COURT: CIVIL National Chamber in full, June 11, 1912.
FACTS: (Summary as described under the heading elements that motivated IF in volume which was published judicial decision.)
José Escary, for himself and his wife sued Tancredo DEED PIETRANERA, regarding the estate of the Bulnes 1815, Buenos Aires. Mediated authorization holders to sell, resulting PIETRANERA Tancredo buyer, and the actors also had the title to the clerk designated by the purchaser.
The buyer refused to notarize saying that it was not perfect the title. The plaintiff consulted with lawyers and clerks, all consultants stating that the title was perfect, so start the application.
It was a title in their history had a grant, which was that the donor had a daughter who may have been impaired by legitimate.
the specific issue raised in these present is whether the heirs can exercise or not the action for restitution against the third party purchasers of the property covered by a donation.
DOCTRINE OF JUDGEMENT:
• The action of reduction of the donation inoficiocidad against the grantee agrees that it is not heir apparent.
• The action claiming the rightful heir to compete against third-party purchasers of property covered by a grant inofficious subject to reduction to understand part of the legitimate heir.
• The collation is to maintain equal portions among legitimate heirs.
• Judges can not judge the intrinsic merit of law in which there can be no contradictions.
JUDICIAL DECISION: (Compendium of the arguments used by judges in their votes.)
First Vote. GIMENEZ Vocal Zapiola (vote for yes): "... It is doubtful to me that, since the collation between heirs, such action claiming there and can not therefore be brought against third party purchasers of donated goods." Second
vote. Vocal Zapiola (also by the affirmative vote): "... Ancestors and descendants must bring the estate" values \u200b\u200b"given in life by the deceased and not the things themselves (note Encoder art. 3477 CC), because
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donation was an agreement that transferred ownership of the donee and the things he could dispose of them freely. It follows that the heir has only a personal action against his heir required to read back the value of goods received from the deceased. " Third
vote. Vocal HELGUERA (vote for the refusal): In his speech mainly emphasizes on the proper interpretation and scope should be given to art. CC 3955 alludes to the note of the art encoder. CC 3977 to support that therefore, "(...) the donation in the property transferred to the donee, is a final and irrevocable fact (...)." Fourth
vote. PICO Vocal: Adhere to the votes of the judges and Zapiola Zapiola Jiménez. Fifth
vote. Juarez Celman Vocal: Adhere to the vote of Judge Helguera. Sixth
vote. Vocal de la Torre (vote in the affirmative.) Explain the distinction between Articles 3477 and 3955 CC "The collation on legislating the first (...) is an institution that does not create rights but relations between the heirs (Art. 3468 CC). It is agreed, purely, the heir to his heir. (...) It explains that this institution has nothing to do and it is strange at all to any idea or concept of self-injury and reduction, as occurs in any case grant to heirs (...). "
seventh vote. Vocal WILLIAMS: Judge adheres to vote Helguera. Eighth
vote. Vocal BASUALDO: Judge agrees with the conclusions of the Tower, rather than referring to Art 1425 CC advance to justify the defendant's resistance to signing the deed of sale in their favor. Ninth
vote. Vocal ARANA: Judge adheres to vote Helguera.
SOURCE: JA, Year III, No. 31. Page3
• AUTOS: APECECHE, RODOLFO C. c. VIOLA NAVARRO, MARY C. and a "
FACTS Apeceche
demand Rodolfo Maria del C. Navarro Viola, Sara Navarro Marta Navarro Viola and Viola by payment of a sum of money, bending amount the signal that paid to the latter to sign, as buyer, the bill of sale of property, which granted him the title perfectly. The property belongs to the sellers, in its fourth undivided part, by donations received from her mother. The actor believes that it would weigh about the threat of action that I could try another heir of the donor, under arts. 3955 and 1425 CC
The defendants rebukes the actor for deed or, where appropriate, for loss of signal with costs. Actor acquiesces to the counterclaim for deed for the case that the court should act by the perfection of the title.
DOCTRINE:
• Collation is a purely personal action which is intended merely to oblige the heir to incorporate the mass estate values \u200b\u200bhas been in life of the deceased in order to establish their true amount, if not enough to give them to the plaintiff the amount of hereditary portion, a credit will arise for the injured against the heirs, but no real action against third party purchasers of property subject to collation.
FAILURE 1 ª. INSTANCE: 27/4/1953
, Judge Dr. Ignacio B. Anzoategui.
result in action yesterday. Velez believes that while talking about values \u200b\u200bin art. 3477 CC and his note at the contradiction that is with the provisions of the real action planned by art. CC 3955, another action that would be the intended heir to the latest standard. In addition, the judge considers it applicable to the case in art. CC 3528, so the title linked to your donation is imperfect.
2 ª INSTANCE FAILURE:
CNCiv., Room A, 23/9/1954. VOTE
Dr. Manuel ARAUZ CASTEX (which adheres Dr. Rafael E. Ruzo): Take the doctrine of plenary Escary c. Pietranera, and argues that, in this case, the solution should be reversed because the case of shares among heirs should apply the principles of the collation, which is purely personal action, which seeks only to oblige the heir to "collate" that is, to incorporate the mass estate "values" has been in life of the deceased in order to establish its true
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amount. If the payment for goods enough to give them to the plaintiff the amount of their hereditary portion, all consist of a simple accounting operation. If they do not come a damaged credit, against the heirs, but no real action against third party purchasers. Citing
Fornieles says things are donated to an heir would be irrevocably his property and only considered the value of them on account of partition.
concludes by considering the action for restitution against third party purchasers in good faith and for consideration, and rather dubious interpretation of the Code by the latter part of the art. CC-2778 is all but intolerable in the eyes of a modern lawyer.
If already in 1912-in time to miss the full House, "stated unanimously that no claim against the heir successor donee and doubted whether he had against the estate of the donee strange, one can say that if this doctrine would vary to deny the real action against one another, rather than incur the kick awarded against them.
therefore considers that the title of the defendants is perfect and there is no reason to object to hold the agreed contract of sale.
SOURCE: LL No. 77, p. 382. Page5
• AUTOS: Llarina, Paul A. c / Millan, Jorge A.
COURT: Room D of the National Civil Appeals, composed of Drs. Domingo Mercante, Carmen N. And Eduardo M. Ubiedo Alvarez Martínez, 16 June 2005.
FACTS
The purchaser of a property, Paul A. Llarina, filed an action in order to declare the purchase agreement entered into in respect of a property that was previously acquired through a donation "to others", saying the operation was performed on the basis of an inchoate title.
The trial judge rejected the demand. D
The Board of the National Chamber of Civil Appeals, in this city, said the operation settled and ordered the defendant Miller to return the amount received on account of price as much in compensation.
DOCTRINE
• In any donation to third parties is implied "conditions precedent whereby it inofficious to the donor's death."
• Art. 3955 identifies with the term "industrial action" that is for the Crown against third-party purchasers of properties included in a grant reduction liable to affect the legitimate. As So the reduction is made in kind and not values, the reduction action dissolves the domain transmitted by the donor, in whole or to the extent necessary to save the legitimate. It
FAILURE
declare the purchase agreement due exclusive seller if he hid the fact that the property was previously acquired on the basis of a donation "to others" and had not yet prescribed the industrial action at the head of potential donor's heirs, namely that the operation was conducted on the basis of an inchoate title, as the attitude of the defendant to hold the bill of sale violated the principle of good faith enshrined in art. 1198 of the Civil Code.
when purchasing a property of a person who holds a diploma issued by a donation is exposed to the claim, should have affected the legitimate heirs, so by applying the provisions of Article 2670 Civil Code.
SOURCE: LL 2006-B, p. 673. Page6
• AUTOS: Vogelius, Angelina and other c / Vogelius, Federico and another.
COURT: Room F of the Civil Chamber of the City with Dr. Zannoni first vote in the same direction and the maids Posse Saguier and Galmarini, dated November 3, 2005.
FACTS: Died
Mr. Vogelius, 2 of their children require an additional 2 children out of wedlock (half-brothers of the applicants) with whom the deceased lived in Britain, who received 3 estate there, free of charge, from a trust that would give the Sr.Vogelius Living as trustee.
The buildings were given to 2 people (trustees), who transferred the ownership of the property to the defendants after the death of the settlor, which was entered in the respective registry.
DOCTRINE:
• The Court considers that the legal business testamentary trust as indirect, through which the settlor has wanted to avoid the effects of the donation to achieve the purpose that the law condemns, or reveal the purpose of benefiting one or more free to heirs, the trust assets by subtracting the acquis succession.
FAULT:
Resolved that reason attending the appellants, and condemns the heirs defendants 2:
read back the estate of the deceased, the value of the properties that were transferred in their favor as a result of the trust,
and, where appropriate, if the value of such property, computed to the date of opening of the succession (art. 3477, 2 nd paragraph and 3602, CC) exceeds the value collation affect the legitimate portion of the plaintiffs, reintegrate VALUES sufficient to equate his gut.
The ruling does not pose any real action for restitution (mentioned "values" rather than goods), or affects the interests of third party purchasers, as they consist solely of shares of collation and reduction under our legislation.
SOURCE: LL 2006-A, p. 374, and LL 2006-B, p. 469. Page7
• AUTOS: YEBRA, Patricia E. c / GASPARINI ROCK, Marta E. and other s / reduction action
COURT: Room H of the National Civil Chamber of the court, composed of judges Marcelo J. Achával, Elsa H. Gatzke Reinoso de Gauna and Claudio M. Kiper, dated May 12, 1998.
FACTS Patricia R.
Yebra, granddaughter of Carlos Gasparini (d. 1991), filed the collation and reduction in the file titled "Yebra, Patricia E. c / Gasparini, Maria Teresa Fiorina and other s / collation" against her aunts and daughters of deceased, Mary and Martha E. Gasparini FT Gasparini, because it was causing them in the life of donees of various buildings at the expense of their legitimate share, given what it was for her mother (daughter of the first and second sister), also died.
The lower court found that the first trial was unfair reduction action (because they are heirs) and also for being one of the requirements of the existence of a will. Concluded that the incorporation of third parties to the litigation was inappropriate.
however, upheld the demand for snack, and ordered the co-defendants referred to the sequence read back "the values \u200b\u200bof the real estate of the deceased received in life, by way of gift with reservation of usufruct."
Marta Gasparini Rock had sent the domain of property donated to Dominga Duarte of Churches in 1992, for a price less than 50% of the real value of a place.
Given then that the property donated to Marta Gasparini, and should be collated , were not in his possession at the time of executing the sentence collation, Patricia Yebra began reducing action against his mother Martha and Mrs. Dominga Duarte of Churches, in order to resolve such transmissions and property be restored to the succession.
FIRST INSTANCE:
In the first instance dismissed the action against Marta GASPARINI reduction of ROCK and Dominga IGLESIAS Duarte. The plaintiff appealed, expressing the grievances under which the Board acts H.
It is worthwhile noting that in the case of first instance had been established that Ms. Gasparini and his family lived in one of the properties sold to DUARTE, and that she became unruly in the trial.
Page8 SECOND INSTANCE: preopinante Judge Kiper
consideration, first, the failure of a quo that had become final, rendered in the case "Yebra, Patricia E. c / Gasparini, Maria Teresa Fiorina and other s / collation, which had rejected the demand of reduction against E. Marta Gasparini, and was sentenced to collate and whereas, under this ruling, in this instance the action of ROCK GASPARINI could not succeed, the question was already res judicata. Review this decision, among other consequences, could mean a legal scandal.
However, this did not affect the validity of action against third parties (Duarte) (arts. 3955 and 585 CC). Judge Kiper
understand that Marta GASPARINI heir of the deceased was in life, by gift, property whose value exceeded the available portion further what might have received as an improvement. It also exceeds the value of the donations it received for its share of self, all of which made the excess would be subject to reduction.
Now, since the donated two properties, whose values \u200b\u200bare different, means the House to judge the return of one of them equally would be enough to reconstruct the situation of the three heirs and, in particular the plaintiff's legitimate therefore, in principle, to that extent should successful action.
now is whether other collections existed at present to determine the provenance of the reduction action against DUARTE?
From the arguments presented by the authors cited (Zannoni, Di Lella) without explanation to the contrary by others (Lafaille, Maffia, Fornieles) admits the reduction action against a third party who acquired the donated property, considering that it is " (...) equally sufficient to reconstruct the situation of the three heirs, and in particular the legitimacy of the plaintiff (...). "
the judge agrees with the doctrine that displays in the event of ownership transfer on a grant basis, a case of Domain revocable (art. 2663 y art. 2661 C.C.). Toda donación está sometida a la condición tácita de no ser inoficiosa (art. 1831 C.C.). Se trata de supuestos en los que el dominio se transmite en forma temporaria, pues al acaecer el evento resolutorio la cosa debe retornar al primitivo enajenante. En el caso, la condición resolutoria es implícita.
Al producirse el evento resolutorio se aplica el art. 2670 C.C., del que emerge una suerte de acción real si la cosa pasó a manos de terceros. Sería un supuesto de aplicación del principio del nemo plus iuris (arts. 3270 y 3278 C.C.): la resolución opera con efecto retroactivo incluso respecto de terceros, quienes difícilmente puedan justificar su buena fe, como Velez noted in the footnote to Art. CC 2663
Those events made available by the owner imperfect have no effect and should not be respected.
here is a case of invalidity, but no resolution, a fact which requires to consider whether it applies to art. 1051 of the Civil Code.
In fact, each situation must be considered whether the third party knew or could have known, acting with diligence, the facts justifying the merits of the resolution
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donation. In this case, it is for the third party (Duarte) is in good faith that it might be safe from the consequences of the decision (art. 2670 CC).
In such hypothesis, the plaintiff has shown bad faith in the co-defendant, by testing emerging judicial finding that was verified that the family of Marta GASPARINI allegedly lived in the property sold to DUARTE, plus be a presumption against Duarte have incurred in rebellion for incomparencia in the process, etc.
The third party purchaser of the property should always be noted that any donation is subject to the implied condition to be valid if it does not affect the legitimate portion of the heirs apparent (Di Lella). And as one who seeks to resist a claim must prove his good faith, given the nature of exceptions to the principle laid down in Art. 3270 CC which makes their assessment more restrictive, given that their diligence involves the study of titles, this third party, in particular, should prove that after a proper study of the history of the law passed, he failed to notice that violate the legitimate the plaintiff, all of which is not credited with that record.
Adding to the above that the error of law is not excusable, and the third could not ignore the existence of the donation, and knew, therefore, the risks they were exposed.
In the present case, however, there were indications that, by contrast, could be assuming bad faith subadquirente.
Thus, acquisition Duarte de Iglesias is unenforceable to the plaintiff and corresponds to accede to the lawsuit to terminate the contract.
SOURCE: www.eldial.com
CONCLUSION:
The factual circumstances related in the ruling shows the existence of clear evidence of a simulated domain transfer to the defendant GASPARINI DUARTE (for a very low price, without tradition, etc.). , which was not alleged by the plaintiff timely and effective that would have allowed the conviction to collation against the heir. This obstó
treatment of the subject by the House, and forced her to force the interpretation of the rules relating to the reduction, granting replevin action against Duarte co-defendant, even against the doctrine of plenary sitting on Escary c. Pietranera. Atento
the very special circumstances a decision was reached just physically, but that violated the current plenary interpretation on the donation to heirs
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