Understanding Legal Principles: Prohibitions, Imperatives, and Permissions
Prohibition, Imperative, and Permissive Laws
Prohibition Laws
These laws prevent the execution of a fact or conclusion of an act under all circumstances. For example, Articles 402 and 1796 of the Civil Code (CC).
Penalty for Violation
- Fact: If a prohibited fact is in question, the law itself provides the penalty. If the law is silent, there is no penalty.
- Legal Acts: First, consult the law for the penalty. This should be complemented with Art. 10 CC: “Acts prohibited by law are void and of no value, except as expressly designated another effect that the declaration of invalidity for any offense.” Art. 1466 states that no illegal purpose is allowed in any contract prohibited by law.
Imperative Laws
These laws contain a specific order to observe positive behavior, impose a duty to do something, meet certain solemnities in the celebration of a legal act, or meet certain requirements.
Penalty for Violation
- First, determine if the law itself provides a penalty. If not, the nature of the mandatory law determines the penalty (e.g., Art. 1682).
Permissive Laws
These laws grant permission to do or not do something. Other subjects must tolerate the person benefiting from the permission. For example, ambulances are permitted to go through red lights. A key principle in Private Law is: “You can do everything that the law does not prohibit.”
Penalty for Violation
Permissive laws have a designated sanction. Refer to the specific law for details. Punishment is for the taxpayer who is not allowed lax law enforcement.
Legal Concepts
- Real Law:
- What we have on one thing without regard to any particular person.
- Easement:
- A levy imposed on an estate in income from another property owner.
- Testament:
- A solemn act where a person disposes of all or part of their property, effective after death, retaining the power to revoke while alive.
- Ownership:
- To hold something in a spirit of lord or owner, whether the owner or given by such a thing has in itself or by another person who has in place and his name.
- Limitations:
- A way to acquire foreign things, or extinguish the shares or rights of others, for having possessed or things have not carried out those actions and rights for a certain period of time, and attending other legal requirements.
Retroactive Laws and Property Rights
Can laws with retrospective effect be made affecting rights in a contract? No. Two areas are exempt from retroactive laws: criminal law and property rights. Art. 19 No. 24 of the Constitution guarantees the right of ownership in its various forms. No one can be deprived of property unless through takings law. This establishes the principle against retroactive laws in this area. Since property rights include intangible things (Articles 565, 576, and 582), retroactive legislation cannot affect contractual rights.
Disposing of Missing Goods During Temporary Possession
According to Art. 88 CC, disposing of missing goods during temporary possession depends on whether the property is movable or immovable.
Movable Property
- Judge’s approval
- Absent advocate
- Sale by auction
Immovable Property
- Necessary or obvious usefulness declared by the judge
- Hearing with absent advocate
- Sale by auction
Proof in Civil Cases
Art. 1698 CC, in conjunction with Art. 341 of the Code of Civil Procedure, states that custom can be proven by any evidence established by law, including instruments, witnesses, confessions, assumptions, expert reports, and court personnel inspection.
Conventional Home
To avoid costs and inconvenience, parties to a contract can establish a conventional home (Art. 69). Mutual acceptance is essential. The mere statement of an address in a contract is not sufficient. Both parties must be capable of contracting. The address must be specific. It can be designated in the contract or a subsequent act. It can be a territorial section or a particular address. Sometimes the real home is chosen. This address remains conventional even after becoming real or if a party dies. (A doctrine suggests using the real home when demanding contract annulment, as claiming under a contract while seeking to cancel it is contradictory. However, this is criticized because the contract is only vacated by court order.) The conventional home can be annulled under Art. 12 CC.
Jurisdiction
Conventional home extends jurisdiction to the court of the chosen address. A court not competent under the contract cannot hear the case.
Effects
Unless otherwise agreed, the conventional home applies to judicial or extrajudicial acts arising from the contract (Art. 69). This includes jurisdiction clauses. The chosen court understands all matters related to the contract. If no specific house is designated, the subpoena or summons can be served at the conventional address using general media (CPC) or the real address to avoid helplessness. Most authors believe nullity actions should be brought before the court of domicile to avoid contradiction. A minority view suggests the conventional home is appropriate as the contract is presumed valid until declared otherwise. However, if the conventional home is solely in the applicant’s interest, the defendant can be summoned at the real address. Conventional home effects are suspended for universal judgments (e.g., probate, bankruptcy).
Duration
Conventional home lasts for the duration of the contract. It passes to heirs upon death. It cannot be changed unilaterally unless chosen solely for one party’s interest. Changes require mutual consent.
Resignation
If chosen for both parties’ benefit, neither can unilaterally change the conventional home. If chosen for one party’s benefit, that party can waive it. For example, a creditor can sue the debtor at their ordinary address instead of the conventional one.