Expiry, Comoriencia, and Legal Capacity: Key Concepts
Unit 7: Expiry and Prescription
Expiry: Concept and Differences with Prescription:
Concept: Expiry refers to the extinction of a right due to its lack of exercise over a predetermined, uninterrupted time period. It typically occurs during a procedural step. Expiry is an institution of procedural law and civil law.
Differences: Settled Supreme Court jurisprudence dictates:
- Limitation periods are not susceptible to any interruption or suspension, operating strictly in terms of time.
- Limitation periods are usually very brief; in some cases, the requirement can be limited to short periods.
- Expiry can be officially declared. The basis for revocation is in the public interest, ensuring certain rights are exercised within a predetermined time.
Item 8: Comoriencia
Comoriencia: This refers to a situation in which two or more persons who have reciprocal inheritance rights die simultaneously (e.g., a fatal accident involving parents and children). Traditionally, pending approval of the DC, several assumptions were made:
- Between husband and wife, both were considered dead.
- Between parents and children, if the children were older than fourteen, the parents were presumed deceased; otherwise, the opposite was assumed.
The CC introduces a different rule: Unless proven otherwise, simultaneous death is determined, and no transfer of rights occurs between them. This applies whenever there is simultaneous death, even if the cause and place are different. It applies not only to heirs comorientes each other but in any case in which the survival of any of them involves the acquisition of a power or right held by the other, or both.
Capability and Ability to Act Legally
Capability and Ability to Become Legal: At birth, a person becomes part of society as a subject of rights and obligations. However, a newborn may not be able to exercise these rights and obligations. Therefore, there is a difference between:
- Legal Capacity: Having the capacity or ability to be the holder of rights and obligations.
- Ability to Act: The possibility, ability, or fitness of a person to exercise or implement those rights and obligations.
Legal capacity is either present or absent, without qualification. In contrast, the ability to act allows for gradations and subdivisions.
From a practical standpoint, the ability to act is crucial because it determines whether a subject can perform any act with legal effect.
Birth and Time Requirements
The Birth and Requirements Time: The acquisition of personality by humans takes place at birth. For this to occur, the CC only imposes two requirements:
- Containing human figure.
- Live 24 hours completely removed from the mother.
Personality is acquired from the moment of birth, but for legal effects, the baby should live 24 hours from the womb.
Protection of the Unborn
The Intended Protection: Since Roman times, the legal status of the unborn has been considered, giving it special protection. Currently, provisions are intended to “reserve” certain benefits or positive effects. In the Spanish Civil Code, the basic rule is represented by the second part of Article 29, which states: < article > effectively as seen in the art.30. Although personality is acquired only through regular birth.
Item 9: The Alias
The Alias: Refers to the pseudo prefix meaning false, that is, different from the true with the intention of maintaining personal identity or to seek to identify more striking. The use of a pseudonym is permissible, provided they are not intended to supplant or exclude the name in official or administrative acts.
Moral Damage
The Moral Damage: For a long time, it was considered that moral damage could have economic consequences, being the rights of extra-kind personality. But that syllogism for almost a century that was destroyed by the Supreme Court (Case 06/12/1912), indicating that although the injury of those rights is reduced to a moral harm, this will be compensated for their cause.