Are valid acts of disposition of a verbal president?

Mandamiento verbal

 

Acts of disposal made by a "verbal president" need a specific power provision for the subject and object, or lack thereof subsequent ratification is required

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For acts of disposal performed by a "verbal president" are valid, there must be a specific power available from the subject and object. In the absence of this power, subsequent ratification will be necessary, express or implied.

The Supreme Court of 3 July 2019, Res. 388/2019 He solved the dispute over the effectiveness of the agreement termination of a contract for property purchase in private document stated who act as "verbal president". The agreement was not ratified and therefore subsequently, not valid.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

The 17 May 2007 Saycon buildings S.L. (onwards, SAYCON) He signed with the company Terra e Mare Managements Active S.L. (onwards,TERRA) a contract of sale housing.

Saycon buildings S.L., It was declared voluntary bankruptcy (hereinafter Saycon).

The 15 November 2013 Saycon filed suit against TERRA. He requested that the signed contract was fulfilled and the defendant be ordered to grant deed of sale Property.

The plaintiff argued that the defendant, since 23 December 2008, had the final work certificate and license of occupation, so it came, under contract, payment of the remainder of the outstanding price and the execution of the deed. He claimed that he had required the buyer several times without getting positive response.

The defendant objected TERRA. He alleged that, Property also cited, He had also bought another. And, both contracts were settled by mutual agreement the 10 December 2009.

Also, formulated counterclaim. He argued that expectations of sales contracts were frustrated by economic circumstances supervening. And, therefore they resolved the two contracts mutual agreement. He requested that Saycon will reinstate the amount paid as prepayments prices of the two contracts settled, totaling 24.200 euros.

Primera Instancia

The 13 October 2015 the Court of First Instance No. 3 in Seville gave judgment upholding in full the demand made by Saycon. He sentenced the defendant to grant the requested writing and to pay the outstanding housing prices.

He dismissed as inadmissible the counterclaim by the defendant, to be the plaintiff in insolvency proceedings (art. 50 LC).

Both the purchase document and in the resolution, He intervened as "verbal president" of selling the same person (D. Horacio). So, consisted partial payment made by the buyer, but there was no record of returning such amounts to the seller. Therefore, the court understood that It could not be considered effective termination of the contract of sale.

Provincial Court

The defendant filed an appeal asking for his acquittal.

The 2 June 2016 section 8 of the Provincial Court of Seville gave judgment upholding the appeal filed and the resolution revoking instance. It acquitted the defendant of all pedimentos.

The statement concluded that "If the plaintiff assumes valid and asserts itself as a private document signed by a certain "verbal president" in its name, it can not detract from another private document signed on its behalf by the same "verbal president".

Supreme Court

The actriss, SAYCON, He lodged an appeal based on the infringement of art. 1713 CC. So good, in its development also he cited arts. 1710 and 1727 the same law.

It reasoned that, in the absence of a power referred to acts of arrangement in which the subject is not specified and the object, subsequent ratification was necessary, express or implied (art. 1710, 1713 and 1727 CC). And, in the case, such ratification was not given.

He added that he knew that the builder knew the document resolution, nor that he had forced posted at this. Not to undertake acts of ratification.

Demand opposed the application. He alleged that the purchase agreement contained in its sixth form provision for termination of the contract itself. So the performance of "verbal president" to settle the purchase was exercise of a right / obligation provided for in the contract. He alleged that the "verbal president" if he was able to sell, it was also to terminate the contract. And, to deny, the applicant was against their own acts.

The 3 July 2019, the Supreme Court ruled on the dispute in its judgment number 388/2019.

The Chamber considered the arguments of the judgment was not correct. was not discussed in the proceedings the admissibility of a verbal command to perform acts of ownership. This is because the need to express mandate for acts that went beyond management (art. 1713 CC), It did not exclude that this could be word (art. 1710 CC).

What if it was Litis object was to determine under what conditions was linked to the third party in whose name appeared on "verbal president". Y "if not comprise the representative powers conferred on the verbal president, it will require ratification by the principal of what was done by the president with the third " (art. 1259 and 1727 CC).

So, the "verbal president" held in 2007 the purchase agreement on behalf of the seller. After, the latter accepted payments from the buyer to realize the price. Later, in 2009, the same "verbal president" signed on behalf of the seller, a document by accepting the will of the buyer to "give up the acquisition". In the same agreed, character "transactional", the repayment of amounts paid on account; what has not taken place.

Acceptance by the seller of the amounts paid by the buyer He behaved will be bound by the sale. But in no way implied the attribution to "verbal president" of the power to terminate the contract. So, “acceptance by the seller of payments does not constitute sale a fact involving the will be linked to any subsequent actions of the president, with any object and extension.

Thus, the performance of "verbal president" to accept the "resignation" of the buyer must be ratified by the seller.

In case there was no express ratification or acts of selling which proves its willingness to ratify. No knew that Saycon TERRA reinstate the amounts that this account had paid housing prices. And, On the contrary, consisted insistent requirements for compliance.

Hall denied that the sixth clause of the sales contract rescission authority granted to "verbal president". Clause picked up the rights of the purchaser in the event of termination for breach of the obligation to deliver by the seller. So the clause was totally alien to reason that the buyer declared its willingness to give up buying. That will respond to the frustration of the economic expectations of the contract.

Therefore the room agreed estimate the appeal against the judgment under appeal. He upheld the judgment of the court of instance that upheld the claim in full.

Conclusion

Acts of disposal made by a "verbal president" without a power to specify the subject and object, needed a subsequent ratification, express or implied, for validity.

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