- January 22, 2016
- Sara Benjelali
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In our law the privativity confession is regulated and although not usually used by lawyers – except a few who practice mainly family law – the same density and contains a very important practical application, especially for its effectiveness among spouses and in relation to the heirs of the confessional, as well as creditors of the community or of each of the spouses. Besides regulating this confession it is closely related to the mortgage law.
Since it is a very complex issue, I try to summarize and make a small sketch of the concept and implications. The confession of privatividad, as its name suggests, is a confession about something, ie it is a statement of knowledge that helps us in a process of liquidation of the matrimonial property as an act by which one spouse supports so not clear that a good part of the community property, but is exclusive of the other spouse, but this statement alone does not serve as evidence for rebuttal of what has been said. That is, the force of confession that gives the law, which allows him to exist as a strong and efficient test to be destroyed precise unnerving proof as would be the error in its delivery, fraud, deceit or lack of ability of card issuer, in which case it would lack proper consent
We will not go in this article, to consider whether the mere confession of privatividad with interconyugal efficiency, it is enough to convey the property, because in my opinion it would not be possible, since the property is acquired by tradition after finalization of certain contracts, and privatividad confession is not a contract, although some authors and some of the case law would not agree with my position, doing other arguments that are irrelevant at this time.
Picking up the thread of this article, as I have mentioned this confession has privatividad interconyugal efficiency, but at the beginning I told you that may affect creditors and heirs of the confessional, and this is because although the law provides that such Confession must not harm them, and therefore the confession is insufficient in relation to those heirs and creditors, having to prove by other means of proof (besides the confession) that it is not exclusive to the confessional spouse. Can you imagine the problems that can arise in relation to fraud of creditors? – For there to be fraud and to exercise the creditor must prove action Pauliana the debtor’s intent to make fraud very difficult thing to prove -; by reducing the assets left … they could reduce legitimate ?, because the separate property of the surviving spouse should not be counted in the deceased estate. The Court does not maintain a unified when establishing the limits of the rule criteria, though I hope I have explained in a simple way the implications of this legal concept.