by other persons (the heirs) → immediately after the death, the proprietary relation (including property/debt) is passed down/assumed by the heir, if any (art 1147) Scope of inheritance all of the proprietary relation of rights and obligations go to the heir → general succession (art 1148.I) exceptions → for the protection of the heirs, if the proprietary relation consists of more debts than properties, the heir is entitled to limited inheritance (art.1148.II) or to waive inheritance Legitimate heir 4.1 spouse (art 1144, 1138) 4.2 lineal descendants by blood (art 1139) 4.3 parents 55 4.4 siblings 4.5 grandparents Entitled portion where there are more than one heir to the deceased, the portion each hair is entitled to inherit either by specific arrangement in the will by the deceased, or without such arrangement the entitled portion provided by the Civil Code → either way each hair will have a mandatory portion that is required by law as a minimum portion that cannot be deprived by the deceased 5.1 Assigned entitled portion → freely disposed by the deceased subject to the preservation of the minimum mandatory portion (art 1187) 5.2 Entitled portion by law → if no specific arrangement is made → art 1141, 1144 → spouse with specific portion while other heirs with equally shared portion 5.2.1 succession by spouse and lineal descendants → equally divided among the heirs 5.2.2 succession by spouse and parents → 1/2 goes to spouse, the other 1/2 shared equally by parents 5.2.3 succession by spouse and siblings → 1/2 goes to spouse, the other 1/2 shared equally by siblings 5.2.4 succession by spouse and grandparents → 2/3/ goes to spouse, the other 1/3 shared equally by grandparents Compulsory portion minimum portion a heir can inherit from the deceased → to ensure the equality among the heirs a balance between the protection of the heirs’ right to inherit and the right to dispose one’s property freely according to art 1223 6.1 a spouse → 1/2 of his/her entitled portion as mandatory portion 6.2 a lineal descendant by blood → 1/2 of his/her entitled portion 6.3 parents → 1/2 of their entitled portion 6.4 siblings → 1/3 of their entitled portion 56 6.5 grandparents → 1/3 of their entitled portion Forfeiture of right to inherit if certain wrongful acts are committed by a heir towards the deceased or other heirs, or regarding the will concerning succession → that heir’s right to inherit may be forfeited as a punishment grounds of forfeiture of right to inherit (art 1145) 7.1 death of the deceased or other heir intended or caused by a heir who is therefore sentenced with criminal penalty 7.2 the deceased is under duress or fraud by a heir and is forced to make/revoke/alter a will 7.3 the deceased is under duress or fraud by a heir and is prevented to make/revoke/alter a will 7.4 forgery/alteration/ concealment of a will by a heir 7.5 deceased is seriously insulted or abused by a heir and that heir has been forbidden to inherit by the deceased ● the grounds in 7.2-7.4 may be pardoned if the deceased subsequently forgives the offending heir → right to inherit NOT deprived Limited inheritance (art 1148.II, 1159, art.1162-1) → within three month after the death of the deceased → approval by court 8.1 limited inheritance filed by one heir covers all heirs 8.2 limited liability by all heirs regarding the debt left by the deceased in the scope of the properties inheritance by the heirs Waiver of inheritance (art 1174) as a right to inherit, a heir can surely gives up such right by waiver of inheritance a heir wishing to waive inheritance → file a motion in the court within month of succession (either when the heir acknowledges the death of the deceased or all the superior heirs have waived inheritance) → notify in writing all the heir in next order ● legal effects (art 1176) 57 9.1 the entitled portion of a heir waiving inheritance goes to other heirs 9.2 if all lineal descendants of first degree waive inheritance, their entitled portions go to the lineal descendants of second degree 9.3 if all heirs in a specific order waive inheritance, their entitled portions go to the heirs of next order 9.4 if all hairs including spouse waive inheritance, rules of unacknowledged succession apply → administrator appointed → all debts cleared → remainder goes to the state treasury (art 1177-1185) 58 ... parties → Tom became the creditor to Jack, Jack became the debtor to Tom → Tom has the right to ask Jack to repay the money → Jack has the obligation to repay the money to Tom Categories of rights... as to “with or without title to dispose” ex: A enters into a contract with B to sell C’s car to B → by such a juridical act to sell”, A as the seller only creates an obligation on himself to. .. October but only read the letter and actually understood Mike’s intent of borrowing money on 12th October, 18 → Mike’s expression of intent to borrow money from John came into force on 3rd October