Text consolidated by Valsts valodas centrs (State
Language Centre) with amending laws of:
7 July 1992 [shall come
into force on 1 September 1992];
22 December 1992 [shall come into force on 1 March
1993];
15 June 1994 [shall come into force on 14 July
1994];
24 April 1997 [shall come into force on 21 May
1997];
16 October 1997 [shall come into force on 14 November
1997];
14 May 1998 [shall come into force on 10 June
1998];
11 June 1998 [shall come into force on 4 July
1998];
17 September 1998 [shall come into force on 13 October
1998]
12 December 2002 [shall come into force on 1 January
2003];
11 October 2004 (Constitutional Court Judgment) [shall
come into force on 12 October 2004];
10 March 2005 [shall come into force on 7 April
2005];
26 January 2006 [shall come into force on 1 March
2006];
22 June 2006 [shall come into force on 1 January
2007];
22 February 2007 [shall come into force on 22 March
2007];
4 June 2009 [shall come into force on 1 July 2009];
28 October 2010 [shall come into force on 1 February
2011];
27 December 2010 (Constitutional Court Judgment) [shall
come into force on 30 December 2010];
29 November 2012 [shall come into force on 1 January
2013];
17 January 2013 [shall come into force on 31 January
2013];
23 May 2013 [shall come into force on 26 June
2013];
20 June 2013 [shall come into force on 1 January
2014];
19 September 2013 [shall come into force on 1 January
2014];
8 May 2014 [shall come into force on 1 July 2014];
5 March 2015 [shall come into force on 1 January
2017];
29 October 2015 [shall come into force on 3 December
2015];
5 December 2019 (Constitutional Court Judgment) [shall
come into force on 6 December 2019];
16 September 2021 [shall come into force on 11 October
2021];
4 November 2021 [shall come into force on 8 November
2021];
3 February 2022 [shall come into force on 1 May
2022];
2 June 2022 [shall come into force on 29 June
2022];
13 October 2022 [shall come into force on 1 January
2023];
7 September 2023 [shall come into force on 10 October
2023].
If a whole or part of a section has been amended, the
date of the amending law appears in square brackets at
the end of the section. If a whole section, paragraph or
clause has been deleted, the date of the deletion appears
in square brackets beside the deleted section, paragraph
or clause.
|
The Supreme Council of the Republic of Latvia
has adopted a law:
CIVIL LAW
Introduction
1. Rights shall be exercised and duties performed in good
faith.
2. This Law is applicable to all legal issues to which its
text or interpretation relates.
Rights based on custom may neither set aside nor vary law.
Rights based on custom are applicable in the cases specified by
law.
3. Every civil legal relation shall be adjudged in accordance
with the laws, which are in force at the time when such legal
relations are created, varied or terminated. Previously acquired
rights shall not be affected.
4. The provisions of this Law shall be interpreted firstly in
accordance with their direct meaning; where necessary, they may
also be interpreted in accordance with the structure, basis and
purposes of this Law; and, finally, they may also be interpreted
through analogy.
5. Where a matter is required to be decided in the discretion
of a court or on the basis of good cause, the judge shall decide
the matter in accordance with a sense of justice and the general
principles of law.
6. The general provisions regarding obligation rights are
applicable mutatis mutandis to family, inheritance and property
legal relations.
7. Place of residence (domicile) is that place where a person
is voluntarily dwelling with the express or implied intent to
permanently live or work there.
A person may also have more than one place of residence.
Temporary residence does not create the legal consequences of
a place of residence and shall be adjudged not on the basis of
duration, but in accordance with intent.
8. The legal capacity and capacity to act of natural persons
shall be determined in accordance with the law of their place of
residence. If a person has a number of places of residence and
one of them is in Latvia, then such person's legal capacity and
capacity to act, as well as the consequences of his or her legal
acts shall be adjudged in accordance with Latvian law.
Foreign nationals, who do not have capacity to act, but who
could be acknowledged to have such capacity pursuant to Latvian
law, are bound by their legal acts performed in Latvia, if this
is required in the interests of administering justice.
The legal capacity and capacity to act of a legal person shall
be determined in accordance with the law of their place of
registration.
The provisions of the laws of Latvia, which restrict the legal
capacity or capacity to act of foreign nationals in Latvia, are
not affected.
[3 February 2022]
9. Guardianship and trusteeship shall be established in
accordance with Latvian law, if the place of residence of the
persons subject to guardianship or trusteeship is in Latvia. If
the property of such persons is located in Latvia, they, in
respect of such property, shall be subject to Latvian law
notwithstanding that they do not have a place of residence in
Latvia.
The adoption of the other spouse's child shall be approved
according to Latvian Law if the place of residence of the person
to be adopted is in Latvia.
[10 March 2005]
10. Missing persons may be declared presumed dead in
accordance with Latvian law, if their last place of residence was
in Latvia. If the property of such persons is located in Latvia,
they, in respect of such property, shall be subject to Latvian
law notwithstanding that they did not have a place of residence
in Latvia.
11. If a marriage is entered into in Latvia, the right to
marry, the formalities of entering into marriage and the effect
of marriage shall be determined in accordance with Latvian
law.
Similarly, the right of citizens of Latvia to marry in a
foreign state shall be determined in accordance with Latvian law.
In that case, the law of the state, where the marriage is entered
into, shall determine the formalities of entering into
marriage.
12. Divorce and the declaration of a marriage as annulled, if
done in Latvia, shall be adjudged in accordance with Latvian law,
without regard to the nationality of the spouses. In this
respect, an exception may be allowed to the provisions of Section
3, in the sense that the relations of the spouses before they
become subject to Latvian law, may also be adjudged in accordance
with Latvian law.
A divorce or declaration as annulled of a marriage of citizens
of Latvia, done in a foreign state, shall also be recognised in
Latvia, except in a case where the grounds submitted as the basis
therefor do not conform to Latvian law and are in conflict with
the social structure or moral principles of Latvia.
[28 October 2010]
13. Personal and property relations of spouses shall be
determined in accordance with Latvian law, if the place of
residence of the spouses is in Latvia. If property of the spouses
is located in Latvia they, in respect of such property, shall be
subject to Latvian law notwithstanding that they themselves do
not have a place of residence in Latvia.
14. Legal relations which are associated with the paternity of
a child and the dispute thereof shall be adjudged in accordance
with Latvian law, if the place of residence of the mother of the
child at the time of the birth of the child was in Latvia.
Latvian law is also applicable where a dispute regarding the
paternity of a child arises in Latvia.
[12 December 2002]
15. Legal relations between parents and children shall be
subject to Latvian law if the specified place of residence of the
child is Latvia.
In respect of such property as is located in Latvia, parents
and the child are subject to Latvian law also when the specified
place of residence of the child is not in Latvia.
[12 December 2002]
16. Inheritance rights regarding an inheritance located in
Latvia shall be adjudged in accordance with Latvian law.
17. The distribution, in a foreign state, of an inheritance
shall be allowed only after the lawful claims against the
inheritance of persons whose place of residence is in Latvia are
satisfied first.
18. Property rights - including possession - shall be
determined in accordance with the law of the place where the
property is located.
Where there is a change in the location of movable property,
the property rights of third persons acquired pursuant to the
laws of the place where such movable property was previously
located shall not be affected.
The consequences of elapse of prescriptive periods or periods
of limitation, in regard to property rights shall be adjudged in
accordance with the law of the place where the property is
located when the period elapses.
The acquiring, varying or termination of property rights, if
related to immovable property located in Latvia, and obligation
rights arising from legal transactions, on the basis of which
such property rights may be acquired, varied or terminated,
shall, in respect of form and substance, be determined solely in
accordance with Latvian law, regardless of what persons made the
relevant legal transactions and where they made them. Conflicting
provisions and forms as are in such legal transactions are not in
force in Latvia.
19. In respect of obligation rights and duties arising from
contracts, it must first be ascertained whether the contracting
parties have agreed as to what laws their mutual relations shall
be adjudged in accordance with. Such agreement shall be in
effect, insofar as it is not in conflict with mandatory or
prohibitory norms of Latvian law.
If there is no agreement, it shall be presumed that the
contracting parties have made their obligation, in accordance
with its substance and consequences, subject to the laws of the
state where the obligation is to be performed.
If the place where the obligation is to be performed is not
able to be determined, the law of the place where the contract
was entered into is applicable.
Contracts entered into by institutions of the State of Latvia
and local governments of Latvia shall be adjudged, in respect of
their substance and consequences, in accordance with Latvian law,
provided it is not otherwise stipulated in the contract
itself.
20. Obligation not based on contract shall be adjudged, in
respect of its substance and consequences, in accordance with the
law of the place where the basis from which the obligation arose
was created. Obligation arising from wrongful acts shall be
adjudged in accordance with the law of the place where the
wrongful acts took place.
21. Either the law of the place where a legal transaction was
made or the law of the place where it is to be performed may be
applied to the form of a legal transaction.
The provisions of Section 18, Paragraph four shall be complied
with in regard to the form of such transactions as relate to
immovable property in Latvia.
22. Where Latvian law allows the application of the law of a
foreign state, the substance thereof shall be determined in
accordance with the procedures laid down in the laws. If that is
not possible, it shall be presumed that the legal system in the
relevant foreign state in the area of law to be adjudged conforms
to the Latvian legal system in the same area.
[29 October 2015]
23. If pursuant to the provisions of this introduction the law
of a foreign state must be applied, but such law in turn
stipulates that Latvian law is applicable, then Latvian law shall
be applied.
24. The law of a foreign state is not applicable in Latvia if
is in conflict with the social structure or moral principles of
Latvia, or mandatory or prohibitory norms of Latvian law.
25. The provisions of this introduction are applicable insofar
as it is not prescribed otherwise in international agreements and
conventions to which Latvia is a party.
PART ONE
Family Law
Chapter One
Marriage
SUB-CHAPTER 1
Betrothal
26. A betrothal is a mutual promise to join together in
marriage. A betrothal does not give rise to a right to bring
court action to enforce the entering into of a marriage.
A contractual penalty stipulated in the event that someone
refuses to enter into marriage is void.
27. If the betrothal is cancelled or if one of the betrothed
withdraws from it, each of the betrothed shall return all the
property that has been given to him or her as a gift by the
other, his or her parents or another person in connection with
the intended marriage. The right to request the return of gifts
does not devolve to the heirs of the deceased donor, but the
heirs may continue an action brought by the deceased donor.
Gifts need not be returned, if the marriage does not take
place because:
1) the betrothed donor has died;
2) the donor has refused to marry without good cause; or
3) the behaviour of the donor has been good cause for the
other betrothed to refuse to marry.
28. If one of the betrothed refuses to enter into marriage
without good cause or so behaves that such behaviour is good
cause for the other betrothed to repudiate the marriage, the
latter betrothed, his or her parents or persons who have incurred
some expenditure for the benefit of the betrothed, may claim from
the defaulting betrothed compensation for the direct losses
caused to them in connection with the fact that they, in prospect
of the intended marriage, have incurred some expenditure or have
entered into some obligations.
Independently of this, the betrothed himself or herself may
request from the other betrothed who has given cause to cancel
the betrothal, compensation for losses which he or she has
suffered from such actions as pertain to his or her property and
potential earnings and to what he or she has done in connection
with the intended marriage.
The amount of compensation for losses shall be in accordance
with the financial means of the defaulting betrothed.
[12 December 2002]
29. Deleted.
30. Deleted.
31. Actions arising from the betrothal are terminated through
prescription after a period of one year calculated from the day
when the betrothal was cancelled or when a betrothed withdrew
from it, but in the case of a pregnant fiancée, from the day when
the child was born if at such time the betrothal had already been
cancelled or the betrothed had withdrawn from it.
SUB-CHAPTER 2
Entering into Marriage and Termination of Marriage
I. Impediments
to Entering into Marriage
32. Marriage prior to the reaching eighteen years of age is
prohibited except in the case provided for in Section 33.
33. By way of exception, a person who has reached sixteen
years of age may marry with the consent of his or her parents or
guardians if he or she marries a person of age of majority. If
the parents or guardians, without good cause, refuse to give
permission, then permission may be given by an Orphan's and
Custody Court of the place where the parents or appointed
guardians reside.
34. [29 November 2012]
35. Marriage is prohibited between kin in a direct line,
brothers and sisters, and half-brothers and half-sisters (Section
213).
Marriage between persons of the same sex is prohibited.
36. Deleted.
37. Marriage between an adopter and an adoptee is
prohibited.
[29 November 2012]
38. A new marriage for a person who is already married is
prohibited.
Similarly, marriage between a guardian with his or her ward,
before the termination of the relations of guardianship, is
prohibited.
[12 December 2002; 29 November 2012]
39. Deleted.
II. Entering
into marriage
[29 November 2012]
40. [29 November 2012]
41. A marriage shall be entered into not earlier than within a
month and not later than within six months following the
submission of an application and other documents necessary for
entering into a marriage to the General Registry Office, if there
are no objections against entering into the marriage indicated in
Sections 32, 35, 37 and 38 of this Law.
[29 November 2012]
42. [28 October 2010]
43. [28 October 2010]
44. [29 November 2012]
45. In urgent cases the official of the General Registry
Office has the right to reduce the minimum time period referred
to in Section 41 of this Law.
[29 November 2012]
46. [29 November 2012]
47. [29 November 2012]
48. [29 November 2012]
49. [29 November 2012]
50. [29 November 2012]
51. If the persons to be married belong to the Evangelical
Lutheran, Roman Catholic, Orthodox, Old Believers, Methodist,
Baptist, Seventh Day Adventist or believers in Moses (Judaism)
denominations and wish to be married by a minister of their
denomination who has the relevant permission from the leaders of
the denomination, then they shall be married in accordance with
the procedures of the denomination concerned.
[Amendment to the Section in relation to the right to be
married also by such minister of Dievturi denomination who has a
permission from the leaders of the denomination shall come into
force concurrently with a separate law for governing mutual
relations between the State and Dievturi religious organisation
and shall be included in the wording of the Law as of the date of
coming into force of the separate law. See Section 30 of the Law
of 7 September 2023]
52. [29 November 2012]
53. A marriage shall be solemnised by the official of a
General Registry Office or a minister from the denominations set
out in Section 51, if the provisions regarding the entering into
of marriage have been complied with.
[10 March 2005; 29 November 2012]
54. The official of a General Registry Office or a minister
shall not solemnise a marriage if he or she knows of impediments
to the entering into of the marriage.
[10 March 2005; 29 November 2012]
55. [29 November 2012]
56. A marriage shall be solemnised in the personal presence of
the bride and the bridegroom, and two witnesses of age of
majority.
In a General Registry Office, a marriage shall be solemnised
publicly on the office premises or in other appropriate
place.
[10 March 2005; 29 November 2012 / Amendment to Paragraph
one regarding waiving the mandatory presence of witnesses in the
process of entering into marriage shall come into force on 1 July
2024 and shall be included in the wording of the Law as of 1 July
2024. See Section 28 of the Law of 7 September 2023]
57. The official of the General Registry Office shall ask the
bridegroom and the bride if they wish to marry. If both express
such a wish, the official shall proclaim that on the basis of
this agreement and the law the marriage has been entered
into.
[29 November 2012]
[10 March 2005; 29 November 2012]
58. Ministers shall, for each solemnised marriage, within a
period of fourteen days, send to the General Registry Office in
the territory of which the marriage has taken place the necessary
information required for the Marriage Register. For failure to
perform this duty, the minister may be held administratively
liable.
III. Annulment
of Marriage
[29 November 2012]
59. A marriage may be declared annulled only in the cases
provided for in the following Sections (60-67).
60. A marriage, if it has not been solemnised by the official
of a General Registry Office or by a minister, shall be declared
annulled (Section 53).
A marriage that has been entered into fictitiously, i.e.,
without the intent to create a family, shall be declared
annulled.
[29 November 2012]
61. A marriage shall be declared annulled if it has been
entered into before the spouses or one of them has reached the
age provided for in Sections 32 or 33.
Such marriage shall not be declared annulled if, following the
marriage, the wife has become pregnant or if both spouses have
reached the specified age by the time of the court judgment.
62. A marriage shall be declared annulled in which, at the
time of it being entered into, one of the spouses was in such
condition that such spouse was not able to understand the meaning
of his or her actions or able to control them.
[29 November 2012]
63. A marriage prohibited due to the kinship relations of the
spouses (Section 35) shall be declared annulled.
64. A marriage shall be declared annulled in which, at the
time it is entered into, one of the spouses is in another
marriage.
The second marriage shall not be declared annulled if the
first marriage has been terminated by death, divorce or annulment
prior to the court judgment being rendered.
65. In the cases set out in Sections 60 to 64, an action for
the annulment of a marriage may be brought by an interested
person, as well as by the prosecutor.
Where a marriage is terminated by a death or divorce, only
those persons whose rights have been affected by the marriage may
bring action. If both spouses have died, action may not be
brought to annul the marriage.
66. In the cases set out in Sections 60 to 64, there is no
prescriptive period for bringing an action for marriage
annulment.
67. A spouse may contest a marriage if the spouse has married
under the influence of criminal threats.
Such an action shall be submitted within six months of the
termination of the influence of the threats.
68. In the cases set out in the previous Sections (60-64 and
67), the marriage shall be considered to be annulled from the
moment it is entered into.
IV. Divorce
[29 November 2012]
69. Only a court or notary may dissolve a marriage. A marriage
may be dissolved if the marriage is broken.
A court may dissolve a marriage in the cases provided for in
this Chapter. A marriage is dissolved as of the day when the
court judgment concerning the divorce comes into legal
effect.
A notary may dissolve a marriage in accordance with the
procedures laid down in the Notariate Law if both spouses agree
on the divorce. A marriage is dissolved as of the day when a
notary has drawn up a divorce certificate.
[28 October 2010]
70. A court may dissolve a marriage based upon the application
of one of spouses.
A notary may dissolve a marriage based upon the application of
both spouses regarding the divorce which is drawn up in
accordance with the procedures laid down in the Notariate
Law.
[28 October 2010]
71. A marriage shall be deemed to have broken down if the
spouses no longer cohabit and there is no longer any prospect
that the spouses shall renew cohabitation.
[12 December 2002; 28 October 2010]
72. A marriage is presumed to have broken down if the spouses
have lived apart for at least a year.
[12 December 2002; 3 February 2022]
73. Spouses shall have lived apart if they do not have a
common household and one of the spouses explicitly does not want
to renew it and disavows the possibility of cohabitation in
marriage. A common household may not exist also when the spouses
live separately in a common dwelling.
[12 December 2002]
74. If the spouses have lived separately for less than a year,
the court may dissolve the marriage only in the case if:
1) a reason for breaking down of a marriage is physical,
sexual, psychological or economical violation of the spouse
against the other spouse who has requested the divorce, or
against his or her child or joint child of the spouses;
2) one spouse consents to the request of the other spouse for
the divorce;
3) one of the spouses has commenced cohabitation with another
person and in such cohabitation a child has been born or the
birth of a child is expected.
[3 February 2022]
If the spouses have lived separately for less than a year, a
notary may dissolve the marriage only in the case if both spouses
agree on the divorce and have submitted a submission regarding
the divorce to the notary in accordance with the procedures laid
down in the Notariate Law.
[28 October 2010; 29 November 2012; 3 February
2022]
75. If one spouse requests the divorce due to a reason, which
is not referred to in Section 74, Paragraph one of this Law, and
the other spouse does not consent to the divorce, the court shall
not dissolve the marriage prior to the time period indicated in
Section 72 of this Law and for the purposes of the reconciliation
of the spouses shall adjourn the adjudication of the matter.
[12 December 2002; 28 October 2010]
76. [3 February 2022]
77. A court shall not dissolve a marriage if spouses have not
agreed on the custody, access rights of the minor child born in
the marriage, maintenance for the child, the division of common
property or the relevant claims have not been resolved prior to
the divorce and are not raised together with the request for the
divorce.
A notary shall not dissolve a marriage if spouses have not
certified that the marriage has broken down and have not agreed
on the custody, access rights of the minor child born in the
marriage, maintenance for the child and the division of common
property.
[28 October 2010]
78. [12 December 2002]
V. Consequences
of Annulment of Marriage and Divorce
[29 November 2012]
79. If a marriage is declared to be annulled and only one of
the former spouses, upon entering into the marriage, knew that it
would be declared as such, then the other spouse, who did not
know, has the right to claim from him or her:
1) compensation for non-material injury;
2) means commensurate with his or her financial state to
ensure the previous level of welfare.
[12 December 2002; 29 November 2012]
80. In divorcing or after the divorce, a former spouse may
claim means from the other former spouse commensurate with his or
her financial state to ensure the previous level of welfare.
[12 December 2002; 29 November 2012]
81. The duty to ensure the previous level of welfare or
maintenance of the former spouse ceases if:
1) the same amount of time has passed subsequent to the
divorce or the declaration of the annulment of the marriage as
the duration of the relevant dissolved marriage or cohabitation
in the marriage, which has been declared annulled;
2) the former spouse has entered into a new marriage;
3) the income of the former spouse ensures the
maintenance;
4) the former spouse avoids obtaining means for maintenance
through his or her own work;
5) the former spouse, whom the obligation to maintain the
other former spouse has been imposed on, has no sufficient means
for maintenance or he or she has become incapable for work;
6) the former spouse has committed criminal offence against
the other former spouse or life, health, freedom, property or
honour of his or her ascending or descending kin;
7) the former spouse has left the other former spouse in a
helpless state when it was possible to provide assistance to him
or her;
8) the former spouse has intentionally initiated a false
accusation for a criminal offence against any of the persons
referred to in Clause 6 of this Section;
9) the former spouse has been living wastefully or
immorally;
10) the former spouse, whom the obligation to maintain the
other former spouse has been imposed on, or his or her former
spouse dies or is announced as dead;
11) there are other important reasons.
[29 November 2012]
82. A spouse whose marriage is declared annulled shall
reacquire his or her premarital surname. If he or she, upon
entering into the marriage, did not have knowledge that the
marriage shall be declared annulled, the court may, pursuant to
his or her petition, allow him or her to retain the marital
surname.
A spouse who, upon entering into a marriage, has changed his
or her surname, is entitled also after the divorcee to use such
surname, or also, pursuant to his or her petition, the court
shall grant use of the premarital surname. On the basis of a
petition from the other spouse, a court or a sworn notary, if it
does not affect the interests of the child, may prohibit the
spouse who has promoted the breakdown of the marriage to use the
surname acquired in marriage.
[12 December 2002; 29 November 2012]
83. If a marriage is declared to be annulled, each of the
former spouses shall keep his or her own premarital property, as
well as such property as he or she has acquired himself or
herself during cohabitation. Property acquired in common shall be
divided between the former spouses in equal shares.
If both spouses upon entering into marriage did not have
knowledge that the marriage shall be declared annulled, or this
was not known by one of them, the property acquired in common
shall be divided according to the provisions regarding the
division of lawfully acquired property in marriage: in the first
case - in relation to both former spouses, and in the second case
- in relation to the spouse who did not have knowledge that the
marriage shall be declared annulled.
[12 December 2002]
SUB-CHAPTER 3
Personal Rights of Spouses
84. Marriage creates a duty on the part of a husband and a
wife to be faithful to each other, to live together, to take care
of each other and to jointly ensure the welfare of their
family.
85. Both spouses have equal rights in regards to the
organisation of family life. In the event of differences of
opinion, spouses shall endeavour to reach an agreement. Spouses
may apply to the court for the resolution of a dispute.
86. Upon entering into marriage, the spouses, pursuant to
their wish, may select the premarital surname of one of the
spouses as their common surname.
During marriage, each spouse may retain his or her premarital
surname and not assume a common marital surname.
Upon entering into marriage, one of the spouses may add to his
or her surname the surname of the other spouse, except in cases
where one of the spouses already has a double surname, or also
the spouses may make a joint double surname from the premarital
surnames of both spouses.
[12 December 2002; 10 March 2005]
87. Independently of their property relations, spouses have
the right, within the domain of household financial matters, to
act on behalf of each other. Transactions entered into by a
spouse within the domain of such matters shall be deemed to also
have been made in the name of the other spouse unless it is
otherwise apparent from the circumstances.
If there is good cause, one spouse may restrict or deprive the
other spouse of this right, but such restriction or deprivation
shall be in effect against third persons only if they have been
notified of it, or if it has been recorded in the Spousal
Property Relations Register (Section 140).
88. Each spouse, regardless of the form of property relations
of the spouses, has the right, on the basis of general
principles, to act independently regarding their property in the
event of death.
SUB-CHAPTER 4
Property Rights of Spouses
I. Lawful
Property Relations of the Spouses
89. Each spouse retains the property which belonged to him or
her before the marriage, as well as the property he or she
acquires during the marriage as a separate property.
Everything acquired during the marriage by the spouses
together, or by one of them, but from the resources of both
spouses, or with the assistance of the actions of the other
spouse, is the joint property of both spouses; in case of
uncertainty, it shall be presumed that such property belongs
equally to both spouses.
If, during the marriage, some valuable property belonging to a
spouse is replaced by other property, the latter is the property
of such spouse.
[29 November 2012]
90. Throughout the time the marriage subsists, each spouse has
the right to administer and use all of his or her own property
that he or she owned before the marriage, as well as that
acquired during the marriage.
The spouses shall jointly administer and act in regard to the
joint property of both spouses (Section 89, Paragraph two), but
upon both spouses agreeing it may also be administered by one of
them. Any acts regarding such property by one of the spouses
shall require the consent of the other spouse.
In the interests of third persons, it shall be presumed that
such consent has been given, except for cases where the third
person knew or ought to have known that there was no consent
given, or where the property regarding which a spouse has acted
is such that it manifestly belongs to the other spouse.
[12 December 2002]
91. The separate property of each spouse especially is:
1) property owned by a spouse before the marriage, or property
the spouses have, by contract, designated as separate
property;
2) articles, which are suitable only for the personal use of
one spouse, or are required for his or her independent work;
3) property, which was acquired gratis during the marriage by
one of the spouses;
4) income from the separate property of a spouse that is not
assigned to the needs of the family and joint household
finances;
5) property that replaces the property referred to in the
previous Paragraphs (1-4).
The burden of establishing that certain property is separate
shall lie upon the spouse who asserts such. The fact that
immovable property is the separate property of one spouse shall
be recorded in the Land Register.
[29 November 2012]
92. Deleted.
93. A spouse may assign his or her property or his or her
share of the joint property of the spouses to be administered by
the other spouse who shall preserve and protect such property
with all of his or her resources. If the joint immovable property
of the spouses is recorded in the Land Register in the name of
one of the spouses, it is presumed that the other spouse has
assigned his or her share in such property to be administered by
him or her.
[12 December 2002]
94. If a spouse manages buildings belonging to the other
spouse, he or she shall not only carry out the repairs required,
but also make improvements to the extent income from the property
of the other spouse permits.
The immovable property of a spouse may be leased or rented by
the other spouse for a term not exceeding three years and without
recording the contract in the Land Register.
In order that a spouse, whose administration the valuable
property of the other spouse is subject to, may so act that he or
she exceeds the normal limits set for administration, the spouse
must obtain the consent of the other spouse.
[12 December 2002]
[12 December 2002]
95. Both spouses have a duty to cover the family and joint
household expenses out of the joint property of the spouses.
If the joint property of the spouses is insufficient to
support the family, each spouse may require that the other spouse
share the family and joint household expenses commensurately to
his or her own separate financial state.
If spouses live separately, a spouse, if necessary, may claim
means from the other spouse commensurate with his or her property
state for the ensuring of a previous level of welfare.
[12 December 2002; 29 November 2012]
96. For obligations that the spouses jointly have entered into
for family or joint domestic financial needs, they shall be held
liable to the extent of their joint property, and each to the
extent of their separate property, if the joint property does not
suffice.
For obligations regarding family or joint domestic financial
needs that have been entered into by one of the spouses, such
spouse shall be held liable to the extent of his or her property
if the joint property of the spouses does not suffice. For these
obligations, the other spouse shall be held liable to the extent
of his or her property only if the consideration pursuant to such
obligations has been used for family and joint household
needs.
97. [12 December 2002]
98. For obligations arising from the wrongful acts of one
spouse, such a spouse shall be held liable, firstly, to the
extent of his or her separate property, but, if that does not
suffice, to the extent of his or her share in the joint property
of the spouses.
[29 November 2012]
99. In respect of obligations which a spouse has entered into
on his or her own account or without the consent of the other
spouse, such spouse shall be held liable, firstly, to the extent
of his or her separate property, but if that does not suffice, to
the extent of his or her share in the joint property of the
spouses.
In respect of wrongful self-enrichment related to obligations
entered into by one spouse the other spouse shall be liable on a
general basis.
[12 December 2002]
100. The property of one spouse shall not be applied to
satisfy the obligations of the other spouse.
If, in respect of the debts of one of the spouses, recovery
proceedings are brought against the separate property of the
other spouse, the other spouse may request that such property be
released from the recovery proceedings.
If, in respect of the debts of one of the spouses, recovery
proceedings are brought against the joint property of the
spouses, the other spouse may request that such property be
divided and his or her share be released from the recovery
proceedings.
[12 December 2002]
101. If one spouse, while administering the property of the
other spouse, has made necessary expenditures from his or her own
property, then only upon the termination of such administration
may he or she request from the other spouse reimbursement of
these expenditures to the extent he or she himself or herself are
not required to cover them.
[12 December 2002]
102. [12 December 2002]
103. Deleted.
104. [12 December 2002]
105. [12 December 2002]
106. Deleted.
107. When the rights of administration of one spouse are
terminated, all of the property of the other spouse shall be
returned to him or her together with all augmentations thereto as
may have taken place during the marriage, including also property
acquired in place of that damaged or destroyed. Fungible property
shall be given back in equal kind and quality.
[12 December 2002]
108. The settlement of accounts regarding property between the
spouses themselves, upon the cessation of administration by one
spouse, shall not deprive the creditors of the spouses of their
rights. The rights acquired by third persons shall remain in
effect.
109. The legal property relations of spouses shall be
terminated:
1) on the basis of an agreement between the spouses;
2) if one of the spouses dies;
3) in divorcing or in an existing marriage - on the basis of a
request from one of the spouses if the debts of the other spouse
exceed the value of his or her separate property or also as a
result of his or her actions the property may be significantly
reduced or dissipated.
If the legal property relations of the spouses is terminated
with the death of one of the spouses, then after the splitting
off of the share of the surviving spouse, the share of the
deceased spouse shall pass to his or her heirs.
In dividing the joint property of the spouses, the whole of
the property of the spouses, which is not recognised as the
separate property of one of the spouses shall be taken into
account - movable and immovable property with all appurtenances,
as well as the claims and obligation of the spouses.
The joint property of the spouses shall be divided on the
basis of the general provisions of the procedures for the
division of an estate (Section 731 and subsequent sections).
[12 December 2002; 29 November 2012]
110. If in an existing marriage the joint property of the
spouses has been divided, to their property relations shall be
applied the provisions regarding the separation of all of
property of the spouses (Section 117 and subsequent sections).
Contracts and court judgments shall acquire binding effect
against third persons after the recording thereof in the Spousal
Property Relations Register, but regarding immoveable property -
after the recording thereof in the Land Register.
The division of spousal property shall not take away the
rights of the creditors of the spouses. The rights acquired by
third persons shall remain in effect.
[12 December 2002]
II. Dowry
111. A dowry, which, in the event of marriage, parents, kin or
other persons have endowed a woman, shall be the property of the
wife even if it has been given to the husband.
112. For a promise to give as a dowry movable property more
than 700 euro in value or immovable property to be binding, it
must be expressed in writing.
Fulfilment of a promise of dowry may be claimed by the wife
herself or, on her behalf, by the husband; in addition, the right
to bring an action for provision of the dowry is prescribed two
years after the entering into of the marriage or the day
specified for the provision of the dowry.
A dowry may not be claimed if the marriage has been entered
into without the knowledge or assent of the person who has
promised the dowry.
[19 September 2013]
113. Rights which are based on the promise of a dowry may not
be assigned to a third person; these rights may devolve, by way
of inheritance, only to the children of that marriage for the
entering into of which the promise of dowry was given, and to the
husband who has been left with the children.
III. Contractual
Property Relations of Spouses
1. General
Provisions
114. The spouses may establish, alter or terminate their
property rights in a marriage contract before marrying as well as
during marriage.
If any of the persons to be married are under guardianship, he
or she shall enter into a marriage contract with the consent of
his or her parents or guardians.
If any of the persons to be married or spouses have restricted
capacity to act, he or she shall enter into a marriage contract
himself or herself to such amount in which a court has not
restricted his or her capacity to act, but in the rest part -
upon consent of the guardian. If a person, whose capacity to act
is restricted, cannot act independently and a person to be
married or spouse is also his or her guardian at the same time,
the Orphan's and Custody Court shall decide on entering into a
marriage contract.
Marriage contracts, which contain instructions in the event of
death, are subject to the general provisions regarding
inheritance contracts.
[12 December 2002; 29 November 2012]
115. The parties to a marriage contract may not be replaced by
authorised representatives. Such contracts shall be entered into
in accordance with notarial procedures, in the personal presence
at the same time of both persons to be married or of both
spouses. If the person to be married is a minor, such contracts
shall be entered into also at the presence of his or her lawful
representative.
For marriage contracts to have binding effect as against third
persons, they shall be registered in the Spousal Property
Relations Register and in respect of immovable property, also in
the Land Register.
The provisions of a marriage contract that limit the rights
acquired by third persons in respect of marital property, shall
not be binding upon such third person.
[12 December 2002; 29 November 2012]
116. In a marriage contract, the parties entering into it may,
in place of lawful property relations of the spouses (89 and
subsequent Sections), stipulate separate ownership (117 and
subsequent Sections) or joint ownership (124 and subsequent
Sections) of all property of the spouses.
2. Separate
Ownership of all Property of the Spouses
117. If a marriage contract provides for the separate
ownership of all the property of the spouses, each of the spouses
not only retains the property which belonged to him or her prior
to the marriage, but also, during the time of the marriage, may
independently acquire, use and act in regard to it independently
of the other spouse.
118. A spouse may not administer, use or in any other way act
regarding the property of the other spouse without his or her
consent.
A spouse, whose property the other spouse is administering,
may require an accounting from him or her. Any prior waiver of
the right to revoke administration or to require an accounting is
void.
119. A spouse who administers the property of the other spouse
shall be liable for the losses that have arisen from his or her
gross negligence.
From the time when one spouse has given notice to the other
spouse that he or she will henceforth administer his or her
property, as well as when, generally, a duty for a spouse to
return property arises, the latter is liable in accordance with
provisions applicable generally.
120. Each spouse shall share family and joint domestic
financial expenses commensurately with his or her financial
state.
121. Each spouse shall be liable for his or her own debts to
the extent of his or her own property.
122. If one spouse disposes of or pledges the movable property
of the other spouse, the person who has received such shall be
acknowledged as having acquired that property or pledge in good
faith, if he or she did not know or ought not to have known that
the property was that of the other spouse or of both spouses and
that it had been disposed of or pledged contrary to the volition
of the other spouse.
123. When, during the marriage, the separate ownership of all
the property of the spouses has been terminated and the spouses
do not provide for joint ownership of property in its place in a
contract, Section 89 and subsequent Sections are applicable.
The rights acquired by third persons shall remain in
effect.
3. Joint
Ownership of the Property of the Spouses
124. If the marriage contract provides for joint ownership of
the property of the spouses, the property which has belonged to
them prior to marriage, as well as the property which has been
acquired during the marriage, except for their separate property
(Section 125), shall be combined in one joint, indivisible whole
which, during the duration of the marriage, shall not belong to
either of the spouses as separate parts. In the marriage
contract, when providing for the joint ownership of their
property, the spouses shall agree which of them shall be the
administrator of the property in joint ownership (the husband,
the wife or both jointly). If the administrator of the property
in joint ownership is one of the spouses, such spouse may,
subject to the limitations set out in Section 128, use the
property without accounting therefor and act with the property in
his or her own name, and it is his or her duty to cover family
and joint domestic financial expenses.
If the spouse, who administers the property in joint
ownership, due to illness or absence is not able to enter into a
transaction, which pertains to property, which forms a part of
the joint whole, or of conducting court proceedings pertaining to
this property, the other spouse may replace him or her, if delay
is risky.
If the spouse who is administering the joint property finds
that a transaction entered into by the other spouse has harmed
those property interests which are part of the joint property, he
or she may, within a one year period from the day when he or she
became aware of it, contest it. In such a case, he or she must
prove that the other spouse did not have grounds as mentioned in
the second part of this Section to replace him or her.
125. During the joint ownership of the property of the
spouses, the property shall not be included therein which the
spouses have specified in a marriage contract as the separate
property of each spouse. Each of the spouses may act
independently regarding their separate property.
126. Each of the spouses shall, with his or her separate
property, proportionally participate in meeting the family and
joint domestic financial expenses, to the extent that the
property in joint ownership does not cover them.
127. The fact that immovable property rights or rights
respecting things are included in the joint property shall be
entered in the Land Register.
Each of the spouses may request that such immovable property
rights or rights respecting things which are included in the
joint ownership of the property of the spouses be entered in the
Land Register in the names of both spouses.
128. The alienating, mortgaging or encumbering with property
rights of immovable property included in the joint property,
where done by one spouse, shall require the consent of the other
spouse.
129. The consent of the other spouse is also required for a
gift of movable property included in property in joint ownership,
if the amount of such gift exceeds that of an ordinary, small
gift size.
130. A spouse shall be liable to the extent of his or her
separate property, but if that is insufficient, also property
included in joint property:
1) for his or her obligations, which have arisen before
marriage;
2) for his or her obligations, which have arisen from the duty
to support his or her parents or grandparents;
3) for obligations, which have arisen from an inheritance that
he or she has accepted with the consent of the other spouse;
4) for his or her obligations which have arisen from an
independent undertaking owned by him or her, which is his or her
separate property, or from his or her independent occupation;
5) for all of his or her other obligations which have been
assumed with the consent of the other spouse.
A spouse shall also be liable to the extent of his or her
separate property for the debts of the other spouse on behalf of
the family and joint domestic finances, but only if property
included in joint property and the separate property of the other
spouse are insufficient.
[29 November 2012]
131. A spouse shall be liable to the extent of his or her
separate property only for obligations arising from an
inheritance accepted by the spouse without the consent of the
other spouse.
132. A spouse shall be liable to the extent of his or her
separate property only:
1) for obligations which he or she has entered into solely on
his or her own account or without the consent of the other
spouse;
2) for obligations that he or she has entered into which
infringe upon rights given to the other spouse for the
administration of property included in the joint property.
The provisions regarding wrongful self-enrichment are
applicable if, in connection with the obligations set out in this
Section, property included in the joint property has increased in
value.
133. For obligations, which have arisen from the wrongful acts
of one spouse, the liability of the spouse extends to his or her
separate property, but extends to property which forms a part of
the joint property only when the separate property of the liable
spouse is insufficient.
134. The joint ownership of the property of the spouses
provided for by a marriage contract is terminated:
1) when one of the spouses dies;
2) when the marriage is dissolved or declared annulled;
3) when one of the spouses is recognised as insolvent;
4) by agreement of the spouses regarding termination of the
joint ownership of their property.
The spouse who is not administering the property may request
the court to terminate the joint ownership of property if:
1) the property, in remaining in the hands of the other
spouse, may be significantly reduced or dissipated;
2) the spouse who is administering the property is not
providing means for family and joint domestic financial
needs;
3) the spouse who is administering the property has, without
the consent of the other spouse, violated the ordinary
administration and utilisation limits; or
4) the spouse who is administering the property is placed
under trusteeship.
The spouse who is administering the property may request the
termination of the joint ownership of property if debts of the
other spouse exceed the value of his or her separate
property.
The joint ownership of the property of the spouses is
terminated from the moment when one of them has died or there has
been an entry made in the Spousal Property Relations Register in
respect of the termination of joint ownership of property. The
termination of the joint ownership of the property of the spouses
shall not divest the creditors of the spouses of their
rights.
[12 December 2002]
135. If the joint ownership of the property of the spouses
(Section 124) has been terminated by the death of one of the
spouses, then, after the payment of the debts to which this
property is subject, half of the property included in the joint
property remains the property of the surviving spouse, but the
other half devolves to the heirs of the deceased.
A different division of property may be provided for by a
marriage contract. Persons entitled to preferential shares, whose
rights are affected by such a contract, may contest it.
[8 May 2014]
136. If one of the spouses has died, the surviving spouse
shall be personally liable for all the debts against property
included in the joint property independently of the liability of
the heirs of the deceased spouse, on the basis of general
principles.
The surviving spouse may limit his or her liability regarding
the debts associated with the property mentioned to that which he
or she has received as an inheritance from the deceased spouse,
in compliance with the provisions for the acceptance of an
inheritance with rights of inventory.
137. Where the joint ownership of the property of the spouses
is terminated while the spouses are alive, after debts have been
discharged, any remaining property shall be divided equally
between the spouses, if the marriage contract does not provide
otherwise.
138. A spouse has a duty to reimburse what he or she, from the
property included in the joint property, has spent for the
benefit of his or her separate property.
If one of the spouses has made expenditures out of his or her
separate property for the benefit of the property included in the
joint property, then he or she may already during the time of
marriage require repayment for such expenditure from the property
included in the joint property.
139. Where, during the marriage, the spouses voluntarily
terminate the joint ownership of the property of the spouses and
in its place, in the marriage contract, provide for the
separation of all marital property, Section 89 and Sections
subsequent thereto shall apply.
The rights acquired by third persons shall remain in
effect.
4. Spousal
Property Relation Registers
140. The property relations of spouses provided for in
marriage contracts, to the extent that they are required to be in
effect as against third persons, as well as other information
required by law shall be registered in the Spousal Property
Relations Register.
[12 December 2002]
[11 June 1998; 12 December 2002]
141. Registrations in the Register shall be made on the basis
of the request of one or both spouses, certified pursuant to the
applicable procedure, or court judgment.
[12 December 2002]
[12 December 2002]
142. Contracts, judgments, decisions, and notices that pertain
to the property relations of the spouses shall be registered in
the Register.
143. Extracts of registrations in the Spousal Property
Relations Register shall, without delay, be published for
information in the official newspaper and notices regarding
immovable property shall be given to the Land Registry Office for
registration in the Land Register.
[12 December 2002]
[12 December 2002]
144. [12 December 2002]
145. Anyone may examine a Register and request extracts from
it.
Chapter Two
Rights and Duties, as Between Parents and Children
SUB-CHAPTER 1
Determination of Filiation of Children
[12 December 2002]
146. As the mother of a child shall be recognised the woman
who has given birth to the child.
As the father of the child who is born to a woman during
marriage or not later than 306 days thereafter if the marriage
has ended due to the death of the husband, the divorce, or the
declaration of the marriage as annulled, shall be considered to
be the husband of the mother of the child (paternity
presumption).
A child who is born to a woman not later than 306 days after
termination of a marriage, shall, if the woman has already
remarried, be considered born of the new marriage. In such cases,
the former husband or his parents have the right to contest the
filiation of the child (Section 149).
Filiation of the child from the father who is in marriage or
has been in marriage with the mother of the child shall be
certified by a record in the marriage register.
Paternity presumption shall not be in force if paternity has
been acknowledged in accordance with the procedures laid down in
Section 155, Paragraph eight.
[12 December 2002; 29 November 2012]
147. [12 December 2002]
148. The paternity presumption may be contested in court.
Contestation of the paternity presumption shall be commensurable
with the right of the child to identity and stable family
environment.
[12 December 2002; 8 May 2014]
149. The husband of the mother of a child may contest the
paternity presumption within a two-year period from the day when
he found out that he is not the natural father of the child.
The mother of the child has the same right to contest the
paternity presumption.
[29 November 2012]
The child who has reached the age of majority may contest the
paternity presumption before the court within two years
calculated from the day when he or she has found out about the
circumstances that preclude paternity. If the child had found out
about the circumstances that preclude paternity before he or she
reached the age of majority, he or he may contest the paternity
presumption before the court within two years after reaching the
age of majority.
The parents of a husband may contest the paternity presumption
within the period provided for in Paragraph one of this Section,
if the husband until the moment of his death did not know of the
birth of the child.
A person, who considers himself as the natural father of the
child, except the case when the child is conceived as a result of
criminal offence against morality and sexual offence, has the
right to contest the paternity presumption within two years from
the day of the birth of the child in the following cases:
1) the mother of the child has died during the
child-birth;
2) the mother of the child and husband of the mother of the
child are living separately at least 306 days before the birth of
the child.
The right to contest the filiation of a child is personal. It
does not pass to the heirs of the deceased, but his or her claim
brought before a court may be continued by the heirs.
[12 December 2002; 29 November 2012; 8 May 2014; 7
September 2023 / See Section 29 of the Law of 7 September
2023]
150. If a court satisfies a claim with which the paternity
presumption is contested, a record regarding the father in the
Birth Register shall be acknowledged as null and void from the
day it was made.
[12 December 2002]
151. The surname of a child shall be determined by the surname
of the parents. If the parents have different surnames, the child
shall be given either the surname of the father or of the mother,
in accordance with the agreement of the parents. If parents
cannot reach agreement regarding the surname of a child, it shall
be determined according to the decision of the Orphan's and
Custody Court.
[29 November 2012]
[12 December 2002; 29 November 2012]
152. [12 December 2002]
153. [12 December 2002]
154. If the filiation of a child from the father cannot be
determined in conformity with the provisions of Section 146 of
this Law or a court has acknowledged that the child has not been
born of his or her mother's husband, the filiation of the child
from the father shall be based upon the voluntary acknowledgement
of paternity or by the determination thereof by a court
proceeding.
[12 December 2002]
155. Acknowledgement of paternity shall occur when the father
and mother of a child personally submit a joint application to
the General Registry Office or an application addressed to the
General Registry Office on which the authenticity of signature of
submitters is notarised. The acknowledgement of paternity shall
be officially registered by an entry in the Birth Register.
An application for recognition of paternity may be submitted
when the birth of a child is registered, as well as after the
registration of the birth of the child, or already prior to the
birth of the child.
If the mother of the child has died or her whereabouts are
unknown, an application for recognition of paternity may be
submitted by the father of the child alone. If the child is a
minor, the consent of the guardian of the child is required or of
an Orphan's and Custody Court if a guardianship has not been
established for the child.
[29 November 2012]
The father of a child who has not reached the age of majority
may submit an application for the recognition of paternity of the
child with the consent of his parents or his guardian.
[10 March 2005]
Recognition of paternity requires the consent of the child if
he or she has reached twelve years of age.
Paternity may be acknowledge also in the case, if the mother
of the child, husband of the mother of the child or former
husband of the mother of the child or natural father of the child
personally submit a joint application to the General Registry
Office or an application addressed to the General Registry Office
on which the authenticity of signature of submitters is
notarised.
[12 December 2002; 10 March 2005; 29 November 2012]
156. A court may declare an acknowledgement of paternity null
and void only if a person who has acknowledged that a child is
his cannot be the natural father of the child and he has
recognised the child as his as a result of mistake, fraud or
duress.
Paternity may be contested by the person who has acknowledged
paternity, or by the mother of the child within two years
calculated from the day when they have found out about the
circumstances that preclude paternity.
A person, who considers himself as the natural father of the
child, except the case when the child is conceived as a result of
criminal offence against morality and sexual offence, may contest
acknowledgment of paternity within two years from the day of the
birth of the child.
The child himself or herself may contest the acknowledgement
of paternity after reaching age of majority within two years
calculated from the day when he or she has found out about the
circumstances that preclude paternity. If the child had found out
about the circumstances that preclude paternity before he or she
reached the age of majority, he or he may contest the
acknowledgement of paternity before the court within two years
after reaching the age of majority.
Contesting of acknowledgment of paternity shall be
commensurate to the right of a child to identity and stable
family environment.
The right to contest the acknowledgement of paternity is
personal. It does not pass to the heirs of the deceased, but his
or her claim brought before a court may be continued by the
heirs.
[29 November 2012; 7 September 2023]
157. A court shall determine paternity if a joint application
has not been submitted to the General Registry Office regarding
the acknowledgement of paternity or the impediments indicated in
Section 155 of this Law exist for the making of a record of
paternity in the Birth Register.
In examining a claim for the determination of paternity, a
court shall take into account any evidence, with which it is
possible to prove that a specific person is the parent of the
child or to preclude such fact.
[10 March 2005]
[12 December 2002; 10 March 2005]
158. A claim for the determination of paternity by a court may
be submitted by the mother of the child or the guardian of the
child, or the child himself or herself after reaching age of
majority, as well as the person who considers himself the natural
father of the child.
If a person from whom the child is descended has died, the
mother of the child or the guardian of the child, and the child
himself or herself after reaching age of majority may claim by a
court proceeding the determination of the fact of paternity.
[12 December 2002; 29 November 2012]
159. Paternity that has been determined by a court judgment
that has come into legal effect may not be disputed.
160. If the father of the child voluntarily acknowledges
paternity, the surname of a child, also after the registration of
the child, shall be determined in conformity with the provisions
of Section 151 of this Law.
If the paternity has been determined by a court proceeding or
also a court has satisfied a claim of contested paternity, the
surname of the child shall be determined by the court taking into
account the interests of the child.
[12 December 2002]
161. [10 March 2005]
SUB-CHAPTER 2
Adoption
162. The adoption of a minor child shall be permitted if it is
in the interests of the child.
A minor child may be adopted if prior to the approval of the
adoption he or she has been in the care and supervision of the
adopter and the mutual suitability of the child and adopter has
been determined, as well as there is a basis for considering that
as a result of the adoption between the adopter and the adoptee
shall be established a true child and parent relationship. A
child may be given under care of the adopter by a decision of the
Orphan's and Custody Court for a time period up to six months in
accordance with the adoption procedures laid down by the
Cabinet.
[10 March 2005]
[12 December 2002; 10 March 2005; 29 November 2012]
163. The adopter must be at least twenty-five years old, and
be at least eighteen years older than the adoptee.
The conditions regarding the minimum age of the adopter and
permissible difference in age between the adopter and adoptee may
be disregarded if ones own spouse's children are being adopted.
Nevertheless, also in such case the adopter must be at least
twenty-one years of age.
The restrictions laid down in Paragraph one of this Section
may be disregarded if true parent and child relationship is
established between the adopter and adoptee.
The adopter may not be a person:
1) who has been punished for criminal offences related to
violence or threatening of violence - regardless of extinguishing
of the criminal record or removal thereof;
2) who has been punished for criminal offences against
morality and for sexual offences - regardless of extinguishing of
the criminal record or removal thereof;
3) who has been removed from the performance of the duties of
a guardian due to disorderly performance thereof;
4) whom the status of the foster family or host family has
been removed, because he or she has not performed the relevant
duties in conformity with the interests of the child;
5) whom the custody rights have been removed by a court
judgment;
6) to whom a court has applied compulsory measures of a
medical nature laid down in the Criminal Law for a criminal
offence provided for in the Criminal Law and committed in a state
of mental incapacity.
In order to detect suitability for adoption, the Orphan's and
Custody Court shall carry out research of the adopter's family in
conformity with the procedures laid down by the Cabinet for not
more than six months.
[29 November 2012; 29 October 2015 / Paragraph four,
Clause 1, insofar as it imposes an absolute prohibition on
persons applying for the adoption of a child of the other spouse,
is declared as invalid by the judgment of the Constitutional
Court of 5 December 2019 which enters into effect on 6 December
2019]
164. Spouses shall adopt a child jointly, except in cases
where:
1) the child of the other spouse is adopted;
2) the other spouse has been declared missing (absent without
information as to whereabouts);
3) [29 November 2012].
[12 December 2002; 29 November 2012]
165. Several children may be adopted at the same time. In
adoption, brothers (step-brothers) and sisters (step-sisters)
shall not be separated. In the interests of the children, the
separation of brothers (step-brothers) and sisters (step-sisters)
is permissible if one them has an incurable disease or there are
impediments, which hinder the adoption of brothers
(step-brothers) and sisters (step-sisters) together.
[29 November 2012]
166. Persons who are not married to each other may not adopt
one and the same child.
[12 December 2002]
167. A guardian has the right to adopt his or her ward. When
adopting a ward, a guardian shall transfer a final accounting
concurrently with an application for adoption to the Orphan's and
Custody Court. After acceptance of the final accounting until the
day when a court judgment comes into effect regarding approval of
the adoption the Orphan's and Custody Court shall represent the
rights and lawful interests of the adoptee in adoption
issues.
A guardian shall be released from the performance of his or
her duties after when a court judgment regarding approval of the
adoption has come into effect.
[29 November 2012]
168. An adoption may not be limited by any conditions or terms
whatsoever.
169. It is necessary that all parties to the adoption give
their consent to the adoption:
1) the adopter;
2) the adoptee if he or she has reached the age of twelve
years;
3) the parents of an adoptee if they have not had custody
rights removed;
4) a guardian.
A mother may not give her consent for the adoption of her
child earlier than six weeks after the birth.
Parties to the adoption shall give their consent to the
adoption in person to the Orphan's and Custody Court or submit it
in the form of a notarial deed or with a consent certified in the
Orphan's and Custody Court. Parties to the adoption may revoke
their consent to the adoption until the time when the child is
given under the care of adopters.
[29 October 2015]
For the adoption of a child, a decision by an Orphan's and
Custody Court that such an adoption in the interests of the child
is required. The Orphan's and Custody Court in taking such a
decision shall ascertain the views of the adoptee if only he or
she is able to formulate such, as well as shall take into account
information regarding the adopter, including his or her
personality, religious faith if there is such, material
circumstances, household circumstances, capacity to raise a
child, as well as information regarding the adoptee, including
his or her personality, religious faith if there is such, health
and ancestry.
Upon a request of a foreigner who has not got a permanent
residence permit in Latvia or upon a request of a person living
abroad a child can be adopted by a permit of the responsible
minister and only then if it is not possible to ensure raising of
a child in a family and due care in Latvia.
[29 November 2012; 17 January 2013; 29 October
2015]
170. [12 December 2002]
171. The adoption shall be considered as effected as soon as
the court has approved such.
A court may permit the non-registering of the adopters in the
Birth Register as the parents of the adoptee, if such a request
from the adopters is justified.
Information regarding the adoption until the child reaches the
age of majority shall not be divulged without the consent of the
adopters.
[12 December 2002; 10 March 2005]
172. The adoptee shall become a member of his or her adoptive
family and the adopter shall acquire the right to implement
custody. The adoptee may be granted the surname of the adopters
in conformity with the provisions of Section 151 of this Law. The
adopter may request the joining of his or her own surname to the
surname of the adoptee, except in cases where the adopter or the
adoptee already has a double surname.
If the name of the adoptee does not conform to the nationality
of the adopter or it is difficult to pronounce, the name of the
adoptee is permitted to be changed or a second name added
thereto, except in cases where the adoptee already has a double
name.
On the basis of a petition from the adopters a court may also
permit the personal identity number of the adoptee to be changed.
It is prohibited to change the date of birth of the adoptee.
[10 March 2005]
173. In relation to the adopter and his or her kin, the
adopted child and his or her descendants shall acquire the legal
status of a child born of a marriage in regard to personal as
well as property relations.
With adoption the kinship relations and related personal and
property rights and duties of the child with regards to his or
her parents and their kin shall be terminated.
[12 December 2002; 10 March 2005]
174. [10 March 2005]
175. An adoption may be revoked by a court if an adoptee of
age of majority has agreed with the adopter regarding the
revocation of the adoption. An adoption may be revoked in
exceptional case also when such agreement does not exist, however
the adoptee of age of majority proves that as a result of
adoption true parent and child relationship has not established
between the adopter and adoptee. When an adoption is revoked, the
adoption terminates as of the day that the court judgment
regarding the revocation of the adoption comes into effect.
[29 November 2012]
176. The legal kinship relations between the adoptee, their
descendants and the natural parents of the adoptee and their kin
are renewed by the revocation of the adoption.
If in the establishment of the adoption the adoptee has
acquired the surname of the adopter or another name or if his or
her personal identity number has been changed, a court if it is
in the interests of the adoptee may retain the acquired surname,
given name and personal identity number after the revocation of
the adoption.
[10 March 2005]
SUB-CHAPTER 3
Custody
[12 December 2002]
I. Personal
Relations of Parents and Children
[12 December 2002]
177. Until reaching age of majority (Section 219), a child is
under the custody of his or her parents.
Custody is the rights and duties of parents to care for the
child and his or her property and to represent the child in his
or her personal and property relations.
Care for a child means his or her care, supervision and the
right to determine his or her place of residence.
Care of the child shall mean his or her maintenance, i.e.,
ensuring food, clothes, dwelling and health care, tending of the
child and his or her education and rearing (ensuring mental and
physical development, as far as possible taking into account his
or her individuality, abilities and interests and preparing the
child for socially useful work).
Supervision of the child means care for the safety of the
child and the prevention of endangerment from third persons.
By the right to determine the place of residence of the child
is understood the choice of the geographic place of residence and
choice of dwelling.
Care for the property of the child means care for the
maintenance and utilisation of the property of the child by
preserving and increasing it.
[12 December 2002]
178. Parents living together shall exercise custody
jointly.
If the parents are living separately, the joint custody of the
parents continues. Daily custody shall be implemented by the
parent with which the child is living.
In respect of issues which shall significantly affect the
development of the child the parents shall take a joint decision.
The differences of opinion between the parents shall be resolved
by an Orphan's and Custody Court unless otherwise provided for in
the law.
The joint custody of the parents shall terminate upon the
establishment on the basis of an agreement between the parents or
a court adjudication of the separate custody of one parent.
[29 November 2012]
178.1 The parent with whom the child is located in
separate custody has all the rights and duties, which arise from
custody.
Disputes between parents regarding custody rights shall be
decided taking into account the interests of the child and
ascertaining the views of the child if only he or she is able to
formulate such.
If the parent in whose separate custody the child is located
dies, as well as if it is not possible for him or her to
implement custody, the child shall pass to the custody of the
other parent, unless the custody right has been removed or
discontinued for him or her.
[29 November 2012]
179. Parents, commensurate to their abilities and financial
state, have a duty to maintain the child. Such duty lies upon the
father and the mother until the time the child is able to provide
for himself or herself. Disputes regarding the maintenance for
the child shall be settled by the court.
The duty to provide for the maintenance of the child shall not
terminate if the child is separated from the family or does not
live together with one of the parents or with both parents.
If children have their own property, but that owned by their
parents does not suffice to cover the expenditures necessary for
the maintenance of the children, then these expenditures may be
covered from the income derived from the property of the
children; if such income does not suffice, then part of the
property of the children may be used, but only with the
permission of the Orphan's and Custody Court.
If the parents are absent or they are not able to maintain the
child, this duty shall lie in equal shares upon the grandparents.
If the financial state of the grandparents is unequal, a court
may specify for them the maintenance duty commensurate with the
financial state of each.
The minimal amount of maintenance, which is the duty of each
of the parents to ensure for the child irrespective of his or her
ability to maintain the child and financial state, shall be
determined by the Cabinet taking into account the minimum monthly
salary and the age of the child.
A court shall on the basis of a petition from the plaintiff,
without delay, take a decision regarding the amount the defendant
shall, temporarily until the adjudication of the dispute, cover
the expenditures necessary for the maintenance of the child. The
amount of temporary maintenance for the child may not be less
than the minimal amount of maintenance of the child specified by
the Cabinet.
[12 December 2002; 29 November 2012]
180. [12 December 2002]
181. A child has the right to maintain personal relations and
direct contact with any of the parents (access rights).
Each of the parents has a duty and the right to maintain
personal relations and direct contact with the child. This
provision shall be applicable also if the child is separated from
the family or does not live together with one of the parents or
both of the parents. The parent who does not live with the child
has the right to receive information regarding him or her,
especially information regarding his or her development, health,
educational progress, interests and domestic circumstances.
A child has the right to maintain personal relations and
direct contact with brothers, sisters and grandparents, as well
as with other persons with whom the child has lived with for a
long time in a common household if such conforms to the interests
of the child (access rights).
Any person shall have a duty to refrain from such activities
that may negatively influence the relationship of the child with
one of the parents.
[12 December 2002; 29 November 2012; 29 October
2015]
182. In case of dispute, the procedures by which access rights
may be utilised shall be determined by a court, requesting an
opinion from the Orphan's and Custody Court.
When determining the procedures for use of access rights, a
court may specify that the child spend a certain period of time
(weekends, school holidays, parents leave periods and similar)
with such parent with whom he or she is not living with, or also
their meeting time.
A court may restrict access rights insofar as this conforms to
the interests of the child, moreover, if necessary, it may
determine that it is allowed to meet with the child only in the
presence of access person or in a specific place suggested by the
Orphan's and Custody Court, or determine a duty to arrive to the
Orphan's and Custody Court with a child at a specific time. If a
court determines that it is allowed to meet with the child only
in the presence of an access person and the parties cannot agree
on the access person or the Orphan's and Custody Court does not
consent to the choice of the parties as regards the access
person, the access rights shall be implemented in the presence of
the representative of the Orphan's and Custody Court, or a person
authorised by the Orphan's and Custody Court. A court may
temporarily revoke access rights if the access is harmful to the
interests of the child and the harm cannot be otherwise
prevented.
An access person shall be a natural person in the presence of
which, if he or she agrees, the access rights are implemented. An
access person may be also a legal person which ensures the
presence of a specialist during the implementation of the access
rights.
If the child is separated from his or her family, access right
may be restricted by the Orphan's and Custody Court.
[12 December 2002; 29 November 2012; 29 October
2015]
183. While parents provide maintenance of the child, he or she
shall do work in and about the home of their parents without the
right to require any remuneration for this unless it has been
specifically promised to them.
[29 November 2012]
184. [12 December 2002]
185. If the children disobey or do not submit to being raised
by the parents, the parents may apply for assistance to the
Orphan's and Custody Court.
A child may turn for help to the Orphan's and Custody Court if
the parents have specified unjustified restrictions or other
differences of opinion have arisen in their relations.
For the resolution of differences of opinion, if necessary, a
guardian shall be appointed for the child.
[12 December 2002]
186. Parents shall jointly represent a child in his or her
personal and property relations (joint representation). If the
parents are living separately, joint representation is possible
only if both parents have agreed regarding joint custody or it is
presumed that joint custody of the parents exists (Section
178).
One of the parents shall solely represent a child in his or
her personal and property relations if:
1) the other parent has not reached age of majority, except in
the case when he or she has entered into marriage;
2) the other parent has died;
3) separate custody of one parent has been established with an
agreement or a court judgment, except in the cases where in
accordance with law the personal relations of the child are
represented by both parents;
4) [29 November 2012].
A parent with restriction of capacity to act shall represent
the child in property relations in such amount in which the court
has not restricted parent's capacity to act.
Each of the parents has the right to perform legal activities,
which are in the interests of the child if there exists a risk
that in respect of the child adverse consequences may set in. In
respect of the activities performed, he or she has a duty to,
without delay, notify the other parent, except in the case where
such activities have been performed by the parent who has the
right to solely represent the child.
[12 December 2002; 29 November 2012]
187. In implementing the right to determine the place of
residence of their children, parents may request their children
from any third person. Such parental rights may be restricted if
the Orphan's and Custody Court recognises that there are factual
impediments which deprive the parents of the possibility to
implement custody (Section 203).
[12 December 2002; 29 November 2012]
188. The duty to maintain parents and, in cases of necessity,
also grandparents, lies upon all of the children commensurately
to their abilities to maintain parents or grandparents and
financial state. Disputes regarding maintenance for parents or
grandparents shall be settled by a court.
A child may be released from the duty to maintain parents or
grandparents if it is determined that the parents or grandparents
have, without good reason, avoided the fulfilment of their duties
towards the child.
Grandchildren shall maintain each of the grandparents if the
spouse of the latter and children cannot do so.
[29 November 2012]
189. Children may conclude various lawful transactions with
their parents. While the children are minors, such transactions
may be concluded only with the participation of the Orphan's and
Custody Court, which shall appoint guardians for such case.
II. Property
Relations of Parents and the Child
[12 December 2002]
190. The property of minor children, except for the property
referred to in Section 195, shall be under parental
administration; if one of the parents dies or is not able to
administer the property for other reasons, it shall be
administered by the other parent alone.
191. In the administration of the property of children,
parents have the same rights and duties as guardians, but they
are relieved from the duty of providing detailed information in
accounts regarding expenditures for maintenance of the children,
and shall set out only the total amount of such expenditures.
192. Only pursuant to their rights as guardians may parents
alienate the property of children.
193. If some property has devolved to a child, then the parent
who has the right to administer such property shall make an
inventory of the property and submit it to an Orphan's and
Custody Court.
194. If the parents administer the property of a child not in
conformity with the interests the child, an Orphan's and Custody
Court may impose a duty upon the parents to provide detailed
accounting also of expenditures for the maintenance of the child
(Section 191), require that the property of the child be
satisfactorily secured, as well as remove them from the
administration of the property of the child, and assign this to
one of the parents or a guardian appointed specifically for this
purpose.
If custody rights have been removed from a parent by a court
judgment (Section 200) which has come into effect, a duty to
maintain a child remain for him or her.
[12 December 2002; 8 May 2014]
195. As the independent property of children, which is removed
from parental administration if the children have reached the age
of sixteen, shall be acknowledged:
1) everything that the children have acquired by their
personal work or by independently working in an occupation,
industry or commerce, etc. with the consent of the parents;
2) everything that is transferred by the parents, from the
property owned by children, to their independent
administration;
3) all the property given gratuitously to the children by kin
or other persons on condition that the children administer and
utilise such property independently, except for property which is
granted for a specific purpose.
[12 December 2002]
196. Where children have a dispute with their parents
concerning their property, they may defend their rights by court
process.
197. Parents are not liable for obligations entered into,
without the consent of their parents, by minors who are in the
custody of their parents, if they themselves have not gained some
benefit therefrom. Similarly, parents shall also not be liable to
have their property subjected to collection proceedings resulting
from the wrongful acts of their children, except in the cases
specifically set out in law.
[12 December 2002]
III. Termination
and Restriction of Custody Rights
[12 December 2002]
198. Custody is terminated:
1) upon the death of the parents or the child;
2) when a missing parent is presumed to be dead;
3) when the child is adopted by a third person;
4) when a child has reached his or her majority;
5) [29 November 2012].
[12 December 2002; 29 November 2012]
199. Custody rights removed by a court judgment (Section 200)
may be renewed by a court judgment.
[29 November 2012]
200. A parent may have custody rights removed if:
1) due to his or her fault (due to deliberate actions or
negligence) the health or life of the child is endangered;
2) the parent misuses his or her rights or does not care for
the child or does not ensure the supervision of the child and it
may endanger the physical, mental or moral development of the
child.
Upon removing the custody rights from one parent, the court
shall transfer the child into the separate custody of the other
parent. If custody, which could be implemented by the other
parent, would not protect the child sufficiently from
endangerment or custody rights are removed from both parents, the
court shall assign the Orphan's and Custody Court to ensure
out-of-family care for the child.
[12 December 2002; 10 March 2005; 22 June 2006; 29 November
2012]
201. If a minor marries, the parents shall lose the right to
act on behalf of their minor child and to administer the
dependent property of the child (Section 190). If such a marriage
is dissolved or declared annulled, the rights of the parents to
administer the dependent property shall not be renewed.
202. [12 December 2002]
203. Custody rights shall be terminated for a parent if the
Orphan's and Custody Court finds that:
1) there are factual impediments which prevent the parent from
the possibility of caring for the child;
2) the child is located in circumstances dangerous to health
or life due to the fault of the parent (due to the deliberate
actions or negligence of the parent);
3) the parent misuses his or her rights or does not ensure the
care and supervision of the child;
4) the parent has given his or her consent for the adoption of
the child, except for the case when he or she as a spouse has
given the consent for the adoption of the child by the other
spouse;
5) violence against the child by the parent has been
established or there is good cause for suspicion regarding
violence against the child by the parent.
In such cases, care shall be implemented by the other parent,
but, if there are impediments to this as well, the Orphan's and
Custody Court shall ensure out-of-family care for the child.
Custody rights shall be terminated for a parent also in cases
when the parent misuses his or her rights upon failing to fulfil
the court ruling in a case arising from custody or access rights,
if it causes significant harm to the child and if there are no
obstacles for the other parent to take care of the child.
The terminated custody rights shall be renewed for a parent
when the Orphan's and Custody Court finds that the circumstances
referred to in Paragraph one or three of this Section no longer
apply. If within a period of one year from the termination of
custody rights it is not possible to renew them, the Orphan's and
Custody Court shall decide regarding bringing an action to a
court for removal of custody rights, except in cases where the
custody rights cannot be renewed due to circumstances beyond the
control of the parent.
The Orphan's and Custody Court has the right to decide
regarding bringing an action to a court for removal of custody
rights before setting in of the time period laid down in
Paragraph four of this Section if it is in the interests of the
child.
[22 June 2006; 29 November 2012; 29 October 2015]
204. Where one of the parents is found to be an insolvent
debtor, the property of the child shall be administered by the
other parent or a special guardian appointed by an Orphan's and
Custody Court for this purpose. Where both parents are found to
be insolvent debtors, the Orphan's and Custody Court shall
appoint a special guardian for the administration of the property
of the child.
[29 November 2012]
205. Where a proceeding against one or both parents for
insolvency is terminated, or the trusteeship established in
regard to the parent is revoked, the Orphan's and Custody Court
shall decide regarding removal of a special guardian.
[29 November 2012]
Chapter Three
Kinship and Affinity
206. The relationship between two or more persons created by
birth is called kinship.
The nearness of kinship is determined in accordance with lines
and degrees.
Descent of one person by birth directly from another creates
one degree. With each new birth a new degree is created. The
connection between several unbroken continuous degrees is called
a line. Lines are direct or collateral.
207. Kin in a direct line are those who have descended from
each other by birth and are called either ascending or descending
kin, depending on whether the calculation is from children to
parents, or vice versa. In accordance with that the line itself
is divided into an ascending and a descending line. The father,
mother, grandfather, grandmother, great-grandparents, etc. belong
to the first line, while sons, daughters, grandchildren, children
of the latter etc. belong to the second line.
208. Collateral kin are those who have descended from one
common third person, an ancestor or ancestress. Such kin are
brothers and sisters, their children, uncles, aunts with their
descendants and brothers and sisters of a grandfather and
grandmother with their descendants etc.
209. Collectively all of the kindred descended from one common
third person are called a stirps.
210. The nearness of kinship between two persons in a direct
line is determined in accordance with degrees, i.e., the number
of births. A son in relation to his father stands in the first
degree of kinship, a grandchild in relation to his or her
grandfather stands in the second degree of kinship, and a
great-grandchild in relation to his or her great-grandfather
stands in the third degree of kinship, etc.
211. For the purposes of determining nearness of kinship
between two persons in a collateral line, only degrees or the
number of births shall be considered, and the calculation shall
begin from one of these persons, excluding himself or herself, in
a direct line ascending to a third person, common to both, and
from the latter descending to the second of such persons.
Brothers and sisters of the whole blood are in the second degree
of kinship, an uncle and his niece and an aunt and her nephew in
the third degree and cousins in the fourth degree of kinship,
etc.
212. Kinship connecting persons in two or more kinship
relations is called a double or multiple kinship relation.
213. Kinship between brothers and sisters may be either full
or partial. Such kinship shall be considered full, when the
brothers and sisters have descended from one and the same
parents, and partial, when they have descended from the same
father but different mothers or, vice versa, from the same mother
but different fathers; in the first case brothers and sisters are
called brothers of the whole blood and sisters of the whole
blood, whereas in the second case they are called half-brothers
and half-sisters.
Note. Children of two spouses, which each of them have from a
previous marriage, shall not be regarded as kin to each
other.
214. In the narrow sense of its definition, a family consists
of the spouses and their children while they are still part of a
common household.
215. The relationship of one spouse to the kin of the other
spouse is called affinity.
Affinity established by marriage also continues in effect
after termination of the marriage.
The degree of affinity with one of the spouses is the same as
the degree of kinship with the other spouse.
Chapter Four
Guardianship and Trusteeship
General
Provisions
216. Persons in need of protection and property left without
an administrator shall be entrusted to the care of guardians and
trustees who shall act on behalf of these persons and such
property.
217. Guardianship is established over minors.
Trusteeship is established:
1) over persons with health disorders of mental nature or
other (Section 358.1) whose capacity to act is
restricted by a court;
11) over persons with health disorders of mental
nature or other in urgent cases without restriction of capacity
to act (Section 364.2);
2) over persons due to their living dissolutely or wastefully
or over persons who due to excessive use of alcohol or other
narcotics threaten to drive them or their family into privation
or poverty and whose capacity to act has been restricted by a
court (Section 365);
3) over the property of absent and missing persons (Section
371);
4) over the entirety of property of an estate;
5) over the entirety of property subject to concursus
proceedings.
[29 November 2012; 29 October 2015]
218. Matters of guardianship and trusteeship are under the
purview of the Orphan's and Custody Courts.
[22 June 2006]
SUB-CHAPTER 1
Guardianship of Minors
I. Minority
219. The minority of persons continues until they reach the
age of eighteen.
[29 October 2015]
220. In exceptional circumstances and for especially good
causes, when the guardians and closest kin of a minor attest that
the behaviour of the minor is irreproachable, and he or she is
able to independently protect and defend his or her rights and
perform his or her duties, the minor may be declared as being of
age of majority even before he or she has reached the age of
eighteen, but not earlier than before he or she fully reaches the
age of sixteen.
221. The majority before the term (Section 220) shall be
granted by the relevant Orphan's and Custody Court, and its
decision is subject to being confirmed by a court.
A person who, pursuant to the procedures established by law,
has married before reaching the age of eighteen, shall be deemed
to be of age of majority.
II.
Establishment of Guardianship
222. A guardian shall be appointed for a child left without
parental custody. As soon as any person has information about a
case where a guardian must be appointed for a minor, he or she
shall notify the relevant Orphan's and Custody Court thereof. If
any of the persons referred to in Section 235 and 236 are unable
to assume guardianship, the Orphan's and Custody Court shall
decide on another type of out-of-family care.
[29 October 2015]
223. A father and mother already are, on the basis of custody
rights, the natural guardians of their minor children.
[12 December 2002]
224. Parents who have lost custody rights cannot also be
guardians of a child. If both of the parents have lost custody
rights over the child after a court judgment or for some other
reason independent of their will, a guardianship shall be
established over the child or the Orphan's and Custody Court
shall decide on another type of out-of-family care, but if it is
lost by only one parent, guardianship shall be established or the
Orphan's and Custody Court shall decide on another type of
out-of-family care in cases where it is necessary in the
interests of the child.
The same also applies to property of a minor, which has been
given or bequeathed to them on condition that it not be
administered by the parents.
[12 December 2002; 29 October 2015]
225. When one of the parents dies, guardianship passes to the
other parent without confirmation from the Orphan's and Custody
Court if the child has been in the joint custody of both
parents.
[12 December 2002]
226. When one of the parents dies, the other still remains the
natural guardian of his or her minor children, but he or she
shall have a duty to distribute the property of the deceased
pursuant to the provisions respecting inheritance rights, and
also to provide to or appropriately ensure for the children their
appropriate share of the property.
When remarrying, the parent in whose separate custody the
child is located shall be subject to the general provisions
regarding guardianship.
[29 October 2015]
227. If a spouse, who has survived the other spouse,
remarries, then in administering the property of the children
from his or her previous marriage the spouse shall be subject to
the general provisions regarding guardianship, and shall make and
submit to the Orphan's and Custody Court an inventory of the
property of the children, and an account of his or her
administration annually.
228. [12 December 2002]
229. Both parents shall have the right to appoint guardians in
their will for their children, both for existing as well as
anticipated children.
A direction regarding guardianship shall remain in effect even
in the will the other provisions of which have been found to be
invalid.
The definitely and indisputably evidenced intention of the
father and the mother to appoint certain persons as guardians for
their children has the same effect as a testamentary
appointment.
[12 December 2002]
[12 December 2002]
230. Guardians appointed in the will of the parents shall be
confirmed by the Orphan's and Custody Court without delay.
[12 December 2002; 29 October 2015]
231. Any other persons, who bequeath anything to a minor in a
will, may also appoint guardians for them for the administration
of the bequeathed property; the same right belongs to any other
person who, while alive, confers any part of their property upon
a minor. Nonetheless, guardians appointed by such procedure shall
be confirmed by the Orphan's and Custody Court.
232. The Orphan's and Custody Court may confirm the guardians
appointed in the will only after it has considered their
compliance for performance of the duties of a guardian.
[29 October 2015]
233. Parents may give specific instructions regarding the
guardianship to the guardians to be appointed in a will, and also
attach certain conditions or time limitations to their
appointment.
234. If a child has been left without custody, everyone, but
especially the nearest kin of the child have a duty to apply to
an Orphan's and Custody Court regarding the appointment of a
guardian.
[12 December 2002]
235. Guardianship over minors, except in the case referred to
in Section 229 of this Law, in the first instance, devolves to
their nearest kin, but for this the confirmation of the Orphan's
and Custody Court is necessary.
As the nearest kin of minors shall be regarded those who, upon
the death of such minors, would be their heirs by intestacy.
The Orphan's and Custody Court shall select as guardians the
most suitable from equally near kin, but if the nearest kin
should appear to be unsuitable, then from more distant kin.
[12 December 2002]
236. If among the kin of minors no one capable is to be found,
or those who are capable are unable to assume guardianship, or
they are discharged or dismissed from the performance of the
duties of a guardian, and also if minors do not have any kin, the
Orphan's and Custody Court shall appoint guardians from among
other persons, and the court shall act on its own accord as soon
as it is informed that there are such complete orphans.
[29 October 2015]
237. If a guardian is temporarily prevented from assuming
guardianship, pending such obstacles being removed the Orphan's
and Custody Court shall appoint a temporary guardian.
[12 December 2002; 29 October 2015]
238. No one may assume the rights of a guardian over minors
and their property before they are appointed as a guardian.
Accordingly, any actions of such persons who have arbitrarily
assumed guardianship have no legal effect, and they shall
compensate the minors for all losses caused thereby.
Notwithstanding, the guardians appointed in the will of the
parents which have not yet been confirmed by the Orphan's and
Custody Court, the nearest kin, but in their absence also other
persons may take minors into their care and temporarily safeguard
their property until the Orphan's and Custody Court, after notice
from such persons, gives appropriate directions.
[12 December 2002; 29 October 2015]
239. Based upon the application of a person, the guardians
shall be appointed by a decision of the Orphan's and Custody
Court after the compliance of the relevant person with the
performance of the duties of a guardian has been assessed.
[29 October 2015]
III. Persons who
may be Appointed as Guardians
240. The Orphan's and Custody Court has a duty, in all cases,
to assess the compliance of a person to be appointed as a
guardian with the performance of the duties of a guardian.
[29 October 2015]
241. The Orphan's and Custody Court has a duty generally to
not allow to be guardians, but if an appointment has already been
made, to remove from guardianship all those whose administration
may pose the threat of any loss to the minor or his or her
interests may suffer.
[12 December 2002]
242. The following may not be guardians:
1) persons who parents have rejected by will regarding
guardianship over their surviving minors;
2) persons whose interests manifestly are in conflict with
significant interests of the ward;
3) the members of the Orphan's and Custody Court which
monitors the guardianship concerned;
4) minors;
5) persons who have been punished for criminal offences
related to violence or threatening of violence - until the date
of extinguishing of the criminal record or removal thereof;
6) persons who have been punished for criminal offences
against morality and for sexual offences - regardless of
extinguishing of the criminal record or removal thereof;
7) persons who have been removed from the performance of the
duties of a guardian due to disorderly performance of duties of a
guardian;
8) persons to whom the status of the foster family or host
family has been removed because they have not performed the
duties in conformity with the interests of the child;
9) persons to whom the custody rights have been removed by a
court judgment;
10) persons to whom a court has applied compulsory measures of
a medical nature laid down in the Criminal Law for a criminal
offence provided for in the Criminal Law and committed in a state
of mental incapacity;
11) foreigners, except for the case when the guardianship
passes to the kin or persons who are in a common household
together with the minor.
[29 October 2015; Constitutional Court judgment of 4
November 2021; 2 June 2022]
243. [29 October 2015]
244. All the reasons indicated in Section 242 which do not
allow for the appointment of a person as a guardian shall also be
reasons for his or her removal, if they are disclosed only after
his or her appointment.
[29 October 2015]
IV. Duty of a
Guardian
[29 October 2015]
245. The duty of a guardian shall be a public duty.
246. A person who has skills and abilities necessary for
performing the duty of the guardian shall be appointed as a
guardian.
247. Who has assumed the duty of a guardian may not later
request without a justified reason to be relieved from it.
Factual impediments which prevent the guardian from the
possibility of caring for the child or such reasons due to which
the relieve of the guardian from the duty of a guardian conforms
to the interests of the child shall be considered as justified
reasons.
248. A person who has accepted a bequest by the same will in
which he or she is appointed as a guardian may refuse the duty of
a guardian only due to the interests of a child.
249. A person who requests to be relieved from the duty of a
guardian due to a justified reason shall inform the Orphan's and
Custody Court.
250. Even though the guardian has requested to be relieved
from the duty of a guardian, he or she shall be liable for
everything that has occurred during guardianship from the time
notification was given to him or her by the respective Orphan's
and Custody Court of the appointment until the Orphan's and
Custody Court has relieved him or her from it by a decision.
251. While the justification of the causes for refusal
provided by an appointed guardian is under consideration, the
Orphan's and Custody Court shall safeguard, to the extent
possible, the interests of the minor and if necessary act in
accordance with the provisions referred to in Section 222 of this
Law.
V.
Administration of Guardianship
1. Duties of a
Guardian towards a Ward
252. Guardians shall assume the place of parents for their
wards.
253. If differences of opinion arise between the guardian and
the ward, the guardian and ward may turn to the Orphan's and
Custody Court for resolution thereof.
[29 October 2015]
254. A guardian must support and act on behalf of his or her
ward in every respect.
255. A guardian especially shall provide for the upbringing of
his or her ward with the same care as conscientious parents would
provide for their children. A guardian himself or herself may
assume the upbringing, or entrust it to some other person who has
the required abilities for this. Moreover, in the latter case,
the guardian shall supervise the upbringing.
[29 October 2015]
256. The goal in the upbringing of minors, in addition to
their health care, shall include their moral and intellectual
development commensurate to their abilities and inclinations.
[29 October 2015]
257. In regards to making education and future life-style
choices for a minor, the will of the parents, if it has been
expressed, shall be considered.
If directions left by parents do not conform to the interests
of the ward, the guardian may, with the consent of the Orphan's
and Custody Court, deviate from them.
[29 October 2015]
258. For the maintenance of a ward only the necessary means
may be utilised, covering living expenses from the income derived
from his or her property and making all expenditures proportional
to it, so that part of this income, if at all possible, could be
saved. If any doubts arise, the guardian shall ask for the advice
of the Orphan's and Custody Court. The Orphan's and Custody
Court, having assessed the circumstances, shall reduce
expenditure and endeavour to find the missing means.
In cases of pressing need, particularly if the ward
demonstrates abilities, which are appropriate to be developed,
part of his or her capital may also be utilised to cover the
expenditures required for upbringing, but only with the consent
of the Orphan's and Custody Court.
If the means of a ward do not suffice to provide for his or
her maintenance, the guardian does not have a duty to maintain
the ward at his or her own expense.
[29 October 2015]
259. The guardian, and also his or her descendant kin and his
or her heirs in general, may enter into a marriage with his or
her wards only with the permission of the Orphan's and Custody
Court.
2. The Guardian
as the Representative of a Minor
260. The minor shall administer his or her independent
property independently (Section 195). He or she may conclude
transactions in respect of this property within the limits of
normal administration and he or she shall be liable for such to
the extent of his or her independent property.
If a minor, in accordance with the law enters into employment
relations or is independently working in some trade, in a craft,
in sales etc., he or she may conclude transactions which are
necessary in connection with his or her independent work, and he
or she shall be liable for such transactions to the extent of all
his or her property.
In such cases, a minor also may not independently enter into
such transactions in which a guardian may not enter into without
the permission of the Orphan's and Custody Court.
[12 December 2002]
261. Except in the cases set out in Sections 221 and 260, the
minor does not have capacity to act and therefore he or she shall
be represented by a guardian in all legal transactions.
If a minor has concluded a transaction, albeit without the
participation of his or her guardian, but which is manifestly
beneficial to him or her, it shall be in effect and binding upon
the other party.
The legal transactions of a minor shall acquire binding effect
if the minor, having reached the age of majority and gained the
capacity to defend his or her rights, expressly acknowledges the
obligations arising from these transactions.
262. A guardian shall, in all matters pertaining to his or her
ward, act independently and shall conduct such on the basis of
proprietary rights. However, in all of the most important cases,
the guardian shall request directions from the Orphan's and
Custody Court.
263. Legal transactions that a guardian has entered into in
the Orphan's and Custody Court or with its consent, shall be
binding and may not be contested later.
264. A guardian must represent his or her ward in court
proceedings. Without the guardian he or she may not bring action,
not defend an action, except in cases provided for by law.
265. Court proceedings where the subject matter is of
importance and value, and which may be associated with large
expenditures, as well as those whose outcome may be difficult to
predict, may be commenced on behalf of the minor by the guardian,
after he or she obtains the consent of an Orphan's and Custody
Court and necessary directions. If losses occur to the minor from
failure to comply with this provision, the guardian shall
reimburse all costs and losses to the ward.
266. Guardians are liable to the extent of their property for
the court costs in such actions which they have permitted to be
brought against a minor entrusted to them through negligence.
267. Where court proceedings arise between a guardian and a
minor, and also in general where the interests of a guardian and
a ward conflict, the Orphan's and Custody Court shall appoint a
special guardian for the ward. However, if the ward has several
guardians, then one of them, who is a disinterested person, may
conduct legal proceedings against the others.
268. Contracts and other legal transactions between the minor
and his or her guardian may be entered into only with the consent
of an Orphan's and Custody Court. If the minor has only one
guardian, then in such case another one shall be appointed for
him or her.
3.
Administration of the Property of a Minor
269. A guardian shall administer the property of a ward with
the same care and conscientiousness as he or she, as a good
proprietor, administers his or her own things.
270. After assuming guardianship, the guardian firstly shall
ascertain the contents of the property of the minor and shall
make a list thereof. The list shall be prepared in one copy - the
original shall be kept at the Orphan's and Custody Court, but a
copy shall be issued to a guardian.
[29 October 2015]
271. If anyone assumes the administration of the property of a
minor without preparing a list thereof, he or she may be removed
from guardianship and are liable for all losses caused to the
ward as a result of his or her guardianship.
272. [29 October 2015]
273. If an estate, which has been left to the ward, is
encumbered with debts, the guardian firstly shall submit to the
relevant notary a petition for notification of creditors.
[12 December 2002]
274. When the creditors are ascertained, the guardian shall
endeavour to satisfy them insofar as possible from the existing
cash assets of the estate or from the net income which remains,
deducting expenses and also taking into account reciprocal claims
respecting debts.
275. If it is not possible to satisfy the creditors from the
funds set out in the previous Section (274), the guardian may for
this purpose, with the consent of the Orphan's and Custody Court,
enter into a loan, but, where this is not possible, sell the most
superfluous of the property of the minor.
276. A guardian has authority, with the consent of the
Orphan's and Custody Court, to enter into settlements with the
creditors of the minor for his or her benefit; but, if the
guardian himself or herself is a creditor, he or she, in the
application of his or her claim, shall be satisfied under the
same conditions as provided for the other creditors.
277. [29 October 2015]
278. Movable property that has devolved to the ward which
deteriorates or generally becomes worthless and, in addition, is
not needed for his or her use, shall be sold by the guardian
without delay for the best price obtainable, without requesting
particular permission for this purpose, but he or she shall
provide an accounting to the Orphan's and Custody Court regarding
the sale and the money received.
279. Sale of a minor's movable property, which does not
deteriorate, may be permitted:
1) if it is necessary to pay for debts which encumber the
estate accruing to the minor, or else for his or her
maintenance;
2) if the property in question consists of goods which the
estate-leaver was trading in.
For each such sale the guardian shall, in advance, request
permission from the Orphan's and Custody Court.
280. Sale of immovable property belonging to a minor may be
permitted:
1) to distribute an estate among heirs who are and who are not
of age of majority;
2) for payment of unpostponable debts which have devolved to
the minor together with an estate;
3) if there are no other means for his or her maintenance;
4) if the sale is the only means to avert significant loss
threatening the minor.
The guardian shall inform the Orphan's and Custody Court
concerning such cases, which, having considered the circumstances
presented and being convinced of the need for or suitability of
the intended sale, may itself permit the sale if the immovable
property has been valued at not more than 14 000 euros or else,
if it is valued at more, shall submit the matter to a court for a
decision thereon.
[22 June 2006; 19 September 2013]
281. Court permission for a sale is not required in these
cases:
1) where it is carried out in executing a court judgment which
has come into effect;
2) where the person from whom inherited property has devolved
to the ownership of a minor has himself or herself by will or
otherwise provided that it be sold;
3) where a third person, who has a right to it, requests it.
In all such cases, the sale shall be done under the supervision
of the Orphan's and Custody Court.
282. If the estate-leaver has specifically prohibited the sale
of any property which, if retained by the minor would result
manifestly in loss, the guardian may petition the Orphan's and
Custody Court to set aside such prohibition.
283. Movable and immovable property of the minor may be sold
by auction or on the open market by the guardians themselves,
having regard to what the Orphan's and Custody Court finds most
advantageous. Guardians, their spouses and children shall not,
under any circumstances, purchase the property of a ward.
284. The provisions regarding sale in Sections 279 to 283
shall also apply to all other ways of alienating the property of
wards.
285. If the immovable property of a ward is alienated or
encumbered with property rights or debts without the permission
of the Orphan's and Custody Court in cases where such is required
by law, such alienation or encumbrance is void and may not be
corroborated.
Such transactions regarding movable property regarding rights
related to obligations, if they are harmful to a ward, may be
contested.
As soon as such cases become known to the Orphan's and Custody
Court, it shall ensure that a newly appointed guardian brings
action as appropriate against the former guardian or the opposing
party in a contract with the ward, or more distant persons who
have acquired the property in bad faith.
The former ward may himself or herself bring an action within
the period of a year after reaching the age of majority.
286. Without permission from the Orphan's and Custody Court, a
guardian may neither give notice of nor cede capital claims
belonging to a minor.
287. If the claim of a third person against a minor is ceded
to the guardian, the right of the guardian to make a claim on
behalf of the minor is revoked.
288. If the property of a minor consists of rural immovable
property, the guardian shall take particular care that the fields
are properly cultivated, animals well taken care of, buildings
maintained in good repair, all income properly collected, fees
and other public charges paid in time and undertakings
maintained.
289. The guardian shall maintain urban immovable property in a
usable state and in good order, collecting income therefrom and
paying rates imposed thereon on time.
290. New buildings and installations in connection with
expenses which are unable to be covered from the income of the
immovable property may not be constructed or installed by the
guardian without the prior permission of the Orphan's and Custody
Court.
291. If leasing of the immovable property is more advantageous
to the ward, the draft leasing contract shall be submitted to the
Orphan's and Custody Court for approval. The leasing of the
immovable property of the ward by the guardian himself or
herself, his or her spouse or children is prohibited.
292. A trading, manufacturing or any other undertaking
inherited by a minor shall be continued by the guardian at the
expense of the minor only if this continuation is not associated
with risk or there are not any obstacles thereto. The issue as to
whether an undertaking shall continue or be terminated shall be
decided by the Orphan's and Custody Court.
293. A guardian may enter, in the interests of a minor, into
any type of contract concerning his or her affairs, as well as
accept and make payments. All such transactions bind the minor,
provided the guardian has acted in good faith, therewith
remaining within the limits of proprietary administration and not
binding the minor, in the absence of special need, for a longer
term than until he or she reaches the age of majority.
294. If a guardian regards it in the interests of and
advantageous to the ward to acquire immovable property or special
rights or servitudes for immovable property already owned, he or
she shall request the prior permission of the Orphan's and
Custody Court for this purpose.
295. An estate which a ward has inherited from his or her
parents or from any other person may be accepted only with rights
of inventory (Section 708) by the guardian. The guardian may not
accept or renounce an estate without the permission of the
Orphan's and Custody Court.
296. All cash, except that which is required for the regular
expenses of the minor, shall be deposited by the guardian to bear
interest in any financial institution.
With the permission of the Orphan's and Custody Court, the
guardian may invest the moneys of the minor to bear interest
provided adequate security is obtained against immovable
property.
[12 December 2002]
297. The guardian shall be liable to the minor in respect of
such capital which he or she has invested, to bear interest,
without adequate security.
Similarly, the guardian shall be liable for each unjustified
delay in investing moneys of the minor to bear interest, and he
or she shall repay the loss of interest to the minor that results
from this.
298. The guardian is prohibited from borrowing from his or her
ward and he or she may not use the property of the ward.
299. If the guardian has involved other persons in matters
concerning his or her ward, then he or she shall be responsible
for the actions of such persons.
[29 October 2015]
4.
Accounting
300. A guardian shall provide an accounting annually to the
relevant Orphan's and Custody Court regarding his or her
administration as a guardian.
Even those guardians who have been relieved by a testator from
such a duty shall not be relieved from providing an
accounting.
301. An annual accounting must be submitted to the Orphan's
and Custody Court in writing at the beginning of each year, not
later than February; it shall contain a description of the
contents and a detailed inventory of the property, attaching, to
the extent possible, receipts, including for all the expenditures
made during the year on behalf of the minor, as well as
indicating income collected and amounts of income which have
remained uncollected.
If the Orphan's and Custody Court has no objections to the
annual accounting, it shall approve the annual accounting.
[29 October 2015]
302. The Orphan's and Custody Court shall examine the accuracy
of the accounting provided by guardians annually, ascertaining
errors and, in general, actions by guardians which are
disadvantageous to the interests of the minor, shall request
explanations from them and shall take appropriate measures.
5. Compensation
of Guardians for Expenses and Work
303. All expenses of a guardian for administration of the
property of the minor shall be covered from the income derived
from the relevant property.
[29 October 2015]
304. Everything that a guardian has advanced from his or her
own resources for the affairs of a minor shall be reimbursed to
him or her with interest from the property of the minor if, even
with frugal management, it has been necessary to advance or to
borrow money.
These expenditures must be set out in the first accounting
subsequent to their being made.
305. A guardian shall recover expenditures and resources
advanced (Sections 303 and 304) even when the matter they have
been used for ends unfavourably, provided he or she has initiated
the matter with the intent of advancing the interests of the
minor and in addition thereto with appropriate care.
306. Unintentional losses which have resulted to the guardian,
without his or her fault, in fulfilling his or her duties, and
also the losses caused to him or her due to the fault of the
ward, shall be compensated for from the property of the ward.
307. The Orphan's and Custody Court shall determine
remuneration for a guardian that is just and commensurate to the
property of the ward, but not more than five percent of the net
income after confirmation of the annual accounting.
Having regard to the circumstances, the Orphan's and Custody
Court may in lieu of annual remuneration provide for a one-time
payment to the guardian after the termination of the
guardianship, review of the guardian's report and acceptance and
a final settling of accounts with the guardian. This remuneration
shall not exceed 7114 euro.
Guardians who are in direct line kinship with a ward shall not
receive remuneration.
Note. If the remuneration for a guardian exceeds 426 euros,
the decisions of the Orphan's and Custody Court shall be
submitted to a court for confirmation.
[19 September 2013]
308. When there are several guardians, remuneration shall be
divided in equal parts among them, if the Orphan's and Custody
Court does not determine a different division.
309. The capital property of the minor may not be used for the
payment of remuneration.
310. If a person who has left an estate to a minor has
pursuant to a will stipulated specific remuneration for the
guardian, he or she no longer has the right to receive the
remuneration provided for in this law (Section 307), provided the
testator has not directly stipulated otherwise.
VI. Liability of
the Guardian
311. A guardian shall be liable for all losses that he or she
has caused to the ward by not fulfilling his or her duties
(Section 269).
312. A guardian who has proved that he or she has observed the
same care as with which he or she as a good proprietor
administers his or her own affairs, is released from any
liability.
313. If, in collecting the inherited capital of a minor or
capital invested by his or her former guardian, or in purchasing
immovable property for a minor, any losses result to the minor
the guardian is liable only for bad faith and gross
negligence.
314. If a duty to compensate a ward has resulted for a
guardian by reason of his or her administration, this also
devolves to his or her heirs.
315. Heirs of a guardian are liable only for the bad faith and
gross negligence of the guardian. However, if an action for
compensation has been brought while the guardian is alive, his or
her heirs are liable without distinction for all that the
estate-leaver himself or herself as the guardian would have been
liable for.
VII. Joint
Guardians
[29 October 2015]
316. One guardian shall be appointed for the administration of
each guardianship. For particularly difficult and complicated
guardianships several guardians may also be appointed, however,
not more than three. If a guardian with restricted capacity to
act has been appointed for a minor, the Orphan's and Custody
Court shall appoint a joint guardian for the ward who shall
represent the ward in property relations to such extent in which
the court has restricted the guardian's capacity to act.
[29 October 2015]
317. If one guardian has been appointed in a will, the
Orphan's and Custody Court may, contrary to the volition of such
guardian, appoint a joint guardian only when this does not
directly contradict the will, but also in the latter case may
appoint a joint guardian if, in not doing so, significant losses
would be foreseeable for the minor.
318. By way of general provisions, joint guardians shall
administer the guardianship jointly and without division, and,
therefore, in regard to administration, they have equal rights
and equal duties.
Each separately performed action by a guardian in guardianship
matters is in force and binding, provided he or she has not in
general violated his or her rights as a guardian and the joint
guardians have not raised specific objections against his or her
actions.
The taking of such an action as will result in the termination
of guardianship, as, for example, adoption of the minor, shall
require the consent of all the guardians.
319. The guardians are solidarily liable for all claims made
by a ward that arise from the administration of the
guardians.
320. If losses caused to a ward due to the joint actions or
negligence of the joint guardians have been compensated for by
only one of the guardians, then he or she has the right to
request proportional participation from the others in such
compensation. If any guardian is insolvent, his or her share
shall be proportionally divided among the others.
321. If only one of the guardians is at fault in regard to the
actions or negligence due to which the losses have resulted, he
or she must reimburse the others for compensation paid for the
losses on his or her behalf.
[29 October 2015]
[29 October 2015]
322. If a person who has reached the age of majority brings
his or her action against each guardian separately, each of them
shall be required to pay only his or her share, and solidary
liability in this case shall not be imposed on all of the
guardians for a guardian who proves to be insolvent.
323. The solidary liability of guardians devolves to their
heirs. The heirs of a ward, in the same way as the ward himself
or herself, at their own discretion, may also apply their claims
to each guardian separately.
324. The solidary liability of guardians is in effect only
during their administration period. For action or negligence,
which occur after the withdrawal of a joint guardian or the
termination of guardianship, only a guardian who is at fault is
liable.
325. If, after the termination of the guardianship, the person
who has reached the age of majority gives a signed statement to
one of the guardians regarding the appropriate transfer of the
property which was under guardianship, then the signed statement
also protects the joint guardians against any subsequent
actions.
326. If the guardians agree to divide among themselves the
joint duties of guardianship, they may do so only on the basis of
their own liability therefor, and in addition, such division has
no effect in any way upon the rights of a ward or third persons.
Nevertheless, also in such case the one performing any action is
firstly liable therefor.
327. If several guardians have been appointed, they may
request that the appropriate Orphan's and Custody Court divide
the duties of guardianship among them.
If the Orphan's and Custody Court divides the duties of
guardianship among the guardians or if such a division has been
provided for by a person who has left an estate to the minor,
then each individual guardian shall administer only their
indicated part and is liable only therefor.
328. A guardian who becomes informed that, as a result of the
administration by the joint guardian, there is a threat to the
minor of losses arising, shall notify the Orphan's and Custody
Court of this. A guardian who has not observed this duty,
together with a joint guardian who is at fault, is liable for the
action or negligence of such joint guardian and may not rely on
the fact that the guardianship has been divided.
329. If, apart from the guardians who have been entrusted with
all of the guardianship, there is additionally appointed a
specific guardian for some independent action (Sections 267 and
268) or for administration of such immovable property which is
remotely located, then such guardian shall act independently from
the others and is liable for all of his or her own actions and
negligence.
[29 October 2015]
VIII. An
Orphan's and Custody Court and its Relationship with Wards and
Guardians
330. An Orphan's and Custody Court has the duty to appoint a
guardian for a minor without delay and without waiting for a
petition from kin or other relatives (Section 222).
As soon as State and local government institutions receive
information about a case where a guardian must be appointed for a
minor, they shall notify the appropriate Orphan's and Custody
Court of this. Family members, kin and persons in whose care the
minor has been have the same duty.
331. The Orphan's and Custody Court shall provide for the
preparation of an inventory of the property of the minor,
constantly monitor the actions of the guardians, and do all that
is required by and support the interests of the minor.
332. Upon irregularities being discovered, the Orphan's and
Custody Court shall, without delay, rectify them, and if,
pursuant to information received from joint guardians or kin, or
in its own opinion, it finds the guardian unsuitable, it shall
dismiss the guardian and appoint another in his or her place.
[29 October 2015]
[29 October 2015]
333. The Orphan's and Custody Court may impose a monetary fine
of not more than 140 euro on guardians for failing to comply with
its directions or decisions. The moneys shall be credited to the
income of the local government concerned.
[29 October 2015]
[19 September 2013; 29 October 2015]
334. The Orphan's and Custody Court, where necessary, shall
give directions to the guardian regarding the administration of
the property of the child and protection of the interests of the
child.
[29 October 2015]
335. If the Orphan's and Custody Court permits the illegal
actions or negligence of guardians, but the guardians are not
able to compensate the ward for losses caused thereby, such shall
be covered by the local government.
336. Deleted.
337. A local government shall be liable for the negligence of
the Orphan's and Custody Court, particularly in the following
cases:
1) where, having been informed about a child left without
parental custody, it does not appoint a guardian for him or
her;
2) where it appoints or confirms as a guardian a manifestly
unsuitable person;
3) where it insufficiently investigates the compliance of such
person who has been appointed as a guardian with the performance
of the duties of a guardian;
4) where it fails to take the necessary measures in tune
against an unsuitable guardian.
[29 October 2015]
338. If the Orphan's and Custody Court has deliberately
infringed the interests of the ward, the local government under
subrogation procedures may claim full compensation for the losses
from the members of the Orphan's and Custody Court.
IX. Termination
of Guardianship
339. Guardianship for a ward is terminated:
1) with his or her death;
2) by his or her reaching the age of majority;
3) by his or her adoption;
4) if custody rights have been renewed for the parents.
[12 December 2002]
340. [29 October 2015]
341. Guardianship is terminated with respect to a
guardian:
1) with his or her death;
2) if he or she is discharged from the performance of the
duties of a guardian by a decision of the Orphan's and Custody
Court in relation to inability to perform the duties of a
guardian due to valid reasons;
3) if he or she is dismissed from the performance of duties of
a guardian;
4) in guardianships, which have been established with certain
conditions or for a prescribed time, upon the conditions coming
into effect or the prescribed time elapsing.
[29 October 2015]
342. In the cases set out in the previous Section (341), the
Orphan's and Custody Court shall, in place of the removed
guardian, appoint another. If one of the guardians dies, the
remaining guardians shall, without delay, notify the Orphan's and
Custody Court regarding this.
343. Impediments, which temporarily do not permit the
performance of the duties of a guardian, do not give a guardian
the right to renounce the performance of his or her duties
entirely. Pending such impediment being removed, the Orphan's and
Custody Court shall appoint a temporary guardian.
[29 October 2015]
344. A guardian shall be released by the Orphan's and Custody
Court that has appointed or confirmed him or her.
345. If one of the kin or also a stranger becomes informed of
danger threatening the ward from the administration of a
guardian, then any of them, as well as the ward himself or
herself have the right to notify the Orphan's and Custody Court
of this.
346. The right of the Orphan's and Custody Court to dismiss a
guardian applies to all guardians, including the guardians
appointed in a will.
[29 October 2015]
347. Upon termination of a guardianship, the guardian shall
provide a final accounting to his or her former ward in the
Orphan's and Custody Court. In the review of such, the guardian
may not be held liable for those accounts that the Orphan's and
Custody Court has previously examined and acknowledged, except in
cases where the guardian has allowed error or fraud.
348. Together with the submission of final accounting, a
guardian shall, in accordance with the inventory and final
accounting, transfer all the property under his or her
administration to the former ward, but the latter, for his or her
part, shall pay all that is owed to the former guardian.
349. If the person released from guardianship fails to accept
his or her property without good cause, the guardian shall inform
the Orphan's and Custody Court thereof without delay.
[29 October 2015]
350. When the guardianship is terminated, the person released
from guardianship shall give the former guardian a signed
statement that he or she has received all the property that is
rightfully theirs and that he or she have no claims against the
guardian. When such a signed statement has been submitted to the
Orphan's and Custody Court, together with a request for release,
the Orphan's and Custody Court shall release the guardian. The
signed statement referred to may only be disputed if, at a later
date, manifest fraud or error is discovered.
351. A former minor shall raise any objections against the
final accounting of the guardian within six months from the date
of receipt of the final accounting. The Orphan's and Custody
Court, having requested clarifications from the guardian, shall
within two weeks render its decision and in the appropriate cases
apply the provisions of Section 1308.
352. Regardless whether an objection is or is not raised in
the Orphan's and Custody Court as to its decision (Section 351),
the former minor has the right within one year from the date of
receipt of the final accounting or the transfer of property, if
this occurs at a later date, to bring an action against the
former guardian in the Orphan's and Custody Court concerned.
Within one year from the date of submission of the accounting,
the former guardian may also bring an action against the former
ward.
353. If the ward dies, not having reached the age of majority,
the guardian shall submit his or her final accounting to the
heirs of the ward.
354. A guardian who has been released or dismissed from
guardianship before its termination, shall give an accounting to
their successors or joint guardians. If a guardian dies, this
duty devolves to his or her heirs.
SUB-CHAPTER 2
Trusteeship of Adults
I. GENERAL
PROVISIONS
355. Trustees of adults shall be appointed pursuant to
judgment of a court by the appropriate Orphan's and Custody
Court, which shall find out the opinion of the person regarding a
trustee to be appointed, provided that such person is able to
formulate it. The Orphan's and Custody Court may appoint as
trustee a trustee selected by the person, the spouse of the
person to be placed under trusteeship or one of the nearest kin,
as well as the Orphan's and Custody Court shall observe the last
will instructions of such person who has left him or her an
estate.
The opinion of the person under trusteeship shall be taken
into account, provided that it does not endanger welfare, health,
life or other interests of the person himself or herself. The
trustee, when performing the duties of the trustee, shall find
out the opinion of the person under trusteeship, provided that he
or she is able to formulate it, and act in the interests of the
person.
Disagreements of a person under trusteeship with a trustee
shall be settled by the Orphan's and Custody Court at first, but
a dispute afterwards - by a court.
[29 November 2012]
356. Trusteeship for adults shall be subject to the relevant
provisions regarding guardianship for minors, insofar as these
provisions do not conflict with the following Sections.
356.1 A person shall not be restricted in personal
non-financial rights, as well as to defend his or her rights and
lawful interests in institutions and court in relation to his or
her restrictions for the capacity to act and freedom,
disagreements, disputes with trustee and appointment and removal
of the trustee.
[29 November 2012; 17 January 2013]
II. Trusteeship
over Persons with Health Disorders of Mental Nature or Other
[29 November 2012]
357. If a person has health disorders of mental nature or
other, his or her capacity to act may be restricted, if it is
necessary in the interests of such person and it is the only way
how to protect them. In such case trusteeship shall be
established for such person.
[29 November 2012]
358. [29 November 2012]
358.1 The capacity to act for a person with health
disorders of mental nature or other may be restricted to such
extent in which he or she cannot understand the meaning of his or
her activity or cannot control his or her activity.
A court, when assessing the abilities of a person, at first
shall determine whether and to what extent a trustee with a
person under trusteeship act together and only after that -
whether and to what extent the trustee acts independently.
[29 November 2012]
359. Health disorders of mental nature or other are associated
with legal consequences only when the capacity to act of a person
has been restricted by a court in accordance with the procedures
laid down by the Civil Procedure Law.
[29 November 2012]
360. If the court restricts a capacity to act for a person due
to health disorders of mental nature or other, it shall notify
the Orphan's and Custody Court thereof which, where necessary,
appoints one or several trustees over such person who are
assigned to act to the extent determined by the court.
A trustee shall assist a person under trusteeship to acquire
skills and abilities necessary for him or her to renew his or her
capacity to act.
A trustee shall ensure nursing of a person under trusteeship,
however he or she is not obliged to nurse himself or herself such
person.
[29 November 2012]
361. The actions of a person under trusteeship, who has health
disorders of mental nature or other, shall be regarded as
invalid, if they are committed to the extent of the restriction
of the capacity to act determined by the court.
[29 November 2012]
362. An action that a person with health disorders of mental
nature or other has committed prior to the establishment of a
trusteeship has legal effect.
[29 November 2012]
363. [29 November 2012]
364. [29 November 2012]
364.1 The restriction of the capacity to act
determined by the court shall be reviewed in accordance with the
procedures laid down in the Civil Procedure Law.
A court judgment regarding the restriction of the capacity to
act shall be in effect until the time when other court
adjudication is taken on such issue. The court judgment regarding
the restriction of the capacity to act may be reviewed at any
time but not less than once in seven years from the day of coming
into effect thereof.
If the court revokes the restriction of the capacity to act
determined for a person, it shall assign the Orphan's and Custody
Court to dismiss trustees from the performance of the relevant
duties after they have submitted a final accounting and
transferred the property to the person who has been under their
administration.
[29 November 2012]
II.1
Temporary Trusteeship
[29 November 2012]
364.2 A person who has health disorders of mental
nature or other and who cannot understand the meaning of his or
her action or cannot control his or her action, a court may
establish temporary trusteeship without restriction of the
capacity to act in accordance with the procedures laid down in
the Civil Procedure Law, if:
1) it is urgently necessary in the interests of a person;
2) disorders are temporary;
3) a person cannot cause damage to himself or herself by his
or her active action.
A court shall establish temporary trusteeship that does not
exceed two years.
Temporary trusteeship shall be established if it is the only
way to protect a person's interests.
A court, when establishing a temporary trusteeship, shall
determine the duty for a trustee to conduct only certain matters.
The conduct of certain matters shall be related to conducting of
urgent matters of the person or ensuring of basic needs or care
for the person.
A temporary trustee shall be appointed by the Orphan's and
Custody Court.
364.3 Temporary trusteeship shall terminate:
1) in the time period laid down by the court;
2) by a court ruling regarding termination of the temporary
trusteeship;
3) in matters on restriction of the capacity to act - by other
ruling regarding establishment of temporary trusteeship or upon
coming into effect of the judgment in the relevant matter.
If temporary trusteeship terminates, the Orphan's and Custody
Court shall dismiss trustees from the performance of the relevant
duties after they have submitted a final accounting and
transferred the property to the person who has been under their
administration.
III. Trusteeship
of Persons with Dissolute or Spendthrift Lifestyles
365. A court, in accordance with the procedures laid down in
the Civil Procedure Law, shall determine restriction of the
capacity to act and establish a trusteeship regarding persons,
whose dissolute or spendthrift lifestyle, as well as whose
excessive use of alcohol or other narcotics threatens to drive
them or their family into privation or poverty.
[29 November 2012]
366. In determining a restriction of the capacity to act and
establishing a trusteeship, a court shall remove from the person
referred to in the Section 365 of this Law the capacity to act
and administration of his or her property to such extent that is
necessary for administration of the property of such person and
covering of expenditure related to maintenance of the family. The
court, when restricting the capacity to act and establishing
trusteeship, shall at first determine whether a trustee acts
together with a person under trusteeship and afterwards - whether
a trustee acts independently, and assign the relevant Orphan's
and Custody Court to appoint one or several trustees.
[29 November 2012]
367. In respect of the administration of property, the persons
referred to in Section 365 are equivalent to minors. In removing
from them the administration of property and capacity to act,
they shall nevertheless be permitted freedom of action with the
net income, which remains after every expense related to the
administration of property and maintenance of their family has
been covered.
368. The actions of the person referred to in Section 365 done
before the restriction of the capacity to act, are in legal
effect and binding.
[29 November 2012]
369. Trusteeship for the person referred to in Section 365
shall continue until such time as there is no doubt that he or
she has finally changed his or her nature and lifestyle, and for
so long as the same court that restricted the capacity to act and
established the trusteeship has not reviewed that. A court
judgment regarding establishment of the trusteeship shall be in
effect until the time when other court ruling is taken in this
matter. The court judgment regarding establishment of the
trusteeship may be reviewed at any time, but not less than once
in seven years from the day of coming into effect thereof.
[29 November 2012]
IV. Trusteeship
for the Property of Absent or Missing Persons
370. A person who has departed from their permanent place of
residence, if he or she has not left an authorised person in his
or her place, may be represented in regard to his or her rights
by a manager who has not been authorised.
371. If such an unauthorised manager (Section 370) does not
exist or if non-appointed management is inadmissible, but
representation in regard to rights in a relevant case is
nevertheless necessary, then the court who has had personal
jurisdiction over the person before he or she left his or her
place of residence, has the right and the duty to establish a
trusteeship.
372. A trustee shall protect and administer the property of an
absent person, but he or she shall not have the right to
interfere in other matters in regard to the absent person, except
in cases of compelling necessity.
373. The trustee shall make an inventory of the property
entrusted to him or her and submit an accounting annually to the
Orphan's and Custody Court.
374. If an estate devolves to an absent person, this may be
accepted by a trustee in the same manner as a guardian accepts an
estate which devolves to his or her ward. However, if prior to
the expiration of the prescriptive period provided by law, it is
proved that the absent person was no longer alive at the time of
the opening of the succession, the estate shall devolve to those,
who at the time mentioned were the nearest heirs after the absent
person.
375. Trusteeship of the property of an absent person is
terminated:
1) when he or she returns to his or her place of residence or
notifies about himself or herself and himself or herself gives
instructions regarding the administration of his or her
property;
2) when definite information as to his or her death has been
received;
3) when a court has declared him or her presumed dead.
376. If reliable information has been received regarding the
death of an absent person, his or her property shall be subject
to the general provisions regarding inheritance and shall be
transferred as inventoried and accounted for to that person, who
at the time of death of the absent person was his or her nearest
heir.
377. A missing person shall be declared presumed dead pursuant
to a petition by interested parties, but if such do not exist, by
the trustee of his or her property or a prosecutor, which may be
submitted as soon as ten years have elapsed from the end of the
year when the last information was received regarding the missing
person.
If a missing person, when the last information regarding him
or her was received, had reached seventy years of age, then a
request may be made to have him or her declared presumed dead
after five years after receipt of such information.
378. A missing person may be declared presumed dead:
1) if he or she has gone missing on a battle-field and within
a two year period after the end of active hostilities there is no
news of him or her;
2) if he or she was on a ship or an aeroplane disaster or had
found himself or herself in other mortal danger and within a six
month period there is no news of him or her.
379. When a court has declared a missing person as presumed
dead, his or her property, if he or she did not leave a will,
shall devolve to those heirs who were, on the assumed day of
death, if such has been determined by court decision, or, if this
day cannot be determined, at the moment when the matter was
commenced, his or her nearest kin or spouse.
380. If a missing person whom a court had declared presumed
dead (Section 377) returns, he or she may recover his or her
property from the persons to whom it had been transferred
(Section 379), or their heirs, but only to the extent as
preserved, or for so much as the heirs have enriched themselves
with such property during this period.
381. If, after the declaration of presumption of death of the
missing person, it is proved that he or she died at another time,
then those persons who during such time had inheritance rights
may claim for the remaining property to be transferred to them,
but also only with the restrictions set out in Section 380.
PART TWO
Inheritance Law
Chapter One
General Provisions
382. An estate is the whole, which comprises all immovable and
movable property, as well as transferable rights and obligations,
which may be transferred to others and which, at the actual or
legally presumed time of death, were owned by the deceased or a
person legally presumed dead. In this context the deceased or the
person legally presumed dead shall be called an
estate-leaver.
383. An estate is a legal person. An estate may acquire rights
and assume obligations.
384. The right to enter into the whole of the rights and
obligations pertaining to the estate of the deceased shall be
called the right of inheritance. A person who has such a right
shall be called an heir.
385. Anyone who has the right to acquire property also has the
right to take all or part of an estate. Natural persons and legal
persons have the capacity to inherit.
386. A natural person has the capacity to inherit if, at the
time the succession is opened, such person has been conceived,
but has not yet been born.
387. Those legal persons, the founding of which the
estate-leaver has foreseen in his or her instructions in
contemplation of death by making them heirs and bequeathing them
property, also have the capacity to inherit. The legal person to
be founded shall acquire its status as a legal person upon its
affirmation or registration on a general basis, but it shall be
considered an heir from the day the succession was opened.
388. The capacity to inherit must exist on the day the
succession was opened (Section 655) and must continue to exist
until the inheritance has been accepted (Section 687).
389. An invitation to inherit shall come into effect when the
succession is opened (Section 655). The basis of the invitation
shall be the lawfully expressed intent of the estate-leaver, or
law.
The estate-leaver may express his or her intent in a will or
an inheritance contract.
A contractual right to inherit shall have priority over a
right derived from a will, and the first as well as the second
shall have priority over a right based on law; all three kinds of
inheritance rights may exist simultaneously.
Chapter Two
Intestate Succession
SUB-CHAPTER 1
General Provisions
390. When there is no inheritance contract or will or when it
is void (Sections 784 and 820), heirs shall inherit pursuant to
law.
If an instruction in contemplation of death exists but was
given or remains valid for only one share of the estate, the
remaining shares shall pass in accordance with the procedures of
intestate succession.
391. Pursuant to law, invited to inherit are:
1) the spouse;
2) kin;
3) adoptees (Section 173).
SUB-CHAPTER 2
Inheritance by Spouses
392. The surviving spouse shall inherit from the deceased
regardless of the form of property relationship that was in
effect between the spouses during their marriage.
393. The spouse shall receive a share of a child if the number
of children who have expressed the intent to inherit is less than
four, but if there are four or more children who have expressed
the intent to inherit - a one fourth share.
[8 May 2014]
394. If the estate is so small that, if divided, it is not
sufficient for the maintenance of minor children, the surviving
spouse shall have the right to administer and use the entire
undivided estate, but the spouse shall, from all the income of
the estate, firstly cover the maintenance for the child (Section
179).
The right of the surviving spouse to administer and use the
undivided estate shall terminate:
1) upon all the children reaching the age of majority;
2) upon the spouse renouncing this right;
3) upon the voluntary division of the estate;
4) regarding the share of an individual child - upon the
separation of his or her share from the estate pursuant to
agreement or by the unilateral decision of the spouse;
5) upon the demand of a child who is of age of majority - for
good cause.
[12 December 2002]
Note. The permission of an Orphan's and Custody Court is
required in the cases referred to in Clauses 3-5 of this
Section.
[12 December 2002; 29 November 2012]
395. If the surviving spouse administers or uses the
inheritance carelessly, an Orphan's and Custody Court, upon
application by the children that are of age of majority or in its
own discretion, having received notice thereof and verified the
facts, may revoke the right of the spouse to administer and use
the estate, and transfer such administration to a guardian
appointed specifically for this purpose.
396. If the deceased spouse has neither surviving descendants
nor adoptees, or if the referred to persons fail, the surviving
spouse shall receive half of the estate and, in addition, the
furnishings of the dwelling.
If the deceased spouse has no surviving descendants, adoptees,
ascendants, nor natural brothers or sisters or their children,
nor step-brothers or step-sisters or their children or if the
referred to persons fail, then the surviving spouse shall receive
the whole of the estate.
[8 May 2014]
397. If the marriage has ended in divorce or has been declared
annulled, the former spouses shall not inherit from each
other.
397.1 If a joint property of spouses is in the
composition of the entirety of property of an estate which is not
registered as the joint property of spouses, then the spouse may
request to separate his or her share of the joint property of the
spouse in accordance with the provisions of Section 89, Paragraph
two and Section 109, Paragraph two. If a heir brings objections
regarding separating of the share of the joint property of the
spouse from the entirety of property of an estate, the share of
the joint property of the spouse shall be separated in accordance
with the claim procedures.
[8 May 2014; 29 October 2015]
SUB-CHAPTER 3
Inheritance by Kin and Adoptees
I. Kinship that
Establishes the Right of Inheritance
398. Intestate succession rights are based on kinship and
adoption. Affinity does not confer such rights.
399. Intestate succession rights shall only be based on such
kinship, as originates:
1) by birth within a lawful marriage;
2) by birth within such a marriage as is subsequently declared
annulled, but not later than 306 days after termination of such a
marriage;
3) with the acknowledgement of paternity or the determination
thereof by a court proceeding.
[12 December 2002]
400. Children born of parents who are not married to each
other, if paternity and maternity has been determined pursuant to
the procedures specified by law, shall inherit in the same way as
children born within marriage. The mother and her kin as well as
the father and his kin shall inherit from such children.
[7 July 1992]
401. An adoptee and his or her descendants shall inherit from
the adopter or his or her relatives. From an adoptee shall
inherit his or her descendants, as well as the adopter or his or
her relatives.
[8 May 2014]
402. Persons who have multiple kinship relations to the
estate-leaver (Section 212) shall receive shares of the estate
equal to the number of kinship relations.
II. Order of
Succession
403. The kin of the estate-leaver shall inherit in accordance
with a specific order, which is based partly on the type of
kinship and partly on the degree of kinship.
404. In respect of the order of succession, four classes of
heirs by intestacy are distinguished:
1) in the first class inherit, without distinction as to
degree of kinship, all those descendants of the estate-leaver
between whom, on the one part, and the estate-leaver on the other
part, there are no other descendants who would be entitled to
inherit;
2) in the second class inherit the ascendants of the nearest
degree of kinship to the estate-leaver, as well as the
estate-leaver's brothers and sisters of the whole blood and the
children of those brothers and sisters of the whole blood who had
predeceased the estate-leaver;
3) in the third class inherit the estate-leaver's
half-brothers and half-sisters and the children of those
half-brothers and half-sisters who had predeceased the
estate-leaver;
4) in the fourth class inherit the remaining collateral kin of
the nearest degree of kinship, without distinction between full
and partial consanguinity.
405. An heir of a lower class shall not inherit if an heir of
a higher class has expressed his or her intention to inherit.
[8 May 2014]
406. If, in any class, an invited heir with priority status
fails, the estate devolves to his or her co-heirs, who have the
same right of inheritance (Section 834).
If the co-heirs also fail, then the estate devolves to those
persons who, in this same class, are invited to inherit from the
estate-leaver; if there is no one in this class who is entitled
to inherit or if all heirs in this class have failed, then the
estate devolves to heirs in the next class (Section 782).
Fail is refusal of the estate after invitation to inherit and
forfeiture of the estate from unworthy persons.
[8 May 2014]
407. Children born of several marriages of one parent shall
inherit equally from their common parent, but separately from the
separate parent.
408. When inheriting from an ascendant, the more remote
descendants shall take the place of their parent who predeceased
the estate-leaver without restriction as to the nearness of the
degree of kinship and with right of representation. In compliance
with the right of representation, the descendants shall receive
that share of the estate that their parent would have received if
he or she had survived the estate-leaver and had inherited from
him or her.
409. The right of representation shall also belong to the
children of the predeceased brothers and sisters of the whole
blood to the estate-leaver, as well as to the children of the
predeceased half-brothers and half-sisters. The children of their
children shall not have such right of representation.
The right of representation does not arise from the right of
an heir to the estate left by a parent, but rather from the
independent right of inheritance of the heir as a descendant. An
heir who does not accept an estate left by his or her parent
shall not be liable for the debts of this parent from the
property he or she inherits from the estate-leaver pursuant to
the right of representation (Section 408).
410. In the fourth class there is no right of representation;
therefore heirs of a nearer degree of kinship exclude those of
more remote degree from inheriting; but if there are several kin
of an equal degree of kinship, they shall all share the estate
among themselves per capita. In this class there shall also be no
allowance for multiple kinship relations (Sections 212 and 402)
nor distinction between full and partial consanguinity (Section
213).
411. When applying the right of representation (Sections 408
and 409), the estate shall be divided not according to the number
of persons, but rather, according to the number of stirps, i.e.,
all of the descendants of the person represented together shall
receive that share of the estate, which would have been the share
of the deceased father or mother if he or she had been still
alive at the time the succession was opened.
412. When determining the degree of kinship, the time of
opening the succession must be considered (Section 655).
Therefore if the estate-leaver dies without leaving either a will
or an inheritance contract, the degree of kinship shall be
determined as of the time of his or her death; and even if a will
or a contract has been left but pursuant to such no one inherits,
then it shall be determined as of the time when that became known
as certain. If an heir specified in a will or contract fails
because the will or contract is void, then the question of the
degree of kinship shall be determined de novo as of the time of
death of the estate-leaver.
413. After the time of opening of the succession (Section
655), shares of the estate of co-heirs shall also be
determined.
[8 May 2014]
414. If the estate-leaver is survived by ascendants of the
second class and, in addition, by brothers and sisters of the
whole blood, as well as children of brothers and sisters of the
whole blood who predeceased the estate-leaver, then half of the
estate shall go to the ascendants, but the other half to the
brothers and sisters or the children of the deceased brothers and
sisters; the ascendants as well as the brothers and sisters shall
divide their halves into equal shares, i.e., per capita, but the
children of deceased brothers and sisters per stirpes.
If several ascendants inherit, irrespective of whether solely
or together with brothers and sisters and the children of
brothers and sisters, the nearer kin shall exclude the more
remote from inheriting. Ascendants of equal degree of kinship
shall inherit according to lines such that from their entire
share, the paternal line shall receive one half and the maternal
line the other half. If one or the other line has several branch
lines, then the latter lines shall also divide the inheritance
according to lines.
Other relationships among the second class heirs shall be
subject to the provisions of Sections 404, 409 and 411.
415. Heirs of the third class (Section 404, Clause 3) shall
inherit and share among themselves in accordance with the
provisions of Sections 409 and 411, but heirs of the fourth class
(Section 404, Clause 4) in accordance with the provisions of
Section 410.
SUB-CHAPTER 4
Property without Heirs
416. If, following the death of an estate-leaver, there are no
surviving heirs or such heirs have failed to appear or have not
proven their right to inherit within the term after the
publication of the opening of succession specified by law, then
the property shall escheat to the State. In the cases laid down
in law, property without heirs shall devolve to the local
government.
For debts, the State or the local government shall be liable
only with that property which is actually acquired thereby in
that manner. The State or the local government shall recognise
the debts which are secured by mortgage or commercial pledge, and
also those debts which are applied as creditor complaints in an
inheritance matter to a sworn notary within the time period
indicated in the invitation (announcement of the opening of
succession) and which are justified and recognised in accordance
with the procedures laid down in law.
From the day when a notarial deed is drawn up regarding
termination of the inheritance matter, the increase of interest,
contractual fine and other by-claims shall be discontinued.
Regarding an immovable property which is recognised as
property without heirs in accordance with Paragraph one of this
Section, a notation shall be made in the Land Register that it is
the property without heirs. The notation regarding the property
without heirs shall be an obstacle for any willing registration
of entry, except the notations provided for in Section 45, Clause
6 of the Land Register Law.
Objects present in the composition of the property without
heirs significant for the State, including cultural and
historical objects, art items, nature objects, may be preserved
in the State property.
The necessity for preservation of objects present in the
composition of the property without heirs significant for the
State, including cultural and historical objects, art items,
nature objects, in the State property and procedures for the
assessment shall be laid down by the Cabinet.
In entering the ownership rights for the State or the local
government to the immovable property which is recognised as
property without heirs, the debt obligations, encumbrances, and
pledge notations registered on such property shall be
concurrently discharged.
[17 January 2013; 29 October 2015; 13 October 2022]
417. Property remaining after the winding up of legal persons,
except for profit companies, shall be treated as property without
heirs and shall escheat to the State if the law, their founding
documents or their articles of association do not specify
otherwise. In the cases specified in law, ownerless property
shall devolve to the local government.
[13 October 2022]
Chapter Three
Testamentary Inheritance
SUB-CHAPTER 1
General Provisions
418. Any unilateral instruction which someone has given in
case of his or her death regarding all of his or her property or
part of some property or regarding separate property or rights,
shall be called a will.
419. A testator may revoke, amend or add to a will at any time
(Section 792 and subsequent sections).
SUB-CHAPTER 2
Capacity to Make a Will
420. Any person may make a will, except for minors.
Minors, if they have reached the age of 16, may make a will
with respect to their independent property (Section 195).
Those who are under trusteeship may also make a will.
[29 November 2012]
421. Those who are unable to express their intent are
incapable of making a will.
[29 November 2012]
SUB-CHAPTER 3
Persons Entitled to Preferential Share and Preferential
Share
[8 May 2014]
422. A testator may freely determine the disposition of his or
her whole estate in case of his or her death, with the
restriction that his or her persons entitled to preferential
shares shall be bequeathed their preferential shares.
This restriction must also be observed when appointing a
secondary heir.
[12 December 2002; 8 May 2014]
423. Persons entitled to preferential share are the spouse and
descendants, but if there are no descendants, who have survived
estate-leaver, the spouse and ascendants of the nearest degree of
kinship.
Persons entitled to preferential share have only the right of
claim to transfer of the preferential share in money (Section
788). The right to preferential share shall be inheritable and
transferable right.
A person entitled to preferential share shall apply his or her
right to preferential share until the time period laid down in
the invitation. If he or she fails to apply his or her right
until expiry of this time period, then it shall be recognised
that he or she has refused from it.
If a person entitled to preferential share, who has survived
the estate-leaver, has refused from the right to preferential
share either before or after the opening of the succession, then
his or her refusal in such matter shall be binding also on his or
her descendants.
[8 May 2014]
424. The preferential share of an estate shall be determined
on the basis of the number of surviving heirs on the day of the
testator's death, including the surviving spouse and heirs
excluded by the will, but not including failed heirs.
If a person entitled to preferential share fails, then his or
her preferential share shall not transfer to other persons
entitled to preferential share.
[12 December 2002; 8 May 2014]
425. The preferential share shall be one half of the value of
that share of the estate which a person entitled to preferential
share inherits pursuant to law. This share shall be determined on
the basis of the contents and value of the property on the day of
the testator's death.
The preferential share includes that which the testator has
left to an heir as an inheritance or a legacy, as well as that
which has been received while the testator was alive, if the duty
to add such in the estate applies (Section 757 and subsequent
sections).
The preferential share shall be calculated on the basis of the
net assets of the testator, having subtracted all the testator's
debts.
[12 December 2002; 8 May 2014]
426. The preferential share may not be restricted with
conditions or terms, or encumbered with legacies or other
charges. Such ancillary provisions are void.
SUB-CHAPTER 4
Exclusion from Inheritance
427. Exclusion from inheritance shall be understood as the
intent expressed in instructions in contemplation of death such
that the one who has a right of inheritance by law does not
become an heir.
Persons entitled to preferential share may be excluded from a
preferential share only due to factually appropriate causes as
provided for in law and directly expressed in the instructions in
contemplation of death. Exclusion of a person entitled to
preferential share from a preferential share shall not be binding
to the descendants of the excluded person.
[8 May 2014]
428. An ascendant may exclude a descendant if the latter:
1) has committed a criminal offence against the life, health,
liberty or honour of the testator, his or her spouse or his or
her ascendant;
2) has knowingly instigated against the persons referred to in
Clause 1 a wrongful accusation about a criminal offence;
3) has left the testator in a helpless state when it was
possible to provide assistance;
4) has lived extravagantly or immorally;
5) has not fulfilled the duty imposed on him or her by law to
maintain the testator or his or her spouse;
6) has attempted to hinder the testator in the making of a
will;
7) has entered into a contract with some person regarding the
descendant's future inheritance while the estate-leaver was still
alive and without his or her knowledge and consent.
[12 December 2002]
429. Descendants may exclude, in addition to the causes
provided for in Section 428, their ascendants from their
preferential share also in the case where the parents have never
provided for the upbringing of the testator.
[12 December 2002]
430. If, before making a will, an estate-leaver has become
reconciled with his or her person entitled to preferential share
or if the heir has mended his or her lifestyle, then the heir may
not be excluded from the inheritance.
[8 May 2014]
431. A testator may exclude his or her spouse from the
inheritance for the causes set out in Section 428, as well as in
cases where:
1) the spouse has committed adultery;
2) the spouse has threatened the life, health of the other
spouse, has hit or tortured him or her;
3) the marriage has broken down and the spouses have lived
separately for more than a year.
[12 December 2002; 3 February 2022]
SUB-CHAPTER 5
Form of a Will
432. Wills, according to their form, shall be either public or
private.
I. Public
Wills
433. Public wills shall be made either before a notary public
or an Orphan's and Custody Court.
[8 May 2014]
434. A public will shall be made in the presence of the
testator in person.
[8 May 2014]
435. [8 May 2014]
436. A will that is entered in the register of documents of a
notary public or a consul or in the register of wills in an
Orphan's and Custody Court shall be deemed to be the original of
a public will. After the original is signed, the testator shall
be given a copy.
[12 December 2002; 22 June 2006]
437. The copy which is given to the testator shall be of equal
validity as the original will. In case of dispute about
differences between these two documents, the original shall be
given priority, provided that in it erasures or corrections do
not appear in the disputed paragraphs to which relevant
annotations have not been made.
While the testator is still alive, a second copy and
subsequent copies of the public will may be issued only to the
testator himself or herself or to his or her authorised
representative who has been authorised by a special power of
attorney.
[12 December 2002]
438. Private wills may be deposited for safekeeping with a
notary public, observing the Notariate Law, or with an Orphan's
and Custody Court, observing the provisions of the Law on
Orphan's and Custody Courts. When accepting a will for
safekeeping the identity of the testator must be verified.
[22 June 2006; 8 May 2014]
439. Wills that have been deposited with a notary public or an
Orphan's and Custody Court according to the previous Section
(438) shall be valid as a public will if, in addition, the
following provisions have been observed:
1) the will must be submitted in a sealed envelope by the
testator in person;
2) in addition, the testator (Clause 1) must declare that the
document submitted expresses his or her last will;
3) the envelope must be stamped with the seal of the receiving
official or institution and the testator and receiving official
must sign the envelope;
4) a special document regarding acceptance of a will for
safekeeping must be prepared, which must attest that the
requirements in Clauses 1-3 have been observed as well as must
describe the envelope and the outer shape of the seal.
[12 December 2002; 22 June 2006; 8 May 2014]
440. A will prepared according to the procedures in the
previous Section (439) does not require any other formalities or
the presence of witnesses and their signatures.
441. A will that has been deposited for safekeeping with a
notary public or an Orphan's and Custody Court shall be returned,
upon request, to a testator or his or her authorised
representative who has been authorised with a special power of
attorney for this.
[12 December 2002; 22 June 2006; 8 May 2014]
442. A will returned to a testator after it has been deposited
with a notary public or an Orphan's and Custody Court shall cease
to be valid as a public will and in such a case shall be valid
only if all the provisions regarding private wills have been
observed.
[12 December 2002; 22 June 2006; 8 May 2014]
443. The authenticity of a public will may not be doubted;
only a dispute of forgery may be raised against such a will.
444. A will that is not valid as a public will shall not be
invalidated as a private will, if the provisions regarding
private wills have not been infringed in its preparation.
II. Private
Wills
445. For a private will to be valid there must be conviction
that it has been prepared by the estate-leaver and that it
correctly reflects his or her last intent.
446. A private will shall be made in writing, when all will is
written and signed by the estate-leaver with his or her hand.
[8 May 2014]
447. [8 May 2014]
448. [8 May 2014]
449. [8 May 2014]
450. [8 May 2014]
451. [8 May 2014]
452. [8 May 2014]
453. [8 May 2014]
454. [8 May 2014]
455. A private will can be made in any language.
456. Amendments to a will shall not revoke its validity if it
is proven that they have been made by the testator himself or
herself with his or her own hand, or that they have been made in
accordance with the intent of the testator and with his or her
knowledge, and in addition, clearly and legibly.
The testator himself or herself must indicate in the will all
that has been intentionally crossed out or erased; but if that
has not been done, then the unaltered parts of the will shall not
lose their validity thereby.
When the testator has, by mistake, crossed out some
instruction and, in addition, in such a way that the crossed out
part can no longer be read, then such instruction shall remain
valid if its substance and the fact that it is crossed out only
by mistake are proven.
[12 December 2002]
457. If some word is omitted or used erroneously in a will,
but such that it leaves no doubt about the intent of the
testator, then the will shall not be invalidated for reason of
such omission or error.
[12 December 2002]
458. If a testamentary instrument is evidently not finished
and not concluded, then it shall not have any validity.
459. If a testator has promised in the will itself to add to
it later with new instructions but has not done so while still
alive, then this shall not affect the validity of the will, only
if it can, in general, be complied with without the intended
additions.
[12 December 2002]
III. Privileged
Wills
[8 May 2014 / See Law of 8 May
2014]
460. [8 May 2014 / See Law of 8 May 2014]
461. [8 May 2014 / See Law of 8 May 2014]
462. [8 May 2014 / See Law of 8 May 2014]
SUB-CHAPTER 6
Contents of a Will
463. The contents of a will must express the true intent of
the estate-leaver. A will shall be made without duress, mistake
or fraud.
464. Simple persuasion shall not be considered as duress and
shall not revoke the validity of a will.
465. If there is no doubt about the intent of the
estate-leaver, then a will shall not become invalid because the
testator has made a mistake in a name or a description, or if a
referred to quality of a person or of a thing has later
disappeared.
[12 December 2002]
466. If the stated reason of an estate-leaver for making a
will or for giving certain instructions turns out not to
correspond to reality, then that shall not revoke the validity of
the abovementioned will or instruction, except for the case when
it is proven that without this reason the estate-leaver would
never have made his or her will at all or would not have given
the abovementioned instruction.
SUB-CHAPTER 7
Appointment and Substitution of an Heir
I. Appointment
of an Heir
467. The appointment of an heir does not require a particular
form and it shall be sufficient if the testator expresses his or
her will about it clearly and understandably, regardless of the
kinds of expressions used.
[12 December 2002]
468. If an estate-leaver appoints only one heir, and
furthermore does not restrict him or her to a particular share of
the estate, then he or she shall receive the whole of the
estate.
469. If a will provides such an heir (Section 468) with only a
share of the estate, then the rest of the shares shall be
received by the heirs by intestacy.
470. If several heirs are appointed in a will without
indicating the share of the estate for each, then the whole
estate shall be divided among them in equal shares.
471. If a will appoints several heirs and a specific share is
specified for each but these together do not comprise the whole
estate, then the remainder shall devolve to the heirs by
intestacy. If on the other hand a testator has bequeathed to his
or her appointed heirs the whole estate and has made a mistake
only in calculating the shares, then the remainder shall be
divided among the appointed heirs proportional to their
shares.
[12 December 2002]
472. If a will appoints several heirs and a share for each is
specified and the sum of all these shares amounts to the whole
estate, then persons whom the testator may have appointed as
heirs without naming their shares or without stating that the
remainder was theirs, shall receive nothing.
[12 December 2002]
473. If a will appoints several heirs and for each a certain
share is specified but these shares together exceed the estate,
then the share of each heir shall be reduced proportionally.
474. If a will appoints one or more heirs with specific shares
and in addition one or more without specific shares, then the
latter shall receive all that is left over after the former have
been satisfied; if there are several, then they shall divide this
balance among themselves in equal parts.
475. If one heir is appointed for the whole estate and in
addition another one or more are appointed to receive specific
shares of the estate, then the latter shall receive their
specific shares and the former the balance. But if the specific
shares are equal to or exceed the whole estate, then the share of
the former shall be calculated as a whole share (2/2 or 3/3 or
4/4, etc.) and the estate shall be divided among all in
accordance with Section 473.
476. If in a will the estate is divided among several persons
such that they are bequeathed specific objects in the estate,
then each of them shall receive only that which is specified for
them; but if the persons mentioned have been specifically
appointed as heirs, then the objects bequeathed to them shall be
deemed as pre-legacies (Section 515) and the balance of the
estate shall be divided in equal shares.
II.
Substitution
477. For heirs appointed in a will, if they might not want to
or for some reason might not be able to accept the inheritance,
the testator may appoint a replacement who shall be called a
substitute.
A testator may appoint a substitute at his or her discretion
either for only one of the cases provided for in this Section, or
for both; nevertheless, if there should be doubt, it must be
assumed that he or she had intended both cases, even though he or
she may have mentioned only one.
[12 December 2002]
478. Substitutes may be appointed not only for each heir
separately, but also several substitutes for one heir, as well as
one for several; similarly, also co-heirs may be appointed as
substitutes jointly for each other.
479. A testator may also specify several degrees of
substitution in the will, i.e., specify who shall inherit after a
substitute should he or she not want to or be able to accept the
inheritance.
[12 December 2002]
480. A substitute shall receive, unless otherwise specified in
the will, the same share of the estate that the replaced heir
would have received.
481. If co-heirs have been appointed as substitutes jointly
for each other, then in dividing a failed share among themselves
the basis, in case of doubt, must be the share specified for
each.
A co-heir as a substitute may utilise his or her right only
after receiving his or her own share of the estate.
482. For a substitute to take his or her substitute share, he
or she must survive not only the testator, but also the
circumstances which led to the failure of the direct heir.
[12 December 2002]
483. A substitute appointed for several heirs may utilise his
or her right only after all such heirs have failed.
484. A substitution shall end when a direct heir receives his
or her inheritance, as well as when a substitute dies before the
occurrence of the circumstances for which his or her right was
established, and generally upon losing the capacity to
inherit.
485. The second and subsequent substitutes shall not lose
their right if the previous substitute dies before the direct
heir.
SUB-CHAPTER 8
Appointment of a Secondary Heir
486. An estate-leaver may, in a will or an inheritance
contract, impose a duty on the appointed heir as the primary heir
to transfer the inheritance or a part of it to another person as
a secondary heir.
Such a duty may not be imposed on a secondary heir.
The provisions of this Sub-chapter shall also be applied to
legatees, as appropriate.
487. The moment of death of the primary heir shall be deemed
to be the time at which an inheritance must be transferred to a
secondary heir, if the will or inheritance contract does not
specify otherwise.
If another moment has been specified and if it has not yet
occurred when the primary heir dies, then the estate shall
devolve to the heirs of the primary heir who shall have the duty
to transfer the estate to the secondary heir at the appropriate
moment.
If for some reason this moment can no longer occur, then the
estate shall devolve to the heirs of the primary heir
irrevocably.
488. If it is apparent to a notary, from a will or an
inheritance contract submitted to him or her, that a secondary
heir for the estate has been named, he or she shall draw up a
notarial deed regarding the establishment of a trusteeship for
the estate to compile an inventory of the estate (Section 665).
If such an estate also contains immovable property, then the duty
of the primary heir to transfer it to a secondary heir must be
registered in the relevant Land Register in accordance with
Section 81, Paragraph four of the Land Register Law.
[8 May 2014]
489. The primary heir shall receive the inheritance in the
same way as any other heir. The primary heir shall become the
owner of the estate with the duty to transfer it to a secondary
heir. Within these limits he or she may bring actions, be
responsible for and enter into contracts regarding the estate, as
well as pay the creditors of the estate. The primary heir shall
be the beneficiary of income from the estate.
490. The primary heir may alienate the estate or encumber it
with property rights only to the extent permitted in the
instructions in contemplation of death left by the estate-leaver
or in writing by the secondary heir, or to the extent needed for
payment of compulsory debts on the estate, or to transfer a
legacy or a preferential share of the estate. In addition, the
primary heir may alienate perishable property.
The secondary heir may contest every other alienation or
encumbrance as null and void and obtain the return of the
alienated property to the estate or the discharge of an
encumbrance if the opposing party or corresponding successor to
the rights, who is in possession of the property or who is the
beneficiary of the encumbrance, knew that the alienated or
encumbered property is part of the estate to be transferred to
the secondary heir.
491. All that the primary heir has acquired with the money and
property of the estate shall be substituted in place of the
primary constituent parts of the estate and must therefore be
transferred to the secondary heir if, in contesting the
alienation according to the previous Section (490), the secondary
heir has not already received back the alienated item of property
in the estate.
492. The primary heir must provide for the maintenance and
safekeeping of the estate, but he or she need not transfer that
which has been destroyed as a result of an accident or force
majeure.
The primary heir shall be liable for damage to the property
only if he or she has acted with malicious intent or gross
negligence.
493. A secondary heir shall acquire the bequeathed estate if
he or she survives to the prescribed moment for transfer of the
estate.
If a secondary heir does not survive to such a moment and if
the estate-leaver has not specified otherwise, then the estate to
be transferred shall devolve to the heir of the secondary heir.
If on the other hand the secondary heir is not yet born or at
least conceived at the aforementioned moment and the
estate-leaver has not specified otherwise, then the estate to be
transferred remains with the heir of the primary heir.
If the primary heir does not survive the estate-leaver or is
not worthy to inherit or refuses the inheritance, then it shall
devolve to the secondary heir.
If a legal person is appointed as secondary heir, then the
provisions of Section 387 must be observed, where
appropriate.
[7 July 1992]
SUB-CHAPTER 9
Bequests for Generally Useful and Charitable Purposes
494. An estate-leaver may bequeath all his or her property or
a part of it or specific objects for generally useful and
charitable purposes. The heir or legatee of such property may
also be a to-be-established legal person specified by the
estate-leaver.
495. If the executor of a will, who is also an heir, is
charged with the establishment of such a legal person (Section
494), then the executor of the will must take all the necessary
steps to carry out the task, and he or she shall have the right
to bring an action against the heir regarding the transfer of the
relevant property.
496. If the executor of a will does nothing or has not even
been appointed and the heir also does not take action to
establish such a legal person, then the notary, at the
recommendation of the prosecutor or an institution concerned,
shall establish a trusteeship and shall inform the Orphan's and
Custody Court about the appointment of a trustee with the rights
and duties of an executor of a will.
[8 May 2014]
497. If there is no direct heir, then the executor of a will
designated by a testator, or a trustee appointed by the Orphan's
and Custody Court (Section 496), shall take over the direct
administration of the bequeathed property and shall take the
necessary steps to establish the legal person (Section 494).
[12 December 2002]
498. In regard to the administration of bequeathed property,
such legal persons (Section 494) shall have the rights of a minor
and, in regard to supervision, they shall be subject to the
Orphan's and Custody Court.
499. If the purpose for which the property has been bequeathed
for some reason terminates or it is no longer possible to use the
property for the purpose stated by the estate-leaver and the
estate-leaver has not left any instructions for such a case, then
the Orphan's and Custody Court shall develop a proposal regarding
the fate of the bequeathed property and shall submit it through
the Minister for Justice for a decision by the Cabinet.
This provision shall also apply if the bequeathed property is
not used for the stated purpose, and furthermore in this case the
Orphan's and Custody Court must in its proposal take into account
the instructions of the estate-leaver.
SUB-CHAPTER 10
Legacies
I. GENERAL
PROVISIONS
500. If someone has been bequeathed not the whole estate, nor
a share in relation to the whole of the estate, but only a
separate inheritance object, then the bequest is called a legacy,
but the person to whom it has been bequeathed, a legatee.
501. A legacy may be bequeathed in a will either directly, or
by imposing its execution upon the heir or another legatee.
502. The object of a legacy may be everything that according
to its nature or pursuant to law has not been taken out of
circulation, regardless of whether it is separate tangible or
intangible property or an aggregation of property. The object of
a legacy may be also a right to the personal actions of the
executor of the legacy.
503. Bequeathal of a legacy shall not infringe the rights of
persons entitled to preferential shares.
[8 May 2014]
II. Participants
in a Legacy
504. A legatee may have imposed upon him or her a duty to
transfer something to a third person, but only not exceeding the
value of the legacy received by the legatee himself or herself or
itself; otherwise the legatee has the right not to transfer and
not to execute that which exceeds the value of the legacy.
If a legatee has been charged with transferring the entire
legacy to a third person, then the income and interest that he or
she has received from the legacy shall also be transferred.
505. If the will does not name the executor of a legacy, the
legacy shall be transferred from the estate before the
distribution of the shares of the heirs.
506. When the several heirs, who are named, are charged with
the execution of a legacy, then the latter shall perform this
duty, if the testator has not specified otherwise, proportional
to their shares of the estate.
[12 December 2002]
507. The executors of a legacy shall not be liable solidarily
even if the legacy charges them jointly, excepting only in those
cases when it arises from the form of the charge or from the
characteristics of the bequeathed object.
508. If the named executors of the legacy later fail, then
this duty devolves to those who take their place, be they either
their co-heirs or substitutes, assuming, however, that each is
capable of executing the legacy and that the testator has not
taken into account the personal characteristics of those whom he
or she had charged with executing it.
[12 December 2002]
509. A legacy may be received by anyone who has the capacity
to inherit. Maintenance may be bequeathed also to persons who do
not have the capacity to inherit.
510. If one and the same object has been bequeathed as a
legacy to more than one person who are named jointly or each
individually, then they shall divide it in equal shares.
511. If a legacy is bequeathed to more than one person in the
alternative without directly providing for the right of the
executor of it to choose among such persons, then the bequeathed
object shall be divided among them all in equal shares.
512. If a person is bequeathed an entire object as a legacy
but others are bequeathed shares in it, then the former shall
receive only that which remains after the distribution of the
shares bequeathed to the others.
513. If a testator bequeaths something as a legacy to his or
her child whose birth is expected after the death of the
testator, but the widow gives birth to more than one child, then
the legacy shall be divided among them in equal shares, unless
that would clearly conflict with the intent of the testator.
[12 December 2002]
514. A substitute may be appointed for a legatee, the same as
for an heir (Section 477).
515. A legacy may also be bequeathed in favour of an heir, and
such legacy, if it is bequeathed from the estate to one of
several co-heirs in addition to the share of the estate due to
him or her, is called a pre-legacy.
516. If a will does not name an executor of a pre-legacy, then
the pre-legacy shall be transferred to the heir from the estate
before the distribution of the shares of the heirs.
517. A legacy that is bequeathed to several persons, one of
which is concurrently an heir, shall be divided among them in
equal shares.
518. A pre-legacy that has been bequeathed jointly to several
heirs shall be divided among them proportional to their share of
the estate.
519. The right to a pre-legacy bequeathed to an heir shall
devolve to his or her substitute only if it is directly specified
in the will.
520. If an heir is appointed with a certain condition, then,
if it not specified otherwise in the will, this condition shall
apply also to the pre-legacy bequeathed to him or her.
III. The Legal
Consequences of a Legacy
521. If receipt of a legacy is not restricted by any
conditions, then it shall devolve to the legatee from the time of
death of the estate-leaver.
If a legatee dies before the estate-leaver, then his or her
heirs shall not have a right to the legacy bequeathed to him or
her, unless they are named in the will as substitutes
specifically for such a case.
522. A legacy, the object of which pursuant to law may not be
transferred, shall devolve to the legatee only at the tune the
heir has accepted the inheritance.
A conditional legacy shall devolve to the legatee only after
the condition has been satisfied or has been legally deemed to
have been satisfied, unless it has already been satisfied before
the death of the testator.
A contingent legacy shall devolve to the legatee as an
unconditional legacy (Section 521, Paragraph one), unless an
unspecified term had been imposed, which has the effect of a
condition.
[12 December 2002]
523. If a conditionally named heir has been charged with the
execution of a legacy with that same condition, then this legacy
shall be deemed to be an unconditional legacy. The same shall be
applicable also to a legacy that a substitute has been charged to
execute.
524. A legacy that has been granted on such a basis (Sections
521-523), if the execution of the legacy has been charged to the
heirs, may be claimed by the legatee or his or her heirs
immediately after the time when the heir has received the
inheritance devolving upon him or her; but if the legacy has been
bequeathed subject to a certain condition or a term, it may be
claimed only after this condition has been satisfied or the term
has elapsed.
525. If the executor of the legacy has been granted his or her
own discretion as to the time of execution of the legacy, then
the legatee shall have the right to request its execution only
after the death of the executor, from the heirs of the
executor.
526. If an heir is not charged with execution of a legacy, but
it is bequeathed directly to the legatee, or if the heir charged
with execution of the legacy fails as heir and the legacy,
additionally, has not been restricted by either any conditions or
terms, then the legatee may request it immediately after the will
comes into legal effect.
527. The executor of a legacy shall take utmost care and shall
be liable to the legatee for any negligence on his or her part as
a result of which the object of the legacy should suffer damage;
but if the executor is charged with the duty of transferring to
someone else all that has been bequeathed to the legatee, then
the executor shall be liable to the latter only for those damages
which the executor has caused as a result of bad faith or gross
negligence.
528. When damage has occurred without any negligence or delay
by the heir, the legatee may only request that the heir cede to
him or her the right to bring an action against the party at
fault, or give an assurance that the heir will transfer the
bequeathed object, if it should come into hands of the heir.
529. An executor of legacies for the generally useful and
charitable purposes shall execute the legacies immediately after
the time the will has come into legal effect and he or she has
accepted the inheritance; otherwise the executor shall be liable
for all consequences of the delay.
IV. Receipt and
Renunciation of a Legacy
530. A legatee shall acquire the right to a legacy from the
moment it has devolved to him or her (Section 521, Paragraph
one), notwithstanding that he or she may not know of it.
Nevertheless, the bequeathed object does not thereby and
therewith become a part of the property of the legatee, but only
the possibility of it passing to his or her heirs is
established.
A legatee may, at his or her own discretion, either accept or
renounce a legacy that has devolved to him or her by this
process.
531. In accepting a legacy, the legatee assumes all the
encumbrances and charges associated with the legacy, as well as
undertakes to reimburse the executor of it for all expenditures
made for or due to the bequeathed object and, finally, to perform
the conditions imposed on him or her by the testator.
[12 December 2002]
532. A legatee may not accept one part of a legacy and
renounce another, but of his or her heirs one may accept the
legacy and another renounce it.
If a legatee has been bequeathed several legacies, then he or
she may accept some and renounce others.
An aggregation of property that has been bequeathed as a
single whole shall be considered to be a single legacy; but if
several items of property, notwithstanding that they belong to an
aggregation, are named separately, then each of them is a
separate legacy.
533. If a legatee dies without stating whether he or she wants
to accept or renounce a legacy, the right to accept or refuse it
shall devolve to his or her heirs.
V. Execution of
a Legacy
534. A legatee may bring an action in personam against an heir
concerning transfer of a legacy bequeathed to the legatee. If the
bequeathed property was the property of the testator but is in
the possession of another person, then the legatee may bring an
ownership action against each such possessor to the extent that
such an action could have been brought by the testator himself or
herself.
[12 December 2002]
535. A legatee does not have the right to force an heir to
accept an inheritance and in connection therewith perform the
duties imposed for the benefit of the legatee.
536. If an heir is not charged with the execution of a legacy
but the legacy is bequeathed directly to a legatee, or if an heir
who is charged with execution of a legacy fails, the legatee may
request that the executor of the will or the trustee of the
entirety of the property of an estate transfer the legacy from
the estate.
537. The person who is charged with the duty of executing a
legacy must transfer it, complete with all its appurtenances,
pursuant to the instructions of the testator.
[12 December 2002]
538. If separate, specifically described items of property are
bequeathed, as their appurtenances shall be considered all that
with which is enlarged the very essence of the property; but if
claims are bequeathed, as their appurtenances shall be considered
all ancillary claims that were due at the moment of the death of
the estate-leaver, on the basis of those obligations on which the
claims were founded.
539. The fruits of an item of bequeathed property shall belong
to the legatee from the time that he or she acquires such a right
to the property, which give him or her the opportunity to claim
it through a court.
540. If a legacy is bequeathed subject to a condition or a
term then the fruits until the condition sets in or the term
elapses shall belong to the executor of the legacy, unless it is
manifest that the clear intent of the testator is that he or she
to whom the legacy has been bequeathed shall obtain the property
with all its augmentations that have accrued since the moment of
the death of the testator.
[12 December 2002]
541. If the executor of a legacy has not fulfilled his or her
obligations properly, then that, which the executor of a legacy
must give to the legatee pursuant to general provisions regarding
compensation for losses, shall also be considered as an
appurtenance (Section 537).
542. If the bequeathed property is actually in the estate, the
executor of the legacy may not force the legatee to accept the
value of the property in lieu of the property itself.
543. If the correct execution of a legacy has unjustly
encumbered its executor or if, despite his or her best
intentions, it is not possible to transfer the bequeathed
property itself, the executor must pay out the value of the
property. However, if the execution has become totally
impossible, the executor shall be liable only if he or she has
allowed a delay or have been negligent (Section 527 and Section
547, Paragraph three).
544. If the executor of the legacy has been only temporarily
delayed in executing the legacy, then the legatee may require
that he or she provide security for its execution.
545. If the amount of a legacy bequeathed for the general good
or charitable purposes has not been specified in the will, it
shall be set by a court in its own discretion, commensurate with
the need, on the one hand, but commensurate, on the other hand,
with the size of the estate.
546. If there are no more precise instructions in the will as
to the place of execution, then the items of property
specifically described, as well as property comprising a whole,
shall be transferred there where they are located; but if the
executor has in bad faith removed them from the location where
they were at the time of death of the estate-leaver, then they
shall be transferred at the place where the legatee requests
them.
Fungible property (Section 844) may be requested and
transferred anywhere where that may be done without encumbrance
and inconvenience to the other party, unless it has been
specified that it must be taken from a specific parcel of
land.
547. The time of execution of a legacy shall be determined
pursuant to Sections 524-526 and 529.
If money has been bequeathed or something else is bequeathed
which the executor of the legacy is not able to deliver
immediately without fault on his or her part, then the executor
has the right to request a just extension of the term.
If the executor of a legacy delays execution of the legacy, he
or she must reimburse the legatee for losses caused to him or her
thereby, and in general shall be liable for the consequences of
his or her delay.
VI. Specific
Kinds of Legacies
548. The legatee shall receive ownership rights to
specifically described bequeathed items of property, which belong
to the property of the estate-leaver, at the moment the
inheritance is accepted.
Such property shall be received by the legatee in the same
form as it was with the estate-leaver himself or herself,
together with all of the rights and augmentations belonging to
it, but also with all charges which lie thereon.
549. The executor of the legacy shall not be liable to the
legatee for any deficiencies in the characteristics of the
testator's own property, as well as for any replevin in relation
to the property (Section 559) and servitudes or other charges
which lie thereon.
[12 December 2002]
550. If the specifically described bequeathed property is no
longer in the estate at the moment of death of the testator, then
the legatee does not have the right to request this property.
[12 December 2002]
551. If some of several items of bequeathed property have been
destroyed, then all of those remaining shall be transferred to
the legatee in their entirety.
If an object of the legacy that has been destroyed is renewed,
the rights of the legatee to it are also renewed.
552. If a testator bequeaths an item of movable property to
someone without specifically describing it but only according to
its class, then such a legacy shall be valid regardless of
whether such items of property are or are not in the estate.
[12 December 2002]
553. A legacy bequeathing an item of property without a
specific description shall give the legatee or his or her heirs
the right to choose, unless the testator has expressly specified
the contrary.
[12 December 2002]
554. If such items of property (Section 553) are in the
estate, the heir must show them to the legatee, but the latter
shall on his or her part restrict his or her choice only to
those.
555. If a testator has granted the right to choose to a third
person but that person does not want to or is unable to choose or
does not choose within one year, the legatee shall choose in lieu
of that person.
[12 December 2002]
556. If the testator has granted the right to choose to the
executor of the legacy, then the executor shall not have the
right to deliver the worst item of property, and if he or she
does not make his or her choice pursuant to a request of the
legatee within the time specified by the court, then the right to
choose shall devolve to the legatee.
[12 December 2002]
557. If a legatee has been bequeathed several items of
property of the same class without specifying the quantity, then
he or she shall not have the right to request more than three of
them.
558. If a choice has been made, then all risk regarding the
chosen item of property shall be borne by the legatee. But if one
or another item of property of the same class has been already
destroyed before the choice through no fault of the heir, then
the legatee shall choose from among the remainder or shall
receive the last remaining item of property.
559. If the item of property chosen is requested by some third
person and it is adjudged to that person, the legatee may choose
anew if other items of property of the same class are still in
the estate.
560. Once a choice is made it may not be any longer changed,
except in the case set out in Section 559.
561. If a testator has intended one specific item of property
but has expressed himself or herself so vaguely, that it is
impossible to be certain which one was actually intended, then
the right to choose shall not belong to the legatee, but to the
executor of the legacy.
[12 December 2002]
562. If the object of a legacy is an inheritance that has
devolved to the testator, then the legatee shall receive all that
which still remains of it at the death of the testator.
[12 December 2002]
563. If fungible property has been bequeathed, such as cash,
grain crops, and the like, without specifying the quantity, then
the legatee has the right to all the property of the respective
class found in the property of the estate-leaver.
564. If a specified quantity of fungible property has been
bequeathed, then the executor of the legacy shall deliver exactly
this quantity, even if such is not in the property of the
testator, except, however, in the case, when the will states that
the specified quantity shall be taken from a parcel of land
specifically indicated for this purpose; then the legatee has a
right only to that which is located there.
[12 December 2002]
565. The quality of the items of property to be provided to
the legatee, if the testator has not specifically indicated it,
shall be determined at the discretion of the executor of the
legacy.
[12 December 2002]
566. If the executor of the legacy has been charged with
delivering to the legatee a specified quantity of fungible
property within certain terms, such as each year, each month,
etc., then such a legacy shall be deemed to be a grouping of
several legacies, of which the first shall be an unconditional
legacy, but the others shall be conditioned upon the legatee
still being alive when the term of the devise sets in.
A legacy of a certain amount, the payment of which is divided
into terms only for the convenience of the executor of the
legacy, shall always be deemed to be an unconditional legacy.
567. The right to such legacy (Section 566) shall come into
effect not at one time, but at several times, namely, with each
new term.
In regard to each individual term, as well as each individual
claim, there shall also run an individual prescriptive
period.
568. The right to such legacy (Section 566), if it is not
specified otherwise in the will, shall terminate only upon the
death of the legatee, but for legal persons they shall continue
as long as the legal person exists.
569. If someone has been bequeathed maintenance but it is not
further described, then the legatee has the right to food,
clothing and a dwelling, but he or she may not request
reimbursement of his or her training and education
expenditures.
If the quantity of maintenance is not specified in the will,
then it shall be set by a court at its own discretion,
commensurate with the property of the bequeather and the living
conditions of the legatee.
Maintenance bequeathed to minors shall be provided until they
reach the age of 18 years.
[7 July 1992]
570. A generally stated revocation of an earlier established
legacy, in case of doubt, shall not apply to a legacy for
maintenance.
571. The provisions of Section 566 and of the Sections
following regarding terms for legacies shall also apply to
legacies for maintenance.
572. The provision of the maintenance bequeathed shall
terminate upon the death of the maintained person, even though
the sum specified for this purpose may not be fully expended.
573. When income from immovable property or from all of the
property has been bequeathed, the executor of such legacy shall
retain possession and administration of the principal properties,
if the testator has not given other instructions regarding such,
and the executor must only deliver to the legatee the income from
it pursuant to a calculated average and must provide appropriate
security for it.
[12 December 2002]
574. If someone has been bequeathed a usufruct but someone
else the ownership rights to one and the same item of property,
then the ownership rights shall devolve to the latter from the
moment of the death of the testator, but it shall be restricted
until the moment the usufruct has ended.
[12 December 2002]
575. If the legacy of a usufruct or a dwelling right is
restricted to specified years or with other time periods, or also
it is bequeathed to the legatee to use such right only every
other year, then the right to such legacy shall take effect in
the same way as for periodical contributions (Section 566 and
567), not on one occasion, but with each new term.
576. A testator may not only bequeath already existing
obligation rights, but also by a legacy establish new ones.
[12 December 2002]
577. A legacy, by means of which its executor is charged with
entering into an obligation with the legatee, shall be valid if
the legatee may gain some kind of benefit from it.
578. If a testator has bequeathed someone his or her claim,
then the legatee may pursue it, along with related ancillary
claims, directly against the debtor.
If a testator recovers his or her bequeathed claim while still
alive or if the claim is otherwise terminated, then the legacy
also terminates therewith. But if the object of a legacy is a
specific amount which is only to be recovered from the debtor
specifically indicated, then the fact in and of itself that it
was received by the testator while still alive shall not revoke
the legacy. Generally the intent of the testator must be observed
and, in case of doubt, the legacy shall be deemed to be
valid.
Novation of a bequeathed claim shall not invalidate a
legacy.
[12 December 2002]
579. A testator may release his or her debtor from the debt by
means of a legacy.
If there is no debt, then a legacy in regard thereto is also
not in effect, even if the amount of the debt has been
stated.
[12 December 2002]
VII. Reduction
of Legacies
580. If the estate does not suffice for execution of all the
legacies, then all the legacies shall be reduced
proportionately.
581. If an estate is overly encumbered with legacies, then the
persons entitled to preferential share may take from the legatees
a proportional deduction in such amount that they retain their
preferential share as provided for by law.
[8 May 2014]
582. If the object of such legacy, as takes away or reduces
the preferential share of a person entitled to preferential
share, is maintenance or other periodic payment, or also some
kind of usufruct, then the value of such legacy shall be
calculated by capitalising the amount paid over a one-year period
with the interest rates set by law (Section 1765), but if such
legacy is bequeathed to a legal person, then this sum shall be
calculated by capitalising the annual payments with a four per
cent interest rate.
[8 May 2014]
583. Legatees do not have to participate in payment of the
debts of the estate-leaver. However, if the legacies exceed the
value of the estate, and, furthermore, there is no direct heir,
then a proportional deduction shall be taken from the legatees to
pay the aforementioned debts.
SUB-CHAPTER 11
Conditions and other Restrictions of Last Will Instructions
I. Conditional
Last Will Instructions
584. Heirs may be appointed, as well as legacies bequeathed
either with suspensive or with resolutory conditions.
Substitution may also be established with conditions; but, if
the first heir is appointed with conditions and conditions
regarding the substitute are not specifically repeated, then the
latter shall be deemed appointed without conditions.
585. The condition may be not only directly stated in a will,
but it may also be construed from other provisions in the
will.
586. If a conditionally appointed heir is additionally also
bequeathed a legacy, then the condition also applies to the
legacy. On the other hand, a condition by which a legacy is
bequeathed is not applicable to the appointment of an heir.
587. Conditions that are physically or legally impossible, as
well as wrong, immoral and otherwise not permitted - the latter
nevertheless only if they are stated affirmatively - need not be
complied with, but the instruction itself shall be valid.
588. Such conditions that restrict the personal rights of the
recipients endowed may not be added to the last will
instructions. On the other hand, those who are appointed heirs or
who are bequeathed a legacy may be bound with the following
conditions:
1) to enter into marriage with a particular person, if that is
not contrary to law and is in accordance with the requirements of
propriety and personal dignity;
2) to not enter into marriage with a particular person, only
if additionally the intention is not to prevent someone to whom
something has been bequeathed by means of this condition from
entering into marriage at all or at least to make it more
difficult for him or her.
589. All such appointments of heirs or legacy provisions,
which are dependent on a condition that the recipient give his or
her last will instructions in favour of the testator or another
person, are not permitted and therefore are void.
[12 December 2002]
590. A legacy, which the executor of a legacy must transfer in
the event that he or she fails to carry out a certain binding
direction of the testator, shall be valid.
[12 December 2002]
591. If it is possible to fulfil some condition only in part,
then such part must be fulfilled; but, if it is not possible to
fulfil the condition in part, then the entire condition shall be
deemed as unfulfilled and therefore does not need to be
observed.
A condition, which is only temporarily not possible, shall be
fulfilled as long as this temporary obstacle may be averted at
some time; but if the impossibility already existed at the time
the will was made, the condition need not be complied with even
though it might become possible to fulfil it later.
592. If among alternative imposed conditions even one is not
possible or not permitted, then none of them need be observed and
the instructions shall be deemed to be without conditions.
593. That, which is bequeathed subject to a certain condition,
may not be claimed before this condition is fulfilled.
As an exception, an inheritance may be transferred
conditionally to an appointed heir even before the coming into
effect of the condition, when the heir provides adequate security
to ensure that the inheritance is transferred to the person to
whom it would devolve, if the condition did not come into
effect.
The executor of a bequeathed conditional legacy shall grant
security to a legatee to ensure that, following the coming into
effect of the condition, the legacy shall be delivered. But if
the condition is such, that whether it has been fulfilled or not
can be determined only when the legatee dies, the legatee may
receive the legacy only if he or she provides security so that in
case the condition is not fulfilled this legacy and the fruits
derived from it shall be returned to its giver or to the person
to whom the legacy would devolve in such case.
594. With the coming into effect of a condition, the
instruction shall be deemed as one which was, as if from the very
beginning, unconditional.
If a condition has not come into effect, then the applicable
instruction shall be considered to be non-existent, but the
conditional bequest itself, to be cancelled.
In case of doubt, a condition shall always be considered to
have taken effect.
If a testator himself or herself has made the execution of a
condition impossible, then the entire instruction together with
the rights established by it is void.
If the executor of a legacy, or generally one who has an
interest in a condition not being fulfilled, hinders its coming
into effect, then the condition shall be considered to be
fulfilled.
[12 December 2002]
595. If an arbitrary condition, i.e. one whose execution is
dependent solely on the intent of a person who is a recipient
under the will, cannot come into effect due to an unintentional
obstacle, then the condition shall be considered to be fulfilled,
only if the execution, which was still possible prior to the
aforementioned obstacle, did not take place due to delay by the
aforementioned recipient.
A mixed condition, i.e., one the execution of which depends
not only on the intent of the recipient under the will, but also
on an event or on the intent of a third person, shall be
considered to be fulfilled, provided that the recipient even then
when fulfilment was still possible, had a serious intention to
fulfil the task; but, if an unintentional obstacle occurred prior
thereto, then the condition shall not be considered as having
been fulfilled.
596. A condition, the fulfilment of which is charged to
several persons, shall also be fulfilled by all of them; but if
some of them do not fulfil it, the others who have fulfilled it
shall receive their own shares of the rights bequeathed to all of
them.
597. If a condition is not fulfilled within the time specified
and in the manner prescribed by the testator, then the right
dependent on the condition shall not apply, unless as an
exception the condition is considered to have been fulfilled.
If a testator has not specified a term for the fulfilment of a
condition, then the tuning of an unintentional condition,
independent of the intent of the person who is endowed by the
will, coming into effect, shall have no significance and the
condition shall be considered to have been fulfilled even if it
is fulfilled while the testator is still alive.
A condition that, unknown to the testator, has already been
fulfilled at the time the will was being made, shall be
considered to be fulfilled.
[12 December 2002]
598. If arbitrary conditions have to be fulfilled after the
death of the testator and he or she has not specified any term
therefor, then such conditions may be fulfilled at any tune,
while it is still possible, that is, during the entire lifetime
of the recipient; but upon the death of the recipient, the
conditional right shall cease. Nevertheless, if the recipient
delays unduly, the court may, at the request of persons
interested in fulfilment, set the recipient a deadline for
fulfilment suitable under the circumstances and, if he or she
continues to be evasive, establish a trusteeship for the
inheritance, in order to satisfy the claims of interested persons
from it.
[12 December 2002]
II. Designated
Terms in Last Will Instructions
599. Designated terms differ from conditions in that the
former defers only the possibility of the use of a right, but the
latter, the validity of the right itself.
A term that in some way is stated vaguely, such that it cannot
be known with certainty whether it will come into effect at all
and when it will come into effect, shall be treated as a
condition, unless it evidently applies only to the time of
fulfilment.
If someone is bequeathed a legacy on his or her day of death,
then it may be claimed only after the death of the legatee by his
or her heirs.
III. Other
Restrictions on Last Will Instructions
600. Last will instructions may be restricted not only by
conditions and terms, but also in other ways, and namely by
binding directions, by restrictions on use, as well as by
imposing a duty to return to another person that which has been
received, or instead to perform some action.
601. If a legacy is bound by such restrictions (Section 600),
then the legatee shall provide to the executor of the legacy
security to ensure compliance with them.
602. If a legatee does not observe the ancillary provisions of
the testator, then the executor of the legacy may request the
return of that which was transferred.
[12 December 2002]
603. A third person, for whose benefit a binding direction has
been specified, shall have an independent right of action against
the legatee.
SUB-CHAPTER 12
Reciprocal Wills
604. A will, whereby two or more persons in the form of one
joint document reciprocally appoint each other as heir, is termed
reciprocal. But, if in such a will the appointment of one person
as heir has occurred with the condition that the appointment of
the other person must exist and must be valid, such that one
appointment may be or not be valid only jointly with the other,
then the will is termed mutual.
605. A reciprocal will shall be deemed to be also mutual only
if the testators have expressly stated their intent to make such
a will, or if this is evident from the circumstances of the
matter.
Similarly, a reciprocal will shall be deemed to be mutual if
is specified in it to whom the estate shall devolve after the
death of the last surviving co-heir; in case of doubt, the
reciprocal will of spouses shall also be deemed to be mutual.
[12 December 2002]
606. A reciprocal will, except in cases where from the content
thereof the contrary is evident, shall not be deemed to be an
inheritance contract, and therefore each testator may revoke it
unilaterally.
[12 December 2002]
607. If one testator revokes a non-mutual reciprocal will, or
if his or her instructions lose validity for some other reason,
then that shall not affect the validity of the instructions of
the other testators.
[12 December 2002]
608. In a mutual will the revocation by one testator shall
wholly revoke the instructions of the other, except only in the
case when the latter has obtained knowledge of the revocation by
the former and nevertheless has, intentionally, left his or her
instructions unaltered.
[12 December 2002]
609. If one of the parties to a mutual will has died, the
survivor has the right to opt out of testamentary inheritance
prior to accepting the inheritance; in such case the estate shall
devolve to the heirs by intestacy of the deceased, and therewith
the survivor regains the right to freely determine the
disposition of his or her property also in the case of death.
610. If the survivor is bequeathed in a will the property of
the deceased and he or she accepts it, then his or her will made
with the deceased as beneficiary shall be considered to be
extinguished as a result of the death of the latter and the
survivor acquires the right to freely determine the disposition
of all of the property, both his or her own and also that which
was received pursuant to the will.
611. To resolve the issue as to who shall be acknowledged as
the next of kin of each of the testators, to whom the estate
shall devolve after the death of the last survivor, the basis
shall be, if there is nothing specified in the will, the moment
of death of the last survivor.
[12 December 2002]
612. If in a reciprocal will the testators have jointly
bequeathed legacies in such sequence that they accrue to the
entire aggregate property of the estate, then their term shall
begin to run only after the death of the last survivor, unless
they evidently contradict the intent of the testator. However, if
the legacies are bequeathed by each testator separately from his
or her own property, then each such instruction shall be deemed
to be independent. Therefore, legacies of the survivor become
void of their own accord, but the survivor must fulfil those
established by the deceased, and, if the will was mutual, he or
she may not be released from this duty by refusing the
inheritance.
[12 December 2002]
SUB-CHAPTER 13
Execution of Last Will Instructions
I. Evidence of a
Will
613. A will registered in the register of documents of a
notary public or in the register of wills at an Orphan's and
Custody Court, or a document prepared pursuant to the procedures
of Section 439 regarding the acceptance of a will for safekeeping
shall be deemed as the best evidence of the existence and
authenticity of a last will.
[22 June 2006; 8 May 2014]
614. The authenticity of a written private will shall be
presumed as proved if its still living witnesses acknowledge
their signatures, but if there are no witnesses, then the
authenticity may be proved by other means.
[8 May 2014]
[8 May 2014]
615. Not only heirs but also any person with an interest in
the estate, such as legatees and their heirs, shall have the
right to bring an action against everyone who is in possession of
a will or who has with malicious intent removed it, to either
surrender the will or to pay the value of the estate or
legacy.
II. Execution of
a Will
616. A will which has come into legal effect shall be executed
by the executor of the will, who has been appointed for this
purpose either by the will itself or by another special
testamentary instrument, but if an executor of the will has not
been appointed, then by the heir appointed by the will, and
finally, if there is also no direct testamentary heir, then by a
trustee of the estate appointed by the Orphan's and Custody Court
based on a notary decision.
Note. A person charged by the heirs themselves to execute a
will shall be deemed not to be the executor of the will, but to
be their authorised representative.
[12 December 2002; 8 May 2014]
617. A person for whom trusteeship has been established by the
court and a minor may not be appointed as executor of a will.
[29 November 2012]
618. Nobody is bound to undertake the duty of an executor of a
will, which has been entrusted to him or her by the testator; but
if someone has already undertaken it, he or she no longer has the
right to withdraw therefrom without good cause. If the person
appointed as executor of a will has accepted a legacy bequeathed
by the testator, then he or she also may no longer withdraw from
the duties of executor of the will.
[12 December 2002]
619. An executor of a will, within the limits of his or her
duties, shall be protected and supported by the Orphan's and
Custody Court, but the executor does not require confirmation by
this court and is not subject to its supervision, except in cases
which pertain to the public good or to the interests of
institutions or persons that require special protection, such as
minors and those who have been awarded maintenance.
620. The legal status of the executor of a will and the limits
of his or her rights and duties are defined by the intent of the
testator expressed in the will. But if the latter has not
specified anything further, then the executor of the will need
only ensure that the last will of the testator is observed and
executed, as well as provide, as far as necessary for such
purpose, regarding the settlement of the estate and its
distribution among the heirs and legatees.
[12 December 2002]
621. The will to the executor shall be instructions from which
he or she may not, under any circumstances, deviate; but if
circumstances require it, then the executor must first hear out
interested persons and, when there are differences of opinion
between them and the executor of the will, the matter, in
accordance with the circumstances, must be decided by the
Orphan's and Custody Court.
622. The executor of a will has neither the right nor the duty
to manage the estate in the absence of the testator specifically
requiring such be done. But, while an heir appointed by the
testator has not yet accepted the inheritance or, in the absence
of such an heir, while a trusteeship has not been established,
the executor of the will shall substitute for the heir, i.e.,
take possession of the estate, prepare an inventory, pay the
debts of the estate, collect outstanding claims, bring
inheritance court proceedings, etc.
[12 December 2002]
623. The executor of a will may alienate from the property
left only that which the testator has specifically permitted, or
also, that which is absolutely necessary to maintain the estate
and to execute the will.
[12 December 2002]
624. The executor of a will shall require that the heirs state
whether they accept the inheritance. If they have accepted the
inheritance, he or she shall transfer it in their possession and
may request to retain from it objects and amounts necessary to
satisfy the legatees and to perform other particular instructions
of the testator.
[12 December 2002]
625. The executor of a will may transfer his or her duties to
someone else only if he or she is specifically permitted in the
will to do so. Nevertheless, the right of the executor to act, in
case of necessity, through an authorised representative is not
thereby revoked.
626. An executor of a will must execute the duties which have
been entrusted to him or her as quickly as possible and with such
care as with which he or she would act in his or her own matters.
If appropriate remuneration has been specified for the efforts of
the executor, then he or she shall be liable, even for ordinary
negligence, to the heirs and other persons who have an interest
in the estate.
627. If there are several executors of a will and the testator
has not divided the duties among them, then they shall act
jointly to the extent possible. Nevertheless, in cases of
urgency, they may also act independently. If they divide the
duties among themselves by voluntary agreement, then they shall,
nevertheless, be subject to solidary liability.
If the testator has imposed the discharge of some separate
instruction to a particular executor of the will, the latter
shall act only within the scope of the duty imposed upon him or
her.
[12 December 2002]
628. Expenditures associated with execution of a will shall be
reimbursed to its executor from the estate; but he or she may not
request remuneration for his or her efforts if nothing is
specified in the will concerning such.
629. When the executor of a will has completed the duties
imposed upon him or her, he or she shall provide to the heirs and
other interested persons an accounting regarding the tune of his
or her administration to the extent that the estate has been
under his or her management (Sections 619-623).
630. If the executor of an estate acts slowly or contrary to
the interests of the heirs, legatees or other persons interested
in the matter, they may not only submit complaints regarding him
or her in the Orphan's and Custody Court, but also request his or
her dismissal.
631. If the executor of a will appointed by a will does not
want to accept this duty (Section 618), or if he or she is
dismissed therefrom as a result of a request from interested
persons (Section 630), or if he or she dies, and the testator has
not provided for such case, then the Orphan's and Custody Court,
on the basis of a decision of the court, shall appoint a trustee
to execute the will.
[12 December 2002]
III.
Interpretation of Last Will Instructions
632. Interpretation of last will instructions shall be
pursuant to the general provisions for interpreting legal
transactions, and additionally the following special rules of
Sections 633-635 shall be observed.
633. If the will contains unclear, ambiguous or awkwardly used
expressions, then they shall be interpreted in accordance with
the probable intent of the testator; in addition, the relations
of the testator with the heir shall be especially observed, as
well as their usual manner of thought and speech. Expressions
that cannot be understood shall be deemed to be void.
[12 December 2002]
634. All instructions which are not contrary to law and common
sense shall be interpreted in such a way that the will remains,
insofar as possible, valid.
635. In case of doubt, preference shall be given to that
interpretation which is more advantageous to the descendants of
the testator, but thereafter, to that interpretation which is
more advantageous to the heirs and legatees. If the interests of
the legatee and the executor of the legacy conflict, then the
legatee shall be given preference over the executor of the
legacy.
SUB-CHAPTER 14
Contesting a Will
636. Any will that does not conform to some provision of law
may be contested by the interested persons (Section 637).
637. A will may be contested only by those who have been
appointed heirs in some other last will instruction or who, at
the moment of the death of the testator, were the nearest heirs
in intestacy of the testator.
Those instructions which have not been contested by the
persons mentioned, or to which they have consented, or which they
have not timely contested, or also to which they have lost their
rights in some other way, may no longer be contested by more
remote kin.
[12 December 2002]
638. If a dispute concerning a will is not without grounds,
then a court, upon petition by the plaintiff, may impose a duty
on the appointed heir of the will, if he or she accepts or has
already accepted the inheritance, to provide adequate security
for the proper administration and possible distribution of the
estate. Having regard to the circumstances, the court may
establish a trusteeship for the estate. But if all required
external formalities have been observed in the will, then the
appointed heir of the will may request to be placed in possession
without delay for such time as the opposing party has not proven
the priority of his or her rights.
Chapter Four
Contractual Inheritance
SUB-CHAPTER 1
Contractual Inheritance Forms and Inheritance Contract
639. Contractual inheritance shall be founded by contact
pursuant to which one party grants the rights to his or her
future inheritance or its part to another party, or several
parties grant such rights to each other. Such a contact is termed
an inheritance contact.
In an inheritance contract one party may also grant a legacy
to another party or to a third person.
Exclusion from an inheritance is not permitted in an
inheritance contract.
640. An inheritance contact establishes not only a personal
obligation, but the inheritance right itself. On the other hand,
a contract which contains only a promise to appoint someone as
his or her heir in the future shall not have such effect,
notwithstanding that both parties have agreed on the principal
provisions of a future inheritance contact.
641. An inheritance contact may be entered into only by a
person, who has not only the right to enter into contracts in
general, but also the capacity to make wills (Section 420) and to
inherit pursuant to a will. In accordance with this it shall be
required that an heir who is appointed pursuant to contact have
the capacity to inherit in general, but with respect to the
estate-leaver, that he or she has the right to determine the
disposition of his or her own property in case of death. If an
heir appointed in a contact is a minor, then, for the transaction
to have legal effect, the consent of a guardian or the Orphan's
and Custody Court is necessary; but if the estate-leaver is a
minor, then the inheritance contact which has been entered into
shall be binding only then, if it concerns his or her independent
property (Section 195).
642. In inheritance contracts the provisions concerning
preferential shares shall be complied with, unless those who are
concerned themselves directly or as parties to the contract have
relinquished their rights. If this has not been complied with,
the persons entitled to preferential share may request to
distribute their preferential share.
[8 May 2014]
643. An inheritance contract must be certified pursuant to
notarial procedures. However, if the contract concerns immovable
property, then, for it to be valid as against third persons, it
must be registered in the Land Register (Section 649).
[12 December 2002; 8 May 2014]
644. Inheritance contracts must also incorporate all those
provisions that the law requires in general for a contract to be
valid.
645. Conditions attached to an inheritance contract, insofar
as they apply to the parties themselves, shall be determined in
accordance with the same provisions as conditions in contracts in
general; conditions regarding other recipients in a contract
shall be subject to the provisions concerning conditions of the
wills.
SUB-CHAPTER 2
Consequences of an Inheritance Contract
646. An inheritance contract establishes only a future
invitation to inherit and therefore, while the estate-leaver is
still alive, grants to a contractual heir only the right to wait
for his or her future inheritance, but not an immediately
effective right to the present property of the estate-leaver.
647. The appointment of a contractual heir may not be revoked
unilaterally, neither directly nor with a new instruction in
contemplation of death, which contradicts the earlier, provided
that the estate-leaver has not reserved the right, in the event
of death, to still act differently with specific items of
property or part of the estate. However, if the estate-leaver has
not reserved such a right and the contractual heir is appointed
as sole heir, then all of the property left shall devolve to the
contractual heir totally. If, on the other hand, the heir has
been specifically granted a certain share, then he or she also
shall receive only that, but all of the remainder shall devolve
to the heirs by intestacy.
648. An inheritance contract does not restrict the right of an
estate-leaver, even though such may not have been separately
contracted for, provided that he or she himself or herself has
not directly relinquished such rights to act during his or her
lifetime with his or her movable property and even, in reasonable
quantities, to make a gift of it.
If an estate-leaver alienates something with the manifest
intent of taking away from the heir appointed by contract a right
granted by the contract, then this heir may, while the
estate-leaver is still alive, contest such alienation, and, if
the estate-leaver with careless expenditures reduces his or her
property to the point where pursuant to law a trusteeship should
be established due to his or her dissolute or spendthrift
lifestyle, the heir may request that such be established.
649. If the subject matter of an inheritance contract is
immovable property and this contract is entered in the Land
Register while the estate-leaver is alive, then he or she may
alienate this immovable property, mortgage it or encumber it with
property rights only with the consent of the contractual
heir.
650. While an estate-leaver is still alive, the contractual
heir may not unilaterally repudiate the contract regardless of
whether or not he or she has accepted any duties.
651. Upon the death of an estate-leaver, the right to inherit,
and with it the right to accept the inheritance, devolves to the
contractual heir. The contractual heir may renounce the
inheritance only then, if such a right has been provided for him
or her in the contract.
652. If a contractual heir dies before the estate-leaver, the
inheritance right granted to the former is terminated.
653. Legacies established by an inheritance contract shall be
executed by the contractual heir in the same way as by
testamentary heirs, and in general a legatee has a similar
relationship with contractual and with testamentary heirs.
654. Inheritance contracts may also be entered into in favour
of a third person without the participation of that person
therein, in which case such contracts establish an independent
right for him or her; in addition, the parties may nevertheless
mutually agree to change the contract entered into or also revoke
it entirely. But as soon as the aforementioned third person
himself or herself becomes a party to the contract or if one of
the original parties dies or loses ability to express his or her
will, the rights of the third person established by such contract
are no longer revocable.
[29 November 2012]
Chapter Five
Opening of Succession, Protection of Estates, and Inheritance
Actions
SUB-CHAPTER 1
Opening of Succession
655. Succession opens upon the death of an estate-leaver or
upon him or her being declared presumed dead by a court decision
(Section 377).
The burden of proof of the death of an estate-leaver is on the
claimant of the inheritance.
656. If two or more persons have died in unnatural deaths, and
in addition, it is not known which of them died earlier, then it
shall be deemed that they all died simultaneously.
If the deceased were in mutual ascendant and descendant
relationships, then in case of doubt it shall be deemed that the
descendants, if they were minors, died earlier than the
ascendants, but if they were of age of majority, later than
them.
SUB-CHAPTER 2
Protection of and Trusteeship on an Estate
657. When a notary, having jurisdiction, receives news of the
death of a person, he or she shall take measures to protect, if
the circumstances so require, the estate, which has been left
(Sections 658 and 659).
[12 December 2002]
658. If the heirs of a deceased, intestate as well as
testamentary or contractual, are known and in addition are of age
of majority and are accessible, then a notary shall not take any
protective measures, unless these heirs or any one of them
themselves have specifically requested therefor.
[12 December 2002]
659. A notary shall, on the basis of a request from an heir,
trustee for the estate, executor of a will, creditor of an
estate-leaver or other interested persons, take measures to
protect an estate in the following cases:
1) when the heirs, either in general or some of them, are not
known;
2) when, although they are known, they are not all accessible
and also do not have an authorised representative or another
person representing them pursuant to law;
3) when the heirs, although they are known and are accessible,
do not want to or are not able to accept the inheritance;
4) when there is among them even one minor or a person who for
whatever other reason is unable to personally protect his or her
rights, and in addition a guardian or trustee has also not been
appointed for him or her;
5) when it is reliably known that the estate is overly
encumbered with debts and that the interests of creditors are
threatened, as well as when there is reason to fear that the
estate could be squandered.
Expenditure for the protection of an estate incurred to the
interested person shall be covered from the estate.
Note. When following the death of a father or mother minor
children are left and when that parent who survived the other is
accessible, then the minority of the children, in the absence of
other reasons, shall not, of itself, be grounds for protection of
the estate.
[12 December 2002; 29 October 2015]
660. A notary, pursuant to a petition from an heir or in the
cases set out in Section 659, having received a relevant
notification, shall establish a trusteeship for the estate and
shall notify an Orphan's and Custody Court of it for execution.
If the heirs are minors and they have no parents, then the
Orphan's and Custody Court shall appoint guardians for them who
shall also have imposed on them the duties of trustee for the
estate.
[8 May 2014]
661. Trustees shall be nominated by persons having an interest
in the inheritance matter and, if they have the necessary
qualities, shall be confirmed by an Orphan's and Custody Court.
However, if the persons interested in the matter do not recommend
anyone for trustee, then the Orphan's and Custody Court shall
itself appoint trustees.
662. Trustees shall act independently in the administration
and representation of the estate and on behalf of the estate. A
trustee shall administer the estate with the same care and
scrupulosity by which he or she as a good owner would administer
his or her matters, by complying with that laid down in Section
269 and further Sections.
[8 May 2014]
663. Trustees, during their period of administration, shall
provide an annual accounting to the Orphan's and Custody Court,
but when the estate has been distributed to the heirs or the
trusteeship is terminated for other reasons, a final accounting
shall be provided. In addition, the Orphan's and Custody Court
may impose upon the trustee the duty to provide an accounting at
any time.
664. Administration expenditures shall be paid from the
estate. Remuneration to trustees for their efforts shall be
determined in accordance with Section 307. A trustee shall not
receive remuneration for preparing an inventory of the
estate.
665. A trustee, upon assuming his or her duties, shall
immediately prepare an inventory of the estate and shall request
a notary to notify the heirs.
In preparing an inventory a trustee shall act pursuant to the
requirements of the Civil Procedure Law.
The trustee may also request a bailiff or an Orphan's and
Custody Court, observing the Law on Orphan's and Custody Courts,
to prepare the inventory of an estate.
[7 July 1992; 12 December 2002; 22 June 2006]
666. When a court judgment or decision has come into effect or
a notary has issued an inheritance certificate or a European
Certificate of Succession regarding the rights of inheritance
claimants, the trusteeship is terminated, and therewith the right
of the trustee to act on behalf of the entirety of the estate is
terminated.
The trustee shall transfer the estate, together with the final
accounting (Section 663), to the recognised heirs, obtaining
their signatures therefor, and shall submit it to the Orphan's
and Custody Court which, after having received the signatures
therefor, shall release the trustee from his or her duties.
[12 December 2002; 29 October 2015]
SUB-CHAPTER 3
Inheritance Actions
667. An inheritance action, pursuant to which inheritance
rights are protected, may be brought by any heir irrespective of
whether he or she is invited pursuant to law, a will or a
contract and whether he or she claims the whole estate or only a
part of it.
668. An inheritance action may be brought against: anyone who
contests the right of inheritance of a claimant, irrespective of
whether the contesting party has possession of the entire estate
or a part thereof, and irrespective of whether or not he or she
regards himself or herself as an heir and presents himself or
herself as such; further against the party that was formerly in
possession of the contested estate but subsequently relinquished
possession in bad faith; finally, also against a debtor of the
estate who refuses to pay on the basis of his or her own rights
to the estate.
669. An ownership action shall be brought against the party in
possession of separate items of property, which comprise the
estate and, while not contesting the right of inheritance of the
plaintiff to them, withholds them for some other reason.
670. The purpose of an inheritance action is to acknowledge
the plaintiff as either the sole heir or a co-heir, and in
accordance with this to deliver to him or her, together with all
augmentations, either all of the estate which has been left, or
his or her due share, or also those objects in the estate which
are in the possession of the defendant.
671. This action may be brought not only against any third
person, but also against co-heirs who are in possession of the
estate and do not acknowledge the right of the plaintiff; but if
a co-heir is in possession of only his or her share while the
remainder is in possession of a third person, an action may be
brought only against the latter.
672. In an inheritance action there may also be requested such
objects, which did not actually belong to the property of the
estate-leaver, but for which he or she was liable and, therefore,
now the heirs are liable, for example, items of property pledged
to the estate-leaver or given for storage, and the like.
673. In an inheritance action there may also be also requested
payment which has been received for alienated objects in the
estate, as well as for items of property that have been acquired
for the estate if such acquisition was necessary.
674. If a defendant has been in possession of the estate in
bad faith, then he or she shall bear the risk for separate
objects; whereas one who was in possession in good faith shall be
liable only from the moment that an action has been brought
against him or her and only for such loss which has occurred as a
result of his or her fault; but in respect of the previous period
he or she shall not be liable even then if he or she is
manifestly at fault regarding negligence.
675. If a possessor in good faith has alienated an object of
the estate before an action is brought, he or she shall return to
the heir not only the actual payment received but also the
interest earned from the latter, to the extent that he or she has
not spent the payment or the interest. On the other hand, a
possessor acting in bad faith either shall return the alienated
item of property itself or shall reimburse all the losses
suffered by the plaintiff.
676. If money of the estate has been given to another person,
a possessor acting in good faith shall cede only the claim and
shall return any interest earned, but a possessor acting in bad
faith shall be liable also for the risk in regard to the capital
itself.
677. If a possessor of the estate has received some special
benefit in relation to or from the estate, then he or she shall
return such to the heir irrespective of whether he or she was in
possession of the estate in good faith or in bad faith.
678. A possessor acting in bad faith shall return all fruits
received, including also those which he or she could have
received; on the other hand, one acting in good faith, of those
fruits which he or she received before the action was brought
against him or her and he or she was notified, shall return only
those which still exist, but shall reimburse for the remainder
only in the amount by which the possessor has enriched himself or
herself from them. A possessor acting in good faith shall return
all fruits received after the action was brought, being liable
also for those which he or she could have received, unless he or
she has lost them due to an accidental circumstance.
679. In no case shall a possessor be required to pay interest
on the fruits returned.
680. In distributing an inheritance, the possessor has the
right to deduct from it any appropriate expenditures made in
accordance with the circumstances in relation to the illness and
the funeral of the estate-leaver, as well as all that has been
paid to his or her creditors and legatees. If legacies have been
paid that did not have to be executed, a possessor acting in good
faith need only cede to the heir the right of action against the
recipient of the legacy, but one acting in bad faith in such a
case shall also be fully liable for all risk.
681. A possessor acting in good faith may deduct in full all
of his or her own claims against the estate-leaver, but one
acting in bad faith, only those which are urgently required to be
executed for the plaintiff's own interests.
682. All charges and obligations, which the possessor had to
execute in relation to the estate and objects that belong to it,
shall be assumed by the plaintiff.
683. Expenditures in relation to the obtaining of fruits and
their safekeeping shall be reimbursed by the plaintiff only in
such amount that they are relevant to the fruits that must be
returned or reimbursed; but a possessor in good faith shall also
receive reimbursement from the plaintiff for expenditures
incurred needlessly in obtaining and safekeeping the fruits.
684. Expenditures incurred with respect to the estate itself
shall be reimbursed according to general provisions (Section
865-868), subject only to the exception that a possessor acting
in bad faith also must be reimbursed for his or her useful
expenditures, as long as the object, the value of which is
thereby increased, still actually exists.
685. The right to bring an inheritance action is prescribed
after five years have elapsed from the day when the right to
bring the action arose (Section 1896).
686. For all the persons, who through no fault of their own
did not have knowledge of their right to bring an inheritance
action, the prescription referred to in the previous Section
(685) shall be calculated from the day he or she gained knowledge
of his or her right to bring an action.
Chapter Six
Accepting and Taking an Inheritance
SUB-CHAPTER 1
Accepting an Inheritance
687. In order to take an inheritance, both intestate as well
as testamentary and contractual heirs must survive until the
opening of succession (Section 655) and simultaneously the
invitation to inherit (Section 389, Paragraph one), but an heir
appointed with a certain condition must survive until the
occurrence of such condition.
688. An invitation to inherit establishes only the possibility
of becoming an heir. To take an inheritance, an invitee must
express his or her willingness to accept the inheritance that has
devolved to him or her.
689. No one is compelled to accept an inheritance that has
devolved to him or her, but rather each may accept or renounce it
according to one's preference. Only a contractual heir may not
renounce an inheritance, if he or she has not specifically
included such a right for himself or herself.
690. Anyone may express their intent to accept an inheritance
either personally or also through a legal representative. Such
legal representative is necessary when the person invited to
inherit is a person with restriction of capacity to act or a
minor. The intent of minors shall be expressed on their behalf by
parents or guardians, on behalf of the persons with restriction
of capacity to act - by trustees together with the relevant
person or independently, and on behalf of legal persons - by
their legal representatives.
[29 November 2012]
691. The intent to accept an inheritance may be expressed
either explicitly, orally or in writing, or also implicitly but
with such actions that in the relevant circumstances can only be
interpreted in such a way that a certain person acknowledges
himself or herself as heir.
692. Acceptance of an inheritance may not be concluded only
from the fact that a person has acknowledged the last will of a
testator and takes such actions which pertain to the funeral of
the estate-leaver or the purpose of which is only to preserve,
maintain and ascertain the inheritance.
Similarly, acceptance of an inheritance may not be concluded
only from the fact that at the opening of succession the estate
remains in the actual possession of the persons invited to
inherit who, until the death of the estate-leaver, lived together
with him or her in a joint household.
[12 December 2002]
693. If an estate-leaver has specified a deadline for
accepting the inheritance, the appointed heir shall observe
it.
If such a deadline has not been specified but the heirs have
been invited, then those invited to inherit must express their
intent to accept the inheritance by the deadline specified in the
invitation.
If there has not been an invitation, then the heir shall
express his or her intent to accept the inheritance within a
period of one year, calculating the term from the day the
succession was opened, if the estate is in the actual possession
of the heir (Section 692, Paragraph two,), but otherwise, from
the time when information was received that the succession has
been opened.
694. If at the time of opening of succession the inheritance
is in the actual possession of the invited person (Section 692,
Paragraph two) or if he or she obtains such possession later, and
if by the expiration of the time period indicated above (Section
693) he or she fails to provide a specific response regarding
acceptance of the inheritance, then it shall be deemed that he or
she has accepted it. However, if the person invited to inherit,
not having actual possession of the estate, allows the specified
time period to pass without specifically expressing his or her
intent, then it shall be deemed that he or she has renounced the
inheritance.
695. If a person who has been invited to inherit dies before
the time period specified for stating his or her intent (Section
693) without having expressed his or her intent regarding
accepting the inheritance, then the same time period shall remain
in effect for his or her heirs to express themselves not only
regarding that which was left by the deceased heir but also
regarding the inheritance devolved to the deceased but not yet
accepted.
696. A person who has been invited to inherit has the right to
ascertain the contents of the inheritance prior to stating his or
her intent to accept it.
697. If the creditors or legatees of an estate-leaver demand
that a person invited to inherit state his or her intent
regarding acceptance of the inheritance, then the invited person
must express it within the time period specified by a notary; if
he or she does not renounce the inheritance before expiration of
the time period, he or she shall be deemed to have accepted
it.
[12 December 2002]
698. Similarly, a notary shall also set a time period for a
person invited to inherit when that person who is next in line in
regard to the right to the inheritance, for example a substitute
or a secondary heir, requests that he or she express his or her
intent. However, if in such case the person invited to inherit
does not express his or her intent by the expiration of the time
period, he or she shall be deemed to have renounced the
inheritance.
[12 December 2002]
699. An expression of the intent to accept an inheritance must
conform to all the provisions in effect regarding expressions of
intent: it must be expressed definitely and without conditions
and must concern the whole of the devolved inheritance, but not
only some part of it. If these provisions are not observed, the
expression of intent shall be deemed to have not occurred.
700. Acceptance of an inheritance shall be in effect only if
the person accepting had known that he or she had been invited to
inherit and on what basis, whether pursuant to law, a will or a
contract, and whether he or she has been appointed as heir with
certain conditions or without such.
SUB-CHAPTER 2
Consequences of Taking an Inheritance
701. With the acceptance and taking of an inheritance, all the
rights and obligations of the estate-leaver, insofar as they are
not extinguished with the death of the estate-leaver, shall
devolve to the heir.
Note. The rights of aliens to inherit immovable property have
been provided for in other laws.
[7 July 1992]
702. An heir shall acquire the same substantive rights to
separate tangible property which belong to the estate as the
estate-leaver had. Similarly, he or she shall acquire the
property rights in regard to the property of other persons which
belonged to the estate-leaver, except personal servitudes.
Upon the taking of an inheritance, the property rights that
the heir had to the property of the estate-leaver are terminated,
as well as vice versa, the rights of the latter to the property
of the heir.
703. As with property rights (Section 702, Paragraph one),
also all the claims of the estate-leaver, which have not passed
only to him or her personally, shall devolve to the heir.
All claims of the estate-leaver against the heir and, vice
versa, the claims of the heir against the estate-leaver, are
terminated with the taking of the inheritance.
704. Rights that had been granted only to the estate-leaver
personally shall not devolve to the heirs.
705. With the taking of the inheritance, together with the
rights of the estate-leaver (Section 702 and subsequent
sections), also all his or her obligations, other than
exclusively personal ones, shall devolve to the heir.
Complaints of the creditors not applied within the time period
indicated in the invitation (announcement of opening of the
succession) shall be discharged by issuing an inheritance
certificate or European Certificate of Succession, or drawing up
a deed regarding termination of the inheritance matter.
[17 January 2013; 29 October 2015]
706. An heir shall fulfil all the tasks imposed upon him or
her in the will, as well as all duties he or she has accepted
pursuant to an inheritance contract.
707. Creditors of the estate-leaver shall apply with their
claims to the heir who, if the estate does not suffice, shall pay
the debts from his or her own property; but otherwise when paying
such debts the provisions of the estate-leaver shall be
observed.
708. An heir may avoid the duties imposed by Section 707, to
be liable with his or her own property for the debts of the
estate-leaver, if he or she makes use of the inventory right,
i.e., makes an inventory of the whole inheritance within the time
specified by law.
Guardians, trustees and other legal representatives of an heir
shall always accept the inheritance due to the heir only with
inventory rights.
709. An heir who intends to make use of the inventory right
must apply to a notary, not later than within two months from
receipt of notice regarding the opening of succession, with a
petition to charge a bailiff with the preparation of an inventory
pursuant to the provisions of the Civil Procedure Law, or in
cases indicated by law - the Orphan's and Custody Court.
If the inheritance is large and complex and a longer time
period is needed to prepare the inventory, a notary, pursuant to
a petition from the heir, may extend the time period, but not
longer than by one year.
[7 July 1992; 12 December 2002; 22 June 2006]
710. While the heir is preparing an inventory, creditors and
legatees may not raise their claims against the heir, and the
running of the prescriptive period with respect to their claims
for the whole of the specified time period for invitation is
interrupted.
711. An heir who has taken an inheritance with the right of
inventory shall be liable for the debts of the estate-leaver and
other claims against him or her only in the amount of such
estate, and in addition he or she shall have the right to deduct
from it the amounts necessary for the burial of the
estate-leaver, for preparing the inventory, and for other court
costs. Claims of the heir shall not terminate, but they shall be
settled from the inheritance according to their priority.
712. If the heir is insolvent, creditors of the estate-leaver
as well as legatees may request that the estate be segregated
from the heir's own property, and that they be satisfied from the
estate, before the creditors of the heir.
Such a segregation may be demanded also from the descendants
of the heir, as well as from those who as creditors have received
from the heir possession of items of property that belong to the
inheritance.
713. In the case of such segregation (Section 712), the first
to be satisfied from the estate shall be creditors of the
estate-leaver, then legatees, and only thereafter may the
remainder that is left be rejoined with the property of the
heir.
If the segregated inheritance (Section 712) is insufficient to
satisfy the creditors and legatees, then after such segregation
they shall no longer have the right to bring claims against the
heir and his or her property.
714. The right to require segregation may not be
exercised:
1) if five years have elapsed from the day the inheritance was
accepted;
2) if the creditors with a special transaction have
acknowledged the heir as their debtor;
3) in relation to those items of property which the heir has
already alienated in good faith;
4) if such a merging of both properties has occurred that it
is not possible to segregate one from the other.
Chapter Seven
Mutual Relationships Between Co-heirs and Division of the
Inheritance
SUB-CHAPTER 1
Mutual Relationships of Co-heirs
715. If an inheritance has devolved to several persons
jointly, then they may either keep possession of it undivided, or
request that it be divided.
716. As long as the co-heirs keep possession of the
inheritance undivided, they shall receive fruits and other income
of the estate in proportion to the share of each, and shall in
the same proportion bear the charges upon it, as well as
potential losses, insofar as the latter have not arisen due to
the fault of one of the co-heirs (Section 723).
If the estate-leaver has not specified the manner of
administering and using the undivided estate, then it shall be
determined by a majority of the co-heirs in accordance with the
size of each share.
717. All co-heirs shall be liable for debts of the estate in
proportion to their shares. Even if the estate-leaver has charged
only one of them with payment of the debts, or if they agree
among themselves otherwise regarding this payment, such action
shall be binding only on the heirs themselves and shall not take
away the right of a creditor of the estate-leaver to collect the
debt from each co-heir in proportion to their share of the
inheritance.
718. Debtors of the estate-leaver shall be similarly liable to
each co-heir in proportion to their share of the inheritance; but
if the debtor has paid the debt to the heir to whom the
estate-leaver had directly bequeathed such claim, then they are
thereby relieved of any claims of the co-heirs.
719. Actions regarding an estate need the consent of all
co-heirs and only a majority vote is insufficient. Therefore none
of the heirs alone has the right to sell or pledge the shares of
their co-heirs, nor encumber the estate with debts in excess of
the value of his or her own share, nor generally to act with the
undivided entirety of the estate such as to narrow the rights of
the other participants. Such actions shall not have effect;
nevertheless, the person who has acquired the alienated movable
property in good faith shall not lose the right to it.
720. If a co-heir alienates his or her share of immovable
property to a person who is not a joint owner, then the other
joint owners shall have the rights provided for in Section
1073.
721. Expenditures with respect to the estate by one co-heir,
to the extent that they were necessary for its maintenance or
brought real benefit to it, shall be borne by all the co-heirs in
proportion to the share of each. If any one of them delays
reimbursement of these expenditures for his or her share, he or
she shall pay the lawful late payment interest.
722. If any co-heir pays the debts of the estate-leaver or
executes legacies bequeathed by the estate-leaver, he or she is
entitled to claim reimbursement from his or her co-heirs in
proportion to their shares.
723. An heir who has possession of the estate or its
constituent parts shall take care of such as if it were his or
her own property. However, if he or she uses something from the
inheritance for his or her own needs, then he or she shall
account for it to the co-heirs.
SUB-CHAPTER 2
Division of the Estate
I. Persons who
may require division of an estate
724. No one shall be obliged to remain in joint possession of
an estate, and each co-heir may require its division.
Division may also be done even if one or more co-heirs are not
of age of majority or are under trusteeship; in such cases their
rights shall be protected by their guardians or trustees.
Guardians or trustees may require division only with the
permission of the Orphan's and Custody Court.
Note. Co-heirs may not demand a surviving spouse from a
childless marriage to divide the estate until three months have
elapsed from the death of the estate-leaver.
725. If the rights of a child not yet born must be observed in
the division of an estate, the division shall be postponed until
the birth of the child.
726. If an estate must be divided as a result of claims by one
or more co-heirs, those who wish to participate in an undivided
estate may keep their shares in the joint estate.
727. An agreement to never divide an estate shall not be
valid. Co-heirs may agree to keep the estate undivided for a
certain time, but even then division of the estate before the
expiration of the agreed time may be requested if a court
considers the reasons for division to be important.
728. An estate-leaver may prohibit the division of the
residual property for a specified time, but he or she may not
forbid division in perpetuity.
If a will prohibits division of a property without specifying
a tune, then division may be done not earlier than five years
from the date of the death of the estate-leaver, but if the
estate-leaver is survived by minor children and they have not
reached the age of majority at the expiration of this tune
period, then not earlier than before they have all reached the
age of majority.
II. Property to
be Divided
729. Before beginning division of an estate, the entirety of
the property to be divided shall be determined:
1) by adding to it all that has been received by individual
heirs previously;
2) by adding to it all fruits and other augmentations that
have accrued to the undivided entirety of property since the
death of the estate-leaver;
3) by segregating the property of other persons and property
bequeathed to legatees, and deducting debts against the estate,
expenditures made with respect to the entirety of property of the
estate and sums bequeathed to legatees, the delivery of which
have not been imposed personally on an heir but in general on the
entirety of property.
730. Objects that the estate-leaver himself or herself has
already distributed shall be segregated from the entirety of
property to be divided, if such was the intent of the
estate-leaver.
III. Order of
Division
1. General
Provisions
731. An estate may be divided voluntarily (informally, at a
notary or an Orphan's and Custody Court) or, if the co-heirs are
unable to agree, through a court proceeding. If among the
co-heirs are persons under guardianship or trusteeship, then the
informal division act shall be confirmed by an Orphan's and
Custody Court, in addition, if the share of a person under
guardianship or trusteeship exceeds 14 000 euro, the decision of
the Orphan's and Custody Court shall be submitted to a court for
confirmation.
[12 December 2002; 22 June 2006; 19 September 2013]
732. Division shall be done firstly according to the
instructions given by the estate-leaver; but when he or she has
divided some separate objects of his or her estate into specific
shares among heirs, then the remainder - if specific inheritance
shares of it have not been bequeathed to the heirs - shall be
divided among them not in proportion to the shares referred to,
but in equal shares according to the number of persons or the
number of stirps (Section 411).
[12 December 2002]
733. When dividing an inheritance through court proceedings,
the court shall act generally pursuant to the provisions of
Section 1075 regarding division of joint property, also observing
the special provisions of Section 734 and subsequent
sections.
734. Cash and other fungible property, as well as claims for
money or fungible property, shall be divided in proportion to
inheritance share of each heir.
735. Non-fungible items of movable property, which cannot be
physically divided - if the heirs do not agree otherwise - shall
either be sold at auction, dividing the money so received, or
shall be given by lot to individual heirs for the amount
assessed, or also sold at an auction among the heirs themselves,
who shall then divide the income in proportion to their share of
the inheritance.
Immovable property, if it cannot be divided physically, shall
also be divided in this manner.
736. A prohibition by will or by inheritance contract against
alienation of movable or immovable property shall not prevent
division pursuant to the procedures set out in the previous
Section (735); but in selling property at auction, only the heirs
themselves may participate.
737. Moveable or immovable property shall be valued prior to
division. To determine the actual value of the immovable property
that is to be divided, the heirs may sell it at auction and
themselves participate in the bidding; in this case the heirs or
one of them may use the right of pre-emption only if it has been
specifically declared prior to the auction.
738. If immovable property has been put on auction only to
determine its real value, and if the heirs have reserved the
right to either transfer it to the highest bidder or to keep it
themselves, then notification must be expressly provided of a
reservation together with other conditions of the auction. But if
minors or heirs under trusteeship are interested in the auction,
then the transfer of immovable property to the highest bidder
shall be permitted only with the approval of an Orphan's and
Custody Court, and furthermore, if the share of the person under
guardianship or trusteeship exceeds 14 000 euro, the decision of
the Orphan's and Custody Court shall be submitted to a court.
[12 December 2002; 22 June 2006; 19 September 2013]
739. If one co-heir retains for himself or herself, for the
assessed amount, the immovable property that is to be divided, he
or she shall reimburse the others, in proportion to their shares,
with the appropriate sum of money, which following agreement
shall be either paid in cash or secured with pledge rights on the
immovable property itself.
740. When physically dividing immovable property which is part
of an estate, regulations, that prohibit the division of
immovable property either into overly small parcels or a division
altogether, shall be observed.
2. Division of
Land of an Agricultural Nature which is Outside the
Administrative Boundaries of Cities
741. If land of an agricultural nature that is to be divided
does not suffice in order to physically distribute to each heir
his or her share (Section 740) and the co-heirs do not agree,
then a father or mother in sharing with his or her children who
are of age of majority, as well as a stepfather or stepmother in
sharing with his or her stepchildren, may not claim his or her
physical shares.
Similarly, co-heirs who do not farm, as well as such co-heirs
who already own or whose spouse already owns land of an
agricultural nature the area of which exceeds the minimum extent
specified by law, may not request their physical share if there
is not enough for all.
742. In equal circumstances, priority to receive a physical
share shall go to that co-heir for whom it is easier to pay out
to the other co-heirs the reimbursement due to them, or to the
one who is given priority by all the heirs who do not receive
their physical shares.
743. Of the co-heirs who receive their physical shares,
priority to receive that part of the farm which contains the
homestead shall go to that person who has worked on the farm the
longest (children after completing obligatory schooling), or who
has most supported the farm with his or her monetary means. Time
spent in obligatory military service and fighting in a war shall
be considered equivalent to time spent working on the farm prior
to military service. In equal circumstances priority shall be
given to kin.
[12 December 2002]
744. Heirs who physically receive their share shall have
priority also to physically retain the inventory (Section 861),
with accounts to be settled with the co-heirs in accordance with
the ordinary value (Section 871) of the inventory.
745. With respect to separable trading and manufacturing
undertakings, priority shall go to that heir who desires and is
capable of managing such an undertaking, or to the one who is
given priority by all the heirs who will not receive their
physical shares.
746. If the previous Sections (741-745) do not provide
sufficient instruction regarding who shall be granted a physical
share or given the homestead, the order of division, if the heirs
do not reach agreement by other means, shall be determined by a
court in its discretion.
747. The physical shares to be received shall be valued, and
the buildings necessary for the farm are not to be valued
separately but together with the land. Accounts with co-heirs
must be settled for two thirds of the value so determined. Such a
lowering of value shall not apply to the land and buildings of
existing trading or manufacturing undertakings, nor to such
buildings as are not involved with the direct needs of farming;
similarly, such a lowering of value shall not be applied by
co-heirs in their mutual accounting in regard to the debts of the
estate-leaver.
748. Co-heirs who have received their physical shares shall
make payment to the others in proportion to their shares and the
value that has been determined on the basis of the previous
Section (747).
749. If an heir who has received his or her physical share
must obtain for payments cash equivalent to more than 50% of the
value of the property to be received and he or she is unable to
obtain the payment shortfall from a long-term credit institution,
or if he or she has received land without buildings, a court may
permit payment by instalments; depending on the size of the sum
to be paid, the income from the farm and the circumstances of the
recipient of the payment, the court may set a time period for
payment of up to ten years. Such relief may not be granted if the
payer is unable to provide adequate security to the recipient of
the payment.
750. If an heir who has received his or her physical share
alienates his or her farm or a part of it prior to the elapse of
ten years, then the co-heirs may demand that they be paid the
difference between the assessment on the basis of which payment
was made (Sections 747 and 748), and the market value at the time
of division.
751. In the case of alienation provided for in the previous
Section (750), the co-heirs who did not receive their physical
share shall have the right of first refusal or the right of
pre-emption (Section 1073). If several co-heirs apply to exercise
the right of first refusal or the right of pre-emption, then they
shall acquire the aforementioned farm as property in common in
equal shares.
3. Documents
752. Family documents, as well as documents that relate to the
whole of the estate, shall not be distributed and, if the heirs
have not agreed otherwise, they shall be given for safekeeping to
the heir who receives the largest share of the estate, but if the
shares are equal, to the oldest co-heir participating in the
division.
An heir who has received possession of the documents shall
allow co-heirs to examine and copy them, when they so
request.
Documents which relate to a specific immovable property shall
be given to the heir who receives that immovable property.
If the immovable property is divided and the heirs do not
agree otherwise, then the documents relating to this property
shall be given to the heir who receives ownership of the share
with the earlier Mortgage Register number.
IV. Consequences
of Division
753. If in dividing an estate the co-heirs give to each other
something from it, then the legal relationship established
thereby shall be considered in accordance with the provisions
regarding the purchase.
Each co-heir shall be liable to the others for the objects
devolved to him or her in the division.
754. If the estate-leaver himself or herself has specified the
items of property which each co-heir shall receive as his or her
share and has indicated the value of these items of property,
then a division on this basis may not be contested in any way,
except only in the case when the preferential share rights of an
heir are infringed thereby.
Co-heirs may not contest for any reason a division of an
estate performed on the basis of a judgment of a court or an
arbitral tribunal, which has come into effect.
755. An informal division may be contested when bad faith,
duress or fraud has been discovered in regard to the division or
when one co-heir has incurred losses of more than one half, or if
a mistake has occurred. The injured party shall have the right to
request either compensation or a new division.
756. If it is found that an object that belongs to an estate
has been omitted from the division and has not been divided, then
the earlier division shall nevertheless remain in effect and the
object that was omitted shall additionally be divided among the
heirs.
SUB-CHAPTER 3
Additions to That which was Received Previously
757. A surviving spouse and all descendants, who on whatever
basis wish to inherit from the deceased spouse or the common
ancestor, shall add to the entirety of property of the estate
prior to its division all that he or she has received from the
estate-leaver while the estate-leaver was alive or also shall
include it in his or her shares of the estate.
758. The duty to add is not affected by whether the
descendants who inherit jointly are in the same or in a different
degree of kinship with respect to the common ancestor.
759. Those who represent the financial rights of such person,
who must perform the addition referred to, shall add to the
entirety of property of the estate all that would have had to be
added by the aforementioned person, unless he or she inherits in
his or her own right and has not inherited from the person he or
she represents.
760. Addition shall not be made:
1) when the person who would have to do such has renounced his
or her participation in the division of the estate while the
estate-leaver was still alive, or also who, after the death of
the estate-leaver, has declared that he or she is satisfied with
what was received previously and does not wish to participate in
the inheritance;
2) when the estate-leaver has definitely prohibited such
addition;
3) when the objects to be added have been destroyed through no
fault of the person who has to make the addition.
A prohibition against addition, as well as renunciation by the
person who should perform the addition shall not infringe on the
rights of the co-heirs to their preferential shares.
761. Descendants must add all that they have previously
received not only for the benefit of each other, but also for the
benefit of the parent who has survived the other and inherits
jointly with them. However, in such case the surviving spouse
shall also add the property that the deceased has granted to him
or her while the deceased was alive.
762. The usual ascendant or spousal gifts shall be added only
in the following cases:
1) when an addition has been directly imposed as a duty at the
time of the making of the gift or before or after that;
2) when the donee has co-heirs who must also add the same
gifts.
763. If the estate-leaver has not directly stated otherwise,
that which the descendants have received from the ascendants for
food, housing, clothing, care, upbringing and compulsory
education shall not be added.
Similarly, that which the surviving spouse has received from
the deceased spouse for food, housing, clothing and care shall
not be added.
764. The value of the objects to be added shall be determined
according to the condition they were in at the time they were
received and according to prices at that time.
765. If the person who should make the addition fails to do so
in due time, the co-heirs shall have the right to claim from that
person interest and income from the moment the person was invited
to make the addition.
CHAPTER 8
Termination and Loss of Inheritance Rights
SUB-CHAPTER 1
Loss of Inheritance Rights pursuant to the Intent of the Heir
Himself or Herself
I. Refusal of an
Inheritance Prior to the Invitation to Inherit
766. A contract to renounce the right of inheritance is a
contract by which one party renounces the right of inheritance
that would have belonged to him or her after the death of the
other party.
A contract to renounce the right of inheritance is in effect
only if it has been executed in writing.
767. A renunciation contract shall be executed between the
future heir and the person whose inheritance he or she shall
renounce.
A contract by which one party promises to another to renounce
an inheritance from a third person which he or she would be
entitled to take, does not constitute renunciation within the
meaning herein, but is a contract regarding the estate of the
third person.
In order that the renunciation of a person under guardianship
or trusteeship be valid, it requires the consent of the trustee
or guardian as well as of the Orphan's and Custody Court.
768. A renunciation contract by an heir extends also to his or
her preferential share.
769. A right to inherit by an heir shall be terminated by a
renunciation of the inheritance by the heir, and the
estate-leaver shall be released from all restrictions regarding
decisions concerning his or her estate, also regarding the
preferential share.
770. If an estate-leaver has not provided any instructions in
case of his or her death, either in a will or in a contract, then
in place of the one who has renounced the inheritance, such who
has equal rights to him or her shall take, but if such does not
exist, then the next nearest heir by intestacy of the
estate-leaver shall take.
771. If the contrary has not been specifically agreed, then
all that the heir who has renounced has contracted for himself or
herself for his or her refusal shall be acquired not as a share
of the estate but as compensation.
772. If an heir who has renounced dies prior to the
estate-leaver, then his or her renunciation shall not be binding
upon his or her descendants, also even in the case where a
contract was specifically entered into to also include them, and
therefore their rights shall remain unaffected; but if they
accept the inheritance which devolves to them after the heir who
has renounced, then in their shares shall be included that which
the heir has received as compensation for renunciation.
773. A contract to renounce an inheritance may be revoked only
by the written agreement of both parties.
774. If an heir has renounced in favour of a third person and
he or she has participated directly in the execution of the
contract or has become a party to it later, then the renunciation
contract may not be revoked without his or her consent.
II. Renunciation
of an Inheritance after the Invitation to Inherit
775. Anyone who may freely act with his or her property shall
also have the right to renounce an inheritance regardless of
whether it has devolved to him or her pursuant to law or pursuant
to a will. The rights of a contractual heir in this regard are
specified in Section 689.
776. An inheritance may be renounced not only by so stating
expressly but also implicitly.
The provisions of Sections 690, 699 and 700 regarding
acceptance of an inheritance shall also apply to its
renunciation.
777. For a renunciation to have effect, it is necessary that
the person who renounces knows the basis pursuant to which he or
she has been invited to inherit, as well as the fact that he or
she is an heir.
778. If the nearest intestate successor has been appointed
heir in a will but does not wish to exercise this appointment, he
or she retains the right to inherit pursuant to law.
779. If someone refuses to inherit pursuant to a will for some
selfish purpose, then he or she shall, accepting an inheritance
pursuant to law, not be released from the restrictions specified
by the testator regarding actions taken with respect to the
inheritance; in addition, he or she must satisfy the
legatees.
[12 December 2002]
780. If the nearest heir by intestacy has been appointed heir
in a will without his or her knowledge, then by a renunciation of
the inheritance, regardless of the manner of its expression, he
or she shall not lose the right to inherit pursuant to the will.
However, if he or she, when renouncing the inheritance in general
terms, knew that he or she had been appointed as an heir in the
will, then he or she may no longer also inherit pursuant to
law.
781. When an invited heir has already accepted an inheritance,
he or she may no longer renounce it. Once an invited heir has
renounced an inheritance that has devolved to him or her, he or
she may no longer accept it later.
782. After an heir has renounced an inheritance that has
devolved to him or her, in the heir's place shall come the person
who has been invited to inherit pursuant to the intent of the
estate-leaver or, if such intent has not been expressed,
according to law is invited to inherit as the next nearest kin;
furthermore, this new heir shall be given the same term for
accepting or renouncing the inheritance as was the first heir,
calculating from the day that he or she received knowledge of the
renunciation by the first heir. Provisions of this Section shall
not be applicable to the case referred to in Paragraph one of
Section 406.
[8 May 2014]
783. Renunciation of an inheritance does not constitute
concomitant refusal of those rights and claims that an heir may
have against the estate-leaver and the estate pursuant to some
other basis.
SUB-CHAPTER 2
Incomplete Wills and Invalid Wills
I. Revocation of
a Will Against the Intent of the Testator
[12 December 2002]
784. A will may in various ways be invalid either from the
very beginning or become void later, not only as a whole but also
only in some separate parts of it.
If the Orphan's and Custody Court rejects the guardian
appointed in a will (Sections 231 and 232), the will shall become
invalid of itself in this part.
[29 October 2015]
785. A will which has remained not completed (Section 458) or
in which all the instructions are illegal or incomprehensible, as
well as a will with criminal or illegal content, shall be invalid
of itself and a notary shall not read it.
The illegality of separate instructions shall not invalidate
neither the whole will, nor its other instructions; in such case
a notary shall make all that is illegal in the will conform to
law, or, if that is not possible, delete such from the will.
The provisions of the previous parts of this Section also
shall apply when the circumstances mentioned in Section 824,
Paragraph one, which make an heir unworthy to inherit, have been
established pursuant to a judgment of a court.
[12 December 2002]
786. Interested persons may request that a will be declared
void in its entirety or in regard to separate parts thereof in
the following cases:
1) when the estate-leaver did not have the capacity to make a
will;
2) when the specified form was not observed in the making of
the will;
3) when the making of the will was achieved under duress or
fraud, or if a mistake has occurred.
787. The validity of a will shall not be affected by the fact
that ten or more years have passed from the time the will was
made to the death of the testator.
[12 December 2002]
788. If a person entitled to preferential share has remained
unmentioned in the will or has been excluded from inheriting
without legal cause, he or she shall have the right to request
that his or her preferential share be distributed or also, if he
or she has been bequeathed less than this share, that it be
supplemented. In other respects the will shall remain valid.
[8 May 2014]
789. If an estate-leaver who does not have children has made a
will and subsequently either while still alive or after his or
her death a descendant is born, then the will shall be deemed
revoked in its entirety, unless this case has been specifically
provided for in the will itself. But if the testator has already
had children previously, then those born after the will was made
shall receive only equal shares of the estate with their brothers
and sisters, in addition in other respects the will shall remain
valid.
[12 December 2002]
790. If a father leaves a specific share of the estate to a
descendant who is yet to be born, but, instead of one, two or
more children are born, then they shall receive equal shares of
the estate.
791. If an heir by intestacy who has had the opportunity to
contest the will and has already acknowledged the will either
expressly or implicitly, i.e., by fulfilling separate aspects of
it or by not submitting his or her claims during the invitation
time period, he or she shall be required to fulfil the will
completely and shall no longer have the right to contest it
later.
II. Revocation
of a Will, Changing the Intent of the Testator
[12 December 2002]
792. The provisions regarding the revocation of a will due to
a change in the intent of a testator (Sections 793-801) shall
also apply to public wills.
[12 December 2002]
793. A testator may revoke a previous will either by making a
new one or by simply revoking the previous will.
[12 December 2002]
1. Making a New
Will
794. A new will shall of itself revoke a previous one, even
without this being expressly stated.
In this respect it does not matter whether the previous will
was public or private; a public will may be similarly revoked by
a subsequent private one.
If a testator has expressed the intent to make a new will or
to change the already existing one, that in itself shall not
revoke the previous will if the testator dies without fulfilling
his or her intention.
[7 July 1992; 12 December 2002; 8 May 2014]
795. If a new will has such defects as a result of which it is
invalid (Sections 785 and 786), as well as if a testator himself
or herself revokes a later will with the intention of renewing
the previous will, then the previous will shall again regain its
validity.
If a new will becomes invalid for the reasons mentioned in
Section 789, the previous will shall not as a result regain its
validity.
[12 December 2002]
796. An earlier will shall not be acknowledged as revoked by a
new will, when the new one is undisputedly only a codicil to the
earlier one or a change to some part thereof.
797. If a testator specifies in a new will that the previous
one also remains in effect, or if he or she leaves two wills that
have been made on the same day but differ in their essential
content, or finally, if it cannot be clearly determined which of
two wills was made earlier and which later, then in all such
cases both wills shall remain in effect side by side insofar as
it is possible under the circumstances. However, if such is
completely impossible, then both wills shall be void.
798. If a testator was motivated to make a new will by false
information concerning the death of the appointed heir, then the
earlier will shall remain valid.
2. Revocation of
a Will
799. An estate-leaver may revoke his or her will, without
making a new one, by any expression of his or her intent that is
stated either expressly or implicitly by certain actions.
800. A will shall be revoked absolutely by means of a clear
and indisputable statement, which may be expressed in a
revocation deed of a will drawn up by a notary or an Orphan's and
Custody Court, as well as in a deed written and signed by himself
or herself.
[8 May 2014]
801. A will may be revoked implicitly by such action as leaves
no doubt about the intention of the testator.
802. If a testator himself or herself, or at his or her
instruction a third person, intentionally destroys the entire
will by tearing, cutting or burning it, or also by only crossing
out all its content, or by other means, then all the instructions
contained therein, if it has not been preserved in yet another
original, shall become void.
803. If a testator destroys only a few parts of the last will
instructions, then all the others shall remain valid.
804. That which a testator has destroyed himself or herself
but not intentionally, or also someone else has destroyed without
the consent of the testator, shall remain valid as long as it is
possible to read it or otherwise prove its content.
Sub-chapter Three
Revocation of a Legacy
I. Revocation of
a Legacy on the Basis of the Intent of the Legatee
805. A legatee may always refuse a legacy granted to himself
or herself, but if he or she dies without making a statement
regarding it, this right shall devolve to his or her heir.
One may refuse not only expressly but also implicitly by an
action that does not leave any doubt about the intention of the
legatee.
806. If an heir refuses an inheritance which has devolved to
him or her, then he or she shall not thereby also have refused a
pre-legacy granted to him or her.
807. With the refusal of a legacy, the devolving of the legacy
shall also be terminated (Sections 521 and subsequent sections),
provided that the legatee has not accepted on more than one
ground and the refusal can apply to only one of them.
808. Refusal of a legacy granted with a condition or term
shall not be in effect if such renunciation has occurred prior to
the condition having taken effect or of the commencement of the
term.
II. Revoking a
Legacy on the Basis of the Intent of the Estate-leaver
809. An estate-leaver may revoke a legacy granted by himself
or herself by any statement of intent which is expressed either
explicitly or implicitly by a certain action that leaves no doubt
about the intention of the estate-leaver.
810. Each amendment of a legacy is in itself a revocation of
the earlier legacy and the establishment of a new one; therefore
in amending a legacy one shall observe all that has to be
observed generally in establishing a legacy; otherwise one must
acknowledge that the amendment does indeed revoke the earlier one
but does not establish a new legacy.
811. If a legacy is amended by naming a new legatee or
executor of the legacy or designating a new object of the legacy,
then, when there is doubt, it shall be presumed that the
condition attached to the legacy is not revoked by the amendment
but remains in effect.
III. Revoking a
Legacy Because a Will Fails
812. If a will fails, then the legacies established by it
shall also fail.
IV. Direct
Failure of a Legacy
813. A legacy shall fail if it has been invalid from the very
beginning, and namely, in the following cases:
1) when an estate-leaver did not have the capacity to grant
the legacy or the legatee to accept it;
2) when the bequest could not have been the object of a
legacy;
3) when the instructions given were incomprehensible;
4) when the legacy was initiated by duress or fraud or granted
due to mistake.
814. Legacies which are invalid (Section 813) shall not again
become valid even then when the cause of their being invalid
later ceases to exist, unless they were granted with a condition
and the cause of their invalidity has not ceased to exist prior
to the condition taking effect.
815. If a will has been written not by the testator himself or
herself but by some other person, then no instruction made to the
benefit of this person, also including a legacy granted to him or
her, shall be valid, unless the testator himself or herself has
expressly and specially confirmed such an instruction or unless
the will was written by his or her sole heir by intestacy.
816. A legacy, which is valid at the beginning, shall later
become invalid:
1) if the legatee dies prior to the estate-leaver or prior to
a condition being fulfilled;
2) if the object of a legacy has been destroyed or converted
into something else;
3) if the testator, while still alive, has given the
bequeathed object as a gift to the legatee.
817. If the heir appointed in a will executes a legacy that he
or she did not have to execute, then he or she shall no longer
have the right to ask for its return, unless he or she was
motivated to execute the legacy by a mistake of fact.
V. Consequences
of Revoking a Legacy
818. If a legatee in some manner fails, then the object of the
legacy, to the extent it still exists, shall devolve first of all
to his or her substitute, or, pursuant to accession rights
(Section 839 and 840), to a co-legatee, if such has been
appointed.
If there is neither a substitute nor a co-legatee, then the
object of the legacy shall remain with the executor of the
legacy, but if such also does not exist, then with the heir; but
if there are several heirs, then the legacy shall be divided
among them in proportion to their shares of the estate.
He or she, who is charged only with distribution, for example,
the executor of a will, shall not be considered as the executor
of a legacy and also therefore shall not receive the bequeathed
object.
819. He or she, who pursuant to the procedures set out in of
Section 818 replaces a failed legatee, shall perform all the
duties of the latter, except in the case when the legacy has been
invalid from the very beginning.
SUB-CHAPTER 4
Revoking an Inheritance Contract
820. An inheritance contract shall lose its effect for the
same reasons as a will.
An inheritance contract may be revoked for the same reasons as
any contract in general.
No party, unless it has been specifically included in the
contract, may with a unilateral declaration revoke an inheritance
contract, even if the reason therefor was the ingratitude of the
heir appointed in the contract, or even if after the contract was
entered into a descendant was born to one party.
821. Infringement of the rights of persons entitled to
preferential share shall have the same consequences in an
inheritance contract as in a will.
[8 May 2014]
822. Reasons that generally give the right to request the
renewal of an earlier status may also be a reason for revoking an
inheritance contract.
823. If an heir appointed in a will dies prior to the
estate-leaver and in addition heirs of the former had not been
specifically appointed as his or her substitute, the inheritance
contract shall be deemed to be terminated.
SUB-CHAPTER 5
Forfeiture of Inheritance and Legacy from Unworthy Persons
824. The inheritance as well as the legacy shall be forfeited,
due to his or her unworthiness, from a person:
1) who has intentionally caused the death of an estate-leaver
or the nearest heir ahead of oneself in the succession, or
intentionally caused such harm to the health of the estate-leaver
as to leave him or her unable to make or revoke a last will
instruction;
2) who through violence or fraud has encouraged or prevented
the estate-leaver from making, amending or revoking last will
instructions;
3) who with malicious intent has removed the last will
instructions of the estate-leaver;
4) who has forged the last will instructions of the
estate-leaver;
5) who has refused the duty, imposed upon him or her by last
will instructions to assume the position of guardian or the duty
to raise someone;
6) who does not fulfil the duty, which has been imposed upon
him or her, to arrange the burial of the estate-leaver;
7) who within a year from the date the last will instructions
came into effect without good cause does not fulfil the binding
directions of the estate-leaver;
8) whom custody rights have been removed by a court judgment
which has come into effect (Section 200).
A person whom the estate-leaver has forgiven shall not forfeit
an inheritance or a legacy.
[8 May 2014]
825. [12 December 2002]
826. Forfeiture of an inheritance on the basis of unworthiness
(Section 824) may take place only on the basis of a court action,
except in the case mentioned in Section 785, Paragraph three.
An action may be brought by the person to whom the inheritance
will devolve after its forfeiture (Section 827), but in the cases
provided for in Section 824, Clauses 1 and 8 - also by the
prosecutor.
The aforementioned action may be brought within the terms
specified in Sections 685 and 686.
[12 December 2002; 8 May 2014]
827. When someone has had an inheritance forfeited on the
basis of unworthiness, then his or her place, if there are no
special provisions regarding this, shall be taken by the person
who has been invited to inherit jointly with the person who has
forfeited or directly behind him or her, irrespective whether it
is a substitute or a co-heir, or also the nearest heir by
intestacy. Legacies which unworthy persons have had forfeited are
subject to the provisions of Section 818.
828. He or she who takes the place of the unworthy person
shall fulfil all that has been imposed upon the latter, and
namely, fulfilling a legacy, assuming the debts of the estate,
etc.
829. If an unworthy person has already acquired and received
what had been bequeathed to him or her, then he or she shall
transfer such with all fruits and augmentations to the one taking
his or her place.
If an unworthy person has suffered any losses as a result of
accepting the inheritance, he or she may not request a
restoration of the earlier status.
SUB-CHAPTER 6
Accession Rights
830. If one of several co-heirs for some reason is unable or
unwilling to inherit, then his or her share that has been freed
shall devolve, pursuant to accession rights, to the other
co-heirs.
Accession rights shall not be applicable if a failed heir has
a substitute, or if he or she has already died after the
invitation to inherit and his or her rights have passed to his or
her heirs.
831. Accession rights shall apply on the basis of law without
any special acquisition or acceptance. One who has such rights
may not refuse them.
832. If an heir after acquiring an inheritance has already
died, but any one of the co-heirs later fails, then the accession
right shall belong to the heirs of the former.
833. The freed share shall devolve to the co-heirs (Section
830) with all the charges to which it is subject, including with
the duty to fulfil the legacies imposed upon the failed heir,
except in cases when the appointment of this heir has been
invalid from the very beginning.
834. In inheriting pursuant to law the freed share of the
estate shall devolve to those co-heirs who would have received it
if the failed heir had not existed at all, and they shall divide
this share in proportion to their shares of the estate.
835. If some of the heirs by intestacy inherit per capita but
others per stirpes (Section 411), then, if any one of the former
fails, his or her share shall be divided according to the number
of stirpes; but if fails someone of those who inherit per
stirpes, then his or her share shall devolve, pursuant to
accession rights, to the members of the same stirpes, and only
then if such do not exist shall it devolve to other stirpes.
836. In inheriting pursuant to a will, only those who have
been invited to inherit the whole estate without their shares
being specified shall have accession rights.
The share that is freed after failure of a testamentary heir
shall be divided equally among the other co-heirs.
837. When any one of several contractual heirs fails, then his
or her freed share shall devolve not to his or her co-heirs, but
rather to the heirs by intestacy of the estate-leaver, unless the
contract specifically states otherwise.
838. When contractual heirs inherit jointly with testamentary
heirs, then upon the failure of any one of the latter, his or her
share, if there are no other testamentary heirs, shall devolve
not to contractual heirs, but to heirs by intestacy.
839. With respect to legacies, accession rights exist only
when one and the same item of property is bequeathed to several
co-legatees without specifying which share of it each should
receive.
If in such a case a co-legatee fails before he or she has
acquired the right to the legacy granted to him or her, his or
her share shall devolve to the other co-legatees.
840. If several legatees have been jointly bequeathed
usufructuary rights (Section 1190 and subsequent sections) and if
any one of them fails after he or she has already acquired his or
her share, then it too shall devolve to their co-legatees.
PART THREE
Property Law
Chapter One
Various Classes of Property
SUB-CHAPTER 1
Property and Aggregations of Property in General
841. Property is tangible or intangible. Intangible property
consists of various personal rights, property rights and rights
regarding obligations, insofar as such rights are constituent
parts of property.
842. Tangible property is either moveable or immovable,
depending on whether it may or may not be moved from one location
to another without external damage.
Note. A railway, with all its appurtenances, shall be
classified as immovable property, but ships, with all their
appurtenances, shall be classified as moveable property.
843. Rights applicable to immovable property may be made
applicable by law, as well as by private volition, to such
property as according to its nature is moveable, and vice
versa.
844. Tangible property is either fungible or non-fungible.
Fungible property is that for which normally only the kind is
taken into consideration but not form, nor also the separate
property itself so that, when delivering or returning it, a
person must observe only that it is of a specific kind, quality
and the same quantity. Herein belongs all property which is
determined numerically, by measurement or by weight.
Pursuant to private volition, a fungible nature may be
assigned also to property that is essentially non-fungible, i.e.
separate specified things, and vice versa.
845. Tangible property is either consumable or inconsumable,
depending on whether it is destroyed by normal use or not.
846. Property rights are applicable to moveable or immovable
property, having regard to the class of property to which they
pertain.
Personal rights, and rights regarding obligations, even if
their object is immovable property, shall always be classified as
moveable property.
When intangible property is treated as a constituent part or
appurtenance (Section 850) of tangible property, then it assumes
the characteristics of the latter and in accordance therewith
shall be considered either moveable or immovable, having regard
to the class of tangible property it belongs to.
847. Legally, only such property shall be divisible as may,
without destroying its essence, be divided into parts, and, in
addition, each of the parts is a self-contained whole. Property
which cannot be divided in this manner shall be indivisible.
It may be provided, by law or by private volition, that
property, which in essence is divisible, is not divisible.
848. Not only separate property but also aggregations of
property may be the subject of rights or obligations.
849. An aggregation of property is such collation of several
items of property, self-contained, of one or more classes,
tangible or intangible, for a known purpose, in a unitary
composition and with one joint designation as shall be
acknowledged in a legal sense as a whole, or a unitary
property.
The concept of an aggregation of property and its essence
shall not be destroyed or altered either by the reduction or
augmentation of the separate items of property incorporated in
its composition, or any other change in them.
SUB-CHAPTER 2
Principal and Auxiliary Property
I. GENERAL
PROVISIONS
850. Principal property is that which may be the independent
subject-matter of rights. However, property which exists only in
conjunction with, belonging to or is otherwise associated with
principal property (Section 851), is auxiliary property.
851. In regard to auxiliary property, distinction shall be
made between:
1) essential parts of the principal property, including
augmentations within the narrowest meaning thereof;
2) the fruits of the principal property;
3) appurtenances of the principal property;
4) expenditures regarding the principal property and charges
encumbering it.
852. While auxiliary property has not been separated from the
principal property, they both shall be subject to identical
provisions regarding rights; accordingly moveable appurtenances
of immovable property shall not be considered as moveable
property, but shall be subject to the provisions applicable to
immovable property.
853. All lawful relations which apply to principal property in
themselves also apply to the auxiliary property thereof;
therefore, where principal property is alienated, auxiliary
property pertaining to it, in case of doubt, shall be recognised
as alienated jointly with it, unless expressly stipulated
otherwise.
II. Essential
Parts of Principal Property
854. The essential parts of a principal property are all those
which are found to be inseparably connected and are incorporated
in its composition, so that without them the principal property
in its essence could not exist or would not be recognised as
whole.
III. Fruits
855. Fruits, within the widest meaning of this word, are every
benefit which may be obtained through the use of a principal
property.
Fruits, within the narrowest meaning, are all that which may
be obtained from a property, either as the natural product
thereof or as income which it bears in connection with special
legal relationships; in the former case, the fruits are called
natural, in the latter, civil. Included in the latter shall be
lease and rental payments and interest on capital.
856. Natural fruits shall be recognised as part of a principal
property until they are separated from it.
IV.
Appurtenances
857. Auxiliary property acquires the character of an
appurtenance, if its function is to serve the principal property,
it is permanently connected with it and pursuant to its natural
characteristics it corresponds to this function.
Auxiliary property may not be considered to be an appurtenance
contrary to the clearly expressed intention of the owner.
The connection of auxiliary property that determines its
belonging to the principal shall not, without fail, be that both
properties must be directly, closely, or physically attached; it
is sufficient for such belonging that there exists any other
permanent connection between them.
Only an external connection between two properties or the
determination by the owner in accordance with his or her volition
that one property is for the other does not make either of the
properties an appurtenance of the other. On the contrary, in
every case the co-existence of all the conditions set out in
Paragraph one of this Section it necessary.
858. Auxiliary property, after it is separated from the
principal property, shall not be the appurtenance of the latter
only if together therewith the intention to terminate its
function to serve the principal is expressly stated or expressed
by indisputable action. The character of the appurtenance does
not cease with the temporary separation of the property
alone.
859. A property shall be considered to be an appurtenance of a
building, where it is intended, not for the purpose of serving
only the personal or business objectives of the owner, but to be
permanently connected to the building, making it, according to
its character, more useful and pleasing.
That which the owner of the building has acquired for the
objectives set out in this Section, but which has not yet been
used for this objective, is not an appurtenance of the building.
This provision also applies to construction materials.
860. Tools and machinery which are necessary for production,
as well as products still in process, shall be considered to be
appurtenances of an industrial undertaking; but neither delivered
raw materials nor already finished products intended for sale are
required to be included with appurtenances.
861. So-called inventory, i.e. agricultural tools, seed and
livestock, shall not be considered as appurtenances of a parcel
of rural land, but the manure, straw and stores of feed for
livestock necessary for farming shall be included in
appurtenances of a parcel of rural land.
The inventory of a ship shall not include the food stores of
the ship.
862. Documents, maps and plans which pertain to the
acquisition and possession of immovable property, or the
construction of buildings or ships shall be the appurtenances of
such property or ship.
Note. In the sale of a ship to aliens, ship documents shall be
dealt with according to the Ship Mortgage and Maritime Claims
Law.
V. Encumbrances
and Expenditures
863. Any person who enjoys or wishes to enjoy the benefits of
a property shall also bear the duties associated with this
property, as well as expenditures incurred by a third person for
this property or on its behalf.
864. The owner of a property shall bear all charges
encumbering it and other encumbrances thereon.
865. Expenditures made on behalf of a property are either
necessary, by which its very existence is maintained or protected
from total destruction, collapse or devastation; or useful, which
improve the property, namely, increase the income from it; or,
finally, enhancement expenditures, which make it only more
convenient, pleasing or more attractive.
866. Necessary expenditures shall be reimbursed to everyone
who has made them, except for a person who has acquired the
property by criminal means.
867. Useful expenditures shall be reimbursed to persons who
have, in good faith, administered the property of another as if
it were their own, provided they have not yet received
reimbursement, having received income from this property, which
shall be set off in such cases. These expenditures shall be
reimbursed only to the extent that they have increased the value
of the property. However, if the increase exceeds the amount of
the expenditure itself, only these expenditures may be
recovered.
If the amount of the reimbursable useful expenditures is not
commensurate with the means of persons for whose property they
are made, or if the payment of the reimbursement will place too
large a burden on such persons, they may not be compelled to
reimburse them; but, in such case, the opposing party may remove
from the property of the other person all the improvements done
to it, to the extent possible without the property being
damaged.
Persons who, without acting in good faith, incur necessary
expenditures in regard to the property of another person, may not
request that these be reimbursed, but may remove their
improvements, if that is advantageous to them and if it can be
done without the principal property being damaged.
868. Persons who, without being assigned to do it, incur
enhancement expenditures in regard to another person's property,
may not request that such expenditures be reimbursed, but they
may similarly remove their enhancements, if that is advantageous
to them and if it can be done without causing injury to the
principal property.
869. Expenditures incurred by a third person, not in regard to
the property itself, but in regard to the fruits of the property
and the production, harvest and storage thereof, shall be borne
or be reimbursed by those who have received these fruits, to such
extent as they have benefited from them.
SUB-CHAPTER 3
Division of Property on the Basis of its Value
870. Property may be evaluated in accordance with its normal
value in general use, or in accordance with its value determined
by its special significance to its possessor or his or her
personal inclinations. Accordingly, the value of property may be
normal, or special, or based upon personal inclinations.
871. Normal value is determined on the basis of the benefit
which the property of itself may give to any possessors thereof,
independently of their personal relationship.
872. Special value is determined on the basis of the special
benefit which the possessor of the property gains therefrom in
connection with their personal relationship.
873. Value based on personal inclinations depends upon the
preference that the possessors of a property attribute to it
either due to its uniqueness or due to their special relationship
with it, independently of the benefit which it in itself
provides.
874. If the law, in referring to the value of property, does
not further describe such, then it shall always be understood to
be normal value (Section 871).
Chapter Two
Possession
SUB-CHAPTER 1
General Provisions
875. Possession is actual control conforming with rights.
The object of possession may be property in its narrower
meaning, i.e. tangibles, or it may be also intangible property,
i.e., rights.
876. Possession of property is actual control over property
conforming to ownership rights. It exists where tangible property
is actually under the total control of a person and, in addition
thereto, this person demonstrates an intention to act with the
property similarly as would an owner.
Persons under whose control property actually is, but who
acknowledge another person as the owner thereof, shall be deemed,
even though having the right to hold it under their control, not
as the lawful possessor of the property, but only as the holder
or actual possessor thereof and the substitute for the owner in
possession.
Note. A holder or actual possessor has the right to require
that the possession which has been interrupted be renewed.
877. Only such rights are capable of being possessed as are
capable of being used long term or repeatedly.
In compliance with this provision, any right is capable of
being possessed, if it is in fact feasible to use it according to
one's own discretion, and to bar other persons therefrom, and if
it is actually used for one's own benefit.
SUB-CHAPTER 2
Acquiring Possession
878. One and the same property may not, at one and the same
time, be in the possession of several persons so that each one of
them possesses the whole property.
Several persons may so jointly possess one and the same
property that each of them, without in fact dividing such
property, possesses an undivided share of it.
One person may possess the property itself while another, at
the same time, possesses some right to it.
Note. Restrictions on the acquisition, possession and use of
immovable property shall be set out in a separate law.
879. In order to acquire possession of tangible property it is
necessary, firstly, to assume control of it, i.e. to perform such
physical action as by which the persons wishing to acquire
possession so subject such property to their physical control
that they alone may, at their discretion, affect it, but
secondly, that there be associated with the assumption of control
the intention to retain the property as theirs.
880. Whether the basis of assuming control of, and intention
to retain property is or is not legal, does not affect the
acquisition of possession.
881. Control of property can be assumed without coming in
direct physical contact with it.
882. Assumption of control of immovable property takes place
not only in an instance where the acquirer enters thereon, but
also where this is just indicated by the transferor, if together
therewith there are no natural impediments to entry into such
immovable property.
883. Assumption of control of moveable property shall be
deemed to have taken place:
1) when a person, who wishes to acquire possession of the
property, receives it in his or her hands;
2) when it comes to be within the person's traps or nets;
3) when the person places a guard over it;
4) when, at the order of the person, it is transferred to
another person - his or her substitute;
5) when it is carried to premises occupied by the
acquirer;
6) when the acquirer has been given the keys to premises in
which the property is located;
7) when he or she put a notice on property which is no longer
in the possession of another.
884. Animals which are critically wounded, but still hunted,
as well as game in fenced forests and fish in ponds are not yet
in possession.
885. The possessor of a parcel of land becomes the possessor
of property concealed on it only after it has been found.
886. If property is already under the control of a person,
then he or she shall acquire possession simply by his or her
intention to possess it as his or her own (Section 879).
887. In order to acquire control through a substitute, the
latter has to take the property under his or her control with the
intention of acquiring possession of it not for himself or
herself but for the person whom he or she is substituting for.
But, if someone transfers property to the substitute of a known
person with the direct intent of it being transferred further to
the person being substituted for, then the latter acquires
possession even if his or her substitute had the intention to
acquire it for himself or herself or for some other person.
888. In order to acquire possession through a substitute, it
is necessary that the person being substituted for actually has
such intention and, therefore, he or she does not become
possessors if he or she does not know anything about the assuming
of control of the property, i.e., he or she has not actually
assigned this to be done or have not confirmed at a later date
the assumption of control that has already taken place.
889. The provision of the previous Section (888) does not
apply to persons who are incapable of expressing their intent;
their substitute may acquire possession on behalf of such person
even without their knowledge and intent.
890. A person who possesses property in his or her own name
may also commence to possess it according to his or her own
discretion as the substitute for another person, albeit the
latter has not taken it under his or her control.
891. In order to acquire possession of rights, similarly to
acquisition of possession of property, physical control is
necessary, manifested in the actual exercise in fact of the
rights to be acquired, and the intention to exercise such control
as one's right.
892. A right may not be exercised in secret, by force, by
fraud or against a person who is incapable of expressing his or
her intent.
893. In order to acquire possession it is not required that
the acquirer has a genuine right to it.
894. Albeit a person only exercises rights once, that is
sufficient for him or her to acquire possession of such
rights.
895. Possession of a right may also be acquired through a
substitute, if he or she exercises the right on behalf of the
acquirer.
Additionally, the provisions of Sections 888-890 are also
applicable in such respect.
SUB-CHAPTER 3
Continuation and Termination of Possession
896. Each instance of possession acquired regarding a property
continues so long as physical control over the property and an
intention to retain it as one's own exists. As soon as both or
even one of these conditions cease to exist, possession also
terminates.
897. As acquisition of possession requires twofold action
(Section 879) so also the termination of possession requires such
action as is contrary to one or other of the conditions regarding
acquisition and continuation of possession.
898. As a result of absence of physical control, possession of
moveable property is terminated:
1) when another person assumes control of the property, albeit
by force or in secret;
2) when the possessor has lost the property and cannot find
it;
3) when the possessor cannot access it.
899. Possession is terminated regarding domestic animals when
they have gone astray and no longer return; wildlife, when they
escape to freedom from the hands of the possessor; but tame
animals, when they lose the habit of returning home.
900. Possession of immovable property is terminated when the
possessor has lost control over it either due to natural force or
by being dispossessed by another person.
To be dispossessed from possession, it is not sufficient only
that someone assumes control of the immovable property; rather it
is required that the previous possessor, upon learning that the
taking away of control has occurred, does not take any steps
against such, or has tried, without success, to renew his or her
control of the property.
901. In order to continue possession it is not necessary to
constantly and repeatedly demonstrate an intent to retain a
property as one's own; but, in order to terminate possession it
is necessary to demonstrate a contrary intention with a directly
expressed or an implicitly made renunciation.
If the possessor of an immovable property fails to use it, it
does not result therefrom that he or she has renounced
possession, so long as his or her intention to renounce it is not
yet clearly evident from other circumstances.
Persons who lack capacity in regard to the exercise of their
volition may not renounce possession.
902. Possession may not only be acquired, but may also be
continued or terminated through a substitute.
903. Possession may also be lost in favour of the possessor's
substitute himself or herself; however, possession is not lost
only due to the substitute expressing his or her intention, but
in addition, his or her physical action is necessary, which is
demonstrated in relation to moveable property through the hiding
thereof with the intent of appropriating it, but in relation to
immovable property through the dispossession of the previous
possessor by force.
904. Possession is lost by the substitute of a possessor in
all those cases in which the possessor himself or herself would
lose it, namely, regarding moveable property, when the substitute
of the possessor loses such property or transfers it to another,
or when it is taken from the substitute for the purpose of
misappropriation.
905. The possessor loses possession over immovable property
when his or her substitute is dispossessed by force. But if
another person has assumed control of the property only due to
the negligence or acts in bad faith of the substitute, then
possession by the previous possessor is terminated only when the
previous possessor, upon being informed that control has been
taken away, does not take appropriate steps to dispossess the
person who took away control, or his or her attempt to do so is
not successful.
906. Possession through a substitute is not terminated when
the substitute of the possessor transfers the property into the
hands of another person, or dies, or has lost the ability to
express his or her intent, or abandons the property so that some
other person assumes control of it.
[29 November 2012]
907. Possessors who themselves are dispossessed by force, do
not lose possession if their substitute retains possession of the
property.
908. In order to continue the possession of a right, it is not
necessary to constantly express one's intention to possess it,
nor to constantly exercise it. However, such possession is lost
if the possessor never exercises the right during the whole of
the lawful prescriptive period.
Possession of a right is also lost when a possessor renounces
it, irrespective whether expressly or implicitly.
SUB-CHAPTER 4
Forms of Possession
909. Possession of property or of a right is either legal or
illegal.
Each possession acquired by force or in secret from persons
from whom an objection could be expected is illegal.
Persons merely holding the property of other persons cannot
convert such holding into legal possession by expressing the
intention to possess the property as if it were one's own.
910. Possession is in good faith or in bad faith. Possessors
in good faith are those who are convinced that no other person
has a greater right to possess the property than they, but
possessors in bad faith are those who know that they do not have
the right to possess the property or that some other person has
greater right in this respect than they.
SUB-CHAPTER 5
Rights Arising from Possession
911. From possession arises the right to protect existing
possession and to renew possession that has been taken away.
These rights are associated with every possession independently
of whether it is legal or illegal, in good faith or in bad
faith.
I. Protection of
Existing Possession
912. Every possession shall be protected by law.
913. Every person may protect his or her possession from any
restriction or interference, even by force, provided that the
latter is used without delay and within the limits permitted by
law for justified self-defence.
914. Possession is interfered with when some person attempts
to appropriate property, or part thereof, or a right, or hinders
possessors from using their possession, as also takes place where
there are threats that may cause well-founded concern.
915. Where a possessor proves that there has been such
interference and he or she has maintained possession, he or she
may claim from a court not only protection for his or her
possession, but also compensation for losses caused them through
interference with his or her possession.
916. A court, whose protection a possessor is seeking, may, in
its discretion, require from the defendant a guarantee that such
defendant will henceforth no longer interfere with
possession.
917. If a defendant proves that the plaintiff has illegally
acquired possession from the defendant himself or herself
(Section 909, Paragraph two), the complaint of the plaintiff
shall be dismissed. However, an objection by the defendant that
the plaintiff has acquired possession unlawfully from a third
person is not required to be upheld.
918. Every possession shall be deemed legal and in good faith,
so long as it is not proved otherwise.
919. If two persons claim at the same time, that they both
possess one and the same property, and both cite some action on
which they base their still continuing possession, then the
possession of the person who proves that he or she is presently
in legal possession (Section 909, Paragraph two) shall be
protected. But, if it cannot be satisfactorily established on the
basis of the averments of each of the parties as to which party
is presently in legal possession, the possession which is
longer-subsisting, or founded on a legal basis, shall be
preferred.
II. Renewal of
Possession Taken Away
920. Possession of property or of a right is taken away when
the possessor thereof is dispossessed by force.
921. A court shall, without delay, restore possession of
property or of rights taken away by force or by the possessor
being dispossessed, as soon as the victim proves that he or she
had such possession and was dispossessed therefrom. The
possession shall be restored irrespective of the wishes of the
committer of the acts of force to prove his or her ownership
rights or on the basis of any other objections by him or her, as
do not relate directly to possession and the fact of it being
taken away, or are not mentioned in the first sentence of Section
917.
922. A person having taken possession away by force, except in
a case referred to in the first sentence of Section 917, may not
rely on the fact that a possessor, against whom he or she has
committed unlawful acts, himself or herself had illegal
possession. Possession, the legality of which is contested, shall
be protected so long as it has not been proved and a court has
not found that the rights presented against it prevail.
923. No ownership action shall be accepted from a person who
has taken away possession by force, so long as the person
dispossessed has not been restored thereto and not received
compensation for all losses and expenditures.
924. An action to restore possession that has been taken away
may be brought not only against the person who has taken it away
by force, but also against any third person who retains such
property or right taken away, knowing of the act of force that
has taken place.
925. An action regarding interference with or taking away of
possession may be brought within a period of one year, after the
expiration of which the right to bring an action is terminated by
prescription.
926. In cases where possession is taken away secretly, or when
the possessor is absent, the one year period shall be calculated
from the time when the possessor becomes informed of the taking
away of possession.
Chapter Three
Ownership
SUB-CHAPTER 1
General Provisions
927. Ownership is the full right of control over property,
i.e., the right to possess and use it, obtain all possible
benefit from it, dispose of it and, in accordance with prescribed
procedures, claim its return from any third person by way of an
ownership action.
928. Although ownership may, pursuant to private volition, as
well as pursuant to law, be restricted in various ways,
nevertheless, all such restrictions shall be construed in their
narrowest meaning and, in case of uncertainty, it shall always be
presumed that ownership is not restricted.
929. The subject-matter of ownership may be anything that is
not specifically withdrawn from general circulation by law.
SUB-CHAPTER 2
Acquisition of Ownership
I. Acquisition
of Ownership by Appropriation
1. General
Provisions
930. Ownership may be acquired by appropriation only of
ownerless property and only in those cases where the taking of
control over the property is directly associated with the
intention to acquire ownership of it.
Note. Ownerless immovable property shall belong to the State.
In the cases specified in law, ownerless immovable property shall
devolve to the local government.
[13 October 2022]
931. The subject of appropriation may be:
1) ownerless live things, especially wild animals;
2) inanimate movable things which have not yet belonged to
anyone, or which have been abandoned, lost or hidden by their
owner, as well as concealed property.
2. Catching of
Animals
932. Animals which are still naturally in the wild become the
property of those who catch or kill them insofar as the law does
not provide otherwise. The wounding of an animal, without control
of it being obtained, does not constitute appropriation.
933. A captured wild animal, if it escapes to the wild anew,
shall be considered an ownerless animal again, but only in those
cases where it disappears totally from the view of its pursuing
owner or, even though the owner is still able to see it, the
animal is so far away that it is not possible to pursue it.
Wild animals which are caught and locked up in cages, fishing
traps, and like receptacles from which they are unable to escape,
cannot be the subject of appropriation.
Wild animals, which after their capture have been tamed and
have become accustomed to certain places, even though they roam
free, shall remain owned by the person who caught them as long as
they do not lose their habit of returning home.
934. Domestic animals shall not be considered as ownerless
animals even if they run away or get lost. The appropriator of
such animals does not acquire a right of ownership in regard to
them; the same also applies in regard to tamed wild animals.
935. Acquisition of the right of ownership of a caught or
killed wild animal does not depend on whether it has been caught,
or killed on one's own land or on the land of another.
A landowner has the right to prohibit the catching or hunting
of animals by any other person within the boundaries of the land
belonging to him or her and, if the prohibition is not complied
with, claim compensation from a trespasser.
936. The right of ownership of a colony of bees living in the
wild belongs to the owner of the land on which the colony is
found.
937. The owner of the bees also has the right to follow his or
her swarm on to the land of another person, moreover he or she
shall compensate the owner of the land for any damage caused.
The owner of a swarm loses the right of ownership of a flying
swarm if the owner does not pursue it and within 24 hours after
the swarm has landed declare his or her ownership rights to the
person who has been the recipient of the swarm or who manages the
land on which the swarm has landed.
938. If a swarm settles in another person's bee-hive in which
there are bees, the owner of the swarm loses his or her rights to
it.
939. The right to bring an action regarding ownership rights
to a flying swarm is extinguished through prescription after one
month, calculated from the day of swarming.
3. Finding of
Property
940. Ownership of moveable property, where the property has
previously not been owned by anyone, accrues to those who find
and take control thereof. Note. The right of prohibition granted
to a landowner (Section 935, Paragraph two) also applies in this
case.
941. Ownership of moveable property, where the former owner
has relinquished the property through express declaration or
abandonment, accrues to the finder thereof.
942. Property which the owner, compelled by external
circumstances, releases from his or her control shall not be
considered to be abandoned.
943. Property shall be deemed lost, where a person who has
lost it does not know where to search for it, from whom to claim
it, or by what procedure he or she can regain possession of
it.
944. A finder of lost property, provided he or she knows the
person who has lost it, shall return it to the latter, receiving
from him or her an appropriate finder's fee (Section 948).
Notification of the finding of property that constitutes
military equipment shall be given to the nearest military
authorities.
945. If a finder of property does not know who has lost it, he
or she shall report his or her find to the nearest police station
within one week from the day of finding it.
946. If found property is such as may deteriorate or decrease
in value if kept for an extended period, the police shall,
without delay, sell it at auction, and keep the money received in
order to give it to the person who lost the property.
947. If, pursuant to advertisement by the police, an owner of
found property or a person who has lost it attend and prove his
or her right to it, the property itself or the money received
from it shall be given to him or her, after receiving from him or
her or deducting expenses incurred for maintaining the property
and for advertising, as well as the finder's fee due to the
finder (Section 948).
948. If a finder, upon handing over the property (Section 944)
or notifying the police of the find (Section 945), has claimed a
finder's fee, such fee shall be determined by a court in its
discretion, but shall not exceed one third of the value of the
found property after deduction of expenses, unless the person who
lost the property has publicly offered a greater sum, or
voluntarily reached an agreement with the finder.
949. If the owner does not attend within six months of the
date of the advertisement by the police, ownership of found
property or money received from the sale thereof (Section 946)
accrues to a finder, with the proviso that storage and other
expenses shall be imposed on him or her.
950. The provisions regarding found property (Sections
944-949) also apply to property saved from destruction.
951. If property found buried in the ground, immured or in any
other way concealed, is such as may not, however, be considered
to be concealed property (Section 952), the same provisions shall
apply to them as regarding found property.
If an owner proves that he or she knew the place where found
property was concealed, he or she does not have a duty to pay a
finder's fee.
952. Concealed property means all valuable property buried in
the ground, immured or in any other way concealed, whose owner
due to the length of time elapsed is no longer able to be
known.
Ownership of concealed property discovered on one's own land
or on ownerless land accrues to the finder.
953. It is prohibited to search for concealed property on the
land of another person. Those who act contrary to this provision,
shall not acquire any of or anything from the concealed property
they have found, and all such property shall accrue to the person
who owns the land.
Those who accidentally find concealed property on the land of
another person shall acquire half thereof but the other half
accrues to the owner of the land.
954. Where money or other valuable property for which an owner
is unable to be ascertained, are found in movable property which
is not buried or immured nor concealed in some other way, the
provisions of Sections 952 and 953 do not apply, and the
provisions regarding finding hidden property apply (Section
951).
II. Acquiring
Ownership of the Fruits of Property
955. The owner of principal property also becomes the owner of
the fruits thereof as soon as they appear.
956. Where persons have the right to use another person's
property, the fruits of the property, as soon as they are
separated, accrue to such persons, provided that at the time of
separation they possess or hold the property.
957. Where persons have the right to use another person's
property, the industrial fruits from the property, from the time
when the work necessary for their production is complete, accrue
to such persons.
958. Civil fruits of property of another person shall be
obtained by persons having the right to use such property, from
the time of commencement of the term for payment therefor. If the
civil fruits by their nature accrue every year continuously, but
the right of use terminates before the expiration of the year,
such civil fruits shall be distributed between the user and those
who have assigned the right to use the fruits to him or her, in
proportion to the period such right continues during the last
year of use.
959. A possessor in good faith of another person's property
shall acquire its fruits at the time of separation of the fruits
from the principal property, irrespective of the procedure by
which they have been separated and who, except for the owner, has
separated them.
III. Acquisition
of Ownership by Augmentation
1. Joining of
One Parcel of Land to Another
960. Augmentation by joining one parcel of land to another may
arise by: formation of an island in a river, the alteration of a
river bed or alluvial deposit.
961. An island, formed in a lake or a river and closely
attached to the lake or river bed, belongs to the person who owns
the lake or the river or the relevant part of the lake or the
river.
How large a part of an island belongs to each of the owners of
the opposite banks of a private river is determined according to
a line drawn along the middle of the river between the
water-lines of both banks at normal water level. If the island
does not extend beyond this line, the whole island belongs to the
owner of the nearest bank, but if the line stretches across the
island, it shall be considered the boundary according to which
the parts belonging to the owners of the opposite banks are
determined.
962. If a river leaves its former bed and takes a new course,
its abandoned bed belongs to those who own the land along the
river bank, in proportion to the distance the land belonging to
each stretches along the banks and to the median line of the
river bed between both banks at normal water level.
The owners of the abandoned bed, within a year's time after
such changes have occurred, have the right, at their own expense,
to commence work for restoration of the earlier situation.
The provision of Paragraph one of this Section is also
applicable where the river returns to its former bed: its newly
abandoned bed shall belong to those whose land is adjacent to it,
proportionate to the distance these lands stretch along the bank
and irrespective of whom this bed belonged to previously.
963. Flooding does not alter ownership rights and after the
water has abated, the land that was beneath it shall be retained
by the former owner.
964. If a river, in tearing out its bank, forms a new branch
which in its further course rejoins the main river again, the
island formed thereby from the land washed against by these two
rivers shall be retained by its former owner.
965. Augmentations of banks or islands, which have been formed
by the gradual alluvial deposit of land or the natural or
artificial lowering of water levels belong to the owners of the
banks or islands and together therewith their ownership
boundaries shall be determined in accordance with Section
961.
966. Pieces of land, which are torn away from one parcel and
brought onto another by a current or other natural force, belong
with the latter only from that time when the piece of land has
been firmly joined to it.
967. In the cases set out in Sections 962 and 965, a person
who has suffered losses has no rights to any kind of
compensation. However, in the case set out in Section 966, where
a firm joining has been established between the torn-away piece
of land and the land of another person, the former owner has a
right to claim, within two years' time, compensation from the new
owner in proportion to the extent the latter has been enriched by
such augmentation.
2. Erection of
Buildings
968. A building erected on land and firmly attached to it
shall be recognised as part thereof.
969. A person who has knowingly erected a permanent building
on another person's land may claim compensation for it only to
the extent that this building falls within the category of
necessary expenditures (Section 865); but if the building belongs
to the category of useful or enhancement expenditures, its
erector only has the right to remove it, in compliance with the
restrictions referred to in Section 867, Paragraph three and
Section 868.
If in such case the erector of the building has special legal
relations with the landowner - as user, lessee, etc. - in place
of this Section, the provisions provided for in regard to the
aforementioned legal relations are applicable.
970. Persons who have erected a building on another person's
land through excusable mistake may, when the landowner claims the
land from them, not comply with this claim until they receive
compensation for their building. Compensation may be claimed only
for those buildings that are to be considered necessary
expenditures, but, if the building belongs to the category of
useful expenditures or the category of enhancement expenditures,
the provisions set out in Section 867, Paragraphs one and two and
Section 868 are applicable accordingly.
971. Where a landowner in good faith utilises another person's
materials for some structures on his or her own land, then, even
though these become his or her property, he or she shall
reimburse the former owner for the costs of the materials to the
extent they have enriched themselves from them; but, if the
landowner has utilised the materials in bad faith they shall
reimburse all losses caused to the former owner.
972. In regard to persons who erect a structure on another
person's land from the materials of another, relations with the
landowner shall be decided in accordance with the provisions of
Sections 969 and 970, and with the owner of the materials in
accordance with the provisions of Section 971.
3. Sowing and
Planting
973. Trees and other plants which are transplanted to the land
of another belong to the owner thereof from the time they become
rooted in this land.
If such plants are again separated from the ground, they do
not belong to the earlier owner, but are retained by the person
who owns the land; but if they are planted anew, they become the
property of the owner of the new land from the time they become
rooted.
974. A tree growing on the boundaries of several parcels of
land belongs jointly to those neighbours from whose land the tree
grows, to each in proportion to the extent the tree stands or
stretches its branches over their land. However, where, after
separating such a tree from the land, it is not possible to
determine the earlier ownership of its respective parts, it shall
belong to all the mentioned neighbours in equal undivided
shares.
975. A tree growing on the very boundary shall belong to the
person on whose land the tree-trunk emerges from the ground, even
though its roots stretch into the land of the person's neighbour.
Such neighbour has no right to cut the mentioned roots, but if
the roots cause damage to his or her land, he or she may claim
compensation from the owner of the tree.
976. Sown seed is owned by the person who owns the seeded
land.
977. Where a landowner has sown his or her land with the seeds
of another person or has planted his or her land with the plants
of another person in good faith, thus depriving the earlier
owners of their property (Sections 973 and 976), and he or she
shall compensate the latter for the value of the seeds or plants
to the extent he or she has enriched himself or herself from
them. However, if he or she has sown the seeds or planted the
plants in bad faith, he or she shall compensate for all of the
losses he or she has caused, in full.
978. A person who, while not being a lessee, user, etc., sows
or plants the land of another person may, if they have done it in
good faith, claim compensation from the owner of the land for the
necessary and useful expenditure they have incurred towards
obtaining fruits.
979. A person who sows or plants the land of another person in
bad faith, shall lose their work and seed in favour of the owner
of the land, and may not claim any compensation therefor.
4. Augmentation
by Joining Movable Property and Processing Property of
Another
980. If items of movable property belonging to various owners
are through some process, pursuant to mutual agreement or by
chance, joined together, and there is no special arrangement
between the participants, then the new property created through
such process shall be the joint property of all of them, held in
undivided shares, which correspond to the value of each separate,
joined property.
981. If items of movable property belonging to two owners are
joined by one of them without the knowledge and intent of the
other, and it is possible to again separate them and restore them
to their former form, this shall be done at the expense of the
person at fault and no changes with respect to ownership rights
shall result therefrom.
982. If separation is not possible or the materials of another
person have been processed without the knowledge or wish of their
owner, where the joining and processing is done in bad faith the
owner of the property joined or processed may, without a duty to
compensate for property of other persons put into the new
property or for work done, claim either the new property as his
or her property or, leaving ownership to the party at fault,
claim payment of an amount equivalent to the highest price
existing for his or her property from the day it was taken until
the day such compensation was adjudged to him or her, and in
addition thereto, compensation for all losses.
983. If the joining of property to the property of another
person has been done in good faith and carried out without
artistic or skilled work, ownership of the property thereby
created shall accrue to the person who has made it, provided that
their own materials added thereto are manifestly more valuable
than those of the other person. But at the choice of the owner of
the materials, he or she shall be obliged to either return an
equal amount of materials of the same kind and quality, or pay
such price for these materials as was the highest regarding them
at the time when the joining took place, and, in addition, to
compensate the owner of the materials regarding losses occasioned
to such owner.
984. If, in the cases regarding joining referred to in Section
983, the materials of the joiner are not evidently more valuable,
the person whose rights are affected may either leave the new
property with the person who has processed it for the
compensation specified in Section 983 or keep it himself or
herself. In the latter case, the person who did the joining has
the right to claim for the normal value of the materials he or
she has joined to the extent the materials of the other have
actually been improved thereby.
985. If, through the artistic or skilful processing in good
faith of the materials of another person, something new has been
created, such that the materials used in the composition thereof
have lost their former and acquired a new form, then,
irrespective of whether the materials of the other person can or
cannot be separated from it, such new thing shall, in all cases,
become the property of the processor, but subject to the duty to
provide compensation on the basis of Section 983 to the owner of
such other person's materials.
986. Where a person has joined or processed materials
belonging to several persons, the provisions of Sections 980-985
shall also apply. When the participants have the right, as they
may choose, to either keep the new thing or to receive
compensation for the materials in place thereof, the issue shall
be decided by a majority vote, in proportion to the amount of the
materials each of them own or, if this is not possible, by
drawing lots.
IV. Acquisition
of Ownership Pursuant to Delivery
987. The alienation of a property by its owner is not in
itself sufficient for the right of ownership in the property to
pass to its acquirer, if in addition to this another mandatory
provision is not complied with, namely, the delivery of such
property to the new acquirer.
Upon delivery, the new acquirer acquires the rights of
ownership in the property to the same extent as they belonged to
the transferor of the property.
988. Only a person who has the right to alienate the property
being transferred, in his or her own or in the name of another
person, and together therewith an intention to transfer the
property to the ownership of another, may deliver it.
The acquirer requires the capacity and the intention to
acquire ownership of the property for himself or herself or for
another person.
989. In order for the delivery to be valid, a legal basis is
required therefor as is actually intended to transfer ownership,
and the legal transaction upon which the passing of ownership is
based must be such as is not prohibited by law.
990. The delivery of possession of moveable property shall be
done pursuant to provisions set out for the acquisition of
possession in those cases where it passes to another person with
the consent of the previous possessor (Sections 881 and 883).
The delivery of goods warehouses and stocks of goods shall be
done not only by enumerating, measuring and weighing goods, but
also by the delivery of keys, accounts, bills of lading,
trademarks, etc., if together therewith the transferor expresses
the intention to transfer their ownership, and the recipient to
acquire it.
Goods or any other property with the mark of the acquirer
thereon shall be deemed to have been delivered and to have passed
into the ownership of the acquirer, so long as the contrary has
not been proven.
991. Where property is already in the possession of the
acquirer, it shall suffice that there be appropriate notification
from the previous owner in order for the property to pass into
the ownership of the acquirer.
992. It is not necessary that there be delivery of immovable
property.
993. The delivery of immovable property does not in itself
establish the ownership rights of the acquirer of the immovable
property; these shall be acquired only on the basis of legal
acquisition and the registration of a completed deed thereof in
the Land Register.
Any alienation of immovable property, and in general also any
change in the owners thereof, must be registered in the Land
Register.
Similarly, each immovable property, which is not an
appurtenance to another such property, must be registered in the
name of the new owner as a new mortgageable parcel.
994. Only such person shall be recognised to be the owner of
immovable property who has been registered in the Land Register
as such.
Until registration in the Land Register, acquirers of
immovable property shall not have any rights against third
persons, they may not use any of the priority rights associated
with ownership, and they must recognise as valid any acts
pertaining to such immovable property by the person who is
indicated, pursuant to the Land Register, as the owner of such
property. However, he or she has the right not only to request
compensation for all acts done in bad faith by the earlier owner
pertaining to the immovable property, but also to request that
the latter take all the appropriate steps to register the passing
of the immovable property in the Land Register (Section 993,
Paragraph one).
995. A person's being put into possession of acquired
immovable property, as may be done by a court, shall not be a
necessary condition for the acquisition of the ownership of such
property, and accordingly such being put into possession shall
take place only if the acquirer definitely wishes it,
particularly if alienation of the immovable property has taken
place contrary to the intent of the previous owner.
996. Delivery effected under mistake regarding the deliverable
property itself or the ownership rights of the transferor to such
shall not establish the passing of ownership.
If some other mistake has occurred, ownership shall still be
considered to have passed, but return of the transferred object
may be reclaimed through an action in personam.
997. Delivery may also be done with a suspensive condition; in
such case, ownership passes to the acquirer only after the
condition has come into effect.
The legal basis of the acquisition shall be registered in the
Land Register only after the condition has come into effect.
V. Acquisition
of Property Through Prescription
998. Ownership of a property may be acquired through
prescription, if the acquirer has possessed it as his or her own
for the period prescribed by law, and other applicable conditions
of law are complied with.
999. In order for possession to establish ownership through
prescription, the following are required:
1) subject-matter that may be acquired through prescription
(Sections 1000-1005);
2) a legal basis (Sections 1006-1012);
3) good faith on the part of the possessor (Sections
1013-1017);
4) uninterrupted possession (Sections 1018-1022);
5) the elapse of the prescribed period (Sections 1023 and
1024);
6) the owner of the property is legally able to exercise his
or her right to the property (Sections 1025-1029).
1.
Subject-matter that May be Acquired Through Prescription
1000. Ownership through prescription may not be acquired of
subject-matter which cannot be privately owned.
Provisions regarding prescription are also applicable to
property which belongs to the State.
1001. Property, which the law absolutely prohibits the
alienation of, may not be acquired through prescription.
1002. If alienation is prohibited only by order of a relevant
authority or directions of a private person, then such
prohibitions shall avert prescription only in those cases where
they apply to immovable property and are registered in the Land
Register.
1003. Ownership may not be acquired through prescription for
property obtained by criminal means, neither by the committer of
the criminal offence, nor by a third person whose rights are
obtained by alienation thereof from the committer. This
restriction regarding prescription shall terminate only after
such property is returned to the control of its owner.
1004. Where a dispute arises regarding boundaries, the right
to ownership of disputed land may not be proved solely by the
fact that it has been possessed for all of the time stipulated
for a prescriptive period.
1005. In cases where a claim against a third person regarding
the return of movable property is already not allowable due to
some other reason, prescription of itself also becomes
inapplicable.
2. The Legal
Basis of Possession
1006. In order for possession to confer the right to acquire
ownership of property through prescription, it must be founded on
a legal basis such as would be capable of itself to confer
ownership rights, but which, due to particular impediments in the
relevant case, acquisition of ownership did not immediately ensue
upon.
1007. Such bases (Section 1006) are:
1) all actions and all changes in circumstances which in
themselves are one of the primary acquisition forms of ownership,
appropriation and augmentation included therein;
2) all legal transactions, interpreting this to mean
unilateral expressions of intent, as well as agreements whose
objective is to give ownership to another person;
3) intestate succession on the basis of which heirs may,
through prescription, also acquire the property of other persons
that has come within the inheritance devolving upon such
heirs;
4) judgments of a court that have come into legal effect and
according to which the acquirer is recognised as having ownership
rights.
1008. Ownership of property which has been pledged, lent, or
given over to bailment or usufruct may not be acquired through
prescription by the creditors, borrowers, bailees or
usufructuaries thereof, or by their heirs.
1009. Legal transactions which are the basis for possession
(Section 1007, Clause 2) must in themselves be valid and
formulated in such form as is prescribed for such
transactions.
1010. The running of a prescriptive period is not impeded by a
mistake of fact in a transaction, but is impeded by a mistake of
law.
Mistakes which pertain to the form of the legal basis for
possession shall not be an impediment to the acquisition of
ownership through prescription, provided that there is in general
some legal basis for such possession.
A legal basis for possession may not be substituted for by the
assumption that there is such basis, if the mistaken assumption
is not justified by the particular circumstances.
1011. The acquisition of ownership through prescription shall
not require that the basis for possession be constantly
recognised, but it is necessary that the possessor during the
entire prescriptive period does not relinquish the intention to
possess the property as their own.
1012. Persons who acquire possession with suspensive
conditions shall obtain a valid basis for possession only after
such conditions come into effect.
If property is delivered subject to a resolutory condition,
the basis for possession of the acquirer is immediately valid, so
that in this case prescription may also be utilised by a person
who reacquires the property.
3. Possession in
Good Faith
1013. In order to acquire a property through prescription, it
must be possessed in good faith, i.e., not knowing of
impediments, which do not allow acquiring ownership of it.
A mistake by a possessor may relate only to facts, but a
mistake of law does not have the effect of good faith.
If a possessor, while an impediment exists, has good cause to
doubt the legality of his or her possession, he or she shall no
longer be recognised as a possessor in good faith.
1014. A person who does not recognise that he or she has a
right to acquire a property through prescription for himself or
herself, shall not be considered a possessor in good faith even
if such person is mistaken regarding the true reason that is an
impediment to such prescription.
1015. In order to acquire ownership through prescription, it
is not sufficient that a possessor acquire his or her possession
in good faith, but it is also necessary that his or her good
faith continue during the entire specified prescriptive period,
and accordingly prescription is interrupted by bad faith
appearing during such period.
1016. If any person acquires possession through a substitute,
good faith is required of both of them, but if the possession is
only continued through the substitute, then good faith shall be
required only of the person being substituted for.
1017. Possession in bad faith in relation to one part of a
property is not an impediment to the possessor acquiring
ownership through prescription of other parts of the
property.
4. Uninterrupted
Possession
1018. In order to acquire ownership through prescription, the
acquirer must, during the entire period prescribed by law,
continuously and without interruption, possess the acquirable
object (Section 876, Paragraph one) and act with it as would an
owner.
1019. Possession required for prescription shall be considered
interrupted:
1) when the possessor himself or herself renounces it, or is
dispossessed from it, or loses it in some other way;
2) when persons, against whom the prescriptive period runs, in
some manner use, during the prescriptive period, with the
knowledge of the acquirer, their ownership rights, or if the
acquirer himself or herself, in some manner, recognises such
rights;
3) when the acquirer, as a result of a court summons or a
protest raised by the owner, becomes a possessor in bad
faith.
1020. In the cases set out in Clauses 2 and 3 of the previous
Section (1019), possession shall be considered as interrupted
only as against a person who uses his or her actual or assumed
right according to the procedures mentioned therein, but the
prescriptive period continues to run as against third
persons.
1021. If, during the prescriptive period, several persons, one
after the other, have possessed the property and the person
against whom the prescriptive period runs has not interrupted
their possession, then the possession by a predecessor shall be
to the benefit of the successor, so that the possession time
periods of all such persons shall be added together.
On the basis of this provision, a prescriptive period which
has commenced for an estate-leaver shall continue in regard to
his or her heirs, as well as the persons who have acquired
possession through a legal transaction that is valid for a
prescriptive period or persons who reacquire possession which
they had, through legal procedures, transferred to another.
If a prescriptive period continues for the heirs of a
possessor, the period between the opening of succession and
acceptance of the inheritance shall also be added to the
prescriptive period.
1022. The prescriptive period shall be calculated from the day
when the person who acquires the property through prescription
commences possession of it, and shall be recognised as having
elapsed, when the last day of the term as stipulated by law has
arrived; in addition, missing hours or minutes are not required
to be taken into account.
In calculating the prescriptive period, the extra day of a
leap year need not be taken into account.
5. Term of
Prescription
1023. In implementing the provisions of Sections 1000-1022,
prescription for the acquisition of moveable property shall be
considered as completed after the elapse of one year.
1024. A person who has possessed an immovable property for a
ten year period in accordance with the provisions on prescription
(Sections 1000-1022), who has not registered such property in his
or her name in the Land Register, shall be recognised as a person
who has acquired such immovable property through prescription,
and has the right and the duty to request that such acquisition
be registered in the Land Register in his or her own name. Until
the acquirer does this, he or she only has the rights provided
for in Section 994, Paragraph two.
6. Legal
Opportunity of an Owner to Use His or Her Ownership Rights
1025. If there are legal impediments to the exercise by the
owner of a property, against whom a prescriptive period is
running, of his or her rights in regard to such property, then
during the time such impediments exist, the prescriptive period
ceases to run.
1026. Persons in regard to whom legal impediments exist are
the following:
1) minors, while they are under guardianship, including in
relation to their independent property;
2) a spouse during marriage as against the other spouse - in
relation to the property, which on the basis of law or a marriage
contract is under the administration of the other spouse;
3) the persons with restriction of capacity to act when they
have no right to act independently;
4) soldiers if they are fighting in a war - during the entire
time thereof;
5) persons who are absent (Section 1027) - while they are
absent.
[29 November 2012]
1027. A prescriptive period ceases to run for persons who are
absent only in the cases set out in Section 1502.
1028. If any of the persons referred to in Section 1026 dies
during the time an impediment exists, or after such time but
before the term of the prescriptive period has elapsed, the time
during which the prescriptive period ceased to run shall also be
added for such person's heirs, provided that the latter have not
been the guardians or trustees of such person and in that
capacity have not belatedly interrupted the running of the
prescriptive period for the benefit of the person in their
care.
1029. During wartime, the running of a prescriptive period
shall cease in cases provided for in Section 1898, Clause 1.
7. Proof of
Prescription
1030. A person basing the acquisition of his or her ownership
upon prescription must prove his or her possession, and the
continuance thereof during all of the required period. However,
if such person proves the commencement of his or her possession
and the continuation thereof when the prescriptive period
elapsed, it shall be presumed that his or her possession has
continued without interruption during the interim as well.
1031. Where a dispute arises, the person who has acquired
ownership on the basis of a prescription, must prove the legal
basis of his or her possession; if he or she has proved such,
then he or she shall also be presumed to be a possessor in good
faith, as long as the contrary is not proved.
It is not required that the legal basis of acquisition be
proved documentarily in every case; other methods of proof shall
also be admissible.
SUB-CHAPTER 3
Termination of Ownership
1032. Ownership rights to a property are terminated by the
intentional act of the owner, where the owner abandons a property
without transferring it to another person, as well as where the
owner transfers the ownership rights to another person.
1033. Ownership rights are terminated without the intentional
act of the owner:
1) where property is destroyed;
2) where ownership passes to another person through joining or
through prescription;
3) pursuant to the judgment of a court in which property is
awarded to another person, or by way of sentence, its
confiscation to the benefit of the State is stipulated;
4) where ownership is acquired only for a specific period or
by a resolutory condition, upon the period elapsing or the
condition coming into effect;
5) in regard to acquired wild animals - upon them escaping the
supervision of its owner or losing the habit of returning
home;
6) the alienation of ownership for State or public needs, by
procedures provided for by law.
1034. Upon the death of an owner, ownership rights devolve to
the heirs of the owner.
1035. If a person loses those personal attributes which are
required for the acquisition of certain immovable property, he or
she and his or her heirs by intestacy do not, due to this
circumstance, lose the immovable property already belonging to
them.
SUB-CHAPTER 4
Rights of an Owner
I. GENERAL
PROVISIONS
1036. Ownership gives full right of control over a property to
the owner himself or herself alone, insofar as this right is not
subject to specific restrictions.
1037. An owner, during his or her lifetime and also upon his
or her death, may alienate and give to others his or her
ownership, as a whole or in parts, or with respect only to
certain rights included in ownership.
1038. An owner may possess property belonging to him or her,
acquire the fruits thereof, use it at his or her discretion for
the increase of his or her property and, generally, use it in any
manner whatsoever, even if losses are caused thereby to other
persons.
1039. An owner may prohibit all others from affecting his or
her property, as well as from using or exploiting it, even if no
losses are thereby caused to the owner himself or herself.
1040. An owner has the right to self-defence and, in relation
to this, even the right to destroy the property of other persons,
due to which he or she should fear losing his or her own, if it
is not possible for him or her to otherwise avert the threatened
loss.
1041. An owner may reclaim his or her property by an ownership
action against any third party possessor. Exceptions to this
provision are set out in Sections 1065 and 1066.
II. Rights of an
Owner in regard to Immovable Property in General
1042. The owner of land owns not only the surface thereof, but
also the airspace above it, as well as the land strata below it
and all minerals which are found in it.
1043. A land owner may act with his or her land surface,
airspace above it, as well as the land strata below it according
to his or her own discretion as long as he or she does not
infringe upon the boundaries of other persons.
III. Ownership
Actions
1044. An owner may bring an ownership action against any
person who is illegally retaining his or her property; the
objective thereof is declaration of ownership rights and in
connection therewith, granting of possession.
Even a person who has a revocable right of ownership may,
while it exists, require return thereof through an ownership
action; but the subsequent acquirer of ownership may not bring
such action while the property is in the possession of another
person.
1045. An action may be brought against any person who is
holding a property, not excluding therefrom a person who is
holding the property on behalf of another person, but such person
may be released from the action if he or she names the person on
whose behalf he or she is holding the property.
1046. A person who, while not possessing the property being
claimed, nonetheless formally defends an action, may have a
judgment made against him or her as if he or she were the true
possessor.
If, prior to the commencement of trial, a defendant alienates
property in bad faith, in order to divert an action from himself
or herself, a judgment may still be made against him or her in
such action, as if he or she was still in possession of the
property.
1047. In the cases set out in the previous Section (1046), it
may be adjudged that the defendant pay the monetary value of the
property sought to be recovered, and all losses and expenses.
1048. Where a person has in good faith possessed property of
another person, but prior to a judgment being rendered and
without there being bad faith has lost possession thereof, he or
she may not be adjudged recovery of the property.
1049. Where a person, in defending an action, is not yet in
possession of property, but subsequently, already during trial,
acquires possession thereof, the person may, on the basis of a
claim raised, be adjudged recovery of the property.
1050. The subject-matter of an action may be an individual
property, or an aggregation of property that consists only of
tangible property, but not such property as consists of both
tangible and intangible property (Section 849, Paragraph
one).
1051. A plaintiff shall describe in detail the property being
reclaimed, not only according to its class and characteristics
but also according to special features and, if necessary, also
according to its volume and size; but in an action regarding
immovable property the plaintiff shall also describe in detail
its location.
1052. In an ownership action, there shall be joined not only
claims regarding the property itself, but also regarding all
appurtenances of such property, including not only appurtenances
within the strict meaning thereof and fruits, but also
compensation for all that the plaintiff has lost as a result of
possession by the defendant.
1053. The liability of a defendant to a plaintiff is diverse,
having regard to whether the defendant is a possessor in good
faith or in bad faith of the property. From the time when action
is brought against a defendant, the defendant shall be presumed a
possessor in bad faith even if he or she has until then been in
possession in good faith, so that he or she is not liable only
for his or her prior acts or failures to act.
1054. If the defendant is in possession in bad faith, he or
she shall also be liable for unintentional destruction of or
damage to the disputed property and its appurtenances, provided
that the same would not also have occurred to the property had it
been previously delivered to the owner.
1055. For alienation of property during the time of trial,
each defendant shall be liable in the same way as a possessor in
bad faith. If such alienation has not been necessary, as, for
example, in order to prevent damage to a property, the plaintiff
need not be satisfied only with recovery of the payment received
for the property, but he or she may also claim recovery of the
property itself and its appurtenances (Section 1052), or for
compensation for the value of the property and its appurtenances,
and for all losses and expenses.
1056. If the defendant has been a possessor in bad faith, he
or she shall return to the plaintiff not only all the fruits that
he or she has received from the property, but also those which
the plaintiff himself or herself could have received, had he or
she been in possession of the property. If the defendant has been
in possession of the property in good faith, he or she are only
required to return such fruits as he or she has received prior to
an action being brought against him or her, and also only in such
amount as he or she has not yet consumed during the period prior
to the bringing of the action; but he or she shall return in full
fruits received after an action is brought.
1057. If the defendant does not return the property in
compliance with a judgment of a court, the plaintiff may,
pursuant to his or her own choice, require either that he or she
be given the property itself or that he or she be paid the value
thereof.
1058. Property shall be returned at the place where it is
located. If the subject-matter of the court proceedings was
moveable property, then a possessor in bad faith, pursuant to the
requirement of the plaintiff, shall return it to where he or she
acquired it, but for each possessor, to where it was at the time
the action was brought, even if the defendant has thereafter
arbitrarily taken it away from there. Except in such cases, a
plaintiff who requests that a property be returned at a place
other than where it is located, shall also bear the expenditures
in connection therewith.
1059. Where necessary, a plaintiff shall prove that the
defendant has possession of the property or that action can be
brought against him or her as a possessor.
1060. A plaintiff must prove his or her ownership rights. For
this purpose, it shall be sufficient if the plaintiff proves that
he or she actually acquired such rights through lawful
procedures; thereafter, the defendant must prove that the
plaintiff is no longer the owner.
If a plaintiff alleges that he or she acquired the property
through delivery or inheritance from another person, then he or
she must also prove that his or her predecessor was the owner of
it.
1061. A defendant may have the action dismissed, if he or she
proves that the ownership rights to the property belong to him or
her, or that he or she is allowed to possess it on the basis of
some property right or such personal right as the plaintiff must
recognise.
1062. If the judgment at trial is in favour of the plaintiff,
he or she shall compensate the defendant on the basis of Sections
866-869, for all expenditures made in regard to the property.
1063. Property shall be returned to its owner without
compensation; even a possessor in good faith does not have the
right to require that an owner provide compensation for the sum
paid for the property, but may only bring such claim against the
person from whom such possessor acquired it.
1064. By way of exception the defendant may demand to be
compensated for the sum paid for the property:
1) where this sum has been used for the benefit of the
plaintiff;
2) where the defendant has acquired the property specifically
with intent to preserve it for the claimant, in such
circumstances as where the plaintiff would otherwise have lost it
forever.
1065. An ownership action may not be brought if the owner has,
in good faith, entrusted a moveable property to another person,
delivering it pursuant to a lending contract, bailment, pledge or
otherwise, and such person has given possession thereof to some
third person. In this case, there may be allowed only an action
in personam against the person to whom the owner has entrusted
his or her property, but not against a third person who is a
possessor in good faith of the property.
1066. If a property which has been delivered to be processed
or carried is sold, pledged or in general alienated by the
processor or the carrier to another person, the owner may bring
an ownership action, paying the person who is holding the
property the sum contracted for its processing or carriage.
SUB-CHAPTER 5
Restrictions on Ownership
I. Restrictions
which Relate to Ownership in All its Scope
1067. Ownership rights which belong to several persons in
respect of one and the same undivided property, not as shares
divided in actuality but as undivided shares - so that only the
substance of the rights is divided - are joint ownership
rights.
Where property belongs to several persons in such a way that
each of them has their own determined actual share, such
ownership is not joint ownership within the meaning of this
Section; in this case each share shall be recognised as an
independent whole and as the subject of independent ownership
rights for each separate shareholder.
Ownership rights of several persons to one and the same
property, such that pursuant to these ownership rights the
property would belong in its entirety to each of such persons,
are not valid in law.
1068. The consent of all the joint owners is required in order
to act with the subject-matter of the joint ownership, either as
a whole or with respect to stated individual shares and if one of
them acts separately then such action not only has no effect, but
also imposes a duty on the latter to compensate the others for
losses caused them thereby.
No individual joint owner may, without the consent of the
others, encumber the subject-matter of joint ownership with
property rights, nor alienate it as a whole or in part, nor alter
it in some way. Therefore, every joint owner has the right to
protest against such actions by one or all the other joint
owners, and this right may not be revoked by a majority vote.
An exception to these provisions may be allowed in a case
where one of the joint owners makes such alterations to the
subject-matter of the joint ownership as absolute necessity
requires - for example, necessary repair of a building. Then such
joint owner has a right to claim from the rest of the joint
owners that they proportionately provide compensation for the
amount expended together with interest.
1069. All the joint owners, proportionately to the share of
each of them, shall receive all the benefits provide by the joint
property and in the same proportion also bear the losses arising
from it.
The fruits of the joint property devolve to the individual
joint owners, in proportion to each of their shares in it.
1070. Divided use of a joint property shall be allowed only
when such property may be divided, but also in this case the use
shall be proportionate to the size of the individual shares.
Each owner of a common masonry structure shall use that side
of the masonry structure which is directed toward his or her
land, and to the extent it is possible without damaging the
masonry structure itself or making any significant alterations to
it.
1071. Charges on the joint property, encumbrances and
expenditures necessary for the maintenance of the property shall
be borne by the joint owners in proportion to their shares.
1072. Each joint owner's undivided share of a joint property
belongs exclusively to such joint owner. Therefore, the joint
owner is allowed to act with it in every way which conforms to
its substance, as long as this action does not apply to the
shares of the other joint owners. On this basis, each joint owner
also has the right to alienate or pledge the share of the common
property belonging to such joint owner.
1073. If any of the joint owners of an immovable property
alienate his or her share to a person who is not a joint owner,
then the rest of the joint owners shall have a right of first
refusal (Section 2060, Paragraph two and Section 2062) for a
period of two months, calculated from the date that a copy of the
purchase agreement is received, but in cases where it has not
been possible to exercise the right of first refusal due to the
fault of the alienor - a right of pre-emption (Section 1381 and
subsequent Sections).
If several joint owners apply at the same time to exercise
rights of first refusal or pre-emption then they shall acquire
the alienated share jointly and shall divide it among themselves
in equal shares, unless they themselves agree otherwise.
Note. The rights of first refusal of joint owners of ships
shall be as provided for in the provisions regarding the purchase
and sale of ships, but rights of first refusal of local
governments shall be as provided for in the provisions regarding
the conferring upon local governments of rights of first refusal
regarding immovable property and rights of use of land.
1074. None of the joint owners may be forced to remain in
jointly owned property, provided that it is not provided
otherwise in the provisions under which the joint ownership is
established; on the contrary, each joint owner may at any time
require a division.
A joint owner who has acquired undivided shares in immovable
property containing a building with residential spaces on the
basis of a transaction or a court decision on the corroboration
of the immovable property in the name of the acquirer may request
the division of a joint property in a court earlier than five
years from the date of corroboration of ownership rights in the
Land Register only if there is an important reason for such
action.
[3 February 2022]
1074.1 The majority of the joint owners, according
to the size of shares of a joint owner, may request the
alienation of the share held by a joint owner who in the joint
property, in exercising his rights with malicious intent or
failing to fulfil his obligations as a respectable and careful
owner, causes significant harm to other joint owners or third
parties.
The share of the joint owner shall be alienated to other joint
owners either by returning this share to one or more of the joint
owners with an obligation to compensate it in money or by selling
it at an auction among the joint owners (closed auction). If none
of the other joint owners wish to obtain the share being
alienated or the court has reasonable doubts regarding the
suitability of such means of alienation, the court shall
determine the sale of such shares at a public auction.
If the share of the joint owner could not be sold at an
auction among the joint owners, it shall be sold at a public
auction.
[3 February 2022 / Paragraphs two and three, insofar as
they provide for the sale at an auction among the joint owners
(closed auction), shall come into force concurrently with
amendments to the Civil Procedure Law regarding auctions among
the joint owners. See Section 43 of the law On the Time Period of
Coming into Force and the Procedures for the Application of the
Introduction, Parts on Inheritance Rights and Property Rights of
the Renewed Civil Law of 1937 of the Republic of Latvia]
1075. If, in a case of the division indicated in Section 1074,
Paragraph one, the joint owners are unable to agree on the form
thereof, a court shall, considering the characteristics of the
subject-matter to be divided and the circumstances of the
property:
1) adjudge actual shares to each of the joint owners, imposing
certain servitudes, where necessary, on one share for the benefit
of another share;
2) give the whole property or share to one or several joint
owners, with an obligation to reimburse the share in money;
3) determine to sell the property or share;
4) decide the issue by drawing lots, especially where it must
be decided which of the joint owners will keep the property or
share itself and which of them will be satisfied monetarily;
5) determine to divide the immovable property containing a
building with residential premises into residential
properties.
If the joint property is an immovable property containing a
building with residential premises and it is not possible to
adjudge actual shares to each of the joint owners, the court
shall, wherever possible, determine to divide the immovable
property into residential properties, including in the case where
any joint owner does not acquire a residential property as a
result of the division but receives a compensation in money for
his or her share. The court may also determine another form of
division of the joint property, if it is more compatible with the
interests of the joint owners or is otherwise more appropriate,
considering the circumstances of the matter.
The court shall decide on the alienation of a share of the
joint property as opposed to the alienation of the whole property
in the cases where such a form of division, with a sense of
justice and taking into consideration the general principles of
law, is the most appropriate.
If the court determines the sale of the property or share at
an auction and several joint owners wish to acquire the property
or share, the court shall determine to sell it at an auction
among the joint owners (closed auction). If the property or share
could not be sold at an auction among the joint owners, it shall
be sold at a public auction.
Note. In dividing joint ownership which includes land which is
agricultural in nature and outside the administrative boundaries
of cities and towns, the provisions of Section 741, Paragraph two
as well as in Sections 742 and 745 are applicable.
[3 February 2022 / Paragraph four, insofar as it provides
for the sale at an auction among the joint owners (closed
auction), shall come into force concurrently with amendments to
the Civil Procedure Law regarding auctions among the joint
owners. See Section 43 of the law On the Time Period of Coming
into Force and the Procedures for the Application of the
Introduction, Parts on Inheritance Rights and Property Rights of
the Renewed Civil Law of 1937 of the Republic of Latvia]
II. Restrictions
on the Right to Alienate Ownership
1076. An owner's rights of alienation may be restricted by a
prohibition provided for by law, court decision, will, or
contract.
1077. Alienation carried out in contravention of lawful
prohibition is invalid, except for special exceptions set out in
regard to certain cases.
A relevant lawful transaction does not become invalid due to
an alienation not being valid.
Such transaction, provided that the acquirer did not know of
the prohibition regarding alienation, is valid to the extent it
is compatible with the prohibition regarding alienation.
1078. The provisions of the preceding Section (1077) also
apply to such prohibitions as have been provided for by court
decision.
1079. A testamentary prohibition is valid only where the
person, for whose benefit it is set out, is clearly indicated,
and in such case such person, after his or her rights have come
into effect, may claim property alienated in contravention of the
prohibition from any possessor thereof.
1080. Alienation of property may be prohibited by agreement
only where the person for whose benefit such prohibition is set
out has, in addition, some interest in such property. But even
then, acts in contravention give the injured party only the right
to claim compensation, and the alienation itself remains
valid.
1081. If the actions of an owner regarding immovable property
are restricted by a court decision, by contract or by
testamentary provision, then such prohibition shall be valid as
against third persons only when it is recorded in the Land
Register.
III.
Restrictions on Rights of Use regarding Ownership
1082. Restrictions on rights of use regarding ownership may be
provided for by law, by court decision or by private volition
through a will or contract, and such restriction may apply not
only to the granting of various property rights to other persons,
but also to the case where an owner must refrain from certain
rights of use, or must suffer the use of such rights by
others.
Note. Various other restrictions on rights of the use of
property not provided for in this Part - for example, regarding
mineral water springs, the installation and operation of radio
stations, air traffic, parcels of land along railway lines and
excavations - shall be provided for in specific laws.
1. Restrictions
on Rights of Use regarding Structures and Buildings
1083. In regard to monuments which are listed in the List of
Monuments Protected by the State, the provisions regarding the
protection of monuments are applicable.
1084. In order to protect the safety of the public, every
owner of a structure shall maintain their structure in such
condition that harm cannot result from it to neighbours,
passers-by or to users of it.
If a dispute exists concerning ownership rights regarding a
structure which presents a danger, the person who is in
possession of the structure at that time shall take the necessary
measures forthwith, even prior to completion of court
proceedings, in order to remove this danger and such person has
the right to subsequently claim compensation for
expenditures.
If the owner or the possessor of the structure, contrary to a
request by a relevant authority, does not remove the danger
presented, then the relevant institution, conducting itself
according to the circumstances, shall put the structure in order
or demolish it altogether at the expense of the owner.
1085. Applicable building regulations must be complied with in
altering or reconstructing an already existing structure or
constructing a new structure.
1086. If a commenced structure may endanger public safety,
then not only the nearest neighbour, but also the owners of more
distant structures have the right to raise objections against
this.
Note. The provisions of Sections 1086-1092 do not apply to
rural construction.
1087. No person has the right to install on their land such
industrial or trades institutions as may encumber or endanger
public safety or people's health through danger of fire, noise,
smell, excessive quantities of smoke, and the like. Jurisdiction
to decide the issue as to whether in a certain case an
encumbrance or endangerment actually exists, lies in the
courts.
1088. Toilet and swill pits and manure heaps may not be
installed near joint fences, masonry structures and boundaries,
and shall be located at least one and a half metres from a
neighbour's boundary.
Stoves and kitchens may not be installed near a joint masonry
structure or one belonging to a neighbour without the neighbour's
consent; this does not apply to chimneys, which nonetheless must
be installed so that sparks cannot fly to a neighbour's parcel of
land.
1089. Owners of land do not have the right to erect thereon
installations which may cause the collapse of a structure
belonging to a neighbour or give rise to some other damage
thereto.
1090. If a wall or a masonry structure becomes crooked or
leans over by fifty centimetres or more on to a neighbour's land,
the neighbour has the right to request that it be erected anew in
a straight line.
1091. The building of windows on the side of an adjoining
parcel of land in walls to be newly erected may be allowed only
if these walls are set back not less than four metres from the
boundary, or a greater distance if local building regulations so
require.
The building of windows on the side of an adjoining parcel of
land in already existing walls located right beside the boundary
itself, or nearer than four metres from the boundary, may be
allowed only with the neighbouring owner's consent registered in
the Land Register, and it being ensured that these windows
receive light at an angle of at least 45o degrees.
Note. This Section (1091) shall not apply to the City of Riga
first masonry building district, denoted in the mandatory
building regulations of the City of Riga.
1092. Boundary fences shall be erected and maintained by the
neighbours jointly, and if there is no specific agreement between
them, a side fence extending to the street in front shall be
erected and repaired by the building owner against the front of
whose building the fence comes up against the right side of, but
the other side fence, by his or her neighbour. The right and the
left side in such case shall be determined, standing on the
parcel of land facing toward the street.
2. Restrictions
on the Right of Use of Installations and Gardens
1093. If the property of some person unintentionally has come
to be within the boundaries of another person, then the latter
shall suffer the owner of it to take it back again. But if due to
such property loss is caused to the possessor of the land, the
possessor has the right to retain the property until compensation
is made for such loss.
1094. The owner of a lower standing parcel of land must suffer
snow and rain water to drain naturally from a higher standing
parcel of land onto his or her land, and he or she has no right
to install obstructions which may hinder the natural flow of
water.
The owner of the lower standing parcel of land on whose land
may be found a natural obstruction to the free flow of water,
must suffer that the owner of the higher standing parcel of land
removes such obstruction.
1095. The owner of the higher standing parcel of land does not
have the right to install or to destroy something on it which, in
redirecting the flow of water from its natural course, would,
harming the lower standing parcel of land, divert water from it
or to it.
Where devastation takes place as a result of natural force in
regard to an artificial obstruction installed on a higher
standing parcel of land that impedes the flow of water down to a
lower standing parcel - but not where it takes place in regard to
a natural obstruction thereon - the owner of that parcel of land,
on which the obstruction was located, shall suffer the owner of
the lower standing parcel of land to renew it, insofar as there
are no losses from it but the owner of the lower standing parcel
of land has benefit therefrom.
Owners of higher standing parcels of land may either
themselves use rainwater flowing across their land, or they may
redirect it to the land of another person with the consent of the
other person, without it being required that for such purpose
they obtain the consent of such an owner of a lower standing
parcel of land as does not have a right in this regard to impede
them and to request for himself or herself the naturally flowing
water.
1096. The provisions of the preceding Sections (1094 and 1095)
apply insofar as it is not provided for otherwise in laws
regarding land amelioration.
1097. Masonry structures, fences, hedges, ditches and bounders
which separate adjoining parcels of land shall belong to both
neighbours jointly, as long as their condition or clear
boundary-marks do not indicate that they belong to one of them
alone.
1098. If a tree growing on the boundary leans over a
neighbour's building, such neighbour has the right to request
that the owner of the tree cut it down, but if the latter
refuses, the neighbour may himself or herself cut it down and
keep it.
These provisions are also applicable in those cases where wind
has bent a tree across the land of a neighbour.
1099. If a tree spreads its branches over the land of a
neighbour, such neighbour has the right to pick the fruits
growing on it, insofar as he or she can reach these from his or
her land, and he or she acquires ownership thereof, as well as of
the fruits which have fallen from its branches onto his or her
land. The neighbour may also request that the branches be cut
back to a height of four and a half metres from the ground, but
if the owner of the tree does not do it, then he or she himself
or herself may cut back the branches to the height mentioned and
keep them for himself or herself.
1100. In forests and areas overgrown by bushes between parcels
of land, each landowner shall install and keep cleared to a width
of one meter a boundary track, in which there must be ensured
visibility between two adjoining boundary markers.
A boundary track shall be installed by cutting out the trees
growing on it or marking with long-lasting paint the growing
trees delineating the boundary track.
[15 June 1994]
1101. Bee colonies may be placed, in rural areas at least
fifteen metres, but in cities, towns or villages, at least twenty
five metres from traffic routes or the land boundaries of
neighbours, such distance being calculated from the centre of the
hive to the edge of the road or the boundary, and if the apiary
is fenced - in rural areas with at least a two metre, but in
cities, towns or villages, a two and a half metre high close-set
fence or hedge - the bee colonies may be placed without regard to
the aforementioned distances.
3. Restrictions
on the Right of Use of Water
1102. The littoral zone, as well as the lakes and rivers
listed in the Annex to this Section (Annex I) are included in
public waters. All other waters are private.
1103. The list of public waters may be altered only by
legislative process. If in the inclusion of private waters in
those waters that are public, or in the alienation of parts of
immovable property, or in the restriction of existing
installations, a loss is caused to some person, then commensurate
compensation is due to them from the State.
1104. Public waters are the property of the State, insofar as
ownership rights of a private person do not exist in regard to
them. The littoral zone shall belong to the State to that point
which the highest breakers of the sea reach.
1105. The boundary of a river or lake with the land at the
shore thereof shall be deemed to be the waterline at normal water
level.
1106. If in regulating the water discharge of a lake the water
level is reduced in the lake, the lake bed cleared of water shall
belong to the person who owned the lake prior to the reduction of
the water level.
1107. When waters change location, the owners of the former
shores, to whom belonged the fishing rights or the right to use
the water for their domestic needs, also retain such rights
thereafter. The owners of the new shores shall give the former
shore owners the necessary access to the water, if they no longer
have such usable access within their boundaries.
1108. Not only standing but also flowing private waters which
are located within the boundaries of one landowner shall belong
to him or her with the right to use them himself or herself,
according to his or her own discretion, but waters which extend
across or adjoin the parcels of land of several owners are in the
joint ownership of such owners and each of them has the right to
use that part of the water, which extends across or adjoins his
or her land.
1109. The median line between the waterlines at normal water
level of two riverbanks shall be deemed the ownership boundary of
the opposite riverbanks, but the boundary between parcels of land
lying on one river bank shall be deemed to be a line drawn
perpendicularly to the median line of the river through the
boundary at the point of intersection with the normal
waterline.
1110. Every person shall be permitted the everyday use of the
water of public rivers, insofar as this is not harmful to the
public and does not infringe on the rights of landowners.
1111. The suitability of rivers and lakes for navigation or
rafting of timber shall be determined and permits for their use
for such purposes shall be issued by the Ministry of Finance.
Note. Detailed provisions regarding the restriction of the
rights of use of waters shall be provided for in a special
law.
1112. Fishing rights shall be determined by the subsequent
Sections (1113-1119), as well as by the Fishery Law and other
relevant provisions.
1113. Every person has fishing rights within the boundaries of
his or her property and an owner may prohibit third persons,
insofar as it is not otherwise prescribed by law, to fish
therein.
Note. This Section does not revoke corroborated fishing rights
within the boundaries of the property of another person. This
note also applies to Sections 1115-1117 with a note.
1114. Fishing in littoral waters is free to every Latvian
citizen, in accordance with the procedures provided for in the
Fishery Law.
1115. Fishing rights in the lakes listed in the attached list
to this Section (Annex II) belong, within the whole area thereof
and irrespective of the limitations for lakes set out in Section
1105, exclusively to the State, except for the parts set out in
the list.
1116. In joint waters (Section 1108) fishing rights belong to
every shoreline owner in that part of the waters nearer to their
land than that of another person.
1117. Fishing rights in public rivers belongs to every
shoreline owner along their boundary in that part of the waters
nearer to their land than that of another person.
Note. In rivers listed in the Annex appended to this note
(Annex III), fishing rights in the parts set out in the list
belong only to the State.
1118. A person who owns fishing rights may use a towpath for
fishing needs. More detailed provisions regarding towpaths shall
be set out in a special law; where the width of a towpath is not
set out, it shall be four metres.
1119. It shall be prohibited to soak hemp or flax in waters
inhabited by fish; in general, these may be soaked only in
soaking ponds or marshes, or by redirecting needed water from
lakes and rivers, but only in such manner that it may not flow
back into them again.
1120. The right of an owner of land to install installations
that utilise water power shall be wholly unrestricted only in
cases where a river, on which such installations are to be
installed, begins within the boundaries of such land and losses
cannot be caused to neighbours at the upper end by the
obstruction or damming of the water.
1121. If a river flows through parcels of land owned by
several landowners, then each of them may install new
installations that utilise water power only if the obstruction or
damming of the water cannot cause losses for the neighbours.
1122. One may not hinder the use of an already existing
water-power utilisation or other installation in damming or
obstructing a river which belongs jointly to several owners.
1123. In order to prevent damage to the fields of a neighbour
from water raised by damming for water-power utilisation
installations, the installation sluices shall, everywhere it is
shown to be necessary, be left open four weeks prior and four
weeks after Jāņu day. [St. John's day, 24 June]
When fish spawn, at each water power utilisation installation
sluices shall be left open or fish paths shall be installed for
their passage.
1124. Each owner may install on their land a system for supply
of water from waters which flow along or through their
boundaries, but, from rivers which are navigable or used for
rafting or those tributaries supplying such rivers with necessary
water, only to the extent that it does not harm navigation or
rafting of timber.
1125. Private persons may not install systems for supply of
water from those waters in regard to which a system for public
water supply has been installed, or from the water conduits of
such a system, without a permit from the relevant authority.
1126. A system which private persons install for supply of
water from their joint waters may not be on such a large scale
that due to it the water level is noticeably lowered or the
direction of a river changed.
1127. The irrigation of land from the waters of a jointly
owned river shall be divided among the owners of the parcels of
land on the shore in proportion to the size of such parcels, so
that none of the owners cause loss to the others.
4. Restrictions
on the Right to Use of Forests
1128. Owners of private forests are unrestricted as to actions
regarding their forests.
Note. Restrictions on the right to use forests shall be
provided for in laws on the management and exploitation of
forests.
[24 April 1997]
1129. Hunting rights and the utilisation of these rights shall
be as determined by the Hunting Law.
Chapter Three A
Right of Superficies
[5 March 2015 / See Law
of 3 May 2015]
1129.1 The right of superficies is an inheritable
and alienable property right granted by a contract to erect and
use on a foreign plot of land a non-residential building or
engineering structure as an owner during the validity of the
right of superficies.
The provisions which apply to immovable property, except for
the right of first refusal and the right of pre-emption, shall be
applied to the right of superficies.
The non-residential building (engineering structure) erected
on the basis of the right of superficies shall be considered as
an essential part of the right of superficies.
1129.2 Upon granting the right of superficies, the
plot of land to which the right of superficies applies, a
specific term of the right of superficies which shall not be less
than 10 years, and also the fee for the right of superficies and
payment terms thereof, if the right of superficies has been
granted for remuneration, shall be determined. The fee for the
right of superficies shall be expressed in money.
Unless otherwise agreed, the provisions for leasing contract
shall be accordingly applied to the fee for the right of
superficies.
The plot of land necessary for the building shall be
determined taking into account the requirements of construction
laws and other laws.
1129.3 A property right arising from the right of
superficies shall be established and effective only after the
registration of the right of superficies in the Land
Register.
1129.4 During the validity of the right of
superficies, the superficiary shall have a duty to take care of
the plot of land transferred for building as a respectable and
accurate proprietor and to be liable to all third persons as an
owner.
All charges and encumbrances attached to the plot of land
transferred for building and to the right of superficies and the
expenditure necessary for the maintenance thereof shall be borne
by the superficiary.
1129.5 The right of superficies may be alienated,
and also encumbered with property rights, if it is not expressly
prohibited by contract granting the right of superficies.
Mortgaging of the right of superficies shall take place pursuant
to the provisions regarding the pledging of immovable
property.
Upon alienating the right of superficies, it shall pass to the
new acquirer to the extent it has been granted by the contract
granting the right of superficies which is registered in the Land
Register.
1129.6 The owner of the plot of land shall have the
duty to allow the superficiary to use the plot of land
transferred for building, insofar as it is necessary for the use
of the rights of superficies, and shall have the right to receive
a payment from the superficiary, if such has been determined.
The owner of the plot of land shall have a duty, after the end
of the right of superficies, to request compensation for all the
losses incurred to him or her by the superficiary upon using the
plot of land transferred for building.
1129.7 The right of superficies terminates of its
own accord when the time period of the right of superficies
registered in the Land Register expires. When the right of
superficies terminates, all property rights of third persons
established for the right of superficies shall terminate.
Prior to the expiration of time period of the right of
superficies registered in the Land Register the right of
superficies shall terminate by:
1) a confusion of the rights in one person;
2) a judgment of a court;
3) mutual agreement.
If the right of superficies is encumbered with the property
rights for the benefit of third persons, then, upon terminating
the right of superficies prior to the expiration of time period
of the right of superficies registered in the Land Register with
the confusion of the rights in one person or mutual agreement,
these rights may not be infringed without the consent of such
persons.
1129.8 The owner of the plot of land may request
the termination of the right of superficies or a sale by
compulsory auction:
1) if the superficiary seriously violates the restrictions
provided for in the contract granting the right of superficies or
deteriorates the state of the plot of land transferred for
building;
2) in other cases provided for in the contract granting the
right of superficies.
The owner of the plot of land may exercise the right referred
to in Paragraph one of this Section if, upon his or her request
to terminate the violation and to prevent it, the superficiary
has not done it.
If the right of superficies is encumbered with the property
rights for the benefit of third persons and the termination
thereof, when the owner of the plot of land requests it in the
cases referred to in Paragraph one of this Section, is not
possible without infringing the rights of such persons, only sale
of the right of superficies by compulsory auction shall be
permitted.
1129.9 After the end of the right of superficies
the non-residential building (engineering structure) erected on
the basis of the right of superficies shall become an essential
part of the plot of land.
The owner of the plot of land shall acquire the ownership
without compensation of the non-residential building (engineering
structure) erected on the basis of the right of superficies,
unless the compensation for the superficiary is laid down in the
contract granting the right of superficies.
It may be determined in the contract granting the right of
superficies that the superficiary shall, prior to the end of the
right of superficies, have a duty to free the plot of land from
the non-residential building (engineering structure).
Chapter Four
Servitudes
SUB-CHAPTER 1
General Provisions
1130. A servitude is such right in respect of the property of
another as restricts ownership rights regarding it, with respect
to utilisation, for the benefit of a certain person or a certain
parcel of land.
1131. A servitude established for the benefit of a specific
natural or legal person is a personal servitude; a servitude
established for the benefit of specific immovable property, so
that it is enjoyed by each successive owner, is a real
servitude.
1132. If doubts arise regarding the extent of a servitude, it
shall always be presumed to be to the least extent.
1133. The owner of a servient immovable property shall grant
the person exercising the servitude all such ancillary rights
without which it would be impossible to exercise the principal
right, even if these ancillary rights result in another
particular form of servitude. These ancillary rights arise and
also terminate concurrently with the principal right.
1134. A servitude invariably encumbers only the property
itself, but not its owner, for which reason there may not be a
personal duty on the part of the owner of the property regarding
a servitude.
1135. A servitude must benefit the person who uses it.
1136. Servitudes, except usufructuary rights, are indivisible
rights.
1137. The actual use of a servitude may be restricted as to
time, and as to its place and its form of use and therefore may
also pertain to only part of an immovable property.
1138. A servitude may be possessed through the using of the
servitude right.
1139. Every person who owns a servitude right shall use it
justly, together therewith conserving the ownership rights of
others as much as possible.
1140. The owner of a servient property, in his or her turn,
may not impose any restriction on the person using the servitude:
he or she shall allow such person to do everything without which
it would be impossible to successfully use the servitude right,
even if it is not really the subject-matter of the servitude.
SUB-CHAPTER 2
Real Servitudes
I. GENERAL
PROVISIONS
1141. The existence of each real servitude requires two
immovable properties of which one is encumbered for the benefit
of the other; the first is subject to obligations or servient,
while the second has rights or is dominant.
1142. Real servitudes may also be established so that they
belong only to specific persons. Such servitudes shall be
considered as personal servitudes and the provisions regarding
the latter are applicable to them.
1143. Servitudes are either building or rural, depending on
whether the dominant immovable property is a building (no matter
whether in a rural area, city or town) or land (a field, tillable
land, a meadow, a yard, a garden, and the like).
1144. Both the dominant and servient immovable property must
be, vis-a-vis each other, in such state as where the latter can
genuinely provide the former with the benefit expected from the
servitude. It is not necessary, however, that their boundaries
meet.
1145. Each real servitude is inseparably connected with the
dominant immovable property to the extent that it may neither be
alienated separately from it, nor transferred to the use of any
third person.
1146. Servient immovable property must be of benefit to the
dominant property not only unintentionally or for a period of
time but through its permanent characteristics.
1147. The extent of a servitude shall be determined by the
benefit to and needs of the dominant immovable property, and
accordingly the servitude may not be used beyond such extent,
unless otherwise agreed in establishing it or thereafter.
1148. Upon a servitude being granted, the owner of the
servient immovable property does not lose his or her right to use
the rights included in such servitude, and may even grant a
similar right to several persons so long as this does not disturb
the already existing servitude.
1149. Each servitude applies to all parts of both the dominant
immovable property and the servient immovable property.
1150. If a servitude may, without disturbing the persons using
it, be used equally as well over some part of the servient
immovable property, as over the whole property, then the owner of
the latter has the right to determine a certain part of the
immovable property for the use of the servitude right.
1151. If the use of a servitude requires maintenance and
repair of the servient property, such shall be carried out by the
person who uses the servitude.
Note. An exception to this provision is set out in Section
1175.
1152. Where a dominant immovable property is divided, the
servitude continues to be held by each separate part unless prior
to the division the servitude belonged to only one of them; in
the latter case the servitude also subsequently enures to it
alone. A servitude belonging to such part as is more distant from
the servient immovable property may also be used, if the owner of
this part acquires from the owner of intervening immovable
property a right of way or some other servitude, which enables
the said owner to use the previously mentioned servitude.
1153. The characteristics of the individual parts of the
dominant immovable property (Section 1152) and a greater need for
a servitude by one part or another need not in themselves be
considered; however, all the owners of the individual parts may
not jointly use a servitude to an extent exceeding that
previously used by the owner of the whole immovable property, and
in other respects they shall comply with the provisions of
Section 1147.
1154. Where a servient immovable property is divided, the
servitude to which such property is subject continues to apply to
all its parts, so long as it did not apply to one individual part
only prior to the division, and provided that the servitude is
capable, in accordance with its nature, of being used in respect
of each individual part.
II. Individual
Rural Servitudes
1155. Rural servitudes to which special provisions apply are:
rights of way and use of water. Other rural servitudes are
subject to the general provisions for servitudes.
1. Servitude of
Right of Way
1156. By means of a servitude a right of way rights may be
granted: 1) to a footpath; 2) to a livestock path; and 3) to a
roadway.
1157. The right to a livestock path does not confer the right
of grazing livestock along it.
1158. If, in establishing a servitude of right of way, the
width of the way is not stated, a footpath shall be one meter,
but a livestock path or a roadway at least four and a half meters
wide.
1159. Each part of a servient parcel of land is subject to the
servitude of right of way. However, unless otherwise agreed,
persons exercising this servitude shall restrict themselves to
one specific way, which they may choose themselves but sparingly
insofar as possible.
If the servitude of right of way is established by a will
without its location being described in detail, then the choice
of the location and direction of the right of way devolves to the
bearer of the servitude, who, however, may not act in an
intentionally harmful way towards the other party.
1160. In establishing a servitude of right of way, the rights
included in it may, in diverse ways, be restricted.
1161. Included in servitudes of right of way is also the right
of travel over waters which are on the boundaries of a
neighbouring parcel of land.
2. Servitude of
Right of Use of Water
1162. Servitudes of right of use of water include the
servitudes of: 1) conducting water; 2) drawing water; and 3)
right of watering livestock.
1163. A servitude of conducting water gives the right of
conducting water to oneself from another person's spring or other
water, or across another person's land, or the right of
conducting water from one's own parcel of land across land of a
neighbour.
1164. A servitude of conducting water may be established even
if there is no water yet on the servient parcel of land, and the
right granted to persons to look for water there and afterwards,
if they find a spring, to conduct it to their own parcel of
land.
1165. If, in a servitude being established, the route for the
conducting of water is not specified in detail, then the choice
of this route is made pursuant to the provisions of Section 1159.
It is prohibited, however, to direct water conduits through those
places where, at the time the servitude is established, there are
buildings, trees or gardens.
1166. A person who has the right to conduct water to or from
land may do so only by means of pipes or ditches; but masonry
ditches for this purpose may be installed only with the agreement
of the bearer of the servitude.
1167. If several persons have the right of conducting water to
themselves from one and the same spring, and there is
insufficient water for all their needs, then the use of this
servitude shall be divided proportionately among them.
1168. A servitude of drawing water gives the right of drawing
water for one's own needs from another person's river, well or
other reservoir.
1169. A person who has the right of drawing water, therewith
has the right of a footpath.
1170. A servitude of watering gives the right to water
livestock on the land of another person.
1171. A servitude of watering always also includes, joined
therewith, the right to a livestock right of way.
III. Individual
Servitudes of Buildings
1172. Servitudes of buildings regarding which there are
special provisions are as follows:
1) the right of support;
2) the right of installation;
3) the right of building projection;
4) the right of drainage;
5) the right of water disposal;
6) the right of building height;
7) the right of light;
8) the right of view.
These servitudes shall be adjudged pursuant to the general
provisions for servitudes unless otherwise provided by law or
determined when they are established. In addition to the
aforementioned, other servitudes may be established, where one
neighbour renounces in favour of another from other restrictions
which have been imposed on the latter regarding construction.
1173. There may also be established for the benefit of
buildings such servitudes as, in accordance with general
provisions, are to be considered rural servitudes, namely
servitudes of right of way and of right of use of water.
1. Right of
Support
1174. This servitude gives the right for one's building to be
provided support by a wall, masonry structure, posts, or vaults
belonging to a neighbour.
1175. Unless otherwise provided, the owner of a servient
building shall maintain the supporting object in order and repair
it.
1176. If any doubts arise as to the method of repair and
nothing regarding this has been specified in establishing the
servitude, this issue shall be decided according to the state the
supporting object was in at the time the servitude was
established.
1177. While the supporting object is under repair, the person
using the servitude shall provide for the support of the building
at his or her own expense.
1178. If an owner renounces ownership rights with respect to
the servient building, wall or masonry structure, therewith they
are released from the duty to repair such and from the servitude
in general.
2. Right of
Installation
1179. This servitude gives the right of installing separate
beams, stones, iron bars or clamps in a wall or masonry structure
of a neighbour so long as building regulations are not
contravened thereby.
1180. Persons using this servitude may replace beams, stones,
etc., which have become unfit, by new ones, but may not later
install such in a greater number than they were originally
permitted.
3. Right of
Building Projection
1181. This servitude gives the right of attaching to one's
building a construction or an extension which projects over the
parcel of land of a neighbour.
4. Right of
Drainage
1182. This servitude gives the right of conducting water from
the roof of one's building to the parcel of land of a neighbour,
by way of drip as well as through drainpipes.
1183. A person exercising this right is not allowed to cause
damage to the servient parcel of land by extending their
drainpipes or roof gutters and changing their direction without
need.
1184. A person who must allow drainage from the building of a
neighbour is not allowed to build so as to impede such, but the
person who has the right of drainage may not on his or her part
make any changes in his or her building or roof which would
result in intensified drainage or in alterations to its initial
direction.
5. Right of
Water Disposal
1185. This servitude gives the right to conduct duty water
within or through the boundaries of another person's
property.
1186. The entitled person is not allowed to use this servitude
in order to conduct filth and foetid liquids. These may be
conducted only through underground channels which may be
installed in the land of another person only on the basis of a
separate servitude.
6. Right of
Building Height
1187. So long as it does not contravene building regulations,
the right of building height may be established:
1) so that the person using it is permitted to erect a higher
structure, to his or her neighbour's detriment, than following
the general provisions would allow;
2) so that the person using this right may prohibit his or her
neighbour from erecting as high a structure as he or she could
pursuant to law.
7. Right of
Light
1188. A right of light may be established, granting the
right:
1) to maintain windows or openings for light in the wall or
masonry structure of a neighbour;
2) to install windows or make openings for light in one's wall
or masonry structure adjoining the boundary of a neighbour, or
closer to it than permitted by law (Section 1091);
3) to prohibit a neighbour from constructing a building which
obstructs the light.
8. Right of
View
1189. This servitude gives the right to prohibit everything
connected with the servitude that restricts the servitude user's
unobstructed view.
SUB-CHAPTER 3
Personal Servitudes
I. Usufructuary
Right
1. General
Provisions
1190. A usufruct is a right granted to a person to receive
benefits from, to use and to acquire fruits from the property of
another person.
1191. All kinds of property may be the subject of
usufruct.
1192. If usufruct is granted with respect to an unspecified
part of property, it shall be presumed that the usufruct is
granted with respect to half of it.
If a usufructuary right is divided among several persons
without specifying the extent of the parts of each separate
person, such right shall belong to them in equal shares.
1193. A usufruct may be ordinary or extraordinary depending on
whether the property transferred to usufruct is consumable or
not.
1194. Legal relations arising from a usufructuary right shall
firstly be determined pursuant to the provisions set out in any
particular instance, so the person establishing it may restrict
or vary such right in diverse ways, provided this is not contrary
to the essence of usufruct. If there are no such particular
provisions, the provisions of the following Sections shall
apply.
2. Ordinary
Usufructuary Right
1195. A usufructuary has the right to all fruits, income and
benefits derived from the property transferred to usufruct. The
extent of this right shall not be determined according to the
needs of usufructuaries, and they may also use the property for
profit.
1196. A usufruct in immovable property shall pertain to
augmentations of such property only where such augmentations are
directly connected with the principal property.
1197. A usufructuary may not claim for himself or herself
concealed property which is discovered on the parcel of land
subject to his or her usufruct.
1198. No distinction arises on the basis that the fruits of a
property have been created of their own accord or have been
produced as a result of processing, or whether the cause of their
creation has come into effect only during the time period of the
usufruct, or already existed previously as well.
1199. A land usufruct also includes its appurtenances,
servitudes, inventory, rock quarries, lime and sand pits, as well
as the diverse mineral resources thereof, and capacity for
hunting and fishing thereon.
1200. If a forest is a part of land subject to usufruct, the
usufructuary may cut trees in it only in such quantity as are
needed for domestic use, but if a usufruct pertains directly to a
forest, the usufructuary may, conforming to all forestry
regulations, cut trees thereon not only for heating and for
structures, but also for sale.
If it is not intended that a forest on a parcel of land
subject to usufruct be cut, the usufructuary may cut therefrom
only materials needed for domestic use for fence pickets, poles,
and the like, provided further that he or she shall use for this
purpose only the newest growth, but not large trees.
1201. A usufructuary of a forest may take only those fallen
and storm-damaged trees which he or she would have been allowed
to cut while the trees were standing in place.
If the fallen and storm-damaged trees belong to the owner, the
owner shall remove such trees in good time in order not to hinder
the usufruct.
1202. The right to the use of a usufruct may be transferred to
another person, for a specified period or in regard to some part,
only with the consent of the owner.
1203. A usufructuary may not alienate the usufructuary right
to another person, except the owner.
1204. A usufructuary may not encumber a property subject to
usufruct with property rights.
1205. Usufructuaries may not only receive fruits from the
property but also in diverse ways utilise it, provided that they
do not in substance harm it.
1206. A usufructuary may not do anything which results in a
deterioration of the circumstances of the owner, either by
destroying anything useful or by failing to utilise the servient
property in compliance with its intended purpose.
1207. A usufructuary may not completely transform and alter
the servient property, even if thereby the property could be
improved or its profitability increased.
If a usufructuary has arbitrarily altered the servient
property, he or she shall, pursuant to the request of the owner
and within the time period of the usufruct, restore it to its
former state at his or her own expense, but if this is not
possible, shall make compensation for all losses.
1208. A usufructuary of a rural immovable property may make
all kinds of improvements to it, provided that its nature is not
changed and income commensurate to its intended purpose is not
decreased thereby. Observing this condition, he or she may also
install new installations and open new sources of income.
1209. A usufructuary of a building may also make all kinds of
improvements to it, provided that the building remains, both as a
whole and in its separate parts, in its form and primary nature
the same as it was. Accordingly, these improvements shall be
restricted solely to maintenance of its existing condition and
such enhancements as do not become a part of the building itself
and may always be separated from it.
1210. If a usufructuary erects a building on servient land,
upon the termination of the usufruct neither he or she nor his or
her heirs may demolish it, unless the usufructuary has
specifically acquired such right.
1211. A usufructuary of movable property may not alter or
utilise it in a way inappropriate to its intended purpose; and he
or she may improve and enhance such property only to such extent
as its nature and primary purpose is not altered thereby.
1212. A usufructuary shall maintain and utilise the servient
property in a way appropriate to its intended purpose, with the
care of an industrious and prudent owner.
If a usufructuary observes such care, he or she shall not be
held liable either for the deterioration of the property or for
its destruction, if such deterioration or destruction take place
during the proper utilisation of the property.
1213. A usufructuary shall maintain buildings at his or her
own expense; in this respect, however, he or she has an
obligation to carry out only reasonable repairs, but not
improvements. He or she may maintain existing enhancements
according to his or her own volition.
A usufructuary shall insure buildings against fire.
1214. If a usufructuary has made expenditures on necessary
repairs, in excess of the value of the usufruct, the usufructuary
may claim reimbursement for the amount exceeding the value.
1215. A usufructuary is not required to renew buildings which
collapse because of old age; but also may not require that the
owner repair them.
1216. In regard to structures and repairs which, pursuant to
law, are required to be made by the owner, a usufructuary shall
provide, without compensation, materials found on the parcel of
land subject to the usufruct.
1217. A usufructuary shall replace domestic animals, which
have strayed or have become of no use, from natural increase; in
gardens he or she shall plant new trees in place of dead
ones.
1218. In receiving all benefits from a servient property, a
usufructuary shall also bear all associated charges and
encumbrances, except for liability for debts to which the
property is subject, but not except for the interest on such
debts.
All real charges to which a servient property is subject,
taxes and fees, as well as ordinary and extraordinary supplies,
insurance premiums, food, and the like, shall be borne and
fulfilled by the usufructuary.
1219. After the expiration of the term of a usufruct, the
usufructuary or his or her heirs shall return the property to its
owner in actual fact and in such condition as it ought be after
proper use.
1220. A usufructuary shall provide security only if it was
specifically agreed upon when the usufruct was established.
1221. An owner may not in any way hinder a usufructuary from
properly using his or her rights, and accordingly, without losing
the right to act with his or her property in all other relations,
he or she may not do anything which restricts the rights of the
usufructuary or otherwise harms him or her.
1222. The owner of a servient property may not make any
changes in it contrary to the volition of the usufructuary, for
example, to erect a building on the servient parcel of land, to
build up higher an already existing building, and the like.
1223. Similarly, the owner may neither encumber the servient
parcel of land with servitudes to the detriment of the
usufructuary, nor renounce a servitude belonging to the parcel of
land.
1224. An owner may neither take nor remove anything belonging
to the parcel of land subject to usufruct, irrespective of
whether this is a building, or only a tree which such owner has
planted himself or herself.
3. Extraordinary
Usufructuary Right
1225. If consumable property is made subject to usufruct, then
from the time of its receipt a usufructuary becomes the owner of
such property and after termination of the usufruct only has a
duty to return property in the same amount, of the same kind and
of the same quality, or to provide compensation for the value
thereof.
1226. If the subject of a usufruct is capital which is due or
other claims, then the usufructuary has the right not only to
receive income from such a claim, but also to request the capital
itself when its term comes due.
II. Right of
Dwelling
1227. A right of dwelling is a property right to use as a
dwelling the house of another person, provided no damage is
caused to the house itself.
1228. A person to whom a right of dwelling belongs may
transfer the premises to others only with the consent of the
owner.
1229. A right of dwelling which is granted to several persons
jointly shall remain in effect to full extent as long as at least
one of the users of this right is alive.
1230. Expenditures for necessary repair of a dwelling and
other charges shall be borne by the user of the right of
dwelling.
SUB-CHAPTER 4
Establishment of Servitudes
1231. Servitudes may be established:
1) by law;
2) by a judgment of a court;
3) by a contract or a will.
1232. Only the owner of immovable property may, pursuant to a
contract or will, acquire a servitude for the benefit of such
immovable property or encumber it with a servitude.
If dominant or servient immovable property is owned by several
persons jointly, the consent of all such persons is required for
the establishment of a servitude.
1233. Servitudes may be both acquired for and attached to
property not yet existing - for example, a house intended to be
constructed, a spring to be found, and others.
1234. A new servitude may be attached to an immovable property
which already bears a servitude only when no loss can result to
the prior servitude therefrom.
If mortgages are attached to an immovable property, a
servitude limiting the rights of the mortgage creditors may be
imposed on such property only with their consent.
1235. A property right arising from a servitude shall be
established and effective for both parties, i.e., the owners of
both the dominant and servient property, only after its
registration in the Land Register; until that time only a
personal obligation exists between them, the registration of
which in the Land Register may, however, be requested by each
party, provided all other provisions necessary for the servitude
have been fulfilled.
1236. In addition, in cities and towns, every contract
regarding establishment of a servitude, which is concluded
between neighbours to erect anew or commence to reconstruct a
building, is valid only if it has been presented to the relevant
institution and is recognised as being in accordance with
existing building regulations.
SUB-CHAPTER 5
Termination of Servitudes
I. General Basis
of Termination
1237. Both personal and real servitudes are terminated:
1) by renunciation of them;
2) by confusion of the rights and the duties in one
person;
3) by destruction of the servient or of the dominant
property;
4) by a resolutory condition coming into effect or expiration
of a time period;
5) by pre-emption;
6) through prescription.
1238. Renunciation of a servitude belonging to a person may be
provided for either in a contract pursuant to which the person
using the servitude transfers it back to the owner of the
servient property, or implicitly, whereby the person using the
servitude consents to such action by the owner of the servient
property, with which the use of the servitude is
incompatible.
If a person using a servitude simply does not voice his or her
opposition to such action pursuant to which the use of the
servitude becomes impossible, or suffers such action silently,
this shall not yet be recognised as a renunciation of the
servitude. But if the mentioned action consists of the erection
of some building and, being aware of this, the user of the
servitude does not, in accordance with lawful procedures, protest
prior to its completion, he or she may only claim compensation
for the servitude which is rendered impossible, but may not
require that the building be demolished.
1239. If the dominant immovable property belongs to several
persons, then, to make renunciation effective, the consent of all
of them is required; otherwise the renunciation shall also not be
binding upon those who have expressed it.
1240. Renunciation shall be interpreted within its narrowest
meaning; if a person who has several servitude rights to one and
the same property renounces one of them, such renunciation does
not apply to the others.
1241. If the rights of ownership in dominant and servient
property merge in one person only for a certain time period, then
after it has elapsed, the servitude shall be again renewed, if it
is not provided otherwise; but if the confusion is without
conditions and for an unlimited period, then the servitude is
also forever terminated.
If only a part of the dominant or servient immovable property
is joined to the other, then, with regard to the part not joined,
the servitude shall still remain in effect.
Where a servient immovable property belongs to several persons
jointly, the joining of the dominant and of the servient
immovable property shall terminate the servitude only in cases
where all owners of the servient immovable property have jointly
acquired the dominant property.
1242. A servitude which has been terminated by the destruction
of the servient or the dominant property shall be renewed if this
immovable property is renewed, even if by then the time pursuant
to which the servitude is terminated through prescription has
elapsed.
1243. If in regard to a servient immovable property only such
change takes place as following which use of the servitude right
is still possible, the servitude is not terminated thereby.
1244. If a servitude is allotted for a certain time period,
the owner of the servient immovable property may not shorten the
period of use by delaying the granting of such servitude. Where
this is contravened, the person using the servitude may not claim
for the specified time period to be extended, but he or she may
claim compensation for losses related to the delay.
1245. If a personal servitude is provided for the period of
time until some third person reaches a certain age, but in the
interim such third person dies not having reached such age, the
usufructuary or dwelling rights of the person using the servitude
are retained by the latter until the specified years have
elapsed.
1246. If it is provided that a personal servitude shall be for
a period of time ending when a certain condition regarding some
third person comes into effect, but in the interim such person
dies prior to the condition coming into effect, the rights of the
user of such servitude are retained for the servitude user's
entire life.
1247. If the usufructuary right in regard to a property is
bequeathed so that it commences only upon a certain condition or
time period coming into effect, the heir is allowed to grant the
usufructuary right regarding such property to a third person only
so long as the designated condition or time period have not come
into effect.
1248. If a person who has been bequeathed a usufructuary right
by a will dies prior to the expiration of a specific time period
that may be set out or prior to a condition that may be set out
coming into effect, but such right must devolve to a third person
only after the expiration of the aforementioned time period or
the coming into effect of the aforementioned condition, the owner
shall not be compelled to grant the usufructuary right to such
third person prior to such time.
1249. A servitude may be redeemed, compensating the user
thereof, only through mutual agreement of both parties, but not
pursuant to the unilateral demand of one party.
Even the improper use of a servitude does not give the owner
of the servient property the right to demand that the servitude
be redeemed; the servitude does not terminate either because of
such improper use or because the user of the rights of servitude
avoids performing his or her duties.
1250. A servitude shall be terminated through prescription if
the person entitled thereto has not voluntarily, within a period
of ten years, used it personally or through other persons.
Such servitude as may be exercised only every second year or
every second month or only at certain times of the year shall
terminate as a result of not being used after twice the length of
the period has elapsed.
In order that a building servitude be terminated through
prescription, it is also required that the owner of the dominant
immovable property has allowed the taking place, in the servient
tenement, of something completely incompatible with the use of
the servitude.
1251. If, within the prescriptive time period of the
prescription, only one of the joint owners has not used the
servitude, then it shall not be terminated through
prescription.
1252. If a person has partly used a servitude, the servitude
shall thereby be protected against prescription to its full
extent.
1253. An exception from this provision (Section 1252) is
provided with respect to the usufructuary right as follows: if,
during the entire time of the lawful prescriptive period, the
person who uses such right has used it only in part, such right
is terminated in regard to the part not used.
1254. Where a servitude is used completely differently than as
is appropriate, that shall be deemed equivalent to it not being
used.
1255. If a servitude has not been used due to natural
impediments or impediments created by the owner of the servient
property himself or herself, the prescriptive period ceases to
run during the period that such an impediment exists.
1256. The following shall not be terminated by
prescription:
1) rights of dwelling;
2) biennial usufructuary right;
3) rights of access to a cemetery.
II. Special
Forms of Termination of Personal Servitudes
1257. Personal servitudes shall not devolve to the heirs of
the user of the servitude, but shall terminate upon the death of
the user.
1258. If such servitude is, by contract or will, already from
the very beginning also granted to the heirs of the user, then
such establishment shall be deemed to be duplicated or renewed so
that the servitude devolves to an heir on the basis of the rights
of the heir himself or herself and not on the basis of
inheritance rights.
In this case, the servitude shall always be terminated if the
closest heir by intestacy or testamentary heir of the user of the
servitude dies, and shall not devolve to his or her other
heirs.
1259. If a servitude is established without a fixed time
period for the benefit of a legal person, it shall be terminated
not earlier than after one hundred years have elapsed, unless the
legal person itself has ceased to exist earlier.
Chapter Five
Real Charges
SUB-CHAPTER 1
General Provisions
1260. A real charge is a permanent duty attached to immovable
property to repeatedly provide specified performance of money, in
kind or by corvee.
1261. A duty to bear a real charge to which immovable property
is subject shall, already as a result of the acquisition itself,
devolve to every acquirer of such immovable property so that it
is not required that he or she specifically assume it.
1262. Sale at auction of immovable property does not terminate
a real charge attached to it.
1263. A real charge may be imposed on servient immovable
property and on its owner for the benefit of either a natural or
legal person, as well as other immovable property.
1264. A real charge which is established for the benefit of
immovable property shall not be separated from it, and shall be
alienated only together with it.
1265. A real charge established for the benefit of a person
may be transferred by such person to another, provided the real
charge does not become greater or more onerous thereby.
1266. Several owners of servient immovable property shall
jointly be liable in regard to the real charge to the person
entitled thereto, so that such person may claim performance of
the whole charge from each of them.
If the servient immovable property is divided, the real charge
shall still remain attached to all the parts thereof, provided
the person entitled has not specifically himself or herself
agreed to the division of the immovable property and the real
charge attached to it.
1267. The owner of servient immovable property may be relieved
from liability for a real charge by withdrawing from the
immovable property.
1268. Real charge debts shall be secured by immovable property
and therefore every new owner shall pay for such debts of his or
her predecessors, but for not more than a period of three years
before the passing thereof.
1269. Where a concursus proceeding is established against the
owner of servient immovable property, current real charges on
such property shall be assumed by the entirely of properly
subject to concursus proceedings.
SUB-CHAPTER 2
Establishment and Termination of Real Charges
I. Establishment
of Real Charges
1270. Real charges may be established by law, by contract or
by will.
If a real charge is established by contract or will, it comes
into effect as against third persons only when registered in the
Land Register with respect to the servient immovable
property.
II. Termination
of Real Charges
1271. A real charge terminates upon the confusion of rights
and duties thereof in one person.
Upon such confusion terminating, the real charge is not again
renewed, provided it is not expressly agreed otherwise.
1272. Real charges may also be terminated pursuant to an
agreement and pursuant to last will instructions or some other
unilateral expression of volition on the part of the user of the
real charge.
1273. Upon a servient immovable properly being destroyed, the
real charge also terminates of its own accord.
1274. The right to term payments or duties terminates through
prescription if these have not been claimed within a period of
ten years.
1275. Prescription does not apply to the real charge itself if
such charge is registered in the Land Register.
1276. If pursuant to law, contract, or a unilateral expression
of volition one real charge for performance in kind or by corvee
is replaced by another, or is converted into a money charge, it
shall be presumed that the earlier charge is terminated and a new
one has been created in its place.
III. Forms of
Real Charges
1277. Real charges are either public or private. Public real
charges are also subject to the provisions of the previous
Sections (1261-1276).
Chapter Six
Pledge Rights
SUB-CHAPTER 1
General Provisions
1278. A pledge right is such right in regard to property of
another (Section 841) on the basis of which the property secures
the claim of a creditor so that the creditor is able to receive
from the property payment for such claim.
1279. A pledge right in regard to movable property is called a
possessory pledge, if upon such property being pledged,
possession of it is transferred to the creditor. The pledging of
an immovable property without transfer of possession is called a
mortgage.
If movable or immovable property bearing fruits is pledged so
that the creditor possesses and derives fruits from it, then such
a pledge is called a usufructuary pledge.
Note. 1. A pledge right in registered mercantile marine ships
shall be established without transferring the ship to the
possession of the pledgee. Such pledge is called a ship mortgage.
Specific provisions are set out in the Ship Mortgage and Marine
Claims Law.
2. A pledge right in movable property may be established
without transfer of such property to the possession of the
pledgee pursuant to provisions regarding commercial pledges.
Provisions regarding commercial pledges are set out in other
laws.
[16 October 1997]
I. Claims
Secured by Pledge
1280. It is necessary that in regard to each pledge right
there be a claim regarding which the pledge is liable.
1281. A mortgage may be established as security for claims
which may arise in the future from credit available to debtors
(credit mortgage). In registering such mortgage in the Land
Register, the highest amount of the credit available shall be
indicated in regard to which extent the credit mortgage also has
priority rights from the time it is registered in the Land
Register.
1282. It is not necessary for security to be created pursuant
to a pledge right that the claim be a monetary claim, that its
term be due or that an action may be brought in regard to it.
1283. A pledge right, as an ancillary right, is in regard to
its effect dependent on the effect of the claim. If the claim is
restricted, only a restricted action may be brought with respect
to the pledge right.
1284. If a claim may not, pursuant to law, be maintained, the
pledge right established to provide security for this claim is
also not in effect, and the pledger, if he or she has already
given the pledge to the creditor, may request that it be
returned.
1285. A pledge right may not exceed the claim which it
secures. Upon discharge in full of the latter, the former is also
terminated.
1286. A pledge right shall remain in effect until a creditor
is fully satisfied for whom, after partial payment is made, the
pledge therefore also secures the yet unpaid part of the
debt.
1287. If a claim is secured by a pledge right on various
properties and is discharged only in part, the creditor retains
the pledge right on all the pledged properties since, in their
entirety, each of these is security for the claim of the
creditor.
1288. If a creditor leaves more than one heir after death,
each of them may exercise the pledge right established by the
estate-leaver in full extent, but may claim payment from the
debtor only in regard to his or her own share of the estate.
1289. If a claim for a fixed term is secured by a pledge
right, it still takes immediate effect, but so long as the term
provided for has not elapsed, a creditor may not look to the
pledged property for settlement of the claim.
If a conditional claim is secured by a pledge right, it shall
not have effect during the period the condition is not in effect.
But, as soon as the condition comes into effect, the pledge right
shall be deemed to have already been created as of the date of
its establishment. However, if the condition is such that it may
not be fulfilled contrary to the will of the debtor, the pledge
right comes into effect only from the date the condition comes
into effect.
If a condition or period is specified not for the claim but
only for the pledge right itself, then the pledge right comes
into effect only from such time as when the condition or the time
period comes into effect.
1290. Unless specifically agreed otherwise, a pledge right
shall not only secure the principal claim but also its associated
ancillary claims. The priority of a mortgage shall be determined
pursuant to the date of its registration in the Land Register.
Ancillary claims associated with the principal claim shall also
be discharged pursuant to the same priority; however, interest
shall only be paid for the last three years prior to the sale at
auction of the immovable property. Interest claims on previous
years shall be discharged similarly to the personal debt claims
of creditors.
1291. Ancillary claims (Section 1290) shall, similarly to
principal claims, conform to law.
1292. Pledged property shall also secure payment for the
necessary expenditures incurred by the creditor for the
maintenance and storage thereof.
The pledged property shall secure payment for useful
expenditures only in instances where these have been made with
the consent of the pledger; otherwise, the creditor may only
bring an action in personam for compensation to such extent as,
at the discretion of the court, corresponds to the value of the
pledged property.
A creditor may not claim any compensation for enhancement
expenses, as well as for those useful expenses which have been
made contrary to the express volition of the pledger; but he or
she is allowed to remove his or her enhancements if these can be
separated from the pledged property without causing any injury to
it.
1293. Provisions regarding the extent of liability of a pledge
(Sections 1290 to 1292) may freely be varied in establishing the
pledge right. The security provided by a pledge may also be made
applicable to only part of a claim.
II.
Subject-matter of Pledge Right
1294. The subject-matter of a pledge right may be all property
regarding which alienation is not specifically prohibited, not
only already existing but also future, and both tangible (movable
or immovable) and intangible property.
1295. If a joint owner pledges a joint property with the
consent of the other joint owners, the pledge right applies to
the whole property; but without the consent of the other joint
owners, a joint owner is allowed to pledge only his or her
undivided share of the joint property.
1296. The provisions of the previous Section (1295) and
Section 1298 are not applicable to movable property which has
been transferred to the creditor by way of possessory pledge.
Provided that the creditor has not acted in bad faith, the
security provided to the creditor by such pledge extends to the
whole of the property even if the property has been pledged to
the creditor by only one of the joint owners, without the consent
of the others.
1297. Establishing a pledge right on a share of an immovable
property, or on a part of a share belonging to a joint owner is
not allowed.
1298. If upon a joint owner's undivided share in joint
property being pledged, such share has not yet been specified,
the pledge right is applicable to all parts of this property, but
upon the property being divided, the pledge right shall be
restricted only to the share of the joint owner.
1299. Where a building or a parcel of land is pledged, the
pledge right in itself also applies to servitudes belonging to
such building or parcel.
1300. The owner of a property may not have a pledge right in
his or her own property. But where a creditor acquires the
ownership of property pledged to such creditor, the rights of the
creditor, acquired pursuant to the prior pledge right of the
creditor as against other creditors to whom the property is
pledged, remain in effect.
III. Scope of
Pledge Right
1301. Not only individual properties but also aggregations
thereof may be pledged.
1302. A pledge right on an individual property also includes
its appurtenances and augmentations, as well as fruits which come
into being during the time an action is being brought against a
defendant, or which have subsequently come into being.
1303. A pledge right, the subject of which is an aggregation
of property, applies not only to the already existing but also to
future, and not only to tangible but also to intangible parts of
such aggregation, provided that it is not clearly evident that
the intention of the pledger was only to pledge such aggregation
of property as was constituted when the pledge was given.
IV.
Establishment of Pledge Right
1304. A pledge right may be established pursuant to a
contract, a will or judicial process.
1305. Property which it is prohibited to alienate may not be
pledged pursuant to a contract or a will.
Note. The provisions of Section 1076 and subsequent Sections
regarding the consequences of alienation done contrary to a
prohibition also apply to pledge.
1306. Property may only be pledged by a person who has the
right to freely act with his or her property.
A person who may freely act with his or her property may also
pledge it for the obligations of another person.
1307. A judgment of a court by which a specified sum of money,
or the execution of some other thing which can be monetarily
evaluated is adjudged against a debtor, may be a basis for the
acquisition of a mortgage upon the judgment being registered in
the Land Register.
1308. An Orphan's and Custody Court may demand that notations
on the immovable property of guardians and parents as the
guardians of their children (Sections 191 and 224) be registered
in the Land Register in order to provide security for such claims
as may arise during administration of the property of wards.
There shall be set out, in decisions of the Orphan's and Custody
Court, the extent of the security amount.
V. Termination
of Pledge Rights
1309. A pledge right terminates of its own accord as soon as
the claim for which it has been established is discharged,
irrespective of the procedure by which this has been done.
1310. If the rights of a creditor with regard to a discharged
claim are again renewed, together therewith pledge rights are
also renewed of their own accord.
1311. If an obligation is only renewed, the previously
existing pledge right may, by mutual agreement of the parties,
remain in effect.
1312. A pledge right shall terminate, even though the claim
secured by it still exists, in the following cases:
1) when a resolutory condition comes into effect, or the term
of the pledge right, as established by a condition or for a
certain time period, has elapsed;
2) when such revocation or restriction as is associated with
the right of the pledger to the pledged property comes into
effect, but the rights of a possessory pledgee shall not be
disturbed thereby if such pledgee has received the pledge
unconditionally and in good faith;
3) where the pledged property is destroyed, and additionally
thereto, if it has been insured, upon the whole of the property
or part thereof being destroyed the pledge right passes to the
indemnity obtained from the insurance company, provided that it
is not otherwise provided for in the company's articles of
association; upon a destroyed property being renewed, for example
a building which has burnt down or collapsed being built anew,
the pledge right on such property is also renewed;
4) by confusion, when a pledgee acquires the ownership of the
property pledged to him or her, or when a debtor becomes an heir
of the pledge creditor; an exception from this provision is
provided for in Section 1300.
1313. A pledge right is also terminated upon it being
expressly renounced by the pledgee.
1314. A sale of a pledged property, which is legally made by a
pledgee, shall terminate not only their own pledge right but also
the pledge rights of the creditors subsequent to them on this
property; but as long as they have not been satisfied, both they
themselves and the other creditors shall retain a pledge right on
the amount received from the sale of the property to the extent
necessary for their satisfaction.
If the already completed sale of a pledged property is
revoked, then the debtor shall retain his or her right of
ownership, and the pledgee shall retain their pledge right on the
property.
VI. Consequences
of Pledge Right
1. Rights of
Pledger or Pledge Debtor
1315. The pledging of pledged property does not terminate the
ownership rights of the pledger thereof. The pledger may still
possess and use the pledged immovable property as long as he or
she does not voluntarily transfer it to the possession and use of
the pledgee, or as long as he or she is not forced to do so by
judicial process.
1316. The pledger may exercise all the rights of an owner in
regard to his or her pledged property, including the right to
bring actions regarding ownership thereof, insofar as this is
generally allowable (Sections 1065 and 1066) and does not
conflict with the rights of the pledgee.
1317. If some right to a pledged property is granted, thereby
decreasing the value of such property, then insofar as the
security of the pledgee is decreased thereby, such granting is in
effect with respect to the pledgee only with his or her
consent.
1318. If, upon a property being pledged, the pledger has not
yet been its owner, but has, notwithstanding, possessed it in
such manner that he or she may acquire ownership of it through
prescription (Section 998 and subsequent Sections), the running
of the prescriptive period may also continue and terminate in
regard to the pledger during the time period the property is
pledged, even if the pledger has transferred it to the possession
and use of the pledgee.
2. Rights of a
Pledge Creditor or Pledgee
1319. A pledgee who has not been satisfied by a debtor within
the time provided for, may resort to the pledged property for
satisfaction and, for this purpose, take all the necessary steps
for its sale.
1320. As long as the payment term has not come due, a pledgee
may not sell the pledge; moreover, if he or she does sell it, he
or she shall make compensation for all losses and expenditures
caused to the debtor resulting thereby.
If a purchaser had knowledge that the acts of the pledgee were
contrary to law, the debtor has the right to demand that the sold
property be returned.
1321. A pledgee is allowed to sell a pledge on the open market
only in a case where the debtor, either when pledging or
subsequently, expressly grants such right to the pledgee. The
selling of a pledged immovable property shall be done on the
basis of the provisions regarding voluntary selling at an auction
by court proceedings.
If such a right has not been granted to the pledgee, the
pledge may only be sold by way of auction through a court.
[12 December 2002]
1322. If a pledgee and a debtor have agreed not to sell the
pledged property, then such agreement shall be deemed to apply to
sale on the open market.
1323. A debtor, as the owner of property, in providing
security to a pledgee always has the right to demand that the
property be sold at auction in order to pay for his or her debt
out of the amount received.
1324. If a pledge is disputed by other creditors, referring to
superior rights to it, before the claim secured by it is
discharged, the pledgee may demand that the debtor defend the
disputed pledge right and make compensation for all losses and
expenses occasioned to the pledgee.
1325. The sale of pledged property requested by a pledgee may
be prevented by a debtor only by him or her paying the pledge
debt in full, but not by payment of some part thereof or by a
promise to provide security to the pledgee by a guarantee or in
some other way. But if the debtor discharges his or her debt in
full, even at the time of the sale itself, the sale shall be
stopped and the pledged property shall be returned to the
debtor.
1326. If payments on a claim by a pledgee are divided between
several time periods, then the pledge may be sold as soon as
there is default in regard to any of such time periods, provided
it has not been directly agreed that there is not to be a sale
until there has also been default in regard to the last, or the
second, or the third, etc. time period.
1327. If a pledgee and a debtor have specifically agreed that,
in case of default, the pledged property may immediately be sold,
then the former has neither the duty to specifically remind the
latter nor to notify him or her beforehand of his or her
intention to sell; but if there has not been such agreement, the
pledgee shall notify the debtor beforehand of his or her
intention to sell the pledge.
1328. A pledgee to whom the debtor allots the right to sell
the pledged property on the open market shall be liable for the
sale as an authorised person, and he or she shall compensate the
debtor for any losses as may result to the debtor due to lack of
care on his or her part. If bad faith enters into the sale, and
the purchaser has participated in the bad faith of the pledgee,
the debtor has a right to demand that the sold property be
returned, repaying to the purchaser the purchase price with
interest.
1329. If, in order to satisfy his or her claim, a pledgee
sells the property pledged to him or her or requires that it be
sold at auction, the surplus as may be received, as exceeds his
or her claim, shall be returned to the owner of the sold pledge,
provided other creditors do not have a right thereto.
1330. If the amount received from the sale of a pledged
property is such as does not suffice to fully satisfy the
pledgee, he or she retain the right to claim as against the
debtor for payment of both the balance of the debt and the
necessary expenses incurred in connection with the sale.
1331. Until the sold pledge is transferred to a purchaser, the
pledger retains his or her ownership rights and the pledgee
retains his or her pledge rights in it.
1332. Rights pass to the purchaser of pledged property in such
extent as they belonged to the debtor.
1333. If a sold pledge is replevied from a purchaser, the
purchaser must claim compensation for losses from the pledger and
not from the pledgee who has sold this property to him or her as
a pledge; an exception to this may be allowed only where the
pledgee has expressly assumed liability or, in selling, has
intentionally misled the purchaser.
1334. An agreement by which a pledgee, in case of default by a
debtor, may retain the pledged property in place of his or her
claim is invalid.
1335. A person who accepts as a pledge a claim on debt against
a third person, must inform such third person in order that he or
she not repay the debt to his or her direct creditor.
1336. If in such a case the debtor (Section 1335) does not
make payment within the set time period, the pledgee has the
right to either claim for satisfaction from the third person who
is in debt to the debtor of the pledgee, or to cede his or her
claim, selling it to another.
1337. A creditor who has received in pledge a claim on a debt
(Section 1335) and to whom a document concerning such claim has
been delivered, acquires the rights of a possessory pledgee to
such claim. In such case, if he or she does not receive his or
her interest when due, he or she, unless otherwise agreed, may
take the interest which is due on the claim pledged to him or her
and, upon receiving satisfaction therefrom, shall return any
surplus to his or her debtor.
1338. If the pledged claim is discharged, fulfilling it for
the benefit of the pledgee, then, upon receiving the monetary
amount, the latter shall settle with the debtor, but if the
subject-matter of the pledged claim has been tangible property,
shall acquire the right of a direct pledge on it.
1339. Upon a pledged claim being discharged, the pledge right
on it is also terminated. But if a claim is discharged through
the first creditor being paid, after the pledgee, on the basis of
Section 1335, has already notified the debtor of the pledger of
such pledge, the debtor of the pledger is not released from his
or her obligations as a result of such payment.
SUB-CHAPTER 2
Possessory Pledge
I. Establishment
of Possessory Pledge
1340. A possessory pledge (Section 1279) is established by the
delivery of movable property by a debtor into the possession of a
pledgee, with the intent that it shall be security for his or her
claim if, in addition, this intent has been expressly stated, or
clearly manifested by implication.
Delivery of possession of a possessory pledge to the pledgee
shall take place pursuant to the general provisions regarding the
acquiring of possession of movable property.
1341. A person who is entitled to freely determine what is to
take place with respect to property, may also provide it to
another person by way of a possessory pledge.
1342. If property provided for the processing or transport
thereof, is pledged to a third person, it secures the debt only
to the extent of the payment required for processing or
transport, on payment of which the owner of the property is
always entitled to redeem it.
1343. If, for the security of his or her claim, a person in
good faith accepts as a possessory pledge such movable property
as the owner has voluntarily entrusted (Section 1065) to the
pledger, the pledgee may have resort to this property with
respect to the settlement of his or her claim until the property
is redeemed by the pledger or the owner.
1344. If a property obtained by criminal means or a lost
property is pledged regarding which the pledgee did not and was
not able to know, the pledgee is entitled, both as against the
pledger and any third person, to retain such property until the
settlement of his or her claim for securing which the property
has been provided to him or her; but he or she shall immediately
return the property to its owner without compensation as soon as
the owner becomes known, and he or she may only bring his or her
claim, as well as an action for compensation for expenditures and
losses, against his or her debtor or the person from whom he or
she has received the property.
1345. A pledgee who receives a property as a possessory
pledge, where it is known such property has been obtained or lost
by way of crime, shall return the property to the claimant-owner
thereof, without compensation.
1346. If a property which a pledgee has received in good faith
by way of possessory pledge is taken away from him or her on
account of some legal reason, or if such significant deficiencies
appear in regard to the property as diminish its value to such an
extent that this value does not reach the extent of the secured
claim, the pledgee is entitled to claim compensation from the
debtor for all losses caused to him or her thereby.
II. Rights and
Duties of Possessory Pledgees
1347. During all the time while a pledged property is in his
or her hands, a possessory pledgee shall take care of it as would
a careful proprietor.
If a pledged property is damaged or destroyed due to the fault
of the pledgee, whether because of inadequate care, gross
negligence or bad faith, he or she shall provide compensation for
losses incurred to the pledger, and the latter has the right to
deduct this compensation from his or her debt.
If, despite the care provided, damage or destruction of a
pledged property is caused by a criminal offence or force
majeure, the pledgee is not liable therefor, and the losses shall
be borne by the owner of the property.
1348. A pledgee is not allowed to use a property pledged to
him or her unless he or she has been specifically permitted to do
so; but also in this case, he or she is liable for any improper
use of this right.
1349. If, during such use as is not in accordance with an
agreement, a pledged property becomes damaged or destroyed, the
pledgee is also liable for the losses caused in cases where this
is caused by accident or as a result of force majeure.
1350. If the claim of a pledgee has been through some
procedure discharged, or his or her pledge right has been
terminated in some other way, he or she shall forthwith return
the possessory pledge to the debtor as soon as the latter attends
therefor, provided the pledgee is not entitled to also retain the
property (Section 1353) after this, or he or she has not become
the owner of the property himself or herself and is able to
immediately prove this.
1351. The right of a debtor to redeem a pledge which is in the
possession of a pledgee by paying for the debt shall be neither
limited by any time period nor terminated through any
prescription.
1352. A pledgee does not have a duty to return the pledge
prior to being fully satisfied with respect to all claims which
it secures (Section 1290 and subsequent Sections).
1353. A pledgee may also retain the pledge for all his or her
other claims, even personal claims against the pledger; but such
right applies only against the pledger himself or herself and his
or her heirs, and not against third persons. In addition, the
right to retain the property does not include the right to sell
it in order to settle other claims of the creditor.
1354. If an owner alienates property provided by way of
possessory pledge to a creditor, the latter does not have a duty
to surrender the property, but may retain it until all claims
secured by the pledge are settled.
1355. A creditor may also further pledge a possessory pledge,
but not otherwise than together with the obligation itself which
is secured by the pledge, nor for a greater amount than due to
him or her from the pledger. Upon termination of the pledge right
of the creditor himself or herself, either by payment of his or
her claim or due to some other reason, the right of the second
pledgee is also terminated.
1356. General provisions regarding the right of a creditor to
sell a pledge, upon not receiving satisfaction thereof when due,
are also applicable to a possessory pledge.
1357. If a pledgee, without significant cause, delays the sale
of a pledge, the creditors who have brought collection
proceedings in respect of the surplus may request a court to
determine a time period for the sale of the pledge by the
pledgee.
III. Termination
of Possessory Pledge Right
1358. General provisions regarding termination of a pledge
right (Section 1309 and subsequent Sections) are also applicable
to possessory pledge rights.
1359. A possessory pledge right may also be terminated by
implicit renunciation.
Implicit renunciation of a possessory pledge right shall be
deemed to have occurred in the following cases:
1) where the pledgee returns the pledge transferred to him or
her without any other purpose being evidenced therefor;
2) where he or she, pursuant to last will instructions,
lawfully bequeaths the pledged property to his or her debtor.
1360. If a pledgee accepts some other security offered by the
debtor, be it a pledge or a guarantee, such acceptance shall not
of itself be deemed to be a renunciation of the earlier pledge
right, provided the renunciation is not directly expressed or is
the indisputable conclusion to be drawn from the circumstances of
the matter.
1361. Neither a claim secured by a possessory pledge, nor the
pledge right are terminated by prescription, provided the pledgee
has not relinquished possession of the pledge.
SUB-CHAPTER 3
Usufructuary Pledge
1362. If movable or immovable property bearing fruits is
delivered into the possession of a creditor by way of pledge,
then the creditor not only has the right but also the duty to
reap fruits and income from it.
The pledgee is not allowed to retain the reaped fruits and
income for his or her benefit, but shall sell them, and credit
the proceeds therefrom to payment of his or her claim, firstly
interest and then principal; in addition, those fruits and income
shall also be credited which he or she could have reaped, but due
to negligence, has not.
A pledgee has a right to deduct normal interest from such
income, even if such interest has not been specifically
covenanted for.
1363. Charges on pledged property bearing fruits, if not
otherwise specifically agreed in regard to such charges, shall be
borne by the owner and not by the pledgee in possession
thereof.
1364. Liability for losses due to the fault of a creditor,
occasioned regarding property pledged to the creditor, as well as
compensation due to the creditor in regard to expenditures made
for the property, shall be determined in accordance with the
provisions regarding possessory pledges.
1365. If immovable property is pledged and concursus
proceedings regarding the property of the pledger have been
commenced, the pledgee shall transfer not only this immovable
property itself, but also the fruits he or she has reaped from
the date the concursus proceedings are established, to the
entirety of property subject to concursus proceedings.
Note. Pledge rights registered in the Land Register and claims
secured by a possessory pledge shall be settled outside the
concursus procedure.
1366. Property bearing fruits may also be pledged with it
being agreed that the pledgee, in place of interest due to him or
her, shall receive the income therefrom.
In such case, unless otherwise agreed, the pledgee does not
have the duty to provide an accounting regarding the fruits and
income which he or she has obtained, even if the value thereof
exceeds the extent of the lawful interest.
SUB-CHAPTER 4
Mortgages of Immovable Property
I. Establishment
of Mortgages
1367. A mortgage gives a creditor a property right in regard
to pledged immovable property only after registration in the Land
Register.
1368. In order that the registration of a mortgage in the Land
Register be in effect, the following is required:
1) that it be registered at the relevant institution (Section
1369);
2) that it be registered in due time (Section 1370);
3) that the claim has the characteristics required for
registration (Sections 1371 and 1372);
4) that the immovable property for which the mortgage is
registered in the Land Register also has the characteristics
prescribed for that specific purpose (Section 1373);
5) that the forms prescribed by law have been observed in the
course of registration.
1369. The registration of a mortgage in the Land Register may
only be made at the Land Register office in whose administrative
area the immovable property is located. More detailed provisions
regarding procedures for registering a mortgage in the Land
Register are to be found in the Land Register Law.
[24 April 1997]
1370. Registration of a pledge right in the Land Register
shall not be allowed at such time as when the impediments
referred to in Section 45, Clauses 1 and 2 of the Land Register
Law exist.
[24 April 1997]
1371. Only those claims shall be registered in the Land
Register which are generally secured by a pledge on immovable
property, irrespective of whether this pledge is established
pursuant to a court decision or a legal transaction.
1372. Registration of pledge rights in the Land Register shall
only be allowed with the consent of the pledger, which he or she
has expressed either in establishing the pledge right or
subsequently. This provision does not apply to those cases where
the pledge right is registered on the basis of the judgment or
decision of a court.
1373. A mortgage shall only be registered in the Land Register
for a specific amount of money and in regard to a specific
immovable property the owner of which designated in such Register
is the pledger.
II. Novation and
Discharge of Mortgages
1374. Each novation of a claim registered in the Land Register
shall also be registered in such Registers; otherwise it shall be
binding only upon the contracting parties, but not upon third
persons.
1375. If, in novating, a change in creditors takes place, then
for the registration of the novation in the Land Register the
acknowledgement of both the creditor and the debtor is required;
but in making an ordinary cession, the acknowledgement of the
cedent is sufficient, and the consent of the debtor is not
necessary.
Note. Exceptions from the procedures prescribed by this
Section (1375) are set out in the Law on Forced Novation of Some
Debts.
1376. If a novation concerns the nature of a claim itself, so
that lawful relations in regard to other claims which have
previously or subsequently been registered in the Land Register
on the same immovable property are, as a result, also altered,
then for the registration of such novation in the Land Register
the consent of not only the contracting parties but also of the
rest of the persons interested in the matter is required.
1377. If any of the creditors acquires possession of the
immovable property on which they have a mortgage, neither the
mortgage rights of the creditor nor the rights of other creditors
to their claims registered in the Land Register on the same
immovable property are altered thereby.
1378. The alienation by a debtor of immovable property to a
third person does not alter the rights of mortgage creditors, and
any such alienation may only be done by leaving in effect the
pledge rights to the immovable property being alienated.
1379. Mortgages shall be discharged in accordance with the
same provisions as those which are set out for all pledge rights
(Section 1309 and subsequent Sections).
For full discharge of a mortgage, it is not sufficient that
the basis of the mortgage alone be discharged, because such a
discharge is not binding upon third persons until the discharge
of the mortgage is registered in the Land Register. The
provisions regarding procedures for registering a discharge of a
mortgage are to be found in the Land Register Law.
[24 April 1997]
1380. Discharge, both full and partial, of pledge rights
registered in the Land Register shall only be allowed with the
consent of the creditor. This provision does not apply to those
cases where the pledge right is discharged on the basis of a
judgment or decision of a court.
If immovable property on which mortgages are registered is
sold at auction and registered in the Land Register in the name
of the person who, as the highest bidder, has become its owner,
then after the purchase price is paid, all debts registered
against the immovable property regarding which the purchaser has
not directly given notice that he or she assumes such debts
himself or herself shall be discharged independently of the
consent of the creditors.
Chapter Seven
Right of Pre-emption
SUB-CHAPTER 1
Establishment and Use of Right of Pre-emption
1381. A right of pre-emption is the right to acquire immovable
property alienated by another person, by taking precedence over
the acquirer thereof in relation to priority as against him or
her, and the assumption of his or her rights.
The right of pre-emption is a property right, and it may not
only be used against the first acquirer of the immovable property
who is subject to this right, but also against subsequent
acquirers.
1382. A right of pre-emption may be established by law,
contract or a will.
A right of pre-emption established by contract or a will binds
only the persons interested in the property and their heirs;
however, this right may also become binding upon third persons,
if the contract or will establishing this right is registered in
the Land Register; in such case, this right shall be determined
solely pursuant to the provisions set out in the contract or will
and only where such provisions do not exist, pursuant to the
provisions of law regarding pre-emption.
1383. A right of pre-emption shall not be allowed in all cases
of alienation, but only in those where the pre-emptor can fully
compensate the acquirer for everything the acquirer has paid, or
still must pay, for the acquired property.
Where an immovable property is given as a present, alienated
after settlement or exchanged, the right of pre-emption shall not
be allowed.
Where immovable property is sold at auction by way of
enforcement proceedings, the right of pre-emption may not be
used.
1384. All duties undertaken by an acquirer of immovable
property shall be assumed by the pre-emptor of such property, and
the pre-emptor may not restrict himself or herself only to a
promise to pay the acquirer the amount which the acquirer has
undertaken to pay for the immovable property, or to ensuring
payment of this amount by way of guarantee or some other
procedure; but the pre-emptor shall, in making application
regarding his or her right, forthwith pay this amount, adding
thereto compensation for expenditures (Section 1388) in money;
but if the acquirer refuses to accept this money, the pre-emptor
shall pay it into court.
1385. If a pre-emptor himself or herself has a claim which is
secured by the immovable property which is to be pre-empted, or,
if he or she proves that other creditors whose claims are secured
by a mortgage on this immovable property are ready to acknowledge
the pre-emptor as his or her debtor, he or she is allowed to
deduct these debts from the amount to be paid in by him or her
(Section 1384).
1386. If it is proven that the immovable property which is to
be pre-empted has been sold to some person for less than it is
worth on account of personal good will (friendship purchase),
then the pre-emptor shall pay its actual value pursuant to a
court assessment.
1387. Where there is cause for well-founded suspicions that,
for purposes of discouraging a pre-emptor, a seller and a
purchaser have presented a higher purchase price than they have
actually agreed to with each other, then the pre-emptor has the
right to require that they confirm with their signature that, in
entering into the purchase agreement, they did not act in bad
faith and that the price presented is in fact the amount they
have agreed to with each other and that has already been or is
still to be paid.
1388. A pre-emptor shall also reimburse the acquirer, in
addition to all that which the latter has paid for the immovable
property (Section 1384), all of the necessary and useful
expenditures incurred by the acquirer in regard to this property,
and his or her expenses for its alienation and fees paid in
regard to it; it is not required that enhancement expenditures be
reimbursed.
1389. A person who has a right of pre-emption may not transfer
it to anyone else and, if an opposing party requests, he or she
shall confirm with his or her signature that he or she has
carried out the pre-emption only for himself or herself and for
his or her own benefit.
SUB-CHAPTER 2
Consequences of Right of Pre-emption
I. Duties of an
Acquirer to a Pre-emptor
1390. All rights of the acquirer are assumed by the pre-emptor
and accordingly, if the immovable property has already been
delivered to the possession of the former, he or she shall
firstly transfer it with all its appurtenances to the pre-emptor
in the same condition in which he or she received it.
1391. Fruits reaped from immovable property shall be returned
by the acquirer only for the period of time during which the
acquirer has delayed its delivery. But for fruits which have
matured and have not yet been reaped, the pre-emptor, in his or
her turn, shall reimburse the acquirer for production
expenses.
1392. An acquirer of immovable property shall compensate the
pre-emptor in regard to deterioration of the property only when
it has occurred due to the fault of the acquirer after an
application for pre-emption has been made; he or she shall
reimburse for earlier deterioration only where it has been
occasioned due to bad faith, in order to prevent the
pre-emption.
1393. Servitudes, real charges, and mortgages with which an
acquirer has encumbered immovable property shall be assumed by
the pre-emptor, provided they have already been established prior
to the right of pre-emption being applied for, and without bad
faith. However, the acquirer shall fully reimburse the pre-emptor
in regard to all such encumbrances.
II. Duties of an
Alienor to a Pre-emptor
1394. A pre-emptor shall enter into a legal relationship with
the alienor only then when the acquirer has transferred all his
or her rights to the pre-emptor and he or she has thereby fully
assumed the position of the acquirer.
If the alienor had a duty prior to the alienation of immovable
property to offer it to such person as had rights of pre-emption,
and the alienor did not do so, then the pre-emptor may claim from
the alienor compensation for losses caused to him or her
thereby.
III. Duties of
an Alienor to an Acquirer
1395. An alienor has a duty not only to make compensation to
the acquirer for losses which the acquirer suffers as a result of
the use of the right of pre-emption, but also to defend the
acquirer in court in actions brought by the pre-emptor.
1396. An alienor shall be released from the duties referred to
in Section 1395 if the acquirer, knowing that an application of
right of pre-emption may be made, has not provided for himself or
herself to be compensated in such event.
SUB-CHAPTER 3
Termination of Right of Pre-emption
1397. Right of pre-emption shall be terminated:
1) where the alienation pursuant to which such right arose is
set aside;
2) where a person to whom such right belongs renounces it;
3) where the right to bring an action regarding the right of
pre-emption is lost through prescription.
1398. After application is made in regard to a right of
pre-emption, the participants to a contract may not commence
anything further which would prevent this right; also, they may
not revoke the alienation contract, albeit transfer has not yet
taken place.
1399. A right of pre-emption is terminated where, prior to
alienation or when alienation takes place, the person to whom
this right belongs expressly states his or her consent to
alienation of immovable property or where he or she, following
alienation, expressly or impliedly renounce his or her
rights.
1400. A right of pre-emption terminates through prescription
if an action regarding the right of pre-emption is not brought
within a year from the day the immovable property is registered
in the Land Register in the name of the acquirer.
PART FOUR
Obligations Law
1401. Obligation rights are rights on the basis of which one
person - the debtor - is required to perform a certain action of
a financial value for the benefit of another person - the
creditor.
1402. Obligation rights arise either from a lawful
transaction, or from wrongful acts, or pursuant to law.
Chapter One
Lawful Transactions in General
1403. A lawful transaction is the performance of a permissible
action to establish, change or terminate lawful relations.
1404. In each lawful transaction the parties, the
subject-matter, the expression of intent, the elements, and the
form shall be taken into account.
Sub-chapter One
Parties to a Transaction
1405. In order for a transaction to have legal force, it is
necessary that the parties to the transaction have legal capacity
and the capacity to act for making such transaction; otherwise
the transaction is void.
[29 November 2012]
1406. Not only natural persons but also legal persons shall
have legal capacity in lawful transactions, unless otherwise
provided by law.
1407. The State, local governments, associations of persons,
institutions, establishments, and such aggregations of property
as have been granted the rights of a legal person shall be
considered to be legal persons.
1408. Minors lack the capacity to act.
Persons under trusteeship due to disorders of mental nature or
other health disorders or due to a dissolute or extravagant
lifestyle lack the capacity to act to the extent of restriction
of the capacity to act laid down by the court.
[29 November 2012]
1409. Lawful transactions made by persons with the capacity to
act while they are unconscious or being unable to understand the
meaning of their action or being unable to control their action
are void.
[29 November 2012]
1410. Anyone may make lawful transactions not only personally,
but also through substitutes, who by their actions may acquire
rights for their principal, as well as impose duties on them.
Legal persons shall make lawful transactions through their
legal representatives.
1411. Persons lacking the capacity to act and for whom
trusteeship is established shall be represented in lawful
transactions by their parents, guardians, and also trustees.
Trustees shall represent a person under trusteeship together with
him or her or independently.
[29 November 2012]
Sub-chapter Two
Subject-matter of Lawful Transactions
1412. The subject-matter of a lawful transaction may be not
only an action, but also an inaction, or also an action the
purpose of which is to establish or to restore a property right,
as well as an action with some other purpose.
1413. The subject-matter of obligation rights may be only that
which is possible; otherwise, the transaction is void.
Nevertheless, it is not necessary that the subject-matter of the
transaction already be in existence when transaction is made; a
transaction may also apply to future property.
1414. The subject-matter of a lawful transaction may only be
that which has not been removed from the scope of private law;
otherwise, the transaction is void.
1415. An impermissible or indecent action, the purpose of
which is contrary to religion, laws or moral principles, or which
is intended to circumvent the law, may not be the subject-matter
of a lawful transaction; such a transaction is void.
1416. The subject-matter of an obligation, as well as its
performance, may not remain solely within the discretion of the
debtor.
1417. If the subject-matter of the transaction is completely
unspecified, the transaction is void.
1418. When the subject-matter of a claim is fungible property
(Section 844), and the quantity or quality thereof is not
specified, then irrespective of such, the transaction is valid if
the right to specify the aforementioned subject-matter is given
by law or by a personal instruction to a third person or to a
court in its discretion, or if in general there is a reliable
standard by which the subject-matter can be specified. However,
if the third person who is charged with specifying the
subject-matter is not willing to, or is unable to undertake such,
then the transaction is void.
1419. When the subject-matter of an obligation is non-fungible
property (Section 844) which is described only by kind, then in
case of doubt such subject-matter may be specified by the debtor,
unless the contract right has been established by a will.
The same shall be observed even when there is an alternative
subject-matter of the obligation.
1420. Both the debtor and the creditor may exercise the right
to choose (Section 1419) only once, unless they have been
specifically granted the right to choose several times, or if the
obligation is such which periodically recurs. When choice is
permitted only once, then the debtor may do so until such time as
the obligation has been fulfilled, but the creditor may do so
also in bringing an action, unless they have, however,
specifically expressed their intent previously.
1421. If in an alternative obligation both subject-matters are
accidentally destroyed, then the debtor shall be completely
released from fulfilling his or her duties, without, however,
losing the right to require that the creditor fulfil his or her
corresponding duties. But if only one of the subject-matters is
destroyed, then the debtor shall retain his or her right to
choose and may pursuant to his or her discretion deliver either
the remaining subject-matter, or the value of the destroyed
subject-matter. Conversely, if the creditor was granted the right
to choose, he or she may only accept the remaining
subject-matter.
1422. If one of the subject-matters offered as an alternative
is destroyed due to the fault of the opposing party, or during a
delay by that party, then the one who has the right to choose -
irrespective of being the debtor or the creditor - shall retain
this right and may, pursuant to his or her volition, as the
debtor, deliver the remaining subject-matter or the value of the
destroyed subject-matter, or as the creditor, request one or the
other. However, if the opposing party has destroyed both
subject-matters, then the one who has the right to choose may
choose compensation for either one or the other.
1423. If one or both subject-matters are destroyed due to the
fault of the one who has the right to choose, then he or she
shall lose this right, and in the case of only one subject-matter
being destroyed, he or she may either give or claim the remaining
subject-matter, depending on whether he or she has the duty to
give or the right to claim; but if both subject-matters are
destroyed, then the opposing party shall choose the
subject-matter for which he or she shall receive
compensation.
1424. If in the cases set out in Sections 1422 and 1423 the
subject-matter has been destroyed due to the fault of the
creditor, then, in addition, the creditor shall compensate the
opposing party for all losses.
1425. Each obligation shall be fulfilled in full, and no one
may be forced to accept the fulfilment of only part of the
obligation, even when the subject-matter of the obligation is
divisible.
1426. If one of the parties involved in an indivisible
obligation is forced to compensate the losses of the opposing
party due to failure to fulfil, then this compensation may be
delivered also in parts; in an obligation involving several
parties, each of them, by delivering his or her share, shall be
released from liability pursuant to general provisions.
Sub-chapter Three
Expression and Authenticity of Intent
I. Expression of
Intent
1427. Part of the essence of a lawful transaction is the
expression of intent by the transactor, but a bilateral or
multilateral transaction requires a coherent expression of intent
by all the parties. As long as intent has not yet been expressed,
it has no legal effect.
1428. The expression of intent may be express or implicit.
Express intent may be expressed in words, orally or in
writing, or by signs which have the meaning of words.
Intent is implied when it is manifested without the direct
purpose of expressing intent precisely in this meaning. For an
action to be considered to be an expression of implied intent, it
must be such as to allow a clear inference of the existence of
such intent.
1429. If the law prescribes a certain form for the expression
of intent, then an implied expression of intent, even though it
may be absolutely clear, shall not be sufficient.
1430. Silence shall not be considered to be either consent or
dissent, except in those cases when the law specifically requires
the breaking of silence in order that it not be considered to be
consent.
1431. The signing of a deed shall be considered to be consent
to such deed, regardless of whether it applies to the signatory
or to a third person, if the contents of such were known to the
signatory and if he or she has a personal interest in, and the
right to object to, the lawful transaction to which the deed
applies.
1432. A person who expresses implied or express consent
thereby agrees to the action with all its legal consequences, and
he or she may not thereafter restrict such consent.
1433. Consent may be presumed only in cases specifically
prescribed by law.
1434. Consent may be given not only prior to the relevant
action, but also when it is commenced, and even later; in the
latter case it shall be called confirmation.
A later confirmation may be expressed expressly or be implied
from actions and may apply not only to another person's actions,
but also to one's own, whether they be permissible or
impermissible.
1435. A later confirmation shall have retroactive effect and
therefore it shall be applicable to the time of entering into the
transaction, except in the following cases:
1) when the action in question has been prohibited by law and
the reason for the prohibition was removed only later;
2) when the confirmation occurs only after the transaction has
been performed and its consequences have taken place;
3) when the confirmation may only occur according to a certain
form; in this case it shall have neither retroactive effect, even
though the confirmed action itself has been performed in
accordance with the specified form, nor shall it have effect at a
future time, if the aforementioned form may not yet be
performed.
1436. A later confirmation shall not affect the rights
acquired in the interim by third persons.
1437. The expression of intent must be serious; an expression
made only as a joke shall have no legal consequences.
1438. If intent is expressed for appearances only, then it
shall have no legal consequences, as long as it does not involve
the illegal deceit of a third person.
Note. The provisions regarding the contesting of a transaction
which has been concluded by the debtor with the intent to defraud
the creditor are contained in the Civil Procedure laws.
1439. When the transaction is with serious intent, but is
concealed by another transaction, then the former shall be in
effect, unless there has been an intention to deceive a third
person thereby or to do something illegal in general; but the
latter transaction, entered into for appearances only, shall
remain in effect only insofar as deemed necessary in order to
maintain the former in effect.
II. Authenticity
of Intent
1440. For a lawful transaction to be in force it shall not
suffice for the participants to express their intent, but it is
also necessary for the intent to originate from their own free
will, without mistake, fraud or duress.
1. Mistake
1441. A mistake may arise from a complete absence of
information, or only insufficient information regarding factual
circumstances - mistake in fact, or regarding legal principles -
mistake in law.
1442. A mistake in fact shall not harm the performer of the
activity, as long as the mistake has not occurred due to his or
her own negligence.
1443. A mistake in one's own acts shall not be excusable,
except in cases prescribed by law.
1444. An excusable mistake (Section 1442) shall affect the
validity of the transaction variously, depending on whether the
mistake is substantial or not.
1445. A mistake in substance (Section 1444) shall invalidate
the entire transaction, because it must be assumed that the
person who so errs, has not even given the transaction his or her
acceptance and therefore the transaction has not happened.
1446. The only consequences of a mistake of little substance
(Section 1444) shall be to protect the person who erred from
losses as far as possible. Therefore the transaction itself shall
still be valid, but the one who has made the mistake has the
right to ask only for restitution, or commensurate compensation
for losses which he or she has suffered due to his or her
mistake.
1447. If a misunderstanding has taken place regarding the type
of the transaction, as when one participant believes that he or
she is entering into a different contract than from what the
other participant believes, then the contracting parties are not
in agreement, the mistake shall be considered substantial and
therefore the contract shall be void. But a person who has given
someone an item, with the intent of making a gift of it, does not
have the right to ask for the return of this item if the
recipient has already used it, even though he or she did not
receive it as a gift.
1448. Similarly (Section 1447) the absence of an agreement
between the contracting parties shall also invalidate a lawful
transaction in the case of a misconception regarding the identity
of an item, when each contracting party believes it to be of a
different kind or type.
1449. A mistake regarding the reason for a transaction is of
little substance and shall not invalidate the transaction, unless
someone has promised or performed something due to a supposed
obligation.
1450. If the mistake concerns a person involved in the
transaction, then it is void unless the mistaken identity is
immaterial to the one who has erred. However, if the mistake
concerns someone's personal abilities and characteristics, the
transaction is void only if the erroneously presumed
characteristic was a matter of substance due to the nature of the
transaction.
1451. A mistake is substantial when a characteristic has been
assumed for the subject-matter of the contract due to which the
subject-matter would be included in a different type of goods
than the one to which it truly belongs. However, consideration
must also be given to whether the assumption mentioned has in
fact induced the person who has made the mistake to enter into
the contract in its current form.
1452. When there is a mistake concerning the quantity of items
of the same type in a transaction regarding fungible property,
unilateral transactions shall be differentiated from bilateral
transactions. Unilateral transactions shall remain valid, and
moreover from the two quantities the lesser shall be given; but
bilateral transactions are void if the obligor has had the intent
to give less, but the other side to receive more. In the opposite
case, the contract shall remain valid and the lesser amount shall
be given. Any other mistake regarding the quantity of objects
shall not be substantial, unless a special agreement exists.
1453. A mistake regarding the lawful relationship of the
contracting parties with the subject-matter of the transaction
shall not be substantial.
As an exception, a mistake regarding the lawful relationship
of the contracting parties with the subject-matter of the
transaction shall be substantial, and the transaction itself is
void when one of the participants believed himself or herself to
be acquiring the rights to another person's property, whereas the
subject-matter of the transaction was his or her own
property.
1454. The transaction is void if its subject-matter or the
larger part of its subject-matter no longer exists.
1455. A mistake which is only about a name or the designation
of another person or thing is not substantial and shall not be
considered.
1456. When in a multilateral transaction only one of the
participants in the transaction has made a mistake, then he or
she may demand that the transaction be performed, especially if
he or she has a lawful interest therein and if he or she has
fulfilled the obligations he or she has undertaken.
1457. If the transaction has been entered into by a substitute
of a person, then the mistake to be considered shall be that of
the substitute, not of the party for which he or she was
substituting.
1458. The mistake shall be proved by the party demanding
either that the transaction be declared invalid or that losses be
compensated, on the basis of this mistake (Sections 1447 and
1448).
2. Fraud
1459. Fraud is the illegal deception of another person for the
purpose of inducing him or her to perform acts in contravention
to his or her interests or to refrain from such acts.
1460. If a party is easily able to detect the deception, he or
she shall not be considered defrauded in a legal sense.
1461. A party induced to enter into a transaction by fraud may
demand that it be declared invalid. However, if fraud is the
motive for only a few of the provisions of the transaction, then
the defrauded party has the right to bring an action only for
compensation for losses.
1462. If in a bilateral transaction both parties have deceived
each other, then neither of them has the right to bring an action
against the other. If the contract has not yet been performed,
then one party may not ask the other to perform it, but if it has
been performed, then neither party may claim compensation for
losses from the other.
3. Duress
1463. Duress may consist of physical force or of threats which
induce fear in a person. When physical force is used, there is no
expression of intent and there is no act by the person under
duress.
1464. Only duress of an illegal nature shall affect lawful
transactions.
1465. For the fear created by threats to have legal import, it
needs to be substantiated; therefore the threatened harm may not
be insubstantial, there must be genuine fear that the threats
will be realised, and there must be no reasonable alternative
other than to submit.
1466. Persuasion alone, if it does not involve fraud, shall
not affect the validity of the transaction.
1467. A lawful transaction concluded under duress is not
invalid of itself, but the person under duress may contest
it.
1468. If in a multilateral transaction a third person has put
another under duress, then the person under duress may demand
that the transaction be repealed, and also that the person
placing him or her under duress compensate for losses.
Sub-chapter Four
Elements of a Lawful Transaction
1469. The elements of a lawful transaction are essential, or
natural, or incidental.
1470. The essential elements of a transaction are everything
necessary to its concept and without which the intended
transaction itself is impossible. Therefore, nothing in such
essential elements may be altered, even with the agreement of
both parties.
1471. The natural elements of a transaction are those which
are its direct consequences by law if the transaction is entered
into according to its essential principles. Therefore these
elements are self-evident, even without a special arrangement,
but they may be removed or changed by special agreement, which
shall be proved by the party referring to such.
1472. The incidental elements of a transaction are the
expansion or limitation of the direct consequences of the
transaction (Section 1471), as well as its ancillary provisions.
This shall include conditions, terms and binding directions.
SUB-CHAPTER 5
Form of a Lawful Transaction
I. GENERAL
PROVISIONS
1473. The form of a lawful transaction shall depend on the
discretion of participants in the matter, except in cases
specifically indicated by law.
1474. The participants to a transaction may enter into it in
accordance with the procedures provided for by a notary public or
by the Law on Orphan's and Custody Courts or a private procedure,
accept an oral agreement or draw up a written deed, enter into
the transaction in the presence of witnesses or without such, and
they may make it public or not. This provision shall not apply to
those instances in which the law requires a specific procedure
for entering into a transaction.
Besides a notary public or an Orphan's and Custody Court, the
following persons may certify: a regimental commander, or another
officer with equal authority, may certify deeds pertaining to a
person in the military service during wartime; the commander of a
war-ship - deeds pertaining to a per son serving on a war-ship
during wartime; consuls - deeds of persons living in a foreign
state according to the provisions of the consular
regulations.
[22 June 2006]
1475. In cases where the form for a transaction is required by
law, or where the contracting parties make the validity of their
transaction dependent on the form, failure to comply with the
form shall render such transaction invalid.
Previous agreements made between contracting parties in such
cases shall have no legally binding force, and until such are
articulated in the relevant form, each contracting party shall
have the right to unilaterally withdraw from such.
1476. The entering into or certification of a transaction by
the institutions mentioned in Section 1474, or by the officials
mentioned in the same, shall not preclude any internal defects,
and also shall not infringe on the rights acquired by a third
person.
1477. Corroboration shall be required in those cases when the
transaction grants property rights to immovable property.
Property rights established by law shall be in effect even if
they are not entered in the Land Register.
1478. The lack of corroboration is not a reason for a
transaction to lose its effect; until the corroboration, an
acquirer may not make use of ownership rights or any other
property rights, and may only bring an action in personam against
the alienor.
1479. When the transaction has been completely entered into in
all other ways, then the subject-matter of the action in personam
(Section 1478) is corroboration, and the fact that the deed has
not yet been entered in the Land Register shall not be a reason
for either of the participants to withdraw from the matter
without the agreement of the other. If a person has acquired
property rights in an auction, or pursuant to a judgment of a
court coming into effect, and all other conditions have been
observed, then corroboration may also take place based on the
unilateral request of the acquirer.
1480. In the cases indicated in Section 1477, the consequences
of corroboration are the awarding of property rights to the
acquirer, thus the corroboration mentioned shall give all
participants complete security, even if it was conducted
erroneously, because the Land Register Office is solely
responsible for mistakes. Corroboration does not rectify internal
defects of the transaction, and a deed which is not in force
according to its substance does not thereby acquire any legal
effect. Similarly, corroboration shall also not affect the rights
of a third person previously registered in the Land Register.
1481. Corroboration shall be considered as completed, and the
certified transaction shall not be disputed after the court has
printed an announcement in the newspaper Valdības Vēstnesis that
persons with objections should come forward within six months'
time. When it is clear that no objections have been brought
forward during this time, a decision shall be taken to recognise
the transaction as in effect and all subsequent contests against
it shall be dismissed. However, the publication of such an
announcement shall depend upon the intent of the participants of
the transaction.
II. Written Form
of Lawful Transactions
1482. A transaction shall be set out in written form either as
required by law, or pursuant to the voluntary agreement of the
participants.
1483. The law requires the written form:
1) as an essential element of certain transactions;
2) in order to complete the transaction at the institutions
mentioned in Section 1474 or with the officials mentioned
therein;
3) to register the transaction in the Land Register;
4) as a condition for the right to make claims on the basis of
the transaction.
1484. If the law requests the written form as an essential
element of the transaction, then the transaction is not in effect
until the relevant deed is complete.
1485. If the participants to such a transaction (Section 1484)
agree regarding all the essential provisions, then either one of
them may ask the other to prepare the relevant deed.
1486. In the cases where the law determines that a transaction
shall be entered into before a notary public, a previous
agreement alone, even though it may be stated in a separate deed,
shall have no effect, and shall not grant the right to a claim.
However, if in such bilateral transactions one of the
participants has already performed something for the benefit of
the other, then he or she shall have the right to reclaim
such.
1487. If the written form is required because, in certain
cases, the transaction may not have legal effect without being
registered in the Land Register, then the transaction shall be
binding in and of itself as soon as the participants agree on all
its essential elements, even without statement in a written form.
Therefore none of them shall have the right to withdraw from the
agreement unilaterally, and each may demand that a relevant deed
be drawn up by the other.
1488. When the right to claim on the basis of a transaction
generally, and its performance especially, is dependant on the
written form as required by law, then, if no written deed is
drawn up, the following shall be observed:
1) A transaction which both sides have performed shall have
the same consequences as if it were in written form, and
compensation may not be reclaimed for whatever has already been
given or done pursuant to such transaction.
2) If one of the participants voluntarily performs the
contract, but the other accepts the performance in full or in
part, then the former shall no longer have the right to reclaim
what he or she has performed, unless the other is on his or her
part willing to perform such as he or she must perform; but if
the latter avoids performing his or her obligation, then the
former, although he or she may not require the performance of the
contract, shall have the right to reclaim what has been performed
or to claim compensation.
3) As long as neither side has performed anything, the right
to claim shall not be allowed, the transaction itself shall not
be in effect, and any of the participants may unilaterally
withdraw from the agreement.
1489. If the law requires a written form for the transaction,
but the parties themselves have agreed on the transaction, then
it must be determined whether the purpose of their agreement was
to create a written deed only as a means to facilitate evidence,
or in order not to give the transaction legal effect until
expressed in a written form. In the former case, the transaction
shall be in effect even before the deed is drawn up, as soon as
the parties agree on its substance, and from that moment on they
shall begin to have the right to demand that the transaction be
stated in writing. In the latter case, however, the transaction
which has taken place between the parties shall not be binding on
either party until the deed is prepared in full, and therefore
both parties shall have the right to unilaterally withdraw from
the transaction.
1490. If a dispute arises regarding the purpose of the
aforementioned agreement (Section 1489), then it shall be
assumed, in case of doubt, that the sole purpose of the drawing
up of the deed was the facilitation of evidence. This shall be
especially the case when the parties have agreed to put the
transaction in writing only after they have agreed on all other
provisions of the lawful transaction.
1491. In the cases when the stating of the transaction as a
written deed is not an essential provision for it to be in effect
(Section 1484 and the end of Section 1489), an earlier written
draft, if it includes all the essential elements and ancillary
provisions of the transaction and is signed by the participants,
shall have equal effect to a written deed, and therefore either
party can request the other to prepare and to sign such a
deed.
1492. The written deeds of a transaction may be drawn up in
whatever form the participants choose; moreover no special
formalities shall be required and the participants to the
transaction shall not be bound to any forms.
1493. For a deed to be in effect, as its essential
appurtenance in a unilateral transaction, the signature of the
party involved or his or her substitute shall be required, but
other transactions shall require the signatures of all
participants, or also their substitutes.
When the deed is drawn up in several copies, for distribution
to the participants, the recipient shall not be required to sign
such copy, as long as he or she has signed the others.
1494. Persons unable to write may entrust another person to
sign on their behalf, which shall be verified by two witnesses
with their signatures.
SUB-CHAPTER 6
Time and Place in a Lawful Transaction
1495. In the calculation of a time period - a year, month,
week or day - it shall be counted from a certain moment to a
corresponding moment in the subsequent period.
If the end of the years or months being calculated falls in a
month without a corresponding date, then the time period shall
end on the last day of this month.
1496. If the expiration of a relevant term grants rights or a
certain capacity to someone, then he or she may already make use
thereof upon the commencement of the last day of that term.
1497. If after the expiration of a specified term someone
loses a right due to his or her failure to act, then he or she
may still act on the last day of that term, and his or her rights
end only at the end of this day.
1498. If a term within which something must be done ends upon
a day when, according to the law, such cannot be done, then the
time for fulfilling the duty shall be extended to the day
following the term, when there is no such legal impediments.
1499. In transactions, as in lawful relations in general, a
person's place of residence may be significant, as well as his or
her presence there or absence from it.
1500. A person who has left the borders of the State shall be
considered an absentee.
1501. Persons who, though present at their place of residence,
due to external circumstances are not themselves able to defend
their rights, such as unborn children, minors, the persons with
disorders of mental nature and the otherwise gravely ill shall be
considered equivalent to absentees according to the law.
The persons who shall be considered equivalent to absentees
according to the law shall be protected against losses only in
those cases where they do not have a guardian or a trustee or
where they do themselves harm without the participation of a
guardian or a trustee.
[29 November 2012]
1502. The law shall protect an absentee only when he or she is
absent (Section 1500) with good cause, and when, with good cause,
he or she has not designated a substitute, or when a substitute
has been designated, but such substitute has withdrawn without
the knowledge or participation of the absentee.
Issues regarding whether good cause exists shall be decided
pursuant to the discretion of the court.
1503. Absentees and persons who shall be considered equivalent
to absentees according to the law may request to be restored to
their previous status if they have no other means to recover
their forfeited rights.
SUB-CHAPTER 7
Interpretation of a Lawful Transaction
1504. In interpreting a transaction, consideration shall be
given to the meaning of the words used in the transaction, and if
they are not ambiguous, then they shall be strictly observed, as
long as there is no proof that they do not concur with the intent
of the participants.
1505. If doubt arises regarding the meaning of words, their
sense shall be observed, and the clearly expressed or otherwise
demonstrated intention of the participants to the
transaction.
1506. Expressions of intent which are completely opaque and
incomprehensible and directly self-contradictory shall not be
interpreted, but shall be declared as non-existent.
1507. An interpretation pursuant to which a transaction is
maintained and remains in effect to the extent possible shall be
preferred to an interpretation which has the opposite
consequences.
1508. A cautious interpretation shall be preferred to others,
and on that basis, the one which binds the debtor least will be
preferred.
1509. Bilateral transactions which impose duties on both
parties shall be interpreted, in case of doubt, against the
person who is the creditor in the relevant case, and who
therefore should have expressed himself or herself with more
clarity and definiteness.
1510. Transactions regarding maintenance and last will
instructions shall be interpreted in a manner so that, in case of
doubt, the rights established by the transaction or the
instructions shall remain in effect to as great an extent as
possible.
Chapter Two
Contracts
1511. A contract within the widest meaning of the word is any
mutual agreement between two or more persons on entering into,
altering, or ending lawful relations. A contract in the narrower
sense applied here is a mutual expression of intent made by two
or more persons based on an agreement with the purpose of
establishing obligation rights (Section 1401).
1512. The essence of any contractual obligation includes a
promise made by one party and its acceptance by a second party (a
unilateral contract), or a mutual promise and its acceptance by
both parties (a bilateral or multilateral contract).
1513. A unilateral promise which a second party has not yet
accepted shall not establish any obligations.
Sub-chapter One
Contracting Parties
1514. Everything which is stated concerning the capacity of a
person to perform lawful transactions in general shall also be
applicable to the entering into of contracts.
1515. If a person acts as an agent for a disclosed principal,
i.e., enters into a contract directly in the name of the
principal without exceeding the limits of his or her authority,
then the contract shall bind, both in regard to duties and to
rights, the principal himself or herself directly.
1516. If a person acts as an agent for an undisclosed
principal, i.e., enters into a contract on behalf of the
principal, but not in his or her name, the contract shall be in
effect, both in regard to duties and rights, only pertaining to
the contracting party, but it shall be in effect in regard to the
principal only when the contract is specially transferred to him
or her.
1517. If an agent for an undisclosed principal makes use of
the benefit received from the contract in favour of the
principal, then the duty of performance shall also pass over
directly to the latter, proportionately to the benefit consumed,
in favour of the other contracting party.
1518. If an agent exceeds the scope of the authority granted
to him or her, or has never had the characteristics of an agent,
then the other contracting party shall make his or her claims
only against the agent, unless the principal confirms the
contract at a later time.
1519. The rights and obligations arising from a contract,
insofar as they are not purely personal, shall pass over to the
heirs of the contracting parties and the successors in interest,
unless the law provides for specific exceptions.
Apart from this case, neither rights, nor obligations shall
arise for third persons from a contract, unless the contracting
parties are their agents (Section 1515-1518).
1520. If one contracting party makes a promise to another in
favour of a third person, then not only the promisee but also the
third person in whose favour the promise was made shall gain the
right to demand the performance of such contract from the
promisor.
1521. The rights of a third person arising from such a
contract (Section 1520) shall become independent and not subject
to the intent of the promisee, only when the third person himself
or herself enters into the contract.
1522. Until the third person enters into the contract (Section
1521) it shall be valid only between the contracting parties:
they can revoke the contract at any time by mutual agreement, and
the person to whom the promise was made in favour of a third
person may release the other person unilaterally from the
obligations he or she has undertaken; but the other person,
however, shall not have the right to withdraw from the contract
unilaterally, and therefore the rights of a third person arising
from the contract shall become independent as soon as the intent
of the promisee can no longer be altered, as for example after
his or her death or after he or she has lost the capacity to
express his or her intent.
[29 November 2012]
1523. A third person in whose favour something was promised in
a contract by other persons shall not have the duty to accept
this promise; if the third person rejects it, then the possible
consequences shall be borne only by the party which accepted the
promise.
1524. The creditor may also be a person who is not specified
individually if the debtor undertakes, in an issued document, to
carry out the obligations specified therein for the bearer.
1525. Apart from the State, such bearer papers may be issued
by State-established credit institutions and stock companies.
1526. The holder of the bearer paper shall be regarded, as
long as the paper is in his or her possession, as the creditor to
its issuer, while the latter shall be regarded as his or her
debtor.
1527. The right to claim established by the bearer paper shall
be ceded by passing this document from one person to another.
1528. The person passing on the bearer paper (Section 1527)
shall be held responsible to the recipient only for the existence
of the claim, i.e., the authenticity of the paper, but not for
the security of the claim, i.e., the solvency of the debtor.
1529. The debtor of the bearer paper shall not raise any
objections against the bearer that he or she might have had
against the first or any subsequent holders of this paper;
likewise the debtor shall also not evade the performance of his
or her obligations by referring to the means by which the bearer
has obtained the paper, or the price he or she has paid for
it.
1530. Bearer papers may be the subject-matter of property as
well as personal or claim rights.
1531. If the holder loses such a paper or it is destroyed, he
or she may request the court to summon its holder, and if no one
comes forward by the expiration of the designated time period,
and there are no other obstacles, he or she may claim for the
lost paper to be acknowledged as destroyed and to be replaced by
a new one, or else, if the date of payment is already past due,
to demand payment.
An ownership action against the new holder who has responded
to a summons shall be allowed only if he or she has obtained the
paper in bad faith, which must be proved; a holder in good faith
shall not be obliged to surrender it.
1532. Bearer papers may be taken out of circulation by
endorsement across the holder's name, or any other notations, as
specified in the articles of association of credit
institutions.
Sub-chapter Two
Agreement between the Contracting Parties
1533. A contract shall be considered to be finally entered
into only when the contracting parties have reached complete
agreement regarding the essential elements (Section 1470) with
the purpose of mutually binding each other.
If according to the law, or the agreement of the contracting
parties, the contract is required to be concluded in a particular
form, then Section 1475 and subsequent sections, as well as
Section 1482 and subsequent sections are applicable.
1534. The agreement which has been made between the
contracting parties regarding essential elements of the contract,
if they have directly reserved the right to still negotiate
certain ancillary provisions, shall be regarded only as a
preliminary discussion. But when they have not reserved such a
right concerning ancillary provisions, the contract shall be
regarded as finally entered into, unless it indicates opposite
intention, and in such case the natural elements (Section 1471)
of the transaction shall be settled in accordance with the
provisions of the law concerning the nature of this transaction,
but the incidental elements (Section 1472) - pursuant to the
discretion of the court.
1535. The parties may agree either simultaneously, or one
before the other, in which case the transaction shall begin with
either a promise made by one party and which is afterwards
accepted by the other party, or with an acceptance which is
expressed in the form of a demand or a request.
1536. A contract offer made only by one party shall have no
binding force, even if a definite promise is added, and
therefore, as long as the other party has not accepted this
promise, it may be revoked.
1537. If a contract is entered into between absent parties, it
shall be regarded as entered into from the moment the offeror has
received unconditional consent of the party to whom the offer was
made.
[4 June 2009]
1538. If the offeror sets a fixed term for the reply, then he
or she shall be bound until the expiration of the term, but if a
time period is not set, the offeror shall have the right to
revoke the offer if the other party is delaying notification of
its acceptance. The issue of whether the other party has delayed
shall be decided by a court. In matters regarding trade, each
case when the notification was not made as soon as possible shall
be considered to be a delay.
1539. If the offer is revoked, but the person to whom it has
been made is not aware and cannot be aware of such revocation,
and also is not guilty of any delay, then the offeror shall pay
this person for the losses arising from the belief that the offer
is still in effect.
1540. The person who, by way of advertisement, has bid a
certain remuneration for the performance of some action may
revoke their bid while this action has not yet been performed in
the relevant manner, but only by the same kind of advertisement.
If someone has already made preparations to perform the action
for which the remuneration was bid, then the bidder shall remain
bound by their advertisement, presuming, however, that the
indicated action is performed in the proper manner. If the bidder
has set a certain term for performing the action and it expires,
then the bid shall no longer be in effect, but it may not be
revoked before the expiration of the term.
1541. A letter of intent with the purpose of entering into a
contract shall take effect as soon as the essential elements of
the contract have been established by it.
Sub-chapter Three
Subject-matter of a Contract
1542. Everything that is specified in Section 1412 and
subsequent sections regarding the subject-matter of a legal
transaction shall also concern the subject-matter of a
contract.
1543. Contracts regarding something impossible shall not be in
effect; but when their execution is impossible not in general,
but only for the promisor, or when the impossibility is a result
of the promisor's own actions, he or she shall compensate the
person to whom the promise was made for losses. If the
subject-matter of the promise is alternative, and one of the
subject-matters is impossible to perform, the obligation shall be
regarded to be an unconditional obligation which concerns only
the possible subject-matter.
1544. A contract regarding property which cannot be circulated
is not valid, even if it might later be able to be circulated;
but if the person to whom such thing was promised did not know of
the characteristic, he or she may demand payment of compensation
for losses from the opposing party. If property is taken out of
circulation only insofar as the debtor is concerned, but the
creditor may take possession of it, then the contract shall be in
effect.
1545. A contract regarding the property of another, even
though it is entered into without the owner's consent and
knowledge, shall establish valid rights to claim, except in the
case when the contract concerns property acquired by means of a
criminal offence, and the promisee is aware of it.
1546. A contract making a promise that a third person shall
perform something shall bind neither the promisor nor the third
person.
As an exception, such a promise shall be in effect in the
following cases:
1) when someone undertakes the obligations of another person's
debt;
2) when someone promises to procure a guarantor for
oneself;
3) when a person's manager makes a promise and asserts that
this person shall confirm it;
4) when a promise has been made securing it with contractual
penalties or by undertaking to compensate for losses.
In all such cases, contractual penalties or compensation for
losses shall be paid if the promise is not kept.
1547. If someone makes a promise either to ensure that a third
person performs something, or to induce him or her perform it,
then it shall be an action of the promisor himself or herself,
and therefore, the promisor shall compensate for losses if the
third person does not undertake to perform such action.
Sub-chapter Four
Ancillary Provisions of Contracts
1548. Any contract may be supplemented with various ancillary
provisions, namely, conditions and terms.
I.
Conditions
1. Types of
Conditions
1549. A condition is such an ancillary provision as renders
the effect of the contract dependent upon a certain subsequent
and unknown, or to be supposed as such, event.
1550. No condition exists when it is known for certain from
the very start that a forthcoming event shall occur, or that the
contrary shall happen, i.e., that it is certain not to occur. In
the former case the condition is called necessary, but in the
latter case - impossible. Impossible conditions shall also
include conditions regarding the non-occurrence of an unavoidable
event, but necessary conditions shall include conditions
regarding the non-occurrence of an impossible event.
1551. Conditions are either suspensive or resolutory,
depending on whether they determine the beginning or the end of
the effect of a contract.
1552. Conditions are either casual, when their coming into
effect is in no way dependent on the will of a conditionally
entitled person, or arbitrary, when they are entirely dependent
on the will of such person, or mixed, when causality is
coincidental with arbitrariness. Differing from these three types
of conditions are such conditions the coming into effect of which
is dependent on the will of a third person.
1553. Conditions become impossible for either physical or
legal reasons.
Illegal and immoral conditions, i.e., such as directly or
indirectly promote, through their content, illegal or immoral
actions, shall be equivalent to legally impossible conditions in
regard to the effect thereof.
1554. Conditions which are not admissible in last will
instructions pursuant to Section 588 shall not be admissible in
contracts.
2. Legal
Consequences of Conditions
1555. If the expression of a condition is so unspecific or
vague that it is not possible to interpret such, then the
conditional instructions of such shall not be in effect.
1556. If the performance of the condition depends solely on
the intent of the obligee, i.e. when it is specified that a
debtor shall perform his or her obligation when a creditor wishes
to accept it, then such a condition shall not affect the
transaction, unless the content of the instructions clearly
displays the opposite intention.
If performance is determined solely by the volition of the
debtor, the contract is void.
1557. A conditional claim shall devolve to the heirs of the
conditional creditor, except in cases when the claim or the
performance of the condition has pertained specifically to the
creditor. Similarly, a conditional claim shall also remain in
effect in regard to the heirs of the conditional debtor.
1558. While it is still not known whether the suspensive
condition will or will not come into effect, the conditionally
entitled person shall have only an expectant right which the
opposing party in the contract cannot eliminate either by
withdrawing unilaterally or by any other action according to his
or her will.
1559. The conditional obligor shall not do anything that would
prevent the condition from coming into effect.
The conditionally entitled person may not bring an action for
the performance of the contract before the condition comes into
effect, but if the conditional obligor threatens his or her right
or gives other cause, security for the coming into effect of the
condition may be demanded.
1560. If, on the basis of a contract entered into with a
suspensive condition, a property is transferred to the
conditionally entitled person, then, until such time as it is
known whether the condition will come into effect, such person
shall be regarded as the administrator of the property of another
person, shall not become its owner by prescription, and shall
return it upon request, but hence he or she shall not bear any
risk regarding such property.
1561. When a suspensive condition has come into effect, the
contract shall be regarded as entered into unconditionally from
its inception if the subject-matter to be performed still exists.
Deterioration of the property during this interval shall be borne
by the creditor and he or she shall have no right to claim that
the debtor return the income acquired during this time period.
The prescriptive period for the right to claim arising from the
contract shall be calculated only from the date the condition has
come into effect.
1562. When it is certain that a suspensive condition will not
come into effect, the contract shall be regarded as not having
been entered into; therefore everything that may already have
been performed pursuant to it shall be restored or repaid.
1563. While it is not known whether the resolutory condition
will or will not come into effect, the contract is in effect just
as an unconditional contract, and if on the basis of such a
contract the entitled person is given a certain property, then
such person shall become its owner and may exercise all ownership
rights.
1564. The consequences of a resolutory condition not coming
into effect are that the contract shall remain in effect and
therefore the property obtained on the basis of the contract
shall become irrevocable.
1565. If a resolutory condition comes into effect, a contract
shall be regarded as not having been entered into. Both parties
shall restore everything they have obtained from one another on
the basis of the contract; but the fruits which were obtained in
the interim shall be retained by the party which received them
during the existence of the contract. If one of the parties,
during the same interim period, granted a third person the rights
to a certain property, then such rights, despite the coming into
effect of the resolutory condition, shall remain in effect; but
the one who established such rights, however, has the duty to
arrange for their annulment as regards the opposing party in the
contract, or, if that is not possible, to compensate him or her
for losses.
1566. If, while a resolutory condition is still uncertain,
there is cause for fear that the conditionally entitled person
will not be able to carry out his or her obligations (Section
1565) when the condition comes into effect, then the conditional
obligor may demand security from him or her.
1567. Necessary conditions (Section 1550) shall have no
consequences, and a contract in which they appear shall be
regarded as an unconditional contract.
1568. An impossible suspensive condition (Section 1550), if it
is affirmative, shall void the effect of a contract; but if it is
negative, the contract shall remain in effect as an unconditional
contract. An impossible resolutory condition, whether affirmative
or negative, shall have no consequences.
If a condition is impossible only in part, then the part which
is possible shall remain in effect.
1569. If the performance of a condition relates to
insurmountable difficulty only for the person to whom it
specifically applies, this condition shall nevertheless be in
effect. However, if the cause of the difficulty lies in a
situation common to all, such a condition shall be regarded as
impossible.
If a condition appears impossible at the time it is
prescribed, but later changing circumstances render its
performance possible, such condition shall be regarded as
possible.
1570. Immoral and illegal conditions (Section 1553, Paragraph
two) shall entirely nullify the instruction dependant upon
them.
1571. A contract whereby a person undertakes to suffer certain
losses if he or she does something unmoral or illegal shall be
valid.
A contract whereby someone has negotiated something for
oneself for refraining from an illegal action or merely for
performing one's duty shall not be binding.
3. Performance
of Conditions
1572. An affirmative condition is performed as of the moment
the event has actually occurred; but a negative condition - as of
the moment when it is apparent that the event is impossible.
1573. The manner in which a condition is to be performed shall
be specified in accordance with the purpose thereof when it was
specified, such that its literal performance, on the one hand,
shall not always be adequate, but, on the other hand, shall not
always be necessary.
Even if the event or the action on which the validity of the
contract depends is by itself entirely meaningless, nevertheless
its coming into effect or performance must be awaited.
1574. If a certain term is set for the performance of a
condition, it shall be observed, but if it is not observed, the
condition shall be considered to not have been performed. In
addition the period during which the debtor was hindered in
performing the condition, through no fault of his or her own,
nevertheless, shall be deducted. If no term is set, then it is
irrelevant when the condition is performed.
1575. If several conditions are prescribed together, then each
of them shall be performed in full; but if they are prescribed
alternatively, then the performance of one shall be sufficient,
pursuant to the discretion of the person who is restricted by
such conditions.
If one of the alternative conditions later becomes impossible
to perform, the performance of the other condition shall be
sufficient, even if the person who prescribed the conditions had
retained the right to choose.
1576. The provisions of Sections 594 and 595 on the
performance of conditions of last will instructions also apply to
the conditions of contracts.
1577. A condition shall be considered to have been performed
when the person for whose benefit it was prescribed releases the
other party from the duty to perform it.
1578. If an obligor performs his or her obligations before the
prescribed condition has come into effect, believing that it has
already come into effect, then he or she has the right to request
the return of his or her performance unless the condition has in
the interim actually taken effect.
II. Time
Periods
1579. Pursuant to a term the beginning or the duration of the
rights arising from a contract is made dependent on the
occurrence of a certain moment in time, which is, in accordance
therewith, called either the beginning of the term or the end of
the term.
1580. Including a term in a contract does not affect the
rights which shall be considered to have been acquired without
conditions and, therefore, shall devolve to the heirs and are
restricted only to a certain time period as regards their
application.
1581. In case of doubt, the designation "several", or "a few"
days, weeks, months, etc. shall be interpreted as three of the
respective time periods.
1582. If a term is set depending on a future event which is
not certain to come into effect, then in case of doubt the
designated time period shall acquire the nature of a
condition.
1583. If the determination of the time from which the right
granted by a contract shall take effect is left entirely within
the discretion of the person to whom the right has been granted,
then such right shall also devolve to his or her heirs.
A payment or a performance the determination of whose term has
been left to the debtor may not be claimed until after the death
of the person.
If the determination of the duration of the rights to use a
certain thing is dependant on its owner, then such rights shall
expire upon his or her death, unless he or she has determined the
duration during his or her lifetime.
1584. In case of doubt, it shall be assumed for every term
that it was determined in favour of the obligor rather than the
obligee.
1585. The obligor may perform his or her obligation before the
specified term, unless the opposite has been specifically agreed
to, or if it is not clearly apparent from the circumstances of
the matter that the term was established for the benefit of the
creditor.
If the obligor performs his or her obligation before the
specified term, then he or she shall have no right to request the
return of his or her performance.
1586. The expiration of a term shall have no retroactive
effect, and therefore, the person who must return property shall
not have a duty to also provide the fruits which have been
received from it from and after the entering into of the
contract.
SUB-CHAPTER 5
Consequences of a Contract
1587. A contract legally entered into shall impose on a
contracting party a duty to perform that which was promised, and
neither the exceptional difficulty of the transaction, nor
difficulties in performance arising later, shall give the right
to one party to withdraw from the contract, even if the other
party is compensated for losses.
1588. One party may not withdraw from a contract without the
consent of the other party, even if the latter fails to perform
it and due to the failure to perform it.
1589. Unilateral withdrawal from a contract shall be permitted
only when it is based on the nature of the contract, or when the
law provides for it in certain circumstances, or when such right
was expressly contracted for.
1590. Each party shall have the right of claim for the
performance of the contract by the other party, and such right
shall also pass to their heirs, except in cases when the
obligation is restricted pursuant to the contract to the
contracting person, or when the subject-matter of the contract is
such an action for which the particular personal abilities and
relations of the obligor are of importance.
1591. If an action is brought concerning the performance of a
bilateral contract, the plaintiff shall either promise
appropriate performance, or prove that he or she has already
performed the contract on his or her part. Otherwise no objection
may be raised against him or her for not performing the contract,
unless it arises from the nature of the contractual relationship
that the defendant shall perform first.
1592. No contract which encourages anything illegal, immoral
or dishonest shall be binding. If one party has been persuaded to
enter into such a contract fraudulently, then he or she has the
right to request compensation for losses.
SUB-CHAPTER 6
Duty of Liability
I. GENERAL
PROVISIONS
1593. In every alienation contract for consideration, such as
purchase, barter, distribution of estate and joint property,
pledge and settlement, the alienor shall be liable to the
acquirer for the following:
1) that the property shall not be replevied;
2) that the property has no hidden defects and possesses all
the good qualities which are warranted or presumed.
1594. The duty of liability shall exist, even though such duty
may not be directly specified in the contract.
1595. The duty of liability shall be borne by the alienor,
regardless of whether he or she alienated the property himself or
herself or through his or her substitute; the latter shall be
liable only if he or she has undertaken such directly, or has
exceeded the limits of his or her authorisation. The court shall
not be liable for sale at auction, nor shall a pledgee who
alienates a pledge be liable.
1596. The duty of liability shall pertain to everything that
is the subject-matter of alienation.
If several separate items of property are alienated jointly,
then the alienor shall be liable for the replevin of each
separate item. But, if an aggregation of property (Section 848)
is alienated, then the alienor shall be liable for each separate
item of property therein only if the alienation was intended less
of the aggregation of property than of the separate components,
or if the separate components are specified. If, on the other
hand, alienation of the aggregation of the items of property was
intended as alienation of the whole, then the separate items
shall be recognised as alienated in the state they were at the
time, assuming, however, that the alienor did not act in bad
faith.
1597. In risky contracts, including speculative purchases, the
alienor shall not be subject to the duty of liability, unless he
or she has acted in bad faith.
II. Replevin
Liability
1. Liability
Conditions for Replevin
1598. Replevin requires that the property shall be replevied
from its acquirer for the benefit of a third person, fully or in
part, by specific court procedures, based on such right as was in
effect at the time of alienation.
1599. Replevin which is possible only in the future shall not
create claims related to replevin which has already taken
place.
1600. In the case of a past replevin (Section 1598), the duty
of liability towards the acquirer of property shall remain with
the alienor, whereby replevin in this case for the benefit of a
third person is not only on the basis of ownership rights, but
also any other property rights.
If a third person brings an action concerning a particular
servitude, except a usufruct, then the provisions specifying
liability for defects (Section 1612 and subsequent Sections) are
applicable.
1601. As soon as a replevin action is brought against an
acquirer, he or she shall invite the alienor to participate in
the trial process and replace him or her, but if there have been
several alienors, all of them shall be invited.
If the alienor, after being invited, does not participate in
the trial and does not undertake to replace the acquirer, then
the latter shall conduct the trial by himself or herself and
shall use all the means of defence known and available to them
against the action which has been brought.
If the acquirer did not invite the alienor to participate in
the trial in time, or is negligent in the conducting of the
trial, or makes a settlement with the opponent, or submits the
matter to arbitration, then he or she shall lose the right to
bring an action against the alienor.
1602. Not inviting the alienor to participate in the trial
shall not harm the acquirer:
1) if the acquirer has been released from this duty by means
of a contract;
2) if the alienor is absent and his or her place of residence
is unknown;
3) if the alienor has intentionally delayed the
invitation.
2. Cases When
the Alienor Shall not be Subject to the Duty of Liability
1603. The alienor shall not be subject to the duty of
liability:
1) if the acquirer loses the alienated property not pursuant
to a court judgment, but pursuant to an administrative order, or
in connection with force or a natural force;
2) if the reason for recovery became applicable only after the
actual alienation and, therefore, due to the acquirer's own
actions or failure to act;
3) if the acquirer, knowing that the property of another
person was being alienated or that it was pledged, did not retain
the right to bring an action for replevin;
4) if the trial is lost and has resulted in replevy due to the
fault or negligence of the acquirer;
5) if pursuant to a contract either the acquirer has expressly
waived the right to seek liability, or the alienor has expressly
repudiated such duty; but if, in addition, the latter has acted
in bad faith, then he or she shall nevertheless compensate the
losses of the acquirer.
1604. An offer to give the acquirer the property already
replevied from him or her and free of any claims shall not
release the alienor from his or her duty of liability.
3. Scope of an
Alienor's Duty of Liability
1605. When alienated property is replevied, its alienor shall
compensate for all losses that the acquirer has suffered
therefrom, including court proceedings costs or the property
itself, unless such expenses have already been paid by the party
to whom the property was adjudged.
1606. If the value of the replevisable property has not
changed, the alienor shall pay court proceedings costs and shall
return only the payment for the property he or she has received.
Otherwise the value of the property at the time of the replevin
shall be considered, with the condition, however, that in no
event shall the acquirer receive more than twice the amount he or
she has paid for it.
1607. If several items of property were alienated for a joint
price, but thereafter only some of them were replevisable, then
the alienor shall be compensated for the replevisable items, even
though the value of the other items might be equal to the total
sum paid for all of the items together.
1608. If a part or certain appurtenances of an alienated
property are replevisable, not only their specific value itself,
but also the resulting decrease in the value of the other, not
replevisable items, shall be taken into account.
1609. If the contracting parties have specially agreed between
themselves on the amount of compensation in the event of a
property being replevied, then the matter shall be decided on the
basis of such agreement.
1610. If there are several alienors, they shall not bear the
duty of solidary liability, but each shall be liable for his or
her own share.
1611. The alienor's duty of liability shall continue as long
as anyone may make bring an action against the alienated
property, and it shall end no sooner than when the acquirer
through prescription acquires the property rights in regard to
this property which were alienated from him or her. However, if
immovable property is alienated, and an invitation has been made
with the alienation, the duty of liability shall end if no claims
have been made by the expiration of the term specified in the
invitation.
III. Liability
for Defects and Characteristics
1. Alienor's
General Liability
1612. The alienor shall be liable not only for the faults and
defects of the alienated property of which he or she had
knowledge but did not declare, but also for hidden defects of
which he or she did not have knowledge.
1613. The alienor shall not be liable for insignificant
defects which do not hinder general use of a property, nor for
defects regarding which the acquirer had knowledge or which could
not remain hidden to him or her after ordinary inspection.
The alienor shall also be released from any liability if the
defects of a property were known only to the substitute for the
acquirer.
1614. Liability for defects of a property shall fall upon the
alienor only if they already existed before the entering into of
the alienation contract and did not arise thereafter.
Defects, which existed in a property before its alienation but
were remedied during the alienation, shall not have any
significance.
1615. Non-declaration of generally known charges on an
alienable property shall not subject the alienor to any
liability.
1616. The alienor shall in any case be liable for defects he
or she has declared to be non-existent.
1617. Even though the alienor may, by means of a special
contract, repudiate liability for defects, nevertheless, even in
such case he or she shall be released from it only if he or she
did not in bad faith conceal such defects from the acquirer or
fail to disclose them to him or her.
1618. If the alienor has expressly declared that the property
has certain good characteristics, he or she shall be liable for
such, even in such case when he or she has declared it only after
the alienation.
Praising the property in general terms shall not impose any
other duties upon the alienor except for the general liability
borne by every alienor.
2. Scope of the
Alienor's Liability and Means of Defence for the Acquirer
1619. If the alienor has assumed liability within certain
limits, then nothing may be required of him or her beyond such
limits, unless he or she acted in bad faith.
1620. The alienor who has failed to disclose or concealed, in
bad faith, certain defects of the property he or she was aware
of, or has expressly declared that it has certain
characteristics, shall compensate the acquirer for all
losses.
In all other cases the acquirer shall only have the right to
request pursuant to his or her own choice either the setting
aside of the contract, or a reduction in the price of the
property.
1621. An action for revocation of a contract shall not be
admissible in the sale of property of little value.
1622. The purpose of an action for revocation of a contract is
to take back sold property and to return payment or some other
performance received for such.
1623. The alienor shall return the payment and interest
received for a property and, in addition, shall reimburse the
necessary and useful expenditures incurred for the benefit of the
property, as well as property alienation costs and reduction in
the value of the property resulting since the alienation;
therewith the alienor shall release the acquirer from all duties
he or she has had to undertake pursuant to the alienation
contract, or as a result of it.
1624. When an acquirer brings an action for revocation of a
contract, he or she shall return the property with all its
appurtenances, as well as the fruits both received and not
received due to negligence. In addition, he or she shall
compensate for losses which have been incurred as result of his
or her fault, and release the property from charges and
encumbrances if he or she has encumbered such property. Until all
of the above mentioned has been performed, the acquirer may not
require that the alienor perform the duties specified in Section
1623.
1625. The purpose of an action for property price reduction is
to reduce the price or any other performance received equal to
the lesser price or performance which would have been received
for the property if its defects had been known.
1626. Before a contract is revoked (Section 1622 and
subsequent Sections), an action for price reduction may be
renewed several times because of the defects of the same
property, with the condition, however, that the acquirer shall
not profit by it.
1627. Before a judgment is rendered in an action for price
reduction, the plaintiff shall always have the right to bring an
action for revocation of the contract instead of the first
mentioned action, if he or she finds the object entirely useless,
however, the plaintiff shall pay the opposing party's court
proceedings costs for the earlier case.
1628. The acquirer may defend his or her rights not only by an
action in accordance with the procedure specified in Sections
1619 and 1620, but, on the same grounds of having the right to
claim, he or she may also make an objection of inadequate
performance of the contract against the alienor's action for
counter-performance (Section 1591).
1629. If the contract was entered into by several acquirers in
solidarity, they may also bring an action in solidarity. The
heirs of the acquirer shall have the right to bring an action to
revoke the contract only jointly; each heir may also bring an
action for price reduction independently of the others, in the
amount of his or her share.
1630. If a contract was entered into by several alienors
jointly, they shall answer to both actions (Section 1620) in
solidarity. If there are several heirs of the alienor, actions
may brought only against each of them separately, in the amount
of the share of each.
1631. Actions may also be brought regarding appurtenances and
parts of the principal property, as well as to separate objects
in aggregations of property, assuming, however, that duty of
liability exists in relation to each of them separately (Section
1596, Paragraph two). In such a case, although only one of the
objects might have a defect, it may be requested either that the
whole be taken back, or that the price be reduced, or that
compensation proportionate to the whole be given.
1632. If an alienated property is recovered or accidentally
destroyed, this shall not prevent the actions brought on account
of its defects or promised but unfulfilled characteristics.
1633. The right to bring an action to revoke a contract shall
be extinguished through prescription six months from the day of
entering into the contract, or from the day of any special
guarantee (Sections 1616, 1618 and 1619) being given.
1634. The right to bring an action for price reduction shall
lapse a year from the day of entering into the contract, or from
the day of any special guarantee (Sections 1618 and 1619) being
given.
Chapter Three
Obligations and Claims arising from Wrongful Acts
Sub-chapter One
Wrongful Acts and Degrees of Fault
1635. Every delict, that is, every wrongful act per se, as a
result of which harm has been caused (also moral injury) shall
give the person who suffered the harm therefrom the right to
claim satisfaction from the infringer, insofar as he or she may
be held at fault for such act.
By moral injury is understood physical or mental suffering,
which are caused as a result of unlawful acts committed to the
non-financial rights or non-financial benefit delicts of the
person who suffered the harm. The amount of compensation for
moral injury shall be determined by a court at its own
discretion, taking into account the seriousness and the
consequences of the moral injury.
If the unlawful acts referred to in Paragraph two of this
section are expressed as criminal offences against a person's
life, health, morals, inviolability of gender, freedom, honour,
dignity or against the family, or minors, it is presumed that the
person who suffered the harm as a result of such acts has been
done moral injury. In other cases moral injury shall be proved by
the person who suffered the harm.
Note. The term act is used here within the widest meaning,
including not only acts, but also the failure to act, that is,
inaction.
[26 January 2006]
1636. If a person exercises a right belonging to him or her,
or acts pursuant to the wishes of the aggrieved party, or is
forced to act in justified self-defence due to the unlawful acts
of the latter party, there is no delict.
1637. Children under seven years of age, as well as persons
with disorders of mental nature or other health disorders, who
have not be able to understand the meaning of their action or
have not be able to control their action, shall not be held
liable for delicts.
Persons with the capacity to act shall not be held liable for
delicts if they committed the delict while unconscious or being
unable to understand the meaning of their action or being unable
to control their action. Persons, whose condition is self-induced
by means of alcoholic beverages, or other means, shall be held
liable for their delicts.
[29 November 2012]
1638. If a subordinate commits a delict pursuant to the orders
of his or her supervisor, the former shall not be held liable if
the act is not itself criminal.
1639. A person who allows a delict to take place shall be
liable for it in circumstances where, due to his or her personal
relationship with the transgressor, as one of the parents or as
the employer, he or she has the opportunity, and therefore the
duty, to prevent such a delict.
[22 December 1992]
1640. There are various degrees of fault, depending on whether
the act was committed with wrongful intent, or only due to
negligence.
1641. As wrongful intent shall be understood every intentional
harm.
1642. If both parties acted with wrongful intent, with one and
the same purpose, and in relation to the same subject-matter,
then one party may not bring an action against the other on this
basis. However, if only one party acted with wrongful intent,
then the party who thereby suffered harm shall have the right to
request satisfaction from the other, even if he or she is at
fault for negligence.
1643. Any previous agreement not to compensate for losses from
an act committed with wrongful intent shall be void. However, the
aggrieved may waive a claim regarding a wrongful act if he or she
is sufficiently informed regarding both the claim and the basis
thereof.
1644. If a person inflicts harm upon another without wrongful
intent, if such person is at fault for the wrong, then he or she
acted negligently.
Negligence can be gross or ordinary.
1645. A person acts with gross negligence if his or her
conduct is reckless and careless in the highest degree, or if he
or she acts with less care towards the property of another
entrusted to him or her than he or she would apply to his or her
own property, or if he or she initiates a course of action the
harmfulness and dangerousness of which could not and should not
have been unknown to him or her.
In terms of compensation for losses and other legal
consequences, gross negligence shall be wholly equivalent to
wrongful intent.
1646. Ordinary negligence shall be considered to be that lack
of care and due diligence as must be observed by any reasonably
prudent and careful owner.
1647. When a person gives the same kind of care to the
property or business activities of another as he or she usually
does to his or her own, he or she shall not be liable for
negligence in such cases as indicated in the relevant sections,
unless such negligence was gross.
1648. If, in contractual relations, one party has the duty to
safeguard a certain property, then regardless whether it is
pursuant to the provisions of the contract or of law, the party
upon whom this duty is imposed shall be liable both for the theft
of the property, as well as for the acquisition of ownership of
the property by a third person through prescription.
1649. In claims arising solely from delicts that do not affect
already existing contractual relations, the transgressor is
liable for all, even ordinary negligence.
The provisions regarding the degree of negligence to be
considered as fault in the relations arising from the contract,
or from the administration of the property of another, as well as
in bringing actions against a person as regards the possession of
the property of another, are set out in the relevant
sections.
1650. If two persons are mutually at fault for negligence, the
claims arising therefrom shall be mutually adjusted to the extent
to which they cover each other.
Sub-chapter Two
Default
I. Types of
Default
1651. Default is the illegal delay of the performance of
obligations or the acceptance of performance. The former refers
to the debtor in default, the latter to the creditor.
1. Default of
the Debtor
1652. The debtor shall be in default per se with all its
consequences:
1) when the debtor has gained possession of property by
criminal or generally illegal means;
2) when it is not possible to contact the debtor during the
time designated for performance and the absence is without good
cause;
3) when the debtor has allowed the time period set either by
law or contract, or also by custom for performance to elapse.
[23 May 2013]
[23 May 2013]
[26 January 2006; 23 May 2013]
1653. In other cases, in order to declare the debtor in
default, the debtor must first receive a reminder from the
creditor or his or her substitute.
[23 May 2013]
1654. The debtor or his or her substitute must receive the
reminder personally.
1655. The reminder may not be issued at a time when or in a
place where the performance of obligations cannot be reasonably
expected.
1656. A debtor shall not be considered to be in default, if
the reason for the default is reasonable doubt on his or her part
regarding either the obligation required to be performed by him
or her generally, or regarding its scope.
1657. A court may release the debtor from consequential losses
due to default also in other cases where the debtor cannot be
considered at fault due to lack of care, recklessness or
negligence, or if performance did not occur due to force
majeure.
2. Default of
the Creditor
1658. The creditor shall be in default if he or she, without
legal justification, does not accept the performance of the
obligations, which the debtor offers to him or her or his or her
substitute in the manner agreed, in the proper place, and at the
proper time.
The debtor's offer must be such not only in words but also in
actions that there is a real possibility that it will be
performed.
The debtor must offer to perform the obligations in full, and
therefore the creditor's refusal to accept only partial
performance of the obligations shall not be considered to be a
default.
1659. A delay of the debtor's offer for only a short time
shall not give the creditor a valid reason to refuse to accept
the performance, unless the debtor concurrently promises to
compensate for losses, or if the delay is of no significance.
1660. The creditor shall be considered to be in default if he
or she did not arrive for the performance of the obligation at
the appointed place and time when the debtor was present and
ready to perform his or her obligations.
Furthermore, the creditor shall be considered to be in default
if he or she avoids providing the calculations requested by the
debtor in order to pay if such calculations are necessary for the
full payment of the claim.
II. Consequences
of Default
1661. If the debtor is in default, then not only is his or her
obligation still in effect, but also the duty of liability for
accidental destruction of the subject-matter of the obligation
shall be added to it.
The debtor shall not be liable for the accidental destruction
of the subject-matter of the obligation if he or she proves that
this subject-matter would have been destroyed even if the
creditor had received it on time and the creditor would also not
have been able to sell it.
1662. Default shall place a duty upon the debtor to compensate
for all losses to the creditor in full. If compensation must be
made for the value of the subject-matter, such value shall be
calculated based on its highest price since the time of the
default.
1663. If the creditor is not interested in the performance of
the contract due to the debtor's default, then he or she may
request its revocation.
1664. If the creditor is in default, then the risk for the
accidental destruction of the object (Section 1661) is
transferred to him or her, while the debtor is liable only for
the losses which they caused maliciously or with gross
negligence.
The creditor shall compensate the debtor for all losses caused
by his or her default.
III. Prevention
of the Consequences of Default
1665. The consequences of either the debtor's or the
creditor's default may be prevented if the party in default
promises to perform or to accept that which he or she is entitled
to pursuant to his or her contract, and to also ensure to the
opposing party the providing of that which he or she has the
right to receive due to the default.
1666. In applying the provisions of Section 1665, it shall,
however, be assumed that if the debtor is in default, the status
of the matter is such that the creditor does not have a right to
request the revocation of the contract due to this default
(Section 1633), but if the creditor is in default, it shall be
assumed that the debtor has not in the interim submitted the
subject-matter of the obligation to a notary.
[28 October 2010]
1667. If both parties are in default at the same time, then
the consequences of default shall mutually cancel each other and
neither party shall have a basis for bringing an action against
the other on the basis of default.
If both parties are not in default at the same time, then the
later default avoids the consequences of the previous default
which have not yet occurred.
1668. If the opposing party accepts performance after default
without objection, it shall not deprive the right to bring other
actions related to default later, unless it has definitely
rejected from such related claims.
[4 June 2009]
IV. Default in
Respect of Contracts Regarding the Supply of Goods, Purchase or
Provision of Services
[23 May 2013 / Division
shall come into force on 1 July 2013. See Law of 23 May
2013]
1668.1 Within the meaning of this division a
public commissioning party is a person which complies with the
criteria of the commissioning party in accordance with the laws
and regulations in the field of public procurements or criteria
of the public body in accordance with the laws and regulations in
the field of procurements of public service providers.
1668.2 If the obligation provided for in the
contract regarding the supply of goods, purchase or provision of
services is fulfillable, the debtor shall be in default per se
with all its consequences if the debtor has not made a payment
within a period of thirty days after:
1) the day of receipt of an invoice or other equivalent
payment request;
2) the day of receipt of the goods or services if the period
of receipt of the invoice or other equivalent payment request is
not laid down for sure or if the debtor has received an invoice
or other equivalent payment request earlier than the goods or
services;
3) the day on which acceptance or examination (inspection)
provided for in the law or the contract has been performed in
order to determine the conformity of the goods or services with
the provisions of the contract, and the debtor has received an
invoice or other equivalent payment request.
Provisions of this Section shall be applied to contracts
regarding the supply of goods, purchase or provision of services
where the debtor is a public commissioning party, as well as to
the contracts regarding the supply of goods, purchase or
provision of services where none of the contracting parties is a
public commissioning party, unless time period for remuneration
is laid down in the contract.
1668.3 If the creditor has performed his or
her obligations, but has not received payment in due time, he or
she may, without any reminder on the next day following the
payment day laid down in the contract or the deadline of the
payment term, request late payment interest from a debtor for
default in performance of the contract regarding the supply of
goods, purchase or provision of services. The right of the
creditor to request late payment interest shall not be used if
the debtor is not liable for default. The provisions of this
Section shall not apply to contracting parties of which one or
both are public commissioning parties.
If in the contracts regarding the supply of goods, purchase or
provision of services the payment day or deadline of the payment
term is not laid down, the creditor has the right to request late
payment interest from the debtor after one of the terms of
default indicated in Section 1668.2 has set in. The
right of the creditor to request late payment interest shall not
be used if the debtor is not liable for default.
1668.4 If the debtor is a public
commissioning party and a creditor has performed his or her
obligations, but has not received payment in due time, he or she
is entitled to request lawful interest from the debtor without
reminder (Section 1765, Paragraph three). The right of the
creditor to request lawful interest shall not be used if the
debtor is not liable for default.
1668.5 The conformity of the supply of
goods, purchase or service shall be verified within thirty days
from the day of the receipt of goods or service, unless the
contracting parties have definitely agreed otherwise and such
disclaimer is apparently unfair in respect of the creditor.
1668.6 In the contracts regarding the supply
of goods, purchase or provision of services where none of the
contracting parties is a public commissioning party, the
contracting parties may set out a term for payment of
remuneration until sixty days, unless it is otherwise agreed by
them and such disclaimer is apparently unfair in respect of the
creditor.
1668.7 In the contracts regarding the supply
of goods, purchase or provision of services where a debtor is a
public commissioning party, the time periods indicated in Section
1668.2 shall be applied. Contracting parties may agree
on extension of the term for payment of remuneration until sixty
days, insofar as it is justified, taking into account the
obligation to be performed. The time periods laid down in this
Section may not be amended upon mutual agreement between the
contracting parties.
1668.8 In the contracts regarding the supply
of goods, purchase or provision of services the contracting
parties may agree regarding receipt of the performance by parts.
The provisions of this division regarding default shall be
applicable to the default of the time period for payment laid
down in the performance part.
1668.9 For late payment in respect of the
contract regarding the supply of goods, purchase or provision of
services a debtor shall pay debt recovery costs to the creditor
in the amount of 40 euro without any special reminder. The
payment of the debt recovery costs shall not release the debtor
from the obligation to recover all costs suffered by the
creditor, including expenses for lawsuit.
[19 September 2013]
1668.10 Within the meaning of this division
as unfair contract provisions in respect of the creditor shall be
recognised such provisions the purpose of which is to defer
performance of the obligations. The provisions which provide for
refusal of the creditor from lawful interest or late payment
interest or previously assessed losses shall be recognised as
apparently unfair.
1668.11 Provisions of this division shall
not apply to the debtor who is a consumer or a natural person and
who does not perform economic activities.
Chapter Four
Mutual Relations of Joint Obligors
Sub-chapter One
General Provisions
1669. If more than one person from one or the other side or
from both sides participate in an obligation right, then the
claim and relevant obligations thereto shall be either several,
such that each creditor may claim only his or her own part of the
subject-matter and each debtor must perform only his or her own
part of the obligation, or joint.
1670. A claim or an obligation shall be recognised as joint or
solidary when each of several creditors may claim the entire
subject-matter, or when each of several debtors has the duty to
perform it all; the subject-matter may, however, be claimed and
is required to be performed only once. In such case the former
are called joint creditors, but the latter joint debtors.
1671. Included in the essential nature of every solidary
obligation is that it is based on one and the same basis and all
parties have one and the same subject-matter of performance.
However, rights as well as obligations may be unconditional for
one party, but for others time or certain conditions may limit
them.
Sub-chapter Two
Establishment of Solidary Obligations
1672. Solidary obligations may be established pursuant to a
contract, a will or by law.
1673. A contract and a will establish a solidary obligation
only when expressly stated by the contracting parties or the
testator.
1674. Pursuant to law, a solidary obligation is established
when the subject-matter of performance is indivisible, namely,
when it is either a certain action, or inaction, and also when a
certain thing is entrusted jointly to more than one person for
bailment, or lending, rental, or pledge by more than one
person.
1675. If a criminal offence has been committed jointly by more
than one person, they shall be solidarity liable for the losses
caused thereby.
1676. If administration has been a joint one with more than
one administrator or official, they shall have solidary liability
for the duties arising from such administration.
Sub-chapter Three
Consequences of Solidary Obligations
1677. Every joint creditor or person with solidary rights may
claim the entire object of the obligation, but when the claim is
satisfied, the rights to claim of the other joint creditors shall
cease.
1678. A joint creditor who receives the performance of an
obligation (Section 1677) shall give the others a certain part
only when they are in a partnership, or when he or she for some
other reason is charged with such duty pursuant to a contract, a
will or law.
1679. If one joint creditor has granted certain relief, the
rights of the other creditors shall not be restricted
thereby.
1680. If a joint creditor has achieved the reinforcement of or
security for a claim, that shall also benefit the other
creditors.
1681. The debtor has discretion as to which of several joint
creditors will perform an obligation, in addition to which the
debtor may also include possible counterclaims. However, if one
of the joint creditors has already brought an action for
performance, then the debtor shall not have the right to pay any
of the other creditors, and such payment shall not release him or
her from the obligation to the plaintiff.
1682. Each of the joint debtors or solidary obligors may be
compelled to perform the whole obligation, and their performance
shall release the others from their obligations.
1683. A creditor may, pursuant to his or her discretion,
request the performance of the whole obligation from all or from
only a few joint debtors, or from only one debtor, but if the
object of a claim is divisible, the creditor may, if he or she so
wishes, claim only a part. However, a creditor shall not for such
reason lose the right to the whole claim, but may claim the rest
even from the same joint debtor from whom only a part was claimed
previously.
1684. A joint debtor from whom a performance of an obligation
is requested may propose a set-off of only his or her own
counterclaims against the creditor, unless the joint debtors are
in a partnership relationship.
1685. Debt relief, granted by a creditor personally to only
one joint debtor, shall not benefit the other debtors.
1686. A joint debtor who has satisfied a creditor may request
respective compensation from the others, if there are no special
restrictions against such.
If the joint debtor who has paid acted in bad faith, he or she
shall thereby lose the right to compensation from the others.
1687. The other joint debtors shall not be liable for the
consequences of a default which occurred through the fault of
only one debtor, nor shall they be liable for contractual
penalties which were promised by only one of them.
1688. Except for defaults (Section 1687), all other
consequences caused by a wrongful act of a single joint debtor
shall be borne by the others also. Therefore, if the
subject-matter of an obligation has been damaged or destroyed
through the fault of one joint debtor, the others shall also be
liable for losses.
1689. The making of a claim against one of the joint debtors
shall interrupt the running of the prescriptive period for the
claim against the others also.
1690. Every novation, whether made by one joint creditor or by
one joint debtor, shall revoke the rest of the former solidary
obligation.
Chapter Five
Reinforcement of Obligation Rights
1691. The force of an obligation may, in addition to pledge
rights (Section 1278 and subsequent Sections) be reinforced by:
1) a guarantee, 2) contractual penalties, and 3) earnest
money.
Sub-chapter One
Guarantee
I. GENERAL
PROVISIONS
1692. A guarantee is a contractual duty to be liable for the
debt of a third person to a creditor without, however, releasing
the third person from the debt.
1693. Any person having capacity to act may be a
guarantor.
1694. A guarantee shall require an existing principal debt,
and guarantees may be made in regard to all types of obligations,
including those arising from wrongful acts, present and future
obligations, definite and indefinite obligations, conditional and
unconditional obligations, for the whole of the principal debt or
a part of it.
1695. A guarantee shall be made in writing.
II. Consequences
of a Guarantee
1. Duties of a
Guarantor
1696. The obligation of a guarantor shall correspond in
general to the obligation of the principal debtor and therefore
may not apply to a larger sum, nor be unconditional if the
obligation of the principal debtor is only conditional. If the
guarantor has provided a guarantee for a sum that exceeds the
principal debt, then only the sum of the principal debt may be
claimed from him or her; but if the guarantor has unconditionally
guaranteed a conditional debt, the condition shall also apply to
him or her.
1697. If the guarantor undertakes to pay a smaller sum than
the principal debtor has undertaken, or offers only a conditional
guarantee for an unconditional debt, then only that which he or
she has undertaken may be claimed from him or her.
1698. A guarantor shall be liable not only for the principal
debt itself, but also for ancillary claims thereto, losses
arising through the debtor's fault or default, and court
costs.
1699. Several persons who have guaranteed on behalf of one and
the same debtor and in regard to one and the same debt shall have
solidary liability.
1700. When a guarantee is provided on behalf of one and the
same debt jointly by a person with capacity to act and a person
lacking capacity to act, then the entire obligation passes to the
first guarantor if he or she knew or should have known that the
other guarantor did not have the capacity to undertake a
guarantee.
2. Rights of a
Guarantor
A. Guarantor's
Rights against a Creditor
1701. A guarantor against whom a creditor brings an action may
use all the defences of the principal debtor, except those
against which the creditor specifically wanted to protect himself
or herself by means of a guarantee, or when their use is
specifically related to the person of the principal debtor.
1702. When an action is brought against a guarantor, he or she
may request that the creditor first bring an action against the
principal debtor if collection proceedings from him or her can be
accomplished equally successfully and easily.
This right shall not apply if a guarantor specifically
derogates from it. The assuming of the obligation by the
guarantor in lieu of the principal debtor shall also be regarded
as such derogation.
1703. An action may also be brought immediately against a
guarantor:
1) if the principal debtor is absent, or the guarantor is
unable to provide his or her place of residence;
2) if the principal debtor has been proven to be insolvent in
fact, or concursus proceedings regarding his or her property have
been commenced.
B. Guarantor's
Rights against the Principal Debtor
1704. The claim of a creditor against the principal debtor
shall be transferred to the guarantor in such amount as the
guarantor has satisfied the creditor. Claims and objections
arising from the legal relationship existing between the
guarantor and the principal debtor shall remain unchanged.
1705. A guarantor may bring a subrogation action against the
principal debtor only after he or she has actually settled the
debt or part thereof, or at least has had the duty to settle it
imposed upon him or her by a court judgment. The manner of
settlement shall have no effect. A reduction made by a creditor
in favour of a guarantor shall not reduce the guarantor's claim
against the principal debtor.
1706. A guarantor who has paid in lieu of the principal debtor
before the due date of the obligation may request the
reimbursement of this payment from the principal debtor only
after the due date.
If the principal debtor incurs financial losses or squanders
his or her property such that recovery from the guarantor by
means of a subrogation action is unlikely to succeed, then a
guarantor may require security from him or her prior to the
payment.
1707. If the guarantor has given a guarantee as a manager for
the debtor and has finished this management, the guarantor may
claim from the principal debtor a release from the guarantor's
duty prior to the payment.
1708. If a guarantor has paid the debt in good faith, without
making use of the defences and objections known to him or her and
without the consent of the principal debtor, then the defences
that the guarantor could make against the creditor may be made by
the principal debtor in the subrogation action of the
guarantor.
1709. If, after a debtor paid the debt without informing the
guarantor thereof, the latter pays it a second time, then the
guarantor shall have the right of subrogation against the debtor.
However, if a guarantor pays first without informing the debtor
thereof, and the latter therefor also pays, then the guarantor
may no longer take action against the debtor and may claim
repayment of the non-existent debt from the creditor.
III. Termination
of Guarantee
1710. A guarantee shall be terminated by any action that
discharges the principal obligation, releasing the debtor from
it.
1711. A cancellation agreement between a creditor and a debtor
shall also benefit the guarantor, unless there was a contrary
intent, or if the guarantee was not given as a gift, such that
the guarantor has already declined from the very beginning to
bring a subrogation action against the principal debtor.
1712. A guarantee shall be terminated by any event that
releases the principal debtor.
1713. If a creditor and a principal debtor inherit from each
another, then the obligation of a guarantor shall terminate, but
the guarantor shall retain the right to request the return of
that which has been expended by him or her as guarantor. When a
principal debtor and a guarantor inherit from each other, only
the principal debt shall remain in effect, but the guarantee
shall terminate, unless the claim arising from it provides such
benefits to the creditor as the principal claim does not. If,
however, a creditor and a guarantor inherit from each another,
then the guarantee shall terminate, but the obligation of the
debtor shall remain in effect.
1714. The guarantor shall be released from his or her
liability when the creditor has acted negligently in collection
proceedings from the debtor and has permitted an inexcusable
delay under the circumstances.
1715. If a guarantor has undertaken an obligation for a
certain time, then he or she shall be liable only for this
time.
Sub-chapter Two
Contractual penalties
1716. Contractual penalty is a penalty which a person
undertakes to bear regarding his or her obligation in such case
as he or she does not perform the obligation, does not perform it
satisfactorily or does not perform it within due time (time
period).
Contractual penalty for non-performance of the obligation at
all shall be a sum of money or other financial benefit which may
not be laid down in the form of several (repeated) or ascending
payments or supplies.
Contractual penalty regarding unacceptable performance of the
obligation or failing to perform it within due time (time period)
may be laid down ascending, however no more than 10 percent in
total of the principal debt or amount of the main obligation.
[20 June 2013]
1717. The contracting parties shall determine the amount of
the contractual penalty, and it is not limited to the amount of
the losses expected as a result of non-performance of the
contract, however it must be commensurate and conforming to fair
dealing practice.
[20 June 2013]
1718. If someone has to bear contractual penalties, then a
creditor may request either its payment or the performance of the
contract; but if the creditor chooses payment, he or she may no
longer request the performance of the contract, and vice
versa.
If the subject matter of a contract was a promise not to do
something, then only a contractual penalty may be claimed.
1719. The person who suffers contractual penalties may not
choose between performance of the contract and payment of the
contractual penalties.
1720. A creditor may claim both contractual penalties and
performance of the contract:
1) if such was expressly agreed;
2) if the contractual penalty agreed to was not based on
non-performance in general, but for failure to perform in the
proper time.
1721. If someone performs only part of his or her obligation,
then he or she must, nevertheless, pay the entire amount of the
contractual penalty, not only the proportionate part.
1722. Contractual penalty regarding unacceptable performance
of the obligation or failing to perform it within due time (time
period) may be requested only in such amount in which it exceeds
the requested amount of interest, which has formed after the time
of setting in of the non-performance.
Contractual penalty for non-performance of the obligation at
all may be requested only in such amount in which it exceeds the
amount of losses to be collected, unless it is expressly agreed
that the contractual penalty excludes such remuneration.
[20 June 2013]
1723. The right to claim contractual penalties, as well as
liability for the payment of such, shall devolve to the heirs of
the respective person; but if there is more than one heir, they
shall not be liable solidarily.
1724. When a principal obligation terminates, the agreed
contractual penalties shall also automatically terminate.
1724.1 A court shall reduce the requested
contractual penalty until reasonable amount if it is excessive
comparing to losses caused by non-performance or undue
performance or taking into account other circumstances. If
contracting parties have agreed that payment of contractual
penalty releases a person suffering from such penalty from
interest and fruits due from him or her, as well as compensation
for losses, then the amount of the reduced contractual penalty
may not be less than the losses caused to other contracting
party.
[4 June 2009; 20 June 2013]
Sub-chapter Three
Earnest money
1725. Earnest money shall mean that which is given by one
party to the other party at the time of entering into a contract
not only as proof that a contract has been entered into, but also
to secure its performance.
1726. Money as well as other valuable property may also be
used as earnest money. The amount thereof shall be determined by
mutual agreement of the parties.
1727. The promise of earnest money by itself shall not be
sufficient, and rights regarding it shall be established only by
it being given.
1728. Upon earnest money being given a contract shall be
considered to be entered into if otherwise it complies with all
requirements of law, and either party may demand its
performance.
1729. When a contract secured by earnest money has been
performed, the earnest money shall be either returned to the
party from whom it was received, or included in the performance
of the contract, unless the contracting parties have expressly
agreed otherwise.
1730. If a contract is not performed either because it was
revoked by mutual, voluntary agreement, or because its
performance became impossible through no fault of the giver of
the earnest money, then the earnest money must be returned to the
latter.
If a contract is not performed through the fault of one
contracting party, then if the recipient of the earnest money is
at fault, he or she must give twice the sum to the giver; but if
the giver of earnest money was at fault, he or she shall lose the
right to request its return. Moreover, the party at fault shall
compensate the opposing party for all losses.
1731. If the parties have agreed that a contract already
entered into may be revoked, forfeiting the earnest money, and
if, as a result, the giver of the earnest money withdraws, he or
she shall forfeit, but if the opposite party withdraws, he or she
must repay twice the amount of the earnest money.
This provision shall be applied if the contracting parties
have agreed that, upon the failure of one party to perform his or
her obligations within the specified term, the other party shall
be released from his or her obligation.
Chapter Six
Protection of Obligation Rights
1732. Obligation rights, like all other private rights, shall
be protected only through the courts; therefore no one may seek
their rights by arbitrary and forcible means.
1733. Self-help shall be permitted only in exceptional
circumstances, when its purpose is to prevent an attempt to
illegally alter existing relations, but even in such case, only
within the necessary limits of self-defence. The principal means
of protecting obligation rights outside of a court include
detainer rights and distress.
Sub-chapter One
Detainer Rights
1734. On the basis of detainer rights a person who is in
possession of certain property may keep it until his or her own
claim is satisfied.
1735. Detainer rights (Section 1734) belong to the lessor of a
fruit-bearing parcel of land in regard to production from the
parcel of land and to the movable property of the lessee located
there, because of a late payment under the lease, as well as all
other claims that might arise against a lessee on the basis of a
lease. The lessor shall also have the same right against a
sub-lessee to whom the lessee has sub-leased his or her lessee
rights.
1736. Detainer rights belong to the person who rents out a
building or premises therein, or an open lot not meant for fruit
production, and these rights shall be applicable to property of
the tenant which the tenant has brought into the building or onto
the lot for use or storage, including goods, but not intangible
property and claims of the tenant, even if documents regarding
such were brought there; these detainer rights belong on the
basis of claims arising from the rental contract. If a tenant
further sublets the building or the lot, then the property
brought there by the sub-tenant shall also be liable to the
claims of the original landlord, insofar as the sub-tenant shall
be liable to their landlord. This shall not restrict the right of
the tenant to freely use his or her property as long as the
landlord has not detained it.
1737. Detainer rights may be exercised only when the person
detaining has gained possession of a property by lawful means,
and when his or her claim against the opposite party concerns the
detained property, and also when the obligation is already due to
be performed and is neither restricted by a condition nor by a
term.
1738. The connection of the right to claim with the detained
property (Section 1737) shall be recognised:
1) when the possessor has incurred expenditures with respect
to such property, which the opposing party must reimburse;
2) when the claim of the possessor has arisen from the same
transaction in relation to which he or she is being requested to
return the property;
3) when a debt must be paid from the detained property;
4) when someone has suffered a loss from the property of
another, and the owner must compensate for it;
5) when the property must be returned in exchange for a
certain counter-performance; in such case the property may be
detained while the promised counter-performance has not
occurred.
1739. The person detaining shall keep the property with the
same care as is applicable regarding a possessory pledge and he
or she shall not have the right to discharge his or her claim by
alienating the property or otherwise expending it.
1740. Detainer rights shall terminate when a counterclaim is
discharged, or when the possessor surrenders possession of the
property without exercising the detainer rights; however, the
possessor shall not thereby lose the right to claim.
Sub-chapter Two
Distress
I. Purpose of
Distress
1741. Distress rights are rights possessed by the owner of a
parcel of land or his or her substitute (user, lessee, manager),
if the domestic animal of another enters his or her parcel of
land or if strangers intrude illegally thereon, to catch and
detain domestic animals, and take property from persons.
A thief may also be personally detained.
Servants of the owner or his or her substitute, even without
their being specifically instructed to do so, may also exercise
distress right.
1742. The purpose of distress is to ensure compensation for
the losses inflicted, to provide evidence of delict, or merely
prevent the occurrence of such violation or loss.
II. Distress
Provisions
1743. Distress shall be lawful only if it occurs at the time
of the action itself and within the boundaries of the parcel of
land wherein the losses or delict occurred.
1744. The distrainor shall avoid excessive force and cruelty,
and shall in general do nothing that is not necessary or which
would exceed that which is required for the lawful purpose
(Section 1742).
1745. No one has the right to resist distress, and resistance
to it by means of counter distress shall be considered to be
prohibited self-defence.
1746. If the person whose property has been distressed was not
present at the distress, he or she must be informed immediately
thereof, but if the person is unknown, the local police must be
informed so as to examine the loss without delay and inform the
relevant persons thereof.
1747. The distrainor shall be responsible for safe-keeping of
the distressed property, and in particular for the care and
feeding of the distressed animals; but he or she may not use them
for his or her own benefit, otherwise he or she shall not only
lose any right to reimbursement of the expenses for keeping and
feeding them, but shall have to compensate for all losses. The
distrainor shall be obliged to milk the milch animals.
Note. Compensation rates for the keeping of distressed animals
shall be issued and published for general knowledge by the
Minister for Agriculture in consultation with the Minister for
the Interior.
III.
Consequences of Distress
1748. If distress occurred as a result of losses inflicted, it
shall be presumed that the losses were actually inflicted. The
distrainor must prove the extent of the losses.
1749. A distrainor shall have the right to keep the distressed
property at his or her place as long as the person whose property
has been distressed has not redeemed it and compensated not only
for the losses inflicted, but also for all the expenditures for
distress, care and feeding.
1750. As soon as the person whose property has been distressed
ensures compensation for losses by some other acceptable means,
the distressed property shall be returned to him or her
immediately.
1751. If the person whose property has been distressed is
unknown and does not appear pursuant to notice (Section 1746),
then the police shall sell the distressed property at auction,
make payment for compensation of the losses and expenditures of
the distrainor from the sum received, and pay the remainder to
the person whose property was distressed, if he or she appears
within six months; after that the surplus shall be paid into the
State revenues.
1752. If the person whose property has been distressed is at
fault for some wrongful act, then he or she shall, in addition to
the compensation for losses, pay distress or redemption money,
which shall also be paid in such cases when only possession has
been disturbed, although no losses have been incurred.
Note. Distress money shall be taken for each distressed animal
according to the rates issued every three years and published for
general knowledge by the Minister for Agriculture in consultation
with the Minister for the Interior.
Chapter Seven
Interest
1753. Interest shall mean the compensation to be given for
granting use of, or for lateness relating to a sum of money or
other fungible property (Section 844), proportionate to the
amount and the duration of use thereof.
1754. In regard to interest it is always required that there
be a principal or capital debt.
1755. The same type of property as the principal debt consists
of shall be given as interest; regarding monetary debts, however,
the parties may specifically agree that as interest the creditor
shall have the use of some property of the debtor, or receive
some other performance from the debtor.
Sub-chapter One
Creation of Interest Obligations
1756. The duty to pay interest shall be based either on a
legal transaction or on law.
1757. In contracting for interest, the interest rate shall be
specified. If that is not done, it shall be considered that the
interest rate set by law has been implicitly agreed to (Section
1765).
1758. Among traders who have running accounts one with
another, it shall be deemed that it is implicitly agreed that
interest set by law shall be added to the net balance which
appears when such accounts are settled, even without prior
express agreement therefor.
1759. Interest shall also be paid even if not specifically
agreed to, on the basis of law, in the following cases:
1) regarding lateness in regard to each payment of a debt,
even though the debt itself may be interest-free; such interest
is called late payment interest;
2) regarding another person's money - not only when a holder
thereof has used it for the holder's own benefit, but also when
the holder has a duty to deposit this money in an
interest-bearing account and failed to carry out such duty;
3) regarding all the moneys that an authorised person or any
person in charge of the property of another person advances on
behalf of the person they substitute for;
4) regarding goods which traders or other tradespersons have
given on credit to persons not belonging to their trade,
beginning from the time when, according to local custom, trade
accounts submitted to the purchaser must be paid, unless it has
been otherwise agreed regarding the time of payment;
5) regarding claims secured with fruit-bearing property
transferred to the possession of the creditor (Section 1362).
1760. Interest set by law (Section 1759) shall not be demanded
separately, but together with the principal obligation and
therefore such interest may not be demanded subsequently if at
the relevant time silence was maintained regarding it or the
payment of the principal debt was accepted unreservedly.
Sub-chapter Two
Termination of Interest Obligation
1761. The duty to pay interest terminates in regard to each
separate period of time:
1) upon payment;
2) pursuant to an abatement, which shall be deemed to have
implicitly taken place regarding interest set by law, if a
receipt is issued without any objections when the capital sum is
received;
3) through prescription if by the time the prescriptive period
elapses interest has neither been paid by the debtor nor demanded
by the creditor.
1762. The duty to pay interest shall terminate completely:
1) with the termination of the principal obligation;
2) in regard to late payment interest, when a debtor tenders
payment; but if a creditor specifically extends the period for
payment of the capital, late payment interest shall also not
apply in regard to the elapsed time;
3) in the case set out in Section 1760.
1763. Augmentation of interest shall cease:
1) when the amount of interest still outstanding has reached
the amount of the capital sum;
2) when concursus proceedings are instituted in regard to the
property of the debtor.
Sub-chapter Three
Restrictions regarding Interest
1764. In all financial transactions and documents, which
establish the duty to pay interest, interest may be contracted
for, in an amount which may be determined by agreement of the
contracting parties, but in unilateral documents - by the issuers
thereof pursuant to their discretion, to the extent restrictions
are not provided for by law in regard to this. Interest which is
non-commensurate and non-conforming to fair dealing practice
shall be regarded as unlawful.
[20 June 2013]
1765. The interest rate shall be precisely stipulated in the
document or transaction. If this has not been done, as well as in
cases where the law requires calculation of lawful interest, that
is, at six per cent per year.
The lawful interest amount for the late payment of such a
money debt, which is contracted for as compensation in the
contract for the supply of goods, for purchase or provision of
services shall be eight percentage points above the basic
interest rate (Section 1765, Paragraph three) per year, but in
contractual relations in which a consumer participates - six per
cent per year.
The basic interest rate shall be final interest rate which the
European Central Bank has applied in the latest main refinancing
operations carried out before the first calendar day of the
relevant half-year. The basic interest rate in effect in the
first calendar day of the relevant half-year shall be applied in
the further six months.
Interest shall be calculated only on the principal itself. But
if within the term stipulated interest is not paid for one year
or more, then pursuant to the demand of the creditor lawful
interest shall be calculated on the outstanding amount of
interest from the commencement of the term referred to.
[26 January 2006; 23 May 2013; 19 September 2013]
1766. When a special promissory note is issued in regard to an
outstanding debt or when a new promissory note is received in
place of an earlier one for the capital itself plus the
outstanding interest, the creditor may calculate new interest in
regard to the outstanding interest.
1767. In financial transactions where the contractual interest
rate exceeds interest set by law (Section 1765) a debtor has the
right, six months after entering into the transaction, to
accordingly repay the capital sum, but with the condition that
the creditor shall be given notice thereof not less than three
months in advance.
1768. The term with respect to payment of interest shall
depend on the mutual agreement of the contracting parties who may
also stipulate payment in advance.
1769. The return of interest that has been paid by mistake
without a duty to pay, as well as sums larger than due, may be
claimed.
CHAPTER 8
Losses and their Compensation
Sub-chapter One
Types of Losses
1770. A loss shall be understood to mean any deprivation which
can be assessed financially.
1771. Losses may be either such losses as have already arisen,
or such losses as are anticipated; in the former case they give
rise to a right to compensation, but in the latter case to a
right to security.
1772. A loss which has already arisen may be a diminution of
the victim's present property or a decrease in his or her
anticipated profits.
1773. A loss shall be considered: direct where it is the
natural and inevitable result of an illegal act or failure to
act; indirect where it is caused by an occurrence of particular
circumstances or relationships; and accidental where caused by a
chance event or force majeure.
1774. An accidental loss is not required to be compensated by
anyone. Therefore, if a fortuitous impediment prevents a person
from performing an obligation that has been undertaken, it shall
be considered that circumstances are as if the person had
performed the obligation, unless the person had accepted the risk
of casualty loss in a contract.
Note: Exceptions to this provision are set out in Section 1421
and subsequent Sections, and in Section 1661 and subsequent
Sections, as well as in the provisions regarding various specific
types of contracts.
1775. Compensation shall be payable for any loss which is not
accidental.
Sub-chapter Two
Right to Claim Compensation
1776. A victim shall take such measures for prevention of
losses which are reasonable under the relevant circumstances.
A transgressor may request reduction in the amount of losses
to be compensated in such amount in which a victim could have,
through the exercise of due care (Section 1646), prevented the
loss, except in a case of malicious infringement of rights.
A victim has the right to claim compensation for such losses
from which he or she could not avoid by taking the measures
referred to in Paragraph one of this Section.
[4 June 2009]
1777. Victims may not claim compensation for losses they have
suffered from being on a shooting training area during a time
when the armed forces were engaged in military training, unless
the troops have not complied with the regulations specially
issued for such cases.
1778. Compensation for losses may be claimed not only by the
victim but also by the victim's heirs.
Sub-chapter Three
Duty to Compensate for Losses
1779. Everyone has a duty to compensate for losses they have
caused through their acts or failure to act.
1779.1 A person who causes the losses shall
compensate the losses in such amount which could have been
reasonably foreseen upon entering into a transaction as expected
consequences of non-performance, unless such non-performance has
occurred through malicious intention or rough negligence.
[4 June 2009]
1780. Losses that have been caused by children who are not
more than seven years of age, by a person with disorders of
mental nature, who was not able to understand the meaning of his
or her action or was not able to control his or her action, or by
a person having capacity to act but when the person is in a state
of unconsciousness or being unable to understand the meaning of
his or her action or being unable to control his or her action,
shall be compensated for from the property of these persons to
the extent that they are not deprived of means needed for their
maintenance. If losses have occurred through the negligence of a
person whose duty it is to supervise the aforementioned persons,
such person shall be primarily liable regarding the losses to the
extent of his or her own property.
[29 November 2012]
1781. A person who has instructed another person to perform a
wrongful act shall be liable for the action of the other person,
notwithstanding that the acts of such person exceed the limits of
the instructions. A person who has given another person cause for
such action as results in losses to a third person shall
similarly be liable.
1782. A person who fails to exercise due care in choosing
servants or other employees and to previously satisfy himself or
herself as to their abilities and suitability to perform the
duties as may be imposed on them shall be liable for losses they
cause to a third person thereby.
1783. A duty to compensate for losses shall pass to the heirs
of the person who causes the losses, unless otherwise provided
for by law.
1784. If a person suffers losses from the illegal actions of
another person outside the scope of contractual relations, the
person causing the losses shall be liable for all such losses
(Sections 1772 and 1773).
1785. If the duty to compensate for losses arises from a
breach of contractual obligations, then the amount of
compensation shall be determined in accordance with the
contract.
Sub-chapter Four
Valuation of Losses
1786. In evaluating losses one shall consider not only the
value of the principal property and its appurtenances, but also
the detriment indirectly caused by the loss having taken place
and lost profits.
1787. Mere possibilities shall not be used as the basis for
calculating lost profits, rather there must be no doubt, or it
must at least be proven to a level that would be credible as
legal evidence, that such detriment resulted, directly or
indirectly (Section 1773), from the act or failure to act which
caused the loss.
1788. When a monetary debt is not paid by the due date, the
creditor may demand only the interest set by law in compensation
for the lost profits, unless the creditor is able to definitely
prove that the losses suffered exceed such sum of interest.
1789. In evaluating particular property, one shall consider
not only its normal value, but also its special value to the
injured party. Value based only on personal inclinations (Section
873) need not be considered.
1790. In evaluating losses, the place of performance shall
also be taken into account: if such place is specified in the
contract, the value at such place of the property regarding which
compensation is to be made shall be observed; but if it is not
specified, the price existing at the place where the action for
compensation of losses was brought shall be determinative.
1791. If a loss has resulted from a breach of contractual
relations and a specific term was specified for the performance
of the contract, such term shall be taken into account in
evaluating the loss. However, if a term was not been specified in
the contract, the time period in which a judgment regarding the
compensation of the losses has been rendered and come into effect
shall be taken as the basis in regard to the valuation.
1792. If a claim for compensation of losses has arisen not
from a breach of contractual obligations, but from acts which are
of themselves illegal, then the loss valuation shall correspond
to the value of the subject-matter at the time the loss was
occasioned.
CHAPTER 9
Cession of Right to Claim
Sub-chapter One
Legal Basis for Cession
1793. Claims may be transferred from a former creditor to a
new one by cession, which may take place:
1) pursuant to law, without an expression of intent from the
former creditor;
2) pursuant to a judgment of a court;
3) pursuant to a lawful transaction, regardless of whether it
was entered into by the creditor on the basis of a legal duty or
voluntarily.
1794. Persons acting for another and, in general, all
substitutes shall cede all the rights acquired on the basis of
their authorisation or their authority to act as a substitute to
the person whose business affairs they conduct, or in general to
the person they act on behalf of.
1795. If a person has the duty to relinquish a certain
property, then he or she shall also cede all rights pertaining to
such property.
1796. A person who must compensate another person for lost or
damaged property may also require the cession to him or her of
the claims relating to this property.
1797. A person who in lieu of a debtor satisfies a creditor
shall provide by contract that the creditor cedes the claim to
him or her, either before the satisfaction or during the time of
satisfaction, and if this has been done, then the claim per se
shall be considered to have been ceded to him or her at the
moment of satisfaction.
Sub-chapter Two
Subject-matter of Cession
1798. All claims may be the subject-matter of a cession,
irrespective of whether they arise from a contract, or from
wrongful acts, including also such claims as to which their term
has not come into effect, as well as conditional and even future
and uncertain claims.
1799. Exceptions to the provisions of Section 1798 are:
1) all claims the exercise whereof is associated with the
person of the creditor, whether pursuant to an agreement of the
contracting parties or pursuant to law;
2) claims the substance whereof would alter completely if they
were performed for another person, rather than the actual
creditor.
1800. If no other agreement has been made, the cession of the
right to bring an action shall be considered to be the cession of
the claim which is the subject-matter of the action; but only the
right to claim shall be transferred to the cessionary (Section
1801), rather than the contractual relation giving rise to the
rights.
Sub-chapter Three
Form of Cession
1801. A contract of cession between the creditor who cedes the
claim (the cedent), and the person to whom it is ceded (the
cessionary) may be entered into in any form whatsoever. The
consent of the debtor against whom the claim is directed is not
required, and the cession shall be in effect even if the debtor
has no knowledge thereof.
1802. If a deed has been drawn up regarding the claim to be
ceded, in addition to being delivered to the person to whom it is
ceded, either an endorsement shall be written on the deed in
respect of the cession or a special document shall be drawn
up.
1803. A promissory note may be ceded with an endorsement
either in the name of a specific creditor or any bearer. In terms
of transfer, the latter type of promissory note, as well as
promissory notes with a blank endorsement, are subject to the
provisions of the law regarding bearer paper.
Sub-chapter Four
Consequences of Cession
1804. Regardless of cession, the former creditor shall still
be the creditor until such time as the cessionary receives
satisfaction from the debtor, or has brought an action against
the debtor, or at least has informed the debtor of the cession in
an appropriate manner. Until such time, the debt may also be paid
to the cedent, as well as a settlement may be made with the
cedent, and likewise the cedent retains the right to claim.
1805. The cessionary may exercise the rights of the creditor
from the moment of cession and take action with respect to the
claim on this basis, ceding it to another and using it against
the debtor.
1806. The cessionary shall not gain more or greater rights by
cession than the cedent had, but the right to claim itself is
transferred to the cessionary with all the rights belonging to it
at the moment of cession, even if they were based on personal
goodwill towards the cedent, insofar as no exception to this
provision has been specified regarding them.
The rights to the outstanding interest, if not otherwise
specifically agreed to by contract, shall be transferred to the
cessionary.
The cedent shall deliver everything to the cessionary which
may serve as evidence of the claim or which can facilitate the
collection proceedings thereof, as well as everything he or she
has received from the debtor even after the cession.
1807. The cession may not be to the detriment of the situation
of the debtor, therefore if the cessionary personally holds any
priority rights with respect to the debtor, he or she may not use
them.
1808. The debtor may raise all their objections against the
cessionary personally, as well as the objections he or she had
against the cedent before the cession, and at the time of the
cession. The debtor may also include the counterclaims against
the cessionary, which he or she had against the cedent at the
time when he or she was informed of the cession.
1809. If a promissory note is ceded with a blank endorsement,
then the debtor may raise not only his or her own objections
against the cessionary, but also those objections he or she had
before the cession and at the time of the cession against the
last cedent and the previous cedents whose names appear on the
promissory note.
1810. The cedent is liable to the cessionary for the
authenticity of the ceded claim, but he or she is liable for its
security only if he or she had knowledge of the debtor's
insolvency and withheld this information in bad faith, or if he
or she had assumed the risk of the claim.
CHAPTER 10
Termination of Obligation Rights
Sub-chapter One
Performance
I. GENERAL
PROVISIONS
1811. Each obligation right terminates in and of itself when
the relevant obligation of the debtor has been performed, i.e.,
by settling the debt. If the subject-matter of the obligation is
money, then the obligation is performed by payment.
1812. Performance of obligations is valid only if it has been
performed and received by the proper person, at the proper place,
at the proper time and in due time.
1. Persons who
Provide and Receive Performance (Payment)
1813. Performance (payment) may be provided and received only
with legal effect, i.e., terminating an obligation, only by the
person who has the right of alienation.
1814. If performance is provided by a person lacking capacity
to act, then that which has been done by such person may be
required to be returned by their legal representative.
1815. If the subject-matter of an obligation pertains only to
the personal affairs of the obligor, then the obligor must
perform the obligation personally. In all other cases, the
obligation may be performed by a third person in lieu of the
debtor, even without his or her knowledge and contrary to his or
her intent.
1816. A performance is valid only if it has been provided to a
creditor or to his or her legal substitute.
1817. A person who has provided performance to a person who
did not have the right to receive it shall not thereby be
released from his or her obligation to the creditor, but he or
she may, nevertheless, request from the recipient of the
performance the return of that which was received.
1818. If an authorisation for receiving performance is revoked
without informing the debtor thereof, the performance provided to
the authorised person by the debtor without knowledge of the
revocation shall be valid.
1819. If performance is provided to a third person who does
not have rights thereto, or to a creditor lacking capacity to act
(Section 1813), then the payment shall nevertheless remain in
effect, unless the payment has not been included in the property
of the creditor and saved for him or her.
2. Place of
Performance
1820. If nothing has been agreed to regarding the place of
performance and it may not be determined from the nature of the
transaction, then the performance may be requested or offered at
any place where it can be provided without hardship or
inconvenience to the other party.
1821. If a creditor has had to bring an action, then the
payment shall be made at the place where the action was
brought.
1822. A specifically described object must be given there
where it is located at the time of performance. However, if the
obligor has, in bad faith, removed the object from the place
where it has heretofore been located, then he or she must provide
it there where the creditor requests.
1823. Monetary debts, unless otherwise agreed, shall be paid
to the creditor there where his or her place of residence is
located at the time of performance of the contract.
1824. If a creditor wishes to receive a specifically described
object (Section 1822) at such place as where it cannot be
reasonably requested from the debtor, then the creditor must bear
the delivery expenses and the risk.
1825. If the place of performance has been specified and the
performance occurs at another place than specified, then the
creditor may claim compensation for all losses caused
thereby.
A creditor may also request performance at the place where the
action for performance was brought, but in such case the
difference between the value at the place specified and the place
where the action was brought shall be taken into account.
1826. If several places have been specified for the
performance and if the performance can take place in parts, then
the creditor shall have the right to request at each place only a
part of what is due him or her. If the creditor brings an action
for the whole performance at one place, then the provision of
Paragraph two of the previous Section (Section 1825) shall be
applied.
1827. If several alternative places have been specified for
the performance, then the choice of the place is within the
rights of the debtor. However, if due to the fault of the debtor
an action has already been brought, then the right to choose
passes to the creditor.
3. Time Period
for Performance
1828. If the time of performance has been specified, then the
debtor must observe it without waiting for a special reminder
from the creditor, but nevertheless the debtor also need not
perform the obligation earlier than the expiration of the
specified term.
1829. If a term has not been set for performance, then the
creditor may request it at any time, but the debtor may perform
it at any reasonable time.
1830. In such a case (Section 1829) when the need to extend
the term to a certain extent arises from the nature of the
obligation itself, then a term for the debtor, if the debtor and
the creditor cannot reach agreement voluntarily, shall be set in
the discretion of the court, which shall, moreover, take into
account the distance to the place of performance, the amount of
time required for performance, other obstacles inherent in the
object itself, and the possible intent of the participants.
1831. If someone, with the consent of the creditor, pays an
interest-bearing debt before the due date, then the creditor may
request the interest up to the formerly agreed date for
payment.
4. Manner of
Performance
1832. For performance, it is necessary that the subject-matter
of an obligation be performed in full. Therefore, a creditor may
not be compelled to accept either part performance or other
subject-matter in lieu of that to which he or she has rights.
1833. All payments shall be made in euro.
Note. Provisions on how calculations are to be done in foreign
currency regarding transactions entered into in Latvia, as well
as provisions on the settlement of prior contracts and debts, are
found in the laws on credit.
[19 September 2013]
1834. No one may be compelled to accept securities in lieu of
money, even though such securities have been issued by the State
or State credit institutions.
1835. Creditors who voluntarily accept part performance shall
not lose, regarding the part not yet performed, any of their
rights to the entire claim or to ancillary claims.
1836. When performance of the actual subject-matter of an
obligation proves impossible, then the creditor, unless his or
her claim fails in its entirely (Section 1774), shall be
satisfied by receiving a monetary payment based on ordinary
value, unless due to the fault of the obligor there is a basis
for other claims (Section 1635 and subsequent Sections, Section
1652 and subsequent Sections).
1837. If a creditor refuses, without legal basis, to accept a
properly offered performance from the debtor, or its receipt is
impossible because the creditor cannot be found, or because the
creditor does not appear on the due date at the place specified
for payment, or because the creditor's property has been pledged,
or for any other reason, then the debt may be discharged by
giving the subject-matter of the obligation to the notary for
safekeeping.
If the subject-matter of an obligation cannot be given to the
notary for safekeeping because of its characteristics, then in
the cases referred to in this Section, if the creditor does not
appear pursuant to notice, the debtor shall have the right to
sell the subject-matter at the expense of the creditor.
[28 October 2010]
II. Proof of
Payment
1838. The fact of payment must be proven by the person who
claims such.
Payment may be proven by all permitted means of proof, but
particularly with a written confirmation or a receipt; the
recipient of the payment may not refuse to issue such to the
debtor.
The receipt may be written directly on the debt document, if
such exists, or separately.
1839. If someone presents receipts for term payments, which
have been issued for three consecutive terms without any
reservations, it shall be presumed, until otherwise proven, that
all prior term payments have been made.
1840. If a receipt has been issued regarding a general
accounting between the creditor and the debtor with a reservation
that all accounts between themselves have been settled, then all
the items for which the term has expired by that time shall be
considered to have been performed. However, the effect of such a
general receipt may not be applied to items regarding which it is
proven that the issuer of the receipt did not know of them.
Similarly, such a receipt may also not be an impediment to
requesting the return of sums overpaid by mistake.
1841. The creditor, upon receiving payment, shall return the
debt document, if such exists, to the debtor.
If the debt document has been returned to the debtor, or
destroyed, or crossed out, or torn, or shredded, it shall be
presumed therefrom that the debt has been paid; this shall not,
however, revoke the right to prove the contrary.
If the creditor cannot return the debt document because it has
been lost, then he or she must, at his or her own expense,
petition the notary to declare the document as destroyed, however
only after the amount of the debt has been, pursuant to the
discretion of the debtor, either given to the notary for
safekeeping, or paid against security received.
[28 October 2010]
III.
Consequences of Payment
1842. Proper performance of an obligation not only shall
release the debtor from any liability regarding such obligation,
but also therewith terminate all ancillary claims established by
a pledge and guarantee.
1843. If a person pays only part of his or her debt, then the
payment shall be first credited against the outstanding interest,
then for discharge of the capital and only thereafter for
discharge of the contractual penalty, unless the creditor has
agreed to accept the payment as specifically pertaining to the
capital only and has receipted this. Other agreement on the
procedure for the discharge of the contractual penalty shall not
be in effect.
[20 June 2013]
1844. If a person is in debt to a single creditor on several
different bases, it shall depend solely on the debtor as to which
debt he or she wishes to have a payment credited to. However, if
the debtor has not specified which, then the choice is within the
rights of the creditor, with the condition that he or she acts in
the same way as he or she would have acted being the debtor.
Consequently, he or she must credit the payment received towards
the most burdensome debt, i.e., the one which carries interest,
or is secured by a pledge or a guarantee, or whose term is
already due (in contrast to conditional or terminated debts) or
towards the principal debt (in contrast to guaranteed debts). If
one or the other debt does not have such differentiating
characteristics, the payment shall be credited against the
longest outstanding debt, but if the debts were incurred
concurrently, the payment shall be credited to each
proportionately. In any case, the payment shall first be credited
towards the interest the term of which is already due.
1845. If a creditor has the right to sell pledges in order to
settle a debt, then it shall be within his or her discretion as
to which of several claims he or she want to discharge by selling
them, but even in this case the sum received must first be
credited towards the interest and only then towards the capital,
commencing with the longest outstanding debt; but if the pledge
secures several claims simultaneously, then the sum received from
its sale shall be distributed proportionately to all the
claims.
Sub-chapter Two
Set-off
I. GENERAL
PROVISIONS
1846. Set-off means discharge of a debt by means of a
counterclaim.
1847. A debtor may use a counterclaim against the wishes of
the creditor only:
1) if the subject-matters of both claims are of the same
class;
2) if the terms for both claims have expired.
1848. In determining whether mutual claims are of the same
class, the basis of their origin shall not be of any
relevance.
1849. If a claim and a counterclaim are to be paid at various
places, then this shall not prevent set-off, but the creditor
(not the debtor who requests set-off) must be compensated for
losses that may arise from receiving payment at another
place.
1850. Set-off shall not be permitted against a claim to have
returned property which the opposing party has taken
illegally.
In addition, set-off shall not be permitted:
1) against claims for State or local government taxes or
corvee;
2) against State purchase payment claims regarding property
that has been sold.
1851. A claim proposed for set-off must be belong to the
debtor personally; a creditor is not required to set off the
claims of third persons. In accordance therewith, neither
guardians may set off the claims of their wards, nor may
authorised persons set off the claims of the authorising person
against their own debts.
This provision, in addition to exceptions set out in Sections
1681, 1684 and 1808, has the following exceptions:
1) a guarantor may set off claims of a principal debtor;
2) in the cases where spouses have joint property, debts
pertaining to the joint property may be set off in their
claims;
3) an heir may set off debts of his or her creditor to the
estate-leaver.
Note. Set-off pertaining to concursus proceedings is provided
for in the Civil Procedure Law.
II. Due Course
and Consequences of Set-off
1852. A counterclaim of a debtor shall not extinguish the debt
in and of itself, but only if he or she has expressly presented
it for such purpose.
1853. A debtor shall have the right to request set-off at any
time, even after a judgment of a court, by performing it or
paying off the claim, as long as he or she is able to prove that
no obstacles exist for the performance of the counterclaim or
payment.
1854. A claim together with all ancillary claims (Section
1842) may be extinguished in full or in part by a set-off
presented and acknowledged in due course, in the same way as by
payment and to wit, from the time when the counterclaim stood
against it as a set-off.
1855. A person who delays in requesting a set-off or does not
request it at all shall not lose the right of counterclaim. A
debtor who has not requested a set-off due to mistake may request
the return of his or her payment, unless he or she prefers to use
his or her counterclaim independently.
1856. A person with more than one counterclaim may set off one
or another of these pursuant to his or her discretion. Similarly,
a person who must settle more than one debt claim may choose
which of them to set off by counterclaim.
Sub-chapter Three
Confusion of Claim and Debt
1857. Obligation rights shall terminate with a confusion, when
the creditor and debtor merge into one person.
1858. When confusion of rights and duties occurs only in part,
then the claim itself shall cease only with respect to the
proportionate part.
1859. If the effect of altering the right, on the basis of
which there has been confusion of the claim with the debt,
terminates, then the claim that was extinguished by the confusion
shall also be renewed.
1860. If the duties of a debtor pass to one of joint creditors
(Section 1670) or the rights of a creditor pass to one of the
joint debtors, then this shall not alter the legal relations of
the other joint creditors and joint debtors.
1861. If there is confusion in one person of various rights to
claims against one and the same subject-matter, then they shall
all remain in effect independently of one another and the same
shall also occur when the property of several joint creditors
merges into one. Similarly, when the property of several joint
debtors merges into one, this shall in no way alter their
obligations.
Sub-chapter Four
A Cancellation Agreement
1862. Every creditor has the right to waive his or her claim;
if he or she fails to do so in last will instructions, then a
mutual agreement between the creditor and the debtor, i.e., an
obligations cancellation agreement, shall be necessary for such
purpose. A unilateral notice by the obligee regarding waiver of a
claim shall not be binding.
1863. A cancellation agreement may also be entered into by
means of implicit intent of the participants to a transaction. It
cannot be concluded from the mere fact that a pledge has been
returned to the debtor that the debt has been forgiven, unless
such conclusion is justified on the basis of special reasons.
1864. A contract, which has been entered into simply on the
basis of agreement, may also be revoked by a similar agreement.
However, if a special form was required for the entering into of
the contract, then the same form must also be used to revoke
it.
1865. A contract that has not yet been performed either in
full or in part, shall be annulled by revocation, as if it had
never existed. The same provision shall be in effect even when,
taken literally, one or the other party should be released from
his or her obligations.
If a contract has been performed in full or in part, then the
cancellation agreement, to the extent that it provides for the
return of the performance, establishes a new claim.
1866. If, on the basis of a contract to be revoked, third
persons have acquired certain rights, then the revocation of the
aforementioned contract may not infringe on such rights without
the consent of such persons.
SUB-CHAPTER 5
Novation
1867. Any obligation right may be revoked and transformed into
a new one by means of a special contract between the parties,
which is called a novation.
Note. Novation without a special contract between the parties
is provided for in the laws on credit.
1868. Novation may be carried out either such that also in the
new claim both parties, i.e., the obligee and the obligor, remain
the same as in the revoked one and only the legal basis and
essential provisions of the claim are altered; or the novation
may affect the persons involved in the matter and the former
creditor or the former debtor be replaced by a new one.
1869. The consequences of a novation are that the previous
claim, with all the ancillary rights pertaining thereto (pledge,
guarantee, interest, contractual penalties), shall terminate as
if it had been performed, and in lieu of it a new claim shall be
established which shall not be subject to the ancillary rights
pertaining to the previous claim, unless the contrary has been
specifically agreed to.
1870. A manager of another's property may make a novation only
when he or she has been specifically authorised to do so, or when
he or she has a universal power of attorney.
1871. Obligation rights may be renewed before the expiration
of the term, as well as at the due date and after the expiration
of the term. A novation may also revoke several such rights
immediately.
1872. Conditional claims may also be renewed, and the novation
itself may be made with a condition or a term.
1873. If the previous claim was not valid, then the novation
thereof shall also not be valid; but if the novation contract is
not valid, then the previous rights to claim shall remain in
effect. The same shall also apply in the case when the new claim
does not come into effect due to its nature, for example, if it
is dependant on a condition which later does not set in.
1874. It shall never be assumed that a novation has taken
place, and the intent to enter into such a contract must be
definitely stated by the parties, or it must at least be
indisputably evident from the circumstances.
1875. In cases of doubt, a contract shall not be considered to
be a novation and the previous claim shall remain valid in the
following cases:
1) if only the terms of payment have been changed or specified
in more detail;
2) if payment of interest is specified for a debt which was
formerly interest-free;
3) if the interest rate has been changed;
4) if the debt is secured;
5) if the amount of the debt has been reduced;
6) if a document has been issued regarding an existing
debt.
1876. If, on the basis of a novation, a new debtor is to
replace the former one (Section 1868), then this shall take place
as follows:
1) the creditor agrees with the new debtor without the consent
of the former debtor; or
2) the former debtor transfers the debt to another person, and
the creditor accepts the latter in lieu of the former.
1877. In both types of novation specified in Section 1876 the
former debtor shall be released from his or her obligation and
shall not be liable for it even if the new debtor is discovered
to be, or later becomes, insolvent, unless the creditor has, for
such a case, specifically reserved a subrogation right against
the former debtor, or if the insolvency of the new debtor has
occurred before the condition whereby the novation was made has
come into effect, or if the former debtor has acted in bad
faith.
1878. The new debtor (Section 1876) does not have the right to
raise those defences against the creditor which he or she had
against the former debtor, nor those that the latter had against
the creditor.
1879. As a result of novation, a former creditor shall be
replaced by a new one, if the former transfers his or her claim
to the latter and the debtor acknowledges the latter as the
creditor of the debtor.
1880. When a debtor is not acceptable to the new creditor
(Section 1879), the latter shall not have a subrogation right
against the former creditor, unless such right has been
specifically contracted for; similarly, the defences which a
debtor might have raised against the former creditor may not be
raised against the new creditor.
SUB-CHAPTER 6
Settlement
1881. A settlement is a contract whereby the contracting
parties transform a disputed or otherwise dubious mutual legal
relationship into one that is undisputed and undoubted through
mutual concessions.
1882. A substitute may enter into a settlement only when he or
she has been specifically authorised to do so. A universal or a
general power of attorney (Section 2291) is not sufficient for
this purpose.
1883. A legal relationship which has been terminated by a
judgment of a court which has come into effect may not be the
subject-matter of a settlement; but a settlement is permitted
regarding the manner of executing the judgment.
1884. The consequences of a settlement are that one of the
parties to the settlement withdraws his or her claim and in its
place obtains a claim arising from the settlement. This shall
not, however, in and of itself establish a novation, if the
required provisions are not complied with (Section 1867 and
subsequent Sections).
1885. A settlement shall have the same effect as a judgment of
a court which has come into legal effect, and therefore a
settlement may not be unilaterally contested or revoked.
1886. If one of the parties to a settlement does not perform
the settlement, then the other party shall have the right to
claim only its performance, but not to use the former claim
terminated by the settlement.
1887. If property which has been returned to someone as a
result of a settlement is replevied, then this shall give only
the right to claim liability, but not to withdraw from the
settlement.
1888. The effect of a settlement shall not apply to third
persons; but against ancillary obligors, if the settlement does
not include a novation, it shall take effect only to the extent
that their duties are reduced thereby; expanding these duties,
however, is not permitted without their consent.
1889. A settlement that is intended, but has not yet occurred,
shall have no effect whatsoever, and a concession made in the
hope of entering into it shall have no evidentiary effect against
the person making the concession.
1890. A settlement may be revoked by mutual agreement.
1891. If a settlement has been made under the influence of
fraud or duress, then it may be contested.
A settlement may be contested on the basis of mistake only
when a fact which was the basis of the settlement, but not its
actual subject-matter, had been regarded as true, but
subsequently turned out to be false.
SUB-CHAPTER 7
Court Judgment
1892. A claim of creditor which has been rejected by a
judgment of a court or arbitral tribunal that has come into
effect shall terminate together with all its ancillary
claims.
SUB-CHAPTER 8
Prescription
I. GENERAL
PROVISIONS
1893. Obligation rights shall terminate if the entitled person
does not duly exercise them within the prescription period
specified by law.
1894. A debtor who is requested to return specific property of
another person may not plead prescription, if the opposing party
proves that he or she or his or her predecessors have not, during
the entire prescription period, been in possession of the
property in good faith.
1895. All obligation rights which have not been expressly
exempted from the impact of prescription and the use of which is
not by law subject to shorter terms, shall terminate if the party
entitled to them does not use them within a ten year time
period.
II. Commencement
of the Prescriptive Period
1896. A prescriptive period shall begin to run with the day
when the claim is established such that an action may be brought
immediately against a debtor who has not performed his or her
duty, even though the debtor may not yet have refused to perform
it, nor received a reminder from the creditor. In accordance
therewith, for a prescriptive period to begin to run it is
required: for conditional claims that the condition be already
clarified, but for term debts that the term have already
expired.
Note. Cases where a special time is set for a prescriptive
period to begin to run are indicated in the applicable
sections.
1897. If it has been expressly specified that a creditor's
notice or reminder must be received before performing the
obligation, then the prescriptive period shall begin not from the
day of receipt of the notice, but from the time when the creditor
was entitled to give such a notice and when the notice as such
became possible.
1898. In a few cases, in calculating the prescriptive period,
a certain time period may be deducted either to postpone the
beginning date or to toll the running of the prescriptive period,
that is, to generally extend the term. The following are such
cases:
1) when the work of a court has been temporarily completely
interrupted due to war conditions; in such case the running of
the prescriptive period shall be tolled during the entire period
of interruption;
2) claims of persons under guardianship or trusteeship; the
running of the prescriptive period with respect to such claims
shall be tolled during the entire time that the guardianship or
trusteeship continues;
3) a claim made by one spouse regarding alienation by the
other spouse of immovable property belonging to the former; with
respect to such the prescriptive period shall begin to run only
from the day when the marriage ceases to exist;
4) claims made against heirs; with respect to such claims, the
running of the prescriptive period shall be tolled during the
period of taking inventory (Section 710).
[22 December 1992]
1899. Lack of knowledge by the person who has the right to
claim shall not affect the prescription.
1900. Except in the cases set out in Section 1898, absentees
shall finally lose the right to claim after the expiration of a
ten year period, beginning on the day when the right to claim
arose.
1901. In periodic performances, a separate prescription shall
begin to run in regard to each specific performance, calculated
from the day when the performance was due. However, if the right
that established these periodic performances terminates through
prescription, a single performance can no longer be claimed, even
though its particular prescriptive period may not have
elapsed.
III.
Interruption of Prescription
1902. The use of a right by bringing an action in court or
turning to an arbitral tribunal shall interrupt the prescriptive
period; moreover, the elapsed time shall not be considered and a
new prescriptive period shall begin.
1903. If a plaintiff does not continue the matter initiated by
his or her action, the prescriptive period shall begin again from
the day when the matter was to have proceeded, i.e., from the
last date set for and missed by the plaintiff. The new
prescriptive period shall always be ten years, notwithstanding
that the previous period may have been shorter.
1904. The bringing of an action shall interrupt the
prescription of all of the obligation rights, even though the
action might have been first brought regarding a specific part of
such rights.
1905. A reminder to the debtor shall interrupt the
prescription.
1906. A prescriptive period shall be interrupted if during the
time of its running the debtor in some manner acknowledges the
claim of the creditor.
IV. Rights not
Subject to Prescription
1907. Obligation rights registered in the Land Register shall
not be subject to prescription, except ancillary rights arising
from such rights for which the term has elapsed.
1908. Actions regarding verification of boundaries shall not
be subject to prescription.
1909. State civil actions shall be subject to prescription in
the same way as private actions.
V. Consequences
of Prescription
1910. With the expiration of the prescriptive period not only
the right to claim, but also the obligation rights themselves are
terminated. Consequently, a prescribed claim may not be used as
an objection to, for example, set-off.
1911. If, however, a debtor for some reason performs a
prescribed claim, then the debtor does not have the right to
request the return from the creditor of that which has been
performed.
CHAPTER 11
Gifts
Sub-chapter One
Gifts in General
I. GENERAL
PROVISIONS
1912. A gift is a legal transaction whereby one person grants
valuable property to another through generosity and without
remuneration.
1913. Any person with the capacity to act may make a gift. A
gift may be accepted by anyone who has the capacity to acquire in
general.
1914. A gift may consist of the transfer of ownership or other
property rights, as well as cession without remuneration of the
right to claim, release of the donee from duties towards the
donor or towards a third person, waiver of certain rights to the
benefit of the donee, and administration of the donee's matters
free of charge.
II. Consequences
of Gifts
1915. In order for a gift to be valid, the prospective donee
or his or her legal representative must accept it.
If a donee agrees to accept a gift at a time when the donor no
longer has the capacity to act, then the gift shall be considered
as void.
By agreeing to accept a gift, the donee, as well as the heirs
of the donee, shall have the right to claim the delivery of the
gift from the donor, as well as from the heirs of the donor, by
court action.
1916. The donor shall not pay late payment interest, nor
provide any fruits that accrued from the property which has been
given as a gift.
1917. If a person makes gift of tangible property, then the
ownership rights shall be transferred to the acquirer with its
delivery.
A donor shall be liable for the destruction or deterioration
of the property which is given as a gift, as well as for its
replevin or its defects, only if he or she has specifically
assumed liability or has acted in bad faith or with gross
negligence. The compensation for replevin for the defects of the
property shall be limited only to the restitution of the
expenditure that the donee made from his or her own property. All
charges and encumbrances on the property given as a gift shall be
borne by the donee.
1918. If the subject-matter of the gift is the right to claim,
then the rights are transferred to the donee pursuant to cession
from the time when the gift is considered to have been given.
III. Revocation
of Gifts
1919. A gift may be revoked due to the gross ingratitude of a
donee.
Ingratitude of a donee shall be considered to consist of gross
insults in abusive words or acts towards the donor, substantial
financial loss deliberately inflicted upon the donor,
endangerment of the donor's life, and abandonment of the donor in
a helpless condition if it was possible to provide
assistance.
1920. The right to revoke a gift due to ingratitude shall not
devolve to the heirs of the donor, and also may not be invoked
against the heirs of an ungrateful donee, and the donor may only
bring an action in personam against the donee to return the
property itself along with all its appurtenances and fruits, but
then only while the gift is still part of the donee's property or
at least while the donee is still benefiting from the gift.
If in the meantime, but still before bringing the action, the
donee encumbers the gift with certain property rights, then the
donor who revokes the gift must consider them to be in
effect.
1921. Previous waivers of rights regarding revocation of a
gift due to ingratitude shall not be valid, but if an action has
already been brought regarding such revocation, it may be
withdrawn.
1922. If a gift is of such magnitude that the persons entitled
to preferential share of the donor are deprived of their
preferential shares (Section 422 and the following Sections),
then they may demand that the donee give them such shares.
The preferential shares shall be calculated based on the
donor's financial state at the time of making the gift. However,
if later such property has increased, then the increase shall be
taken into account, as well as that which is bequeathed to
persons entitled to preferential share by instructions in
contemplation of death.
[29 October 2015]
1923. If a donor with no children later has children, then he
or she may revoke the gift to the extent it is necessary to
provide the preferential shares of the children born later.
[12 December 2002]
1924. A married donor may revoke a gift made after a betrothal
or during a marriage:
1) if the donee's spouse dies without any descendants;
2) if the breakdown of the marriage with his or her actions
was promoted only by the donee;
3) if the marriage is declared annulled and the donor made a
justifiable mistake of fact regarding the fact of marriage.
The right to revoke a gift within a year's time may be
exercised only by a donor himself or herself, calculating from
the day of the donee's death in the case noted in Clause 1, but,
in the case noted in Clause 2 - from the day when the judgment
took effect whereby the marriage was dissolved, or when a notary
has drawn up a divorce certificate, but in the case noted in
Clause 3 - from the day when the judgement took effect whereby
the marriage was declared annulled. Conditions which restrict the
right of a donor to revoke a gift shall not be in effect.
[12 December 2002; 28 October 2010]
Sub-chapter Two
Special Types of Gifts
I. Gift of
Entire Property
1925. The subject-matter of a gift may also be a donor's
entire property.
1926. Such a gift (Section 1925) may include only the present
property of the donor, not future property. A gift of future
property, or a joint gift of present and future property, shall
be considered an inheritance contract, provided that the present
property is not delivered immediately.
1927. Property is considered to be donated only insofar as the
donor's debts have been deducted from it. In cases where a donor
is unable to pay the debts outstanding at the time of making the
gift, not only may the creditors demand satisfaction from the
donor's gift, but also the donor may himself or herself demand
from the donee the return of the portion of the gift necessary
for the payment of these debts. An agreement between the donor
and the donee that the latter is not liable for the debts of the
former is only in effect against the creditors if the creditors
have consented to it.
II. Gifts with
Binding Directions
1928. A special binding direction may be imposed on any gift,
either giving more specific instructions as to the manner in
which, or the purpose for which, the donee shall use the gift
received, or the duration of the rights may be limited in such a
way that a duty is imposed on the donee to transfer the entire
subject-matter at a later date, or part of it, to another
person.
A donor may also impose a counter-duty on the donee.
1929. The addition of a binding direction shall not make a
gift a conditional one and a donee may demand immediate
performance despite such. However, both the donor, as well as the
third person for whose benefit the binding direction was
intended, may demand security for its performance.
If a binding direction is added for the benefit of a third
person, then such person may only bring an action for performance
after the death of the donor.
1930. The provisions in Sections 1919-1924 regarding the
revocation of gifts are also applicable to gifts with binding
directions.
1931. A donor may bring an action regarding the performance of
a binding direction, but if it was not performed due to the fault
of the donee, then the donor may also demand that the donee
return that which was received by the donee.
1932. If the performance of a binding direction is impossible
due to natural impediments or is not permitted due to legal or
moral considerations, then the binding direction shall fail, but
the gift itself shall remain in effect.
III. Gifts as
Remuneration
1933. Gifts as remuneration are such gifts as are granted as
remuneration for services provided.
Such gifts may not be revoked due to ingratitude.
CHAPTER 12
Claims regarding Contracts Requiring Return of Property
Sub-chapter One
Loan Agreement
I. GENERAL
PROVISIONS
1934. A loan agreement is a contract whereby ownership of a
certain quantity of fungible property is transferred, with the
duty to return property in the same quantity and of the same kind
and quality as the property received.
1935. A contract whereby one party promises to grant a loan
and the other party undertakes to accept it, shall take effect
only from the time that the contracting parties mutually agree on
the amount of the loan. If the promisor thereafter refuses to
perform it, then he or she shall compensate the other party for
all losses.
1936. The lender must be either the owner of the loaned
property, or be acting pursuant to the instructions of the owner
or with the consent of the owner.
1937. If the agent of a person grants a loan in the name of
his or her principal, then the right to request its return shall
in any event belong to the principal, regardless of whether the
loan involves fungible property belonging to the principal or to
the agent.
1938. If a loan is granted in the name of another person,
without his or her knowledge and consent, then later, if such
person confirms the loan, he or she shall also acquire the right
to claim. However, if he or she does not confirm the loan, the
person who granted it shall be deemed to be the creditor.
1939. The borrower must be a person with capacity to act;
consequently, a loan entered into by a person under guardianship
or trusteeship without the consent of the guardian or trustee
shall not be valid. The lender may, nevertheless, request the
return of everything that has been actually expended for the
benefit of the borrower.
1940. The contracting parties must have the intent to enter
into a loan agreement. If the intent has been to repay only part
of the loan, then only this part shall be considered to have been
loaned, whereas the remainder shall, in cases of doubt, be
considered to be a gift.
1941. A loan may be valid also without the property itself
being transferred, if the contracting parties agree that the
borrower retains as a loan other fungible property which he or
she owes the lender on another basis.
1942. If a person gives non-fungible property to another
person in order for the other person to sell such and thereafter
keep as a loan the sum of money received, then the recipient
shall accept the risk regarding this property from the day when
it was transferred; but the loan arises only from the time when
the recipient receives the sum obtained from the sale.
II. Repayment of
a Loan
1943. The borrower shall repay a sum equal or return an amount
equal to that which was received.
1944. If fungible property that was loaned, except for money,
must be returned as money, then it shall not be valued at the
market price in effect at the time of repayment, but at that
price which was in effect at the time of the loan. If securities
are loaned, then their value shall be calculated in accordance
with the rate in effect at the time of the loan.
1945. If a loan must be returned after a notice of
termination, then the term of payment shall be calculated from
the day when the notice was presented to the debtor; but if the
term for the notice of termination is not specified, then it
shall be deemed to be six months.
1946. Interest shall be paid on loans only if this has been
expressly agreed upon or if the debtor has defaulted.
If nothing has been specified regarding the term of interest,
it shall be paid annually, on the anniversary date of the loan
for the elapsed year, but for loans with a term less than a year
it shall be paid together with the principal sum.
If a creditor has received interest for a certain time period
in advance, he or she has the right to give notice of termination
of the principal before this term has expired; however, he or she
may not request repayment of the loan before this time.
Sub-chapter Two
Lending Contract
I. GENERAL
PROVISIONS
1947. A lending contract (a loan for use) is a contract by
which a person transfers to another person property without
compensation and for a specific use, with the condition that the
same property is returned.
1948. The subject-matter of a lending contract may be either
movable or immovable property.
The subject-matter of a lending contract may also be the
property of another person, but not the property of the
borrower.
1949. Participation in the use of property without it being
transferred to the user shall be regarded not as a lending
contract, but as a gift.
1950. With a lending contract the owner of the property shall
not lose ownership rights to the property and shall remain the
possessor thereof; the borrower shall be only its holder.
1951. If a person lends property without limiting the type of
use and the time period regarding its use, then he or she may
reclaim the property at any time.
II. Legal
Relationship Arising from Lending Contract
1. Duties of the
Borrower
1952. The borrower may use the lent property only in
accordance with the agreement, but if none exists, he or she may
use it only in the way that most closely corresponds to its
nature and the circumstances involved. The borrower may not
transfer the lent property to another person.
1953. The borrower shall take due care of the maintenance and
safekeeping of the lent property and, therefore, he or she shall
be liable for any damage to the property that he or she could
have prevented.
1954. If, under perilous circumstances, the borrower saves his
or her own property but allows the lent property to be destroyed
although he or she might have saved it, then he or she shall be
liable therefor to the lender.
1955. If the borrower has taken due care while using,
maintaining and safekeeping the lent property, he or she shall
not be liable for a third person's wrongful actions which he or
she could not prevent, nor for accidental loss or destruction of
the property.
1956. If the lent property is damaged or destroyed due to its
unauthorised use or delayed return, then the borrower shall be
liable for such, even though there is no reason to hold him or
her at fault, and therefore in such case the borrower is also
liable for risk. The same shall also apply when the borrower has
expressly undertaken liability for all losses.
1957. If the lending contract has been entered into for the
benefit of both parties, then the liability of the borrower shall
be commensurate with such degree of care as the borrower would
exercise over his or her own property; but if the benefit of the
lender is the sole purpose of the transaction, then the borrower
shall be liable only for malicious intent and gross
negligence.
1958. If one and the same thing has been lent to more than one
person jointly, then they shall have solidary liability.
1959. Heirs of the borrower shall be liable for the lent
property if it comes into their hands, in the same way as the
estate-leaver, but otherwise they shall be liable only if the
estate-leaver acted with malicious intent.
1960. After the use of the lent property, the borrower must
return it in as good condition as possible.
The borrower must return to the lender not only the property
itself, but also all the appurtenances lent therewith, as well as
the fruits and any other profits obtained from it.
1961. The borrower may not withhold the property or refuse to
return it on the basis of a counterclaim, unless such
counterclaim arises from the lending contract itself.
1962. If the borrower claims ownership rights to the lent
property, which he or she has obtained after entering into the
contract, and not from the lender, but from a third person, then
the borrower must, nevertheless, return the property to the
lender, and prior to that the latter need not answer in an
ownership action. Furthermore, the borrower shall not have the
right to withhold the property from the lender on the basis of an
ownership action brought by a third person.
2. Duties of a
Lender
1963. The lender does not have the right to hinder the use of
the property in accordance with the contract, nor to request that
it be returned before the end of the use or before the expiration
of the agreed term, unless the borrower exercises his or her
right improperly.
1964. If, due to unexpected circumstances, it becomes
necessary for the lender to have the property, the borrower does
not have the right to withhold it, unless the borrower would
suffer especially significant losses from returning it before the
due date.
1965. The lender shall compensate the borrower for the
expenditures incurred by the borrower for the lent property to
the extent that such have been necessary or incurred with the
specific consent of the lender.
The borrower may not claim any compensation for the expenses
incurred for the use of the property.
1966. The lender shall be liable to the borrower for all
losses inflicted through acts in bad faith, such as deliberate
concealment of the uselessness of the property, reclaiming the
property before due time, or similar conduct, but shall not be
liable for mere negligence.
1967. The lender may be compelled to perform his or her duties
not only by bringing an action, but also by detaining the
property.
Sub-chapter Three
Contract of Bailment
I. GENERAL
PROVISIONS
1968. By a contract of bailment a bailee undertakes to keep
movable property transferred to them by a bailor.
1969. Compensation of the bailee shall be regarded as
implicitly agreed to, if free bailment could not have been
expected under the circumstances.
1970. A contract of bailment shall be considered to have been
entered into as soon as the bailor has deposited the object for
bailment with the bailee. However, a prior agreement whereby
someone promises to accept an object for bailment shall be
binding, and therefore, if the bailee revokes it without good
cause, compensation may be claimed from the bailee for all losses
inflicted thereby.
1971. A bailee shall be only the holder, but not the possessor
of the property.
II. Lawful
Relationship Arising from Contract of Bailment
1. Duties of a
Bailee
1972. A bailee shall take good care of the property entrusted
to him or her and shall be liable for any negligence on his or
her part.
If a bailee undertakes to keep the property without
compensation, he or she shall be liable only for malicious intent
or gross negligence.
1973. A bailee does not have the right to use the bailed
property, unless such a right has been expressly or implicitly
granted to him or her.
1974. A bailee shall also be liable for casualty risk:
1) if he or she has expressly undertaken it;
2) if, contrary to the contract, he or she uses the bailed
property or alienates it;
3) if he or she does not return the bailed property on
time;
4) if the contract has been entered into on the basis
indicated in Section 1978.
1975. The bailee of property shall return the property
undamaged upon demand, notwithstanding that this may be prior to
the expiration of the previously set term.
1976. In returning the property, it shall be of no
significance whether the bailor who claims it (Section 1975) is
or is not the owner of it, and whether the bailor's right to act
is in some way restricted by the rights of a third person.
1977. A protest by the owner or other persons who have a right
to the property may not be the basis for refusal to return the
property, unless a court has distrained it.
1978. The bailee shall return the same property as has been
received for bailment. But if fungible property has been
entrusted to someone specifically with the condition that only
the same quantity or an equal sum must be returned, or also if
without such a condition, the fungible property has been counted,
measured or weighed, and delivered to the bailee in an unlocked
and unsealed form, then in all such cases the bailee shall return
the bailed property only in the same quantity and of the same
quality.
1979. A bailee shall return the bailed property together with
its appurtenances, as well as augmentations and fruits to the
extent he or she still has them or in the quantity lost through
his or her lack of due care.
If a bailee uses money deposited with him or her for bailment
for his or her own benefit, or do not return it when due, then he
or she shall pay the bailor interest on it.
1980. Bailed property must be returned at the location where
it is kept. If a bailor requires that the property be returned at
another location, then the bailor shall bear the delivery
expenses. However, if the bailee wrongfully moves the property to
another location, while the bailor wishes to receive it at the
former location, then it shall be delivered there at the expense
of the bailee.
1981. The duties of a bailee regarding bailed property shall
devolve to his or her heirs.
1982. The liability of an estate-leaver, if he or she has
undertaken to bail property without compensation, shall pass to
his or her heirs when such liability arises from malicious
intent, but not when it arises from any other fault of him or
her.
1983. If an heir, due to justifiable lack of knowledge of
circumstances, sells property that has been entrusted for
bailment to the estate-leaver, then the heir shall return only
that which he or she has received for the property or shall
return the right to receive that which is due. However, if the
heir repurchases such property or reacquires it anew by other
means, then the heir shall return it to the bailor or, if the
heir refuse to do so, compensate all losses.
2. Duties of a
Bailor
1984. A bailor shall take back the bailed property when the
agreed term has expired, but if such was not specified, then
immediately after the demand of the bailee. The bailee may
request that the bailor release him or her from the duty of
bailment of the property also before the expiration of the
specified term, if the bailee becomes subject to a situation
wherein bailment of the property would be unsafe or might harm
the bailee. However, if the bailor refuses to take the property
back, the bailee shall have the right to deposit it with a notary
for safekeeping at the expense of the bailor.
[28 October 2010]
1985. After the expiration of the bailment, a bailor must pay
the bailee the agreed remuneration. Such remuneration shall also
be paid if the bailor takes back the bailed property before the
expiration of the agreed time period. However, if the bailor has
not yet taken the property back after the expiration of this
period, then the bailor must pay remuneration for further
bailment at the previously agreed rate.
1986. A bailor must compensate the bailee for the expenditures
of bailment of the property to the extent that such expenditures
were necessary or incurred with the consent of the bailor.
1987. A bailor must compensate the bailee for losses incurred
as a result of the bailment, as well as those the bailee has
suffered through no fault of his or her own or has not been able
to prevent, and those which have arisen as a result of the
bailor's own negligence.
1988. If the property deposited for bailment has been lost or
damaged through acts in bad faith of the bailee and he or she
compensates the bailor for it, then the latter shall refrain from
bringing all actions that might have brought against the party
directly responsible for the loss suffered.
3. Mutual
Relationship of Several Joint Bailors and Bailees
1989. If several persons jointly deposit property for bailment
or if a bailor leaves several heirs, then each joint participant
may, regarding divisible objects, claim his or her share
separately, unless agreed otherwise.
The person who has received his or her share in such case need
not compensate the other for losses which might later arise to
his or her respective shares by chance or through the fault of
the bailee.
If it is not possible to return the bailed property in parts,
then each joint participant shall have the right to claim it as a
whole, but only after securing the bailee against the claims of
the other; without such security each joint participant may only
claim in his or her own name and in the name of the other that
the property be deposited with a notary for safekeeping.
[28 October 2010]
1990. Several joint bailees shall have solidary liability;
however, if one returns the entire property, then the others
shall be released from their liability. However, if only one of
them has acted in bad faith, then the others shall not be liable
for it.
1991. If after the death of a bailee several heirs are left,
then they shall be liable in lieu of the estate-leaver only
proportionate to their own shares; but for their own fault they
shall be liable as if the property had been deposited for
bailment to them jointly.
III. Conversion
of Bailment into a Loan Agreement
1992. If the object of bailment is fungible property and the
bailee is later granted the right to use it pursuant to his or
her discretion, then the contract of bailment shall be converted
into a loan from the moment when such right is granted.
However, if, on depositing fungible property under a bailment,
it has been agreed that the bailee may use such property if he or
she later so desires, then the contract of bailment is converted
into a loan only from the time when the property actually begins
to be used.
1993. From the time when a bailment is converted into a loan
(Section 1992) the debtor shall also be liable for casualty
risk.
1994. In converting the bailment of money into a loan,
interest may also be provided by contract. If interest is not
provided by contract, then the bailee of the money and future
debtors must pay only late payment interest if the payment is in
default.
Sub-chapter Four
Innkeeper's Bailment
1995. Innkeepers whose trade is to provide accommodation to
travellers shall be liable to them for returning property brought
in by them.
1996. Such duty on the part of the innkeeper shall arise in
and of itself, even without an express agreement, when the
traveller's property is brought into the inn with the knowledge
of the innkeeper; a detailed description of such property and
instructions to care for them are not necessary.
1997. It shall not matter whether the innkeeper or servants
charged to do so receive the travellers and their property or the
travellers carry their property into the inn themselves.
1998. Innkeepers shall be liable for property carried in by
travellers, unless they prove that the loss occurred through the
fault of the travellers, their visitors or attendants, or through
force majeure, or because of the characteristics of the property
itself. Similarly, innkeepers shall also be liable for property
that travellers have entrusted to them or to their servants prior
to arriving at the inn.
Nevertheless, regarding money, securities and jewellery
brought into the inn by travellers, the aforementioned liability,
unless otherwise agreed, shall be limited to one 1420 euro,
except for the cases when the innkeeper has accepted in person
the traveller's money, securities and jewellery under bailment,
or when the innkeeper or his or her servants are at fault for the
destruction of such property.
An announcement displayed at the inn that the innkeeper is not
liable shall not have any legal effect.
[19 September 2013]
1999. In regard to property left at an inn by a departing
guest with the consent of the innkeeper until the time of the
guest's return, the innkeeper shall be liable the same as any
other bailee.
2000. If someone who is not an innkeeper by profession
receives a traveller at their home for money, or if an innkeeper
provides a dwelling at his or her place not as an innkeeper, but
as a landlord, he or she shall be liable only in accordance with
the general provisions regarding rental contracts.
2001. Liability equivalent to that of innkeepers shall apply
to shipowners who receive passengers with their property on board
their ships, as well as holders of livery stables who agree to
shelter horses or other animals of other persons therein;
however, such liability shall not pertain to restaurant and cafe
keepers who have no rooms to accommodate travellers.
CHAPTER 13
Claims Arising from Alienation Contracts
Sub-chapter One
Purchase Contract
I. GENERAL
PROVISIONS
1. Definition of
the Contract and Personal Capacity of Contracting Parties
2002. A purchase contract is a contract whereby one party
promises to convey to the other certain property or rights for an
agreed sum of money.
2003. A seller may be anyone who has the right to alienate
freely the subject-matter to be sold; a purchaser may be anyone
who is not barred by the law to acquire it.
2004. A purchase contract shall be considered to have been
entered into when both parties have agreed on the subject-matter
of the purchase and the purchase price.
Note. Transfer of commercial and industrial undertakings are
subject to special provisions.
2.
Subject-matter of a Purchase Contract
2005. The subject-matter of a purchase contract may be all
property that it is permitted and possible to alienate, meaning
thereby not only tangible property, but also property rights and
obligation rights.
2006. If both parties, or even only the purchaser, knew that
it was not permitted to alienate the property that was sold, then
the contract shall be void. However, if only the seller had
knowledge thereof, then the contract shall remain in effect and
the seller must compensate the purchaser for losses. Finally, if
neither party had knowledge thereof, then the contract shall be
void.
2007. The subject-matter of a purchase contract must actually
exist (Section 2009) and be described in sufficient detail so as
to leave no valid doubt; otherwise, the contract shall be deemed
to not have been entered into.
2008. If, at the time of entering into the contract, the
subject-matter of sale has been partly destroyed but both parties
had no knowledge thereof, then the purchaser may withdraw from
the contract, if more than half of the subject-matter, or
precisely that part which the purchaser most desired to acquire,
has been destroyed. However, if half of the subject-matter or
more remains intact, the purchaser must perform the contract,
with a proportionate reduction of the purchase price. In case of
doubt, the matter shall be resolved pursuant to the discretion of
a court.
2009. An exception from the provisions of Section 2007 shall
be the so-called speculative purchase where the subject-matter is
not yet known and the contract may be entered into in two
ways:
1) in such a manner that the purchaser remains bound even
though the subject-matter of the purchase might not arise at all
or not come within the property of the seller;
2) in such a manner that the actual existence of the
subject-matter of sale is a necessary condition for the validity
of the purchase contract.
2010. When the property of another person has been sold
without the knowledge and consent of its owner and both parties
had knowledge thereof, then the contract shall be void. If, on
the contrary, the purchaser did not know that the seller did not
have the right to alienate the property, then the purchaser may
claim compensation for losses. Finally, if only the purchaser had
knowledge thereof, then the seller shall have no duty towards the
purchaser.
Exceptions to this provision are the cases provided for in
Section 1065, where the sale of another person's property is in
effect and its owner may have recourse only against the
seller.
2011. A contract for purchase of another person's property,
entered into in the event that the property might be transferred
into the possession of the seller, shall take effect and actions
may be brought regarding such only from the time when the
aforementioned precondition has come into effect.
3. Purchase
Price
2012. The purchase price shall be expressed in money.
If the purchase price is expressed not in terms of money but
in terms of other property, the contract shall be not of
purchase, but of barter.
2013. If the purchase price has initially been expressed in
money, a subsequent agreement by the contracting parties to pay
for it with other property shall not alter the substance of the
contract.
Similarly, the substance of a contract shall not be altered by
the purchaser undertaking to perform something else in addition
to the purchase price.
2014. Where the money used for the purchase price is not that
of the purchaser himself or herself, but that of another person,
this does not alter its meaning, and the purchased property shall
pass into the property of the purchaser, and not into the
property of the creditor.
2015. The purchase price need not necessarily be exactly equal
to the value of the subject-matter of the purchase, and the
contract shall be valid even if the subject-matter is sold below
its actual value (friendship purchase) or above it. However, if
the purchase price has been set only for the sake of formality,
the contract shall be not of purchase, but of gift.
2016. If the sum indicated in the purchase document is higher
or lower than agreed, the contract shall not for that reason be
invalidated, and the orally agreed price shall remain in
effect.
2017. The purchase price must be set and it shall not be
dependent on the volition of one party. However, if the seller
delivers property or goods to the purchaser which have been
ordered without specifying a price, the transaction shall be
valid, and it shall be assumed that both parties have agreed on
the market price (Section 2018).
2018. If a purchase has been made for the market price, it
shall be assumed that the average price at the time and place
that the contract was entered into was intended. However, if at
such place there is no market price, the market prices at the
nearest trade centres shall be taken as the basis. Where price
lists are available, the price shall be set in accordance with
them.
2019. The setting of a purchase price may also be entrusted to
a specified third person or, if none has been specified, to the
just discretion of an impartial expert.
The decision by a third person shall be binding to both
parties provided the third person has not set an unjust
price.
2020. When the purchase price has been set depending on some
subsequent event or on the stating thereof by a third person,
then the purchase shall be considered to be conditional, and
therefore it shall fail if the expected event does not occur or
produces no result, or if the third person is not able to or does
not wish to set a price.
II. Lawful
Relations Arising from a Purchase Contract
1. General
Provisions
2021. Mutual rights for both parties to claim performance of
the contract, as well as compensation for losses arise from a
purchase contract.
2022. Both parties must strictly observe their mutual duties;
the seller must, in particular, keep the sold property with
greatest care until the delivery of the property and be liable
for the consequences of any negligence in this respect. However,
if the purchaser delays in accepting the purchased property, then
the seller shall be liable only for acts in bad faith and gross
negligence.
2023. After entering into a purchase contract, even though the
purchased property might not yet have been delivered, the
purchaser shall be liable for any casualty risk in connection
with which the property is destroyed or damaged.
2024. The provisions of the preceding Section (2023) shall not
apply in the following cases:
1) where the subject-matter of the purchase has not been
individually specified and becomes definite only upon its actual
delivery, the seller shall bear the risk until delivery;
2) where fungible property or other types of property are sold
by piece, measure or weight, then the risk shall pass to the
purchaser only after the property has been counted, measured or
weighed;
3) where the purchase contract has been entered into with a
suspensive condition, then the risk of destruction shall pass to
the purchaser only after the occurrence of this condition, but
the risk of damage shall pass to the purchaser from the time when
the contract is entered into, even though the outcome of the
condition may not yet be known;
4) where the destruction or damage of the property is the
fault of the seller or where the seller has delayed the delivery,
the seller shall be liable for the risk;
5) where the property is purchased with the condition of a
prior examination or inspection, the seller shall be liable for
all risks until the purchaser has agreed to accept it;
6) where the seller has expressly assumed the risk without
setting a term, the risk shall pass to the purchaser only from
the time of delivery of the property.
2025. In all cases when the purchaser is liable for the risk,
the purchaser shall also be entitled to all benefits arising from
the purchased property, such as its augmentations, increase of
the price and any fruits not yet collected at the time the
purchase contract was entered into.
2026. Civil fruits (Section 855, Paragraph two) which are due
not within certain terms, but each year on a continuous basis,
shall be subject to the provisions of Section 958, and on this
basis shall be divided between the seller and the purchaser
proportionate to the time each has borne the risk.
[29 November 2012]
2. Duties of the
Seller
2027. The sold property shall be delivered to the purchaser at
the proper time and proper place with all its appurtenances and
also with everything that can secure the rights to this
property.
2028. When selling a unit of rural land or a commercial,
industrial or any other type of undertaking "as is", everything
that at the time of entering into the purchase was located there
for the benefit and convenience of the farm or the undertaking or
was necessary for the seller, or was used or stored by the
seller, and owned by the seller, shall be considered as sold.
2029. Where selling a parcel of land, the seller must show the
purchaser its boundaries if these are not apparent from the
description or the plan of the parcel of land.
2030. If the purchased property is not delivered at all or is
not delivered in the proper manner, the purchaser may claim
compensation for all losses, especially if the delivery has
become impossible through the fault of the seller. If the seller
unjustifiably refuses to deliver the property, court enforcement
procedures may be exercised against the seller.
2031. If one and the same movable property is sold to two
purchasers, then priority shall be given to the one to whom the
property has been delivered, but if neither of them as yet has
possession of it, the priority right shall be given to the one
who first entered into a purchase contract.
In the sale of immovable property, the purchaser whose
contract has been registered in the Land Register has
priority.
A seller shall compensate an excluded purchaser for the losses
incurred.
2032. The seller shall deliver the property and all its
appurtenances in such form as promised or assumed.
3. Duties of the
Purchaser
2033. The purchaser must first of all pay the purchase price,
which must be done immediately upon delivery of the property,
that is, at the same time and the same place, unless the purchase
contract has been entered into on a credit basis or specific
terms have been set for payments. The seller need not deliver the
property before receiving the payment.
2034. Prior to the payment, the purchaser shall not obtain
ownership rights to the purchased property, unless the seller has
extended the term for payment. If the seller delivers the
property to the purchaser without any reservations, the extension
of the payment period shall be regarded as implicitly agreed.
2035. The purchaser must pay purchase price interest to the
seller from the time the purchaser has taken possession of and
started to use the purchased property.
2036. When a sold property is in danger of replevin, the
purchaser has the right to withhold the purchase price, if the
seller is not able to or does not wish to offer sufficient
security against the replevin.
2037. If the purchaser delays in paying, the seller may
request that the property be sold by way of auction at the
expense of the purchaser.
2038. The purchaser shall compensate the seller for the
expenditures the latter has made in regard to the property after
entering into the contract, including both necessary and useful
expenditures, if the latter have been made in good faith, or if
it is likely that the purchaser would have made them.
III. Setting
Aside of a Purchase Contract
1. General
Provisions
2039. Unilateral withdrawal from a purchase contract shall not
be permitted even if the other party does not perform his or her
obligations.
2040. As an exception, a purchase contract may be set aside
pursuant to the claim of one party:
1) where one party has been compelled to enter into the
contract through the acts of bad faith of the other party, or by
fraud or duress;
2) due to the defects in the purchased property;
3) on the basis of ancillary agreements by means of which the
right of withdrawal has been retained;
4) due to excessive loss suffered by one or the other
party;
5) in the circumstances specified in Section 1663, also on
account of default.
2041. Any purchase contract may be revoked, before or after
its performance, by mutual consent of both parties, except for
the cases where this might violate the rights obtained by third
persons. Where a contract that has already been performed is
revoked, each party shall return to the other party that which
such party has performed, or shall compensate such party
therefor.
2. Setting Aside
of a Purchase Contract Due to Excessive Loss
2042. In a case of excessive loss, that is, where the purchase
price does not amount to even half of the normal value of the
property, the seller may request the setting aside of the
contract. However, the purchaser may prevent the setting aside by
paying a sum which, added to the prior purchase price, would
constitute the true value of the property. Similarly, the
purchaser has the right to request the setting aside of the
contract, if the purchase price paid by him or her exceeds more
than twice the true value of the property; but the seller may
prevent the setting aside by reducing the aforementioned price to
the normal value of the property to be sold.
2043. The right to request the setting aside of a purchase
contract due to excessive loss shall apply only to those cases
where acts of bad faith of the party who inflicted the losses has
been proven. An exception to this provision is provided for in
Section 2056.
2044. The amount of compensation due to the injured party
shall be determined, where that is necessary, by a court which
shall base it on the value of the property at the time when the
contract was entered into.
2045. If a contract is set aside, the purchaser shall return
not only the property itself, but also the fruits gathered from
it since the time the purchase was carried out, but the seller
shall repay the purchase price with interest, and compensate for
the necessary and useful expenditures to the extent such
expenditures are justified.
2046. The right to request setting aside due to excessive loss
shall cease if an action is not brought within one year from the
entering into of the contract.
IV. Ancillary
Contracts in regard to a Purchase
1. Right of
Withdrawal for Reason of Non-payment of the Purchase Price
2047. A seller may provide by contract for the right to
withdraw from a purchase contract if the purchaser does not pay
the purchase price on the due date.
2048. A condition included in such a contract shall be
regarded as resolutory, except in cases where it is specifically
stated or obvious from the circumstances that the condition can
only be suspensive.
2049. If a certain term has been set for payment, the right of
the purchaser shall terminate when this term has expired; but if
a term has not been set, then it shall be necessary to first
receive a reminder from the seller. However, the seller must not
hinder timely payment of the purchase price.
2050. If the purchaser defaults in payment, the seller may use
or not use his or her right; but the seller must give notice
thereof immediately after the due date has passed, and once the
seller has requested setting aside of the contract, the seller
may no longer require its performance.
2051. If the seller demands or receives payment after the term
has expired, it shall be assumed that the seller has implicitly
waived the rights contracted for.
2052. When a contract is revoked, the property shall be
returned to the seller together with its augmentations and
income; moreover, the purchaser shall forfeit the earnest money
if such has been paid, and shall compensate for the losses
inflicted through his or her fault.
2053. If the purchaser has already paid a part of the purchase
price, the purchaser may, in the case indicated in Section 2052,
require the return of what has been paid, but without
interest.
2. Repurchase
and Resale
2054. By a repurchase contract a purchaser undertakes to sell
the purchased property back to the seller at the request of the
seller.
2055. If the right to repurchase is restricted to a certain
term, the right shall terminate upon its elapse. In the contrary
situation, prescription shall not apply to such right.
2056. If the conditions of repurchase, in particular the
price, have not been specified in the contract and subsequently
there is no voluntary agreement thereon, then the purchase price
shall be determined by a court in accordance with the value of
the property at the time of repurchase. However, if the price has
been set in the contract itself, then it shall remain in effect
regardless of whether the value has increased or decreased, and
such a purchase may be disputed only where it would cause
excessive loss.
2057. If a purchaser has alienated a property to a third
person, the party who has the repurchase right may claim
compensation from the purchaser only for losses; but a repurchase
action against a third person who has obtained the property
itself or a property right to it may be brought only if the third
person knew about this relationship when acquiring the property,
or when the subject-matter of the repurchase right is immovable
property and this right has been registered in the Land
Register.
2058. If a repurchase right belongs to several persons
jointly, then they may use it only if all jointly agree.
2059. A contract whereby a purchaser retains the right to
require repurchase from the seller shall be subject to the
provisions of Sections 2055-2058.
3. Right of
First Refusal
2060. By right of first refusal a seller contracts for a
priority right to purchase a property if the purchaser should
resell it.
The right of first refusal may not be used where a purchaser
alienates a property not by selling it, but otherwise.
2061. If a purchaser wants to resell a property purchased with
a contractual right of first refusal, the purchaser shall offer
it to the holder of this right immediately after entering into
the new contract; but the latter shall give notice as to whether
he or she intends to use this right: immediately - for movable
property, but for immovable property - in two months' time.
If the holder of the right of first refusal does not reply
within the specified time period, the right of first refusal
shall terminate.
2062. If the holder of the right of first refusal wants to use
such right, then he or she shall, unless otherwise agreed, fulfil
the same conditions that are offered by the new purchaser.
2063. If the property has been resold without notifying the
person entitled to the right of first refusal, then this person
may claim compensation for the losses incurred thereby only from
his or her purchaser; but he or she may bring an action against
the new acquirer or generally against any third person only where
such person has acted in bad faith, or where the subject-matter
of the right of first refusal is immovable property and this
right has been registered in the Land Register.
4. Purchase with
Examination or Inspection
2064. If someone buys a property with the right of prior
examination or inspection, then the purchase shall depend, unless
mutually agreed otherwise by the parties, on the suspensive
condition that the purchaser accepts the property as
suitable.
2065. Such a contract (Section 2064) shall bind the seller
from the moment that it has been entered into, but the purchaser
may either keep it in effect or withdraw from it, moreover, in
the latter case the purchaser need not state the reasons for
withdrawal.
2066. If the contract includes a specified time period for the
purchaser to respond and the purchaser allows it to pass, but has
not yet received the sold property or goods, then it shall be
assumed that the purchaser has withdrawn from the purchase. The
same consequences shall result where a time period has not been
specified or where it has not been provided that the response may
be given at any time, and the purchaser does not respond within
two months.
2067. If goods sold with a right of prior examination or
inspection has already been delivered to a purchaser, then the
purchaser's keeping silent until the expiration of the term shall
be considered to be consent.
2068. If a purchaser, after receiving the property, pays the
contractual price for it, fully or in part, without any
reservations, it shall be assumed that the purchaser has thereby
given consent implicitly.
5. Instalments
Purchase
2069. A seller may keep the ownership rights to the sold
property either by keeping this right while full payment of the
purchase price has not been received, or by having the ownership
rights revert back if the purchaser does not pay. If doubts
should arise regarding the intent of the contracting parties,
then it shall be assumed that it has been contracted for the
ownership rights to be retained by the seller so long as full
purchase price has not been received.
2070. If the right of payment of a purchase price by
instalments has been contracted for, and the purchaser has
defaulted with respect to two payments, but the seller does not
wish to burden himself or herself with the collection of late
payments, or if the purchaser alienates the purchased property,
or loses it, or so damages it that its value no longer covers the
outstanding payments, then the seller may request setting aside
of the contract and return of the sold property together with
compensation for the use, during the period from the delivery of
the property to the purchaser until the return of the property to
the seller, and for the losses caused for the latter. Against the
amount that the seller is entitled to from the purchaser on such
basis shall be set off all the payments made by the purchaser,
and if they exceed such amount, then the remainder shall be paid
back to the purchaser. Agreements contrary to these regulations
shall be void.
2071. If a purchaser does not engage in trade with the
property acquired subject to conditions as referred to in Section
2069 or 2070, he or she may not alienate or pledge such property
before payment; otherwise he or she shall be held liable pursuant
to the Penal Law and the alienation or the pledging shall not be
in effect, if the acquirer or the pledgee knew, or should have
known, that the property was acquired subject to a condition
referred to in Section 2069 or 2070.
6. Other
Ancillary Contracts
2072. The contracting parties may additionally conclude
various ancillary contracts, thereby modifying the provisions of
the law, for example, regarding the risk or the amount of
compensation, or securing their rights.
V. Sale at an
Auction
2073. Sale at an auction is an offer regarding property
intended for open sale to enter into a purchase contract with the
person who bids the highest price for such property.
Note. Auctions may also be arranged, without purchase
contracts, for lease, rental, employment and supply
contracts.
2074. Sale at an auction may be, from the point of view of the
owner of the property to be sold, either voluntary or compulsory.
The former may be performed, pursuant to the discretion of the
seller, by judicial process (Section 2076) or privately, but the
latter shall be performed only by judicial process.
2075. Upon voluntary sale at an auction, whether performed by
judicial process or privately, the mutual rights and duties of
the contracting parties shall be determined according to the
provisions agreed upon between them, and in large part by such
provisions as have been proposed by the seller.
2076. Sale of movable or immovable property by compulsory
auction, as well as sale of immovable property by voluntary
auction by judicial process, shall be performed pursuant to the
provisions of the Civil Procedure Law.
2077. Bidders, as well as the persons who are present at an
auction due to their office, may not be purchasers either for
themselves or pursuant to the instructions of other persons.
2078. Creditors of the owner of the property sold by
compulsory auction may take part in the bidding, but the owner
himself or herself shall not bid either in person or through an
authorised representative.
2079. The general provisions of Section 2005 shall apply to
the property sold at an auction.
2080. If indivisible movable property that is in joint
ownership is offered for sale at auction for the satisfaction of
the creditors of one joint owner, then the others shall have only
the right either to satisfy the creditors by purchasing their
claims, or to obtain the movable property at auction on equal
terms with the others. All the income shall be distributed in
proportion to the shares of the joint owners, and the share that
is due to the debtor shall be used to satisfy his or her
creditors and to cover expenditures.
2081. Sale at an auction of movable property by private
procedure shall be considered to have occurred even though at the
auction no one has bid higher.
2082. Each bidder or higher bidder shall be bound by his or
her bid until there is a higher bid by another person. When a
higher bid is made, the bidder of the previous price shall be
released from his or her obligations.
2083. If none of the bidders, upon being invited to do so,
makes a higher bid, then the property shall be conferred, by the
fall of the hammer, to the person who has bid the last price; he
or she may be denied the acceptance of the bid by the fall of the
hammer only if the conditions of the auction contain specific
reservations regarding it. If there are no such reservations, the
auctioneer shall not have the right to pass from the highest
bidder to the previous bidder. However, if several persons
simultaneously bid the same price and none makes a higher bid,
then the auctioneer may choose from among such persons the one he
or she wants.
2084. If, pursuant to the conditions of the auction, the
auctioneer retains the right to decide on the acceptance of the
highest bid, the acceptance of the bid by the fall of the hammer
shall be made only after he or she has announced his or her
decision either within the time period specified by himself or
herself, or, if he or she has not specified such time period,
within a time period determined by a court upon the request of
the highest bidder. Until that time such bidder shall be bound by
his or her bid.
2085. Acceptance of the bid by the fall of the hammer shall
replace an auctioneer's announcement that he or she has accepted
the highest bid, and such acceptance of the bid by the fall of
the hammer shall close the sale even in such cases when, in
addition to compliance with general procedures, the property must
be adjudged to the highest bidder by a special judgment of a
court.
2086. Sale at an auction shall have, with respect to its
consequences, the same effect as ordinary sale; from the moment
of acceptance of the bid by the fall of the hammer the risk is
transferred to the highest bidder, but from the same moment such
bidder shall receive, even before the transfer of the property,
all the fruits and benefits from such property.
2087. After the acceptance of the bid by the fall of the
hammer, the highest bidder shall pay the purchase price either
immediately, or in accordance with the terms of the conditions of
the auction, at the same place where the acceptance of the bid by
the fall of the hammer occurred if another place has not been
specified therefor, and in general shall perform everything that
is specified in the conditions, or the procedures of the
performance shall be specially agreed upon with the auctioneer or
other interested persons.
2088. After the highest bidder has fulfilled the conditions of
the auction, all the pledge rights of the sold immovable
property, which the bidder does not assume himself or herself,
shall terminate. Real charges shall pass to the purchaser.
2089. If, in a voluntary auction, the highest bidder delays
fulfilment of the conditions, or if he or she does not have the
personal characteristics necessary for the acquisition of the
property on sale, the property shall be set for a repeated
auction, pursuant to the request of the seller, at the expense
and risk of the highest bidder referred to. Until that time, his
or her rights and duties shall remain valid, and before the time
of the new auction he or she may prevent it by fulfilling the
duties referred to, i.e., by paying the amount due from him or
her and the late payment interest, as well as the expenses of the
new auction.
2090. A purchase contract that has been entered into by
acceptance of the bid by the fall of the hammer at a voluntary
auction may be revoked on account of the same reasons as a
contract entered into through private procedures.
Sub-chapter Two
Barter Contract
2091. A barter contract is the mutual promise of two persons
to provide a certain subject-matter in exchange for another,
except for money.
The subject of a barter contract may be not only tangible
property, but also claims and other rights.
2092. The provisions regarding purchase contracts are
applicable mutatis mutandis to the mutual rights and duties of
the contracting parties in a barter contract.
2093. Rights of third persons, as may be provided for in a
purchase contract, such as rights of first refusal and
pre-emptive rights, may not be exercised pursuant to a barter
contract.
2094. In the barter of tangible property, it is the
responsibility of each party to ensure that the other party
becomes the owner of the transferred property. Ownership rights
shall pass to the recipient of the property immediately after
delivery, regardless of whether or not the recipient has
fulfilled his or her counter-duty.
2095. Each party has the right to require from the other party
fulfilment of his or her contractual and legal duties, but a
contracting party which has already fulfilled his or her
obligations, may require the return of the transferred property
where the other party delays in fulfilling them.
Sub-chapter Three
Maintenance Contract
I. GENERAL
PROVISIONS
2096. Pursuant to a maintenance contract, one party provides
the other party, whether in cash or in kind, with some financial
benefit for which the other party shall provide maintenance to
the first-mentioned party during the life of the recipient of
maintenance, unless otherwise agreed regarding the duration of
such duty.
2097. Maintenance may be contracted for oneself as well as for
another person who shall thereupon obtain the right, by joining
in the contract (Section 1521), to apply pursuant to his or her
claim directly to the provider of maintenance.
If maintenance is contracted for the benefit of more than one
person, it shall be divided equally among such persons; if one of
such persons dies, his or her share shall be retained by the
provider of maintenance, unless it is has been agreed that in
such case the share of the deceased person shall devolve to the
survivors.
2098. Maintenance shall include, unless otherwise agreed,
food, housing, clothing and care, but if the recipient of
maintenance is a minor, also upbringing and education in
compulsory schools.
If the exact amount of maintenance has not been specifically
agreed upon, it shall be determined by a court, taking into
account the circumstances in which the recipient of maintenance
is living and the nature of the financial benefit (Section 2096)
received by the provider of maintenance.
II. Legal
Relations Arising from a Maintenance Contract
2099. If the recipient of maintenance is unable to pay the
debts he or she had upon entering into the contract, his or her
creditors may request satisfaction from the financial benefit
transferred to the provider of maintenance. Claims, which have
arisen after entering into contract, may be applied against the
maintenance, if other property does not suffice.
2100. If immovable property is transferred to the provider of
maintenance, then pledge rights in the amount of the value of the
maintenance shall be registered in the Land Register for the
benefit of the recipient of maintenance.
The periodic value of the maintenance shall be calculated by
capitalising the value of gains of one year pursuant to interest
set by law (Section 1765).
2101. Maintenance shall be provided, unless otherwise
specified, for a quarter in advance, but if the maintenance also
is to be provided in kind, then for six months in advance. The
received amount is not required to be returned even if the
recipient of maintenance does not survive until the next
term.
The place of performance shall be where housing was contracted
for (Section 2098).
2102. The right of the recipient of maintenance to the
maintenance shall not be ceded.
III. Termination
of a Maintenance Contract
2103. The contract shall terminate automatically upon the
death of the recipient of maintenance, but not upon the death of
the provider of maintenance.
2104. Both parties may unilaterally withdraw from the contract
on the basis of the reasons set out in Section 2193.
2105. If a contract is breached by the provider of
maintenance, the recipient of maintenance or his or her successor
in interest may reclaim the transferred financial benefit
(Section 2096), and he or she shall not be required to return the
value of the maintenance received.
In other cases of termination of the contract, the provider of
maintenance shall return the financial benefit received to the
recipient of maintenance or to his or her successor in interest,
while the provider of maintenance shall recover everything he or
she has transferred to the recipient of maintenance above the
amount of the interest set by law.
2106. A maintenance contract shall not be set aside:
1) if excessive losses have been incurred;
2) if children were born later to the recipient of
maintenance.
Sub-chapter Four
Supply Contract
2107. Pursuant to a supply contract, one party (the supplier)
undertakes to deliver to the other party (commissioning party) a
particular thing for a certain price.
2108. The supplier shall not have the right to withdraw from
the obligation he or she has undertaken, even though the supply
may be hindered by circumstances that arise later.
The commissioning party may, however, withdraw from the
contract on account of a change of circumstances, but in such
case he or she shall compensate the supplier for all losses.
2109. When the supplier has delivered the thing ordered, the
legal relations of the contracting parties shall be determined in
compliance with the provisions regarding purchase contracts.
2110. If the subject-matter of a supply contract is a certain
activity, the provisions regarding work-performance contracts are
applicable.
2111. Government procurement contracts shall be subject to the
above provisions (Sections 2108-2110), as well as to laws
regarding public works and supply.
CHAPTER 14
Lease and Rental Contract
2112. A lease or rental contract is a contract pursuant to
which one party grants or promises the other party the use of
some property for a certain lease or rent payment. A contract,
which grants the use of a fruit-bearing property in order to gain
fruit thereof, is a lease, but any other contract granting use is
a rental contract.
Note. Specific provisions regarding residential rental
premises are included in the Law on Rental of Residential
Premises.
Sub-chapter One
Provisions of a Lease and Rental Contract
2113. The subject-matter of a lease and rental contract may be
such tangible property as alienation of it is not prohibited, as
well as rights. Real servitudes may be leased only together with
the dominant immovable property.
Property that can be used only for consumption may not be
rented.
2114. If anyone leases or rents his or her own property
believing that it belongs to someone else, a contract regarding
such property shall not be valid. If the property is, however,
joint property, or someone else has other rights to the property
which grant him or her possession or use of such property, the
lease or rental of such property to its owner shall be valid.
2115. The lessor or renter of property does not have to be its
owner; moreover, any person who has the right of use may lease or
rent. In addition, the lessee or tenant may assign the leased or
rented property to another person, but only upon express consent
of the lessor or renter of the property.
2116. Upon assignment of property to a third person (Section
2115), the lessor or tenant may not act fraudulently or to the
disadvantage of the first lessor or renter, and he or she may not
assign it for different use than for which he or she received it,
or assign it for a longer time than his or her own period of
lease or rental.
2117. Upon further lease or rental of property to a sub-lessee
or a sub-tenant, the relationships arising from the first
contract shall not transfer in full to the subsequent contract,
and each contract shall be completely independent. However, a
sub-lessee or a sub-tenant have the right to pay the lease or
rent payment directly to the first lessor or renter to the extent
of the debt of the first lessee or tenant.
2118. If a whole unit of rural land is leased, it shall
include all its appurtenances, unless agreed otherwise.
2119. The lease or rental payment may be provided in cash, as
well as in other fungible property.
2120. The lease or rental payment must be actual compensation
for the use of property, and therefore it may not be set
fictitiously. A transaction concluded contrary to this provision,
with the purpose of evading the law or deceiving a third person,
shall not be valid; but if the purpose of a transaction is to
show goodwill to an apparent lessee or tenant, it shall be deemed
to be a gift.
2121. A transaction upon the conclusion of which an adequate
lease or rental payment was initially agreed upon shall retain
the character of a lease or rental contract, even though such
payment might later be cancelled altogether.
2122. Both lease and rental payments shall be specifically
set, and the same provisions shall thereupon be complied with as
provided for regarding purchase price in Section 2017 and
subsequent Sections.
2123. If lease or rental payment has not been specifically
agreed upon, but the same subject-matter has been previously
leased or rented by the same person, then it shall be presumed
that the previous provisions have not been changed. However, if
such standard does not exist, and the parties have expressed only
general statements that the payment shall be agreed upon between
them, the amount of the payment shall be determined by a court
pursuant to its discretion.
2124. As soon as both parties have agreed upon the essential
elements of a lease or rental contract, that is, the
subject-matter and the payment, it shall be considered that the
contract has been entered into.
2125. Mutual agreement may also be implicit, if the amount is
presumed to be already known by the contracting parties.
2126. Upon registering a lease or rental contract in the Land
Register, the lessee or a tenant shall acquire property rights,
which are valid also with respect to third persons.
2127. The contracting parties may also attach various
ancillary provisions to the principal contract to which the
provisions regarding ancillary contracts of a purchase contract
shall apply (Section 2047 and subsequent Sections).
Sub-chapter Two
Legal Relations Arising from a Lease and Rental Contract
I. GENERAL
PROVISIONS
2128. Both parties shall treat the obligations arising from
the contract with such care as may be fairly expected from them,
especially regarding maintenance of the property. Therefore, they
shall be held liable to each other for each loss that has
occurred due to their acts in bad faith or negligence, and only
accidental losses need not be compensated.
2129. In regard to losses caused by third persons, one party
shall be held liable to the other only if, contrary to the
contract, such party itself made it possible for such loss to be
caused, or had the means to prevent such loss.
II. Duties of a
Lessor or Renter
2130. The lessor or renter of property shall transfer the
property to the lessee or tenant; the lessor or renter shall
ensure that the property can be used and fruits can be gathered
from it by the lessee.
A lessee or a tenant is the holder of property, but not the
possessor of it.
2131. The lessor or renter may not disturb the use of the
property or of its fruits or allow others to disturb or eject the
lessee or tenant; in either case it shall be his or her duty to
compensate for the losses caused to the lessee or tenant.
2132. If a third person brings an action that is contrary to
what a lessor or renter has regarded as his or her right, and the
lessee or the tenant is therefore evicted, the lessor or renter
shall compensate for the losses caused to the lessee or tenant,
even though he or she may have acted in good faith. However, if
the lessee or tenant himself or herself has acted in bad faith,
he or she does not have the right to compensation.
2133. The right of the lessee or tenant to compensation for
losses (Section 2132) shall cease if the lessor or renter
provides him or her with similar and not less useful property in
place of the previous property; it shall be assumed, however,
that the lessor or the renter of the property acted in good faith
when entering into the contract.
2134. The lessor or renter shall transfer the property to the
lessee or tenant together with all its appurtenances and in such
state that the latter can obtain from it all the benefits that he
or she had the right to expect.
2135. If such defects are discovered in the property that
should have been noticed by a careful lessor or renter, then he
or she shall fully compensate the lessee or tenant for the losses
caused thereby.
2136. If a restriction or hindrance regarding the use of
property has occurred accidentally through no fault of the lessor
or renter, he or she shall not be required to compensate the
other party for losses caused, however, the lease or rental
payments shall be commensurately reduced (Section 2147 and
subsequent Sections). However, if the restrictions or hindrances
regarding the use of property are short-term and were caused by
making necessary repairs to the property, the lessor or renter
shall be released even from the aforementioned reduction of the
lease or rental payments.
2137. If a person rents out only a few premises in a
warehouse, but the whole warehouse is kept under his or her lock
and key, then the renter shall be liable to the tenant for
providing security.
2138. The charges and encumbrances to which the leased or
rented property is subject shall be borne by the lessor or
renter, unless otherwise agreed; therefore, he or she shall also
reimburse the expenditures as have been made for such purpose by
the lessee or tenant.
2139. If the lessee or tenant has undertaken all the current
charges, then such shall be understood to mean only such charges
as the subject-matter of lease or rental contract or its fruits
were currently subject to as of the entering into of the
contract.
2140. Necessary and useful expenditures that a lessee or
tenant has made for a property shall be reimbursed by the lessor
or renter in accordance with the general provisions regarding
reimbursement of expenditures (Section 866 and subsequent
Sections).
III. Duties of
Lessees or Tenants
2141. A lessee or tenant shall pay the lease or rental payment
by the term specified in the contract; if payments are delayed,
he or she shall pay late payment interest.
2142. If a term for payment is not specified in the contract,
the lessee or tenant shall pay the lease or rental payment only
after the expiration of the period of use. However, if the
contract has been entered into for a year or for a longer period,
the payment referred to shall be paid for every six months in
advance.
2143. Where urban immovable property is rented by the month,
the rental payment shall be paid, unless otherwise agreed, for
the whole month in advance, but where the rental is for a short
indefinite time only, earnest money shall be given.
2144. If the lessee or tenant arbitrarily withdraws from the
lease or rental contract before the time specified in the
contract, he or she may be required to immediately pay the whole
amount of the lease or rental payment. However, if early
termination of the lease or rent has a legal basis, the lease or
rental payment, although it also must be paid immediately, is
required to be paid only for the actual time that the premises
were occupied.
2145. A lessee or tenant shall not be required to pay more
than the agreed amount of the lease or rent payment
notwithstanding that he or she may have gained an unexpectedly
large profit from the leased or rented property.
2146. The lease or rental payment shall be paid in full, even
if the lessee or the tenant has not utilised, through his or her
own fault, all the benefits from the leased or rented property,
unless the lessor or renter has leased or rented such property to
another person; in such case the lessee or the tenant shall cover
only such shortfalls as might exist.
2147. The duty to pay the lease or rental payment shall cease
and the payments that have been made shall be returned - fully or
partly - if the property to be leased or rented has not been used
due to such event as was not caused by the lessee or tenant and
as occurred without the fault of the lessee or tenant. Such
events shall include the following cases:
1) where the property is accidentally destroyed;
2) where the lessee or tenant become unable to use the
property due to force majeure;
3) where the use of most important parts of the property
becomes restricted;
4) where leasing land, the lessor loses the fruits, fully or
at least to a considerable extent, due to force majeure.
2148. In order to reduce the lease or rental payment as a
result of the events indicated in Section 2147, it is
necessary:
1) that the loss was inevitable and was not caused by
inherently bad characteristics of the property;
2) that regarding leases entered into for several years the
income not received for one year is not covered by abundant
excess yields in other years;
3) that the lessee or tenant has not expressly assumed the
risk.
2149. If the property is leased or rented by several owners
jointly, the reduction of lease or rental payment made by one of
them contrary to the contract and without lawful basis (Section
2147) shall not be binding upon the others.
2150. The lessee or tenant shall use the subject-matter of the
lease or rental contract properly and as a good manager. If this
has been observed, the lessee or tenant shall not be liable for
the natural wear and tear of the property.
2151. The lessee or tenant does not have the right to use what
has not been granted to him or her by the contract, and generally
may use or utilise the property only for such purpose as was
intended in leasing or renting it.
2152. After the termination of lease or rental a lessee or
tenant shall return the leased or rented property with all its
appurtenances in as good a condition as possible. A person who
obtains ownership of property from a third person during the term
of the contract has the same duty. However, if he or she was
already the owner prior to the entering into of the contract or
acquires ownership from the lessor or the renter during the term
of the contract, then he or she shall not be required to return
it.
2153. If the leased or rented property is destroyed or damaged
through no fault of the lessee or tenant, then his or her
liability to return it (Section 2152) ceases, unless he or she
has specifically agreed to assume risk.
2154. If certain property or auxiliary property has been
transferred to a lessee or tenant at a set price, then upon
termination of the lease or rental contract he or she shall
compensate for the destroyed objects according to the price
referred to but, additionally, he or she shall pay for the
damaged items to an extent commensurate to the decrease of their
value.
2155. If a lessee or tenant has made legally justified
expenditures for the benefit of the property (Section 2140), then
he or she may retain the property until he or she receives
compensation for such expenditures.
2156. If there is a duty imposed pursuant to the contract upon
the lessee or tenant to make an improvement to the property, then
he or she may be required to perform such duty already before the
termination of the lease or rental contract.
IV. Specific
Duties of Lessees of Rural Farms
2157. A lessee shall ensure that the boundaries of the farm
are not infringed and the rights of the farm are not restricted
in any way. He or she shall notify the lessor of the farm of each
infringement of boundaries and rights.
2158. A lessee shall maintain the leased farm in a condition
suitable for use, and the lessor shall have the right to annually
examine the administration of the lessee.
2159. If a specific system of management is specified in the
contract, the lessee shall closely comply with it. Moreover, he
or she does not have the right to introduce, without the consent
of the lessor, any substantial alterations in the previously
established management system, which may also have an effect on
the farm after the termination of his or her lease.
Fields of perennial plants shall not be utilised in such a way
as to have adverse effect upon the yield of subsequent years. A
lessee may use fallow fields for crops only with the consent of
the lessor.
A lessee is not required to participate in melioration of
land. If the land is drained, the lessee shall be responsible for
maintenance of the outlets of drain-pipes. The lessee shall
thoroughly clear all the ditches alongside and across the fallow
fields.
2160. A lessee may sell firewood from the forests of the farm
only if it is expressly permitted by the contract. Otherwise, he
or she may cut only such timber and firewood as is necessary for
the current domestic use.
2161. A lessee shall not move straw, hay and any other
material useful for supplementing fertilisers, as well as manure,
from the farm, unless prior to leasing the lessor of the farm
himself or herself has sold the hay regularly due to its excess.
Such prohibition shall not apply to the amount of fodder, litter
and manure that the lessee has brought to the farm with the
knowledge of the lessor. The lessee may manure fields of summer
crops only if that has been specifically agreed.
A lessee shall acquire such number of animals as is necessary
for proper consumption of forage.
2162. If premises and facilities are provided to the lessee in
proper order for use, he or she shall also maintain them in such
order and do minor repairs at his or her expense. The lessee
shall maintain the roofs of buildings in such condition that they
do not leak. New roofs shall be put on and major repairs of
buildings shall be done by the lessor.
Materials necessary for repair of buildings shall be purchased
by the lessor; all the materials shall be delivered by the
lessee, calculating by one cartload per two hectares of the
leased plough land; the lessee shall also cut and trim the timber
materials to be supplied.
2163. Unless otherwise agreed, corvee required by the State
and local governments shall be performed by the lessee.
2164. If a lessee returns more planted fields than he or she
received upon entering into the lease, and the lessor has given
consent to expansion of the planted areas, the lessee shall
receive remuneration for his or her work and for the seed.
A lessee who returns fewer planted fields than he or she
received upon entering into the lease shall compensate for the
decreased planted area according to the market price,
commensurate with the average yield of the previous six years,
and additionally he or she shall pay for the missing straw and
forage.
A lessee shall be liable for neglected fields commensurate
with the average yield of the previous six years.
Sub-chapter Three
Termination of Leases and Rental Contracts
2165. A lease or rental contract limited only to a goal to be
reached or a specified term shall terminate when the goal has
been reached or the term has expired.
2166. A lease or a rental contract regarding immovable
property entered into for an indefinite period of time shall
terminate, unless otherwise agreed, only after six months prior
notice that may be given by either party of its own volition. If
the subject-matter of the contract is a rural farm, such notice
shall be given six months prior to the end of the farming year. A
farming year shall begin and end on 23 April. A notice for a
rental contract entered into for an indefinite period of time,
with a monthly or weekly lease payment, shall be given one month
or one week in advance.
2167. If a third person has provided a guarantee or pledge
regarding the lessee or tenant, then the consent of such person
shall be required to extend the guarantee or pledge to the
extended term.
2168. Lease and rental contracts shall also terminate
automatically, before the expiration of the term:
1) upon the leased or rented property being destroyed;
2) upon termination of the right the lessor or renter had to
the subject-matter of the lease, but if he or she has concealed
the fact that he or she had the right to act with the property
only for a certain period, he or she shall be liable to the
lessee or tenant, who has acted in good faith, for fraud;
3) where confusion of rights takes place, i.e., if a lessee or
tenant obtains the ownership of the leased or rented
property.
2169. [12 December 2002]
2170. Each contracting party may unilaterally withdraw from a
contract if excessive losses have been incurred; in such case,
the same provisions shall apply as for a purchase contract.
2171. A lessor or renter may require revocation of a contract
without the consent of the other party if:
1) the lease or rental payment has not been paid within the
term in the contract, or, if such term has not been specified,
within the term set by law; the consequences of such delay,
however, can be prevented by offering the payment before an
action for setting aside the contract has been made;
2) the lessor or renter has an unforeseen need to use the
property himself or herself;
3) the lessee or tenant damages the property by using it
improperly or contrary to the contract;
4) the leased or rented property requires immediate and such
extensive repairs that render it impossible to continue the
contract; moreover, the lessee or tenant may not in such case
claim any compensation for losses; but if the repairs were not
necessary, the lessee or tenant has the right to claim
compensation for all the losses;
5) the lessee has sub-leased the leased immovable property
without the consent of the lessor (Section 2115).
2172. A lessee or tenant may require revocation of the
contract without the consent of the other party if:
1) the lessor or renter delays the transfer of the property
for so long that the lessee or tenant is no more interested in
acquiring it for use;
2) if the lessor or renter does not make the necessary repairs
to the property, or if the property is discovered to have such
faults or defects as prevent from its full use or at least to a
significant extent hinder its use, and as cannot be remedied;
3) in the residential building in which a dwelling is rented
it is necessary for construction work to be done in the course of
which a substantial part of the dwelling is rendered unfit for
living, or it is even necessary to move to another dwelling for
some time;
4) characteristics of the subject-matter of the contract are
harmful to health.
2173. In all cases where one party has the right to withdraw
from the contract such party shall notify the other party of its
intention so as to provide the necessary time for the lessor or
renter to accept the property, or for the lessee or tenant to
return or vacate the property. In no case, however, shall the
lessor or renter arbitrarily evict the lessee or tenant, even
though such right may have been agreed to in the contract. A
person who fails to comply with these provisions shall compensate
for all the losses.
2174. When a lessor or renter alienates the subject-matter of
a lease or rental contract, the acquirer must comply with the
lease or rental contract only if it has been registered in the
Land Register (Section 2126). If the acquirer cancels a contract
which has not been registered in the Land Register, the lessor or
renter shall compensate the lessee or tenant for all the losses
caused by early termination of the contract; in such case the
acquirer shall give the lessee or tenant sufficient time for the
return of the subject-matter of the lease or rental contract.
2175. If the new acquirer wishes to keep the contract in
effect, the alienation (Section 2174) does not give the lessee or
tenant the right to withdraw from it.
2176. If concursus proceedings are initiated with respect to
the property of a lessor or renter, the creditors shall recognise
the lease or rental contract as valid. However, if the leased or
rented property is put up for sale for the benefit of the
creditors, the provisions of Sections 2174 and 2175 are
applicable.
2177. If concursus proceedings are initiated with respect to
the property of a lessee or tenant, the contract does not have to
be continued either by the creditors or by the lessor or renter,
and they shall not be mutually bound by any time period regarding
the notice of termination.
CHAPTER 15
Claims Arising from Employment Relations
Sub-chapter One
Employment Contract
I. GENERAL
PROVISIONS
2178. Pursuant to an employment contract, one party undertakes
to perform work for the other party for remuneration.
2179. Work may either be the kind that requires primarily
physical exertion, or the kind that requires special expertise,
skill or scientific education.
If the purpose of a contract is not work itself, but rather a
specific result of work, then a contract for such shall not be
considered to be an employment contract, but rather a
work-performance contract.
Note. The provisions of this sub-chapter apply to all
employment contracts, insofar as it is not provided otherwise in
the Employment Law Code of Latvia or other laws that regulate
employment.
[22 December 1992]
2180. Remuneration for work may be in the form of money, any
property other than money, as well as both.
2181. Even if no payment was agreed upon for the work, an
employee may nevertheless demand payment when, based on the
circumstances of the work, the performance of the work could be
reasonably expected only for remuneration, and especially when
the work is the employee's trade. In such cases, the amount of
the remuneration shall be determined by a court at its
discretion.
II. Lawful
Relations in an Employment Contract
2182. An employee shall be prepared to perform the work within
a certain time period and to perform it with all due care in
accordance with the contract. Furthermore, if it has not been
otherwise agreed, the employee shall be bound by the employer's
instructions.
2183. An employee who is provided premises in which to live
and sleep by an employer shall observe the rules of the house as
established by the employer.
2184. An employee shall perform the work personally if it has
not been agreed otherwise or circumstances permit that it be
otherwise.
2185. If an employee fails to perform the work undertaken, or
if he or she does not exercise due care, he or she shall
compensate for losses, unless the employer with his or her
instructions was at fault for the loss.
Note. The liability of an employer for losses caused by an
employee is provided for in Sections 1639 and 1782.
2186. The expenditures required for work shall be borne by the
employer, unless it has been otherwise agreed or local custom so
requires.
2187. The employer shall pay the employee commensurate
remuneration for the work (Section 2180). If an employer provides
food and premises in which to live and sleep for an employee, the
food shall be suitable and of sufficient quantity, and the
premises shall be in a sanitary condition.
2188. If remuneration is contracted for periods of one month
or longer, then it shall be paid at the end of each month; if
remuneration is contracted for weekly periods, it shall be paid
after the expiration of this time period, but in other cases, it
shall be paid after the expiration of the contracted period of
work.
Farm-labourers may request the payment of half their earnings
before the expiration of the contracted period of work.
2189. If one or the other party unilaterally withdraws from
the contract, then the employee shall receive wages commensurate
with the time they worked or the work they performed, and in
addition the party at fault shall pay the other party
compensation equal to the wages for the period of time which is
provided for in Section 2192, Paragraph three.
The party at fault shall compensate the injured party for
losses incurred as a result of the withdrawal to the extent such
exceeded the remuneration mentioned in Paragraph one of this
Section in accordance with general principles.
2190. An employer may deduct their losses from payments to
which the employees are entitled.
2191. An employer need not provide compensation for any
casualty loss suffered by employees while performing their
work.
Note. The liability of an employer in cases of an employee's
illness or accident is provided for in the regulations on group
health insurance, in the Law on Insurance for Accidents and
Occupational Diseases and in the Law on Insurance for Rural
Residents in Case of Illness.
III. Termination
of an Employment Contract
2192. An employment contract expires when the time period for
which it was entered into has ended.
If nothing has been agreed regarding the time period, and if
its duration is not determined by the very nature or purpose of
the work, then either party may terminate the contract by giving
notice.
If it is not otherwise provided for in the contract, in giving
notice the following terms of notice shall be observed:
1) one day - if an hourly or daily wage was contracted
for,
2) three days - if weekly wages were contracted for,
3) two weeks - if a monthly salary or wages for piecework were
contracted for,
4) one month - in all other cases.
2193. Either party may unilaterally withdraw from the contract
before the expiration of the time period agreed upon, if there is
good cause.
Good cause shall primarily be considered to be such
circumstance as prevent the continuation of contractual relations
due to considerations of a moral nature or a mutual sense of
fairness.
Issues regarding the existence of such circumstances shall be
decided by a court at its discretion.
2194. An excessive loss shall not give either party the right
to withdraw from an employment contract.
2195. An employment contract shall expire of its own accord
with the death of the employee, but not with the death of the
employer.
Sub-chapter Two
Sharecropping Contract
I. GENERAL
PROVISIONS
2196. Pursuant to a sharecropping contract, one party, the
sharecropper, undertakes for remuneration to perform for the
other party, the landowner, all the general usual work on the
landowner's farm, with the sharecropper's own horse and manpower,
and own tools.
2197. The provisions regarding employment contracts
(Sub-chapter 1) are applicable to sharecropping contracts,
insofar as such provisions are not in conflict with the
provisions of this Sub-chapter (2).
2198. The substance of the contract is not altered by
agreement that the landowner will assist with a horse or human
work power or tools.
Where a farm has a herdsman, the sharecropper and the
landowner will jointly provide the herdsman's wages and
subsistence, unless otherwise agreed.
2199. If the contract is entered into regarding the entire
farm and it is not otherwise agreed, then it does not apply to
forests, orchards and fishponds, but does apply to any remaining
land utilised for farming in the previous year.
2200. Seed shall be furnished by the landowner and must be
clean and able to germinate well. The landowner shall receive
back the same type of seed from the harvest before it is divided
(Section 2201).
If there is an agreement to return the seed to the landowner
in the form of cash, then the sharecropper shall repay half the
value of the seed, based on prices prevailing at the time of
sowing.
If there is a crop that the landowner and the sharecropper are
not growing jointly, but each on their own separate parcel of
land, then each of them shall furnish their own seed.
2201. If not otherwise agreed, the sharecropper shall receive
half the harvest remaining after the deduction of the sown seed
(Section 2200) as remuneration, as well as half the fodder and
litter and the right to use half the pasture. The sharecropper
may put out to the common pasture the same number of cattle and
small livestock as is kept by the landowner.
2202. The rights provided for in Section 1735 to a lessor and
in Section 1123 and in Annex V (to Section 1936), Section 83,
Paragraph four of the Civil Procedure Law to an owner against a
lessee also pertains to a landowner against a sharecropper.
Against the claims of a third person a sharecropper may use
the defences provided for in Section 1120, Clause 9 and Section
1122 of the Civil Procedure Law.
2203. Sharecroppers do not have the rights provided for in the
note to Section 876.
II. Lawful
Relations Arising from a Sharecropping Contract
2204. Sharecroppers shall adhere to the established crop
system and farming methods. The landowner's instructions shall be
binding on the sharecropper.
Sharecroppers shall comply with the provisions of Section
2159, Paragraphs two and three, Section 2161, Section 2162,
Paragraph two, and Section 2163.
2205. The sharecropper shall, if unable to perform the work in
a timely and proper manner, hire additional help and shall be
liable for losses which have been caused by delays in or improper
performance of the work.
2206. If the farm has adopted the use of artificial fertiliser
on its planted fields, then the sharecropper shall cover half the
expenditures for artificial fertiliser.
2207. Landowners shall provide sharecroppers with suitable
premises for housing their family, and labourers, and keeping
domestic animals and produce. The sharecropper shall maintain the
premises provided in useable condition; the heating installations
and the well shall be maintained in especially good repair.
The sharecropper shall repair fences and keep the yard of the
house in clean condition.
2208. The sharecropper shall transport the share of the
harvest received by the landowner, and domestic animals to be
sold, to the nearest railway station or the usual place of sale.
However, in such cases the sharecropper may require that he or
she be given, for each trip, a load of weight equal to at least
one average horse-load, provided the load allows such
division.
2209. If not otherwise agreed, the landowner shall share the
expenditures of threshing the harvest, by paying for half of the
use of the threshing machine and by providing half of the fuel,
which the sharecropper shall bring to the farm and process.
III. Termination
of a Sharecropping Contract
2210. A contract for sharecropping terminates when the time
period for which it was entered into expires. If the time period
is not agreed upon, then the contract expires at the end of the
farming year.
2211. The death of one party or the other does not terminate
the contract.
Sub-chapter Three
Contract for Work-performance
2212. Pursuant to a contract for work-performance, one party
undertakes, using the party's tools and equipment and for a
certain remuneration, to perform for another party an order, the
production of some product or the conducting to its completion of
some activity.
The provisions regarding employment contracts (Sub-chapter 1)
are applicable to contracts for work-performance, insofar as such
provisions are not in conflict with the provisions of the
following sections.
The Laws regarding procurement for State works and supplies
are applicable to works and supplies provided to meet the
requirements of the State.
I. Lawful
Relations Arising from a Contract for Work-performance
1. Duties of the
Contractor
2213. The contractor shall perform an order in accordance with
the contract and provide it to the commissioning party.
2214. If it is agreed that materials are to be processed, then
the commissioning party shall furnish these materials. However,
if the materials are furnished by the contractor, and the
commissioning party pays only in money for the product produced
for him or her, then the contract shall be considered a purchase,
rather than a contract for work-performance.
A contract for work-performance is not altered if the
contractor makes some additions to the materials provided for
processing. Similarly, in construction work, the nature of the
contract, as a contract for work-performance, remains if a
contractor supplies materials but a commissioning party provides
the land for the construction site.
2215. If a contractor is permitted to replace the materials
given to him or her with other materials of the same kind and
quality, then the contract shall be considered a contract for
work-performance, and the contractor, by replacing the materials
he or she was given, shall become the owner thereof.
2216. It is not required in regard to a contract for
work-performance that the materials belong to the commissioning
party, nor that the product manufactured from these materials be
ordered for the commissioning party himself or herself;
accordingly, the commissioning party may provide another person's
materials to be processed for a third person.
2217. If it is not a condition of the contract that the
contractor shall perform the job personally, and if such
condition cannot be considered to have been implicitly agreed to,
as, for example, in such an order as the specific expertise and
skills of the contractor are contemplated in the performance of,
then the contractor, at his or her own risk, may entrust the
performance of the job to a third person.
If there is a complete failure to perform the order or it is
at least uncompleted, or it is poorly performed or otherwise than
as instructed by the commissioning party, or is not completed on
time, or if the thing provided for processing is not returned
after the completion of the work, then the contractor shall
compensate the commissioning party for losses occasioned.
The contractor shall also compensate for losses where the
contractor is at fault as a result of his or her own incompetence
or in the situation where he or she employs incompetent or
careless help or help that acts in bad faith.
2218. A contractor shall compensate for losses regardless of
whether they arose due to the contractor's fault in performing
the order, or prior or subsequently thereto.
2219. If two or more persons have undertaken the work jointly,
then they shall have solidary liability to the commissioning
party.
2220. If a thing provided to a contractor is destroyed, lost,
or damaged due to force majeure, then the contractor shall
not be liable, except for the case when the contractor has
expressly assumed the risk and in the case as set out in Section
2215.
2221. If there is a failure to perform the order or the
results are poor due to the poor quality of materials furnished
by the commissioning party, then the contractor shall not be
liable therefor, except where the contractor knew of the poor
quality of the materials but did not draw this to the attention
of the commissioning party.
A contractor's duty to compensate for losses even when they
were caused due to the erroneous instructions of the
commissioning party shall be adjudged in accordance with the same
provisions.
2. Duties of the
Commissioning Party
2222. It is required that the order performed by the
contractor be accepted from him or her by the commissioning
party; otherwise the commissioning party shall be liable for all
consequences of default.
If a commissioning party has contracted for the right for
himself or herself or another person to examine the order
beforehand, then such examination must be carried out. However,
if the commissioning party delays the examination of the order,
then a court may set a term for this purpose, after the
expiration of which it shall be presumed that the commissioning
party has accepted the order as performed.
2223. As soon as the order has been performed and accepted,
the commissioning party shall pay the contractor the sum agreed
on. Where there are standard prices for certain work, the amount
to be paid shall be set pursuant thereto.
The amount to be paid may be agreed upon in regard to all of
the work together, to parts of the work or to periods of time,
provided that the contractor undertakes to perform the entire
order. In the second case, a contractor may, after the completion
of each part, demand acceptance and payment thereof, but in the
third case, he or she may demand to be paid in instalments,
unless otherwise agreed. A contractor may only demand payment in
advance where this has been specifically contracted for.
2224. If the thing received for processing or the product
produced from the thing is destroyed, without there being fault
on the part of the contractor, after the work is finished but
before it is delivered, the payment agreed to shall nevertheless
be paid, provided that the order was not performed in such manner
that sufficient grounds exist for refusing to accept the
work.
2225. If work has not yet been commenced or at least is not
yet completed, and the contractor is willing to do the work, but
an obstacle to doing so has been created on the part of the
commissioning party, then the contractor shall nonetheless
receive full payment. However, this payment shall be reduced if
the contractor has, to his or her own benefit, otherwise utilised
the time gained in not doing the contracted work.
2226. If performance of the work becomes impossible because
the relevant object of the work is destroyed without fault of
either contracting party, the duty to pay for the work ceases.
However, if the work has already been commenced, the contractor
shall receive compensation for his or her efforts and
expenditures.
2227. If a contractor is delayed in performance of the work by
illness or the occurrence of another contingency to him or her,
then the contractor may demand payment only for that which he or
she has already completed and only to the extent it is of benefit
to the commissioning party.
2228. In addition to payment of the amount contracted, the
contractor shall also be reimbursed for expenditures required to
be made in performing the order, unless such expenditures were
already included in the contracted amount.
II. Termination
of a Contract for Work-performance
2229. A commissioning party may unilaterally withdraw from a
contract for work-performance, if the preliminary estimate drawn
up by the contractor proves to be too low.
The commissioning party has the same right if the contractor
arbitrarily changes the work plan. In addition, the contractor
shall fully compensate the commissioning party for his or her
losses in such case.
Sub-chapter Four
Carriage Contract
2230. Pursuant to a carriage contract, a carrier undertakes to
transport goods delivered by a sender for a sum due from one
point to another designated point and to deliver them there to an
addressee.
As carriage contracts are a form of contract for
work-performance, the provisions provided for the latter
(Sub-chapter 3) are applicable to carriage contracts, insofar as
they are not in conflict with the provisions of this Sub-chapter
(4).
Note. The provisions for carriage for individual modes of
transport are set out in other laws.
[22 December 1992]
2231. The carrier may demand from the sender the issue of a
bill of lading, which, apart from the names of the carrier,
sender and addressee, shall also record the goods according to
their nature, quantity and attributes, the delivery point, the
agreed cost of freight, and finally the place and date of issue
of the bill of lading. Additionally, other conditions mutually
agreed to by the contracting parties may be recorded in the bill
of lading.
2232. If, after the contracting parties have agreed on the
contract, a delay in the delivery and sending of the goods takes
place without fault of the carrier, or if carriage completely
fails to take place, the sender shall compensate the carrier for
his or her expenditures.
2233. The carrier is liable for all losses arising from loss
of the goods or their being damaged from the time of their
acceptance until the time of delivery, provided that the cause of
the loss or damage was not force majeure, the natural attributes
of the goods themselves or, finally, poor packaging on the part
of the sender.
2234. The carrier is liable for loss caused by a delay in
delivery of the goods, unless the reasons for the delay were
circumstances or events which the carrier could not have avoided
or prevented, regardless of his or her or its efforts.
2235. The carrier is also liable for his or her employees and
other persons hired by him or her in regard to the carriage.
2236. If a carrier entrusts the completion or continuation of
the entire carriage, or a part thereof, to another person, then
the carrier is personally liable both for the latter and for all
possible subsequent carriers, up to the point of delivery of the
goods itself. However, a subsequent carrier, even without a
special power of attorney, shall be considered the authorised
person of the previous carrier.
2237. Upon the goods being transported to the place specified,
the carrier shall deliver them to the addressee, who shall accept
the goods from the carrier and shall pay the carrier, if the
addressee has undertaken that, the costs of freight and any
necessary extraordinary expenditures, if incurred.
2238. If an addressee cannot be found or refuses to accept the
goods, then the carrier shall provide for storage of the goods in
a secure location. The carrier may also petition the court for
the sale at auction of the goods or a commensurate part thereof,
in order that the freight costs and the carrier's other claims be
covered.
2239. Carriers may retain the goods as long as they have not
received all that is due to them pursuant to the carriage
contract. However, if carriers deliver the goods without
receiving payment, then they, although they remain the creditors
of the addressee, may no longer, without special cause, bring any
action against the sender in connection with their claim.
2240. Upon the goods being received and the freight costs
paid, all claims against the carrier are terminated, unless the
recipient, misled by the good outer appearance of the goods,
later, when opening the packages, discovers that they are damaged
and is able to prove that the damage took place during the period
of time from when the goods were accepted until their delivery to
the addressee.
CHAPTER 16
Partnership Agreement
Sub-chapter One
General Provisions
2241. A partnership is an association of two or more persons
based on a partnership contract for the attaining of a common
goal through united efforts or resources.
Note. The provisions of this Chapter apply to all forms of
partnerships, except for those cases where other norms regarding
partnerships are provided for by law.
2242. The duration of a partnership contract may be limited to
a transient goal or a specific period of time; a contract may
also be entered into for an indefinite period of time. If a
contract is entered into for a specific period of time and after
such period expires contractual relations are continued, the
contract shall be deemed to have been implicitly extended for an
indefinite period of time.
Sub-chapter Two
Interrelationships between Members
2243. Each member of a partnership shall participate in a
partnership with his or her contribution. Money, property, claims
or work may be contributed.
A person who, pursuant to agreement, may share in the profit
without any contribution on his or her part, shall not be
considered a partnership member. Unless otherwise stipulated in
the contract, a member may not be asked to increase the
contribution agreed upon, or to supplement it if it is diminished
due to losses.
2244. Unless otherwise determined by the contract, fungible
and consumable property shall be regarded as transferred to the
joint ownership of the members, but non-fungible and inconsumable
property - as transferred for use.
If property has been transferred for use, the risk and
liability regarding court proceedings for replevin of the
property, and regarding the defects and characteristics thereof,
shall be determined in compliance with the provisions of a lease
or rental contract, but if ownership of the property has been
transferred - in compliance with the provisions of a purchase
contract.
Valuable property acquired through joint work shall be the
joint property of the members.
2245. A member may not act independently with his or her share
in the joint property or with separate items of property as
belong together with such property; the member may not require a
division while he or she is a member of the partnership.
Rights regarding claims that the members may have against one
another on the basis of relations arising out of the partnership
contract shall not be ceded. Claims of the members as arise from
accounting are excepted, insofar as their satisfaction may be
requested prior to the final settlement of accounts, as are
claims regarding shares of profit or claims of the members
arising out of settlement of accounts. Cession of such claims
does not, however, confer upon the cessionary the rights of a
member.
2246. Each member shall share with other members such profit
as is due, pursuant to its character, to the members of a
partnership.
2247. An agreement in accordance with which a member alone or
together with others shall only bear losses without sharing in
profit shall be invalid as a partnership contract.
A contract may provide, however, that a member who
participates in the partnership for the acquisition of a common
goal only with individual work shall share in profit but not in
losses.
2248. If a contract does not determine in what proportions the
members shall share in profits and losses, then where all
contributions have been paid or evaluated in terms of money, the
profits and losses shall be divided among the members in
proportion to the amount of the contribution of each member, but
otherwise - in equal shares. However, if it is specified in what
proportions the members shall share only in profits or only in
losses, such condition shall apply, in case of doubt, to profits
as well as to losses.
2249. Unless the contract stipulates otherwise, the accounts
shall be settled, and the profits and losses distributed only
after termination of the partnership, or if a partnership
subsists for more than a year, at the end of each year of
operation.
2250. In performing his or her assigned duties, each member
shall act, with respect to the partnership, with such care and
due diligence as can be expected from a worthy and careful
manager.
A member may bring an action, in his or her own name, against
any co-partner with respect to performance of the duties assumed
under the partnership contract.
2251. No member may conduct any business for his or her own
benefit that could harm the goals of the partnership.
In cases of violation of this prohibition, the provisions
regarding combating of unfair competition are applicable.
2252. For decisions of members with respect to partnership
issues, consent of all the members shall be required. If a
majority vote is recognised by the contract as adequate, it shall
be determined in accordance with the number of members, unless
the contract stipulates otherwise.
2253. Partnership issues shall be managed by all the members
jointly, except for the cases where management is assigned,
pursuant to agreement, to one or more members or to third
persons.
If the management of a partnership is assigned to several
persons, the provisions of Section 2252 shall be accordingly
applied.
2254. The rights and duties of those members to whom the
management of the partnership has been assigned shall be adjudged
in compliance with the provisions of an authorisation contract
and, in relevant cases, with the provisions of an employment
contract. Other members may only deprive a member of the
authorisation granted to him or her regarding management and
representation of the partnership for good cause (Section 2263,
Clauses 2 and 3).
2255. Rights and duties of a member who is not authorised to
conduct partnership matters, but has made expenditures or entered
into lawful transactions on behalf of the goals of the
partnership, shall be adjudged, unless otherwise stipulated in a
contract, in accordance with the provisions regarding
unauthorised management.
2256. Each member may satisfy himself or herself regarding the
course of partnership matters, see the accounting books and
documents regarding the partnership business and prepare an
account for himself or herself regarding the financial state of
the partnership. Provisions to the contrary in a contract are not
binding on a member.
Sub-chapter Three
Relations with Third Persons
2257. Unless otherwise stipulated in a contract, the manager
of a partnership may represent the partnership with respect to
third persons. The manager is authorised to enter into all manner
of transactions as required by the goals of the partnership.
Transactions in regard to partnership matters, entered into by
all members jointly or by managers within the limits of their
authority (Section 2254), shall be binding without limitation and
solidarily with respect to third persons, except for the cases
where otherwise agreed with such third persons.
2258. If a contract with a third person is entered into by
only one member or several members in the name of all the
members, but without authorisation by the other members, only
such members who have entered into the contract shall be liable
to the third person, except for the cases where: 1) the other
members have subsequently confirmed the transaction and thereby
assumed solidary liability, or 2) the partnership has enriched
itself by such transaction (Section 2391 and subsequent
Sections).
2259. Where a member of a partnership enters into a
transaction with a third person in his or her own name, he or she
alone shall be liable to such third person.
2260. Joint partnership property is liable to be executed
against only in regard to such claims of third persons as are
directed against all the members jointly.
A debtor may not set off such claim as he or she has against
an individual member of a partnership, against a claim belonging
jointly to all the members of the partnership.
2261. In regard to claims of a third person against an
individual member of a partnership, such claims of the member are
liable to be executed against as the member may cede (Section
2245, Paragraph two). The rights of a creditor in respect of the
contribution of a member of a partnership shall be determined in
Section 2265.
Sub-chapter Four
Termination of a Partnership
2262. A partnership shall terminate:
1) if all the members agree thereto;
2) upon expiration of the time period of the partnership
contract, except for the cases when a contract entered into for a
specific period of time is regarded as implicitly extended for an
indefinite period of time (Section 2242);
3) if the goal set for the partnership is achieved, or if its
achievement has become impossible;
4) if a member has lost the capacity to act, or concursus
proceedings are initiated or administration is established with
respect to his or her property, or if a member gives notice with
respect to the partnership contract (Sections 2263-2265), or
dies, except, however, for the cases referred to in Section 2268
when the association must continue its existence among other
members;
5) if further existence of the partnership is prohibited by
the government.
2263. Each member may, for good cause, request termination of
the partnership without prior notice.
Primarily, any such circumstance as does not permit, due to
considerations of morality and mutual honesty, continuation of
the contractual relationship shall be considered good cause.
Issues regarding the existence of such circumstances shall be
decided by a court at its discretion.
2264. If a partnership contract has been entered into for an
indefinite period of time or until such time as a member dies, or
if a contract is implicitly extended after the expiration of the
time period stipulated in it, any member may give notice with
respect to such contract, notifying individually each of the
other members of the notice three months in advance. If it is
contractually agreed that the accounts of the partnership shall
be closed annually, a notice with respect to the contract shall
be given three months prior to the close of the relevant year of
operation. However, a member shall not give notice in bad faith,
otherwise such member shall be held liable for losses caused due
to such notice, and the member shall not share in the profit the
partnership acquires after such notice.
A provision of a contract whereby the right to give notice is
not allowed shall not be valid.
2265. A creditor of a partner, in executing a court judgment
which has come into force, may distrain the contribution of the
member only if he or she has given notice with respect to the
partnership contract on behalf of the indebted partner, which the
creditor may also do prior to the time notification may take
place, as provided for by the contract. Other members may prevent
the consequences of the notice and the collection by paying to
the enforcer of the debt, within a month from the day of issuance
of the notice regarding execution, such amount as the indebted
member would be entitled to in withdrawing from the partnership
at the time when the notice of execution is issued, whereby such
member shall be regarded as withdrawn from the partnership.
2266. If a partnership terminates otherwise than through
giving notice, the right of management of a member shall
nonetheless be regarded as still subsisting until the time when
he or she comes to know of the termination of the partnership, or
when he or she, exercising due care, should have known of such
termination.
If a partnership terminates upon the death of a member, the
heirs of the deceased person shall immediately notify other
members of the death and continue the estate-leaver's affairs
which can be conducted, with due care, pending the provision of
further instructions by the partnership or the liquidator.
Similarly, other members shall also continue their activity. In
such respect, the partnership shall be regarded as continuing to
exist.
The provisions of Paragraph two of this Section are also
applicable, mutatis mutandis, if the partnership terminates
pursuant to the initiation of concursus proceedings or
establishment of administration with respect to the property of a
member.
2267. No change is effected in regard to obligations as
against third persons by termination of the partnership.
2268. If a partnership contract stipulates that in the event a
member loses the capacity to act, or concursus proceedings are
initiated, or administration is established with respect to his
or her property, or a member gives notice with respect to the
partnership contract (Sections 2263-2265) or dies, the
partnership shall continue to subsist among the other members,
the member referred to shall be regarded, upon the occurrence of
any of such circumstances, as withdrawn.
SUB-CHAPTER 5
Liquidation of a Partnership
2269. After the termination of a partnership, liquidation
shall take place, if another form of final settlement of accounts
has not been agreed upon.
2270. All members shall be participants in the liquidation.
The heirs of a deceased member shall choose a mutual
representative. Instead of a member subject to concursus
proceedings, a participant in liquidation shall be the relevant
concursus administrative body. A creditor who has given notice to
the partnership (Section 2265) may also participate in
liquidation together with the members.
Participants in the liquidation may also choose as liquidators
one or more persons from among themselves, as well as third
persons.
2271. Unless otherwise stipulated by the contract, several
liquidators shall only deal with partnership matters and
represent the partnership jointly.
The liquidators shall comply with such instructions regarding
administration as the members have adopted by unanimous decision.
The liquidators may be dismissed on the basis of a unanimous
decision by the members.
2272. During liquidation, a partnership shall be regarded as
continuing to exist, in particular for the completion of current
transactions and the entering into of new transactions required
for such purpose, as well as for maintenance and management of
the property of the partnership.
The liquidators shall firstly prepare a balance sheet, collect
claims and settle debts. Thereafter, the contributions shall be
paid back and property transferred for joint use shall be
returned, and moreover accidental loss and the loss of value that
has occurred through proper use and ordinary wear and tear is not
required to be compensated. Property transferred into ownership
shall not be given back, but the value of it at which it was
accepted shall be reimbursed, or, if its value has not been
determined, then its value shall be the value that such item had
at the time it was contributed, and the same shall apply to other
contributions, except money. Compensation may not be claimed for
contributions of individual work. In order to settle debts and
repay contributions, the joint property shall be converted,
insofar as necessary, into money.
2273. After completion of liquidation, the liquidators shall
prepare a closing balance sheet. The closing balance sheet
together with books and documents shall be given for preservation
to a member or to a third person.
2274. If, after the settlement of debts and repayment of
contributions, a surplus is left, it shall be distributed to the
members in proportion to their share in the joint property.
If the joint property is not sufficient for the settlement of
debts and repayment of contributions, the shortage shall be
covered by the members in proportion to their share of loss; if
the due amount cannot be collected from a member, the other
members shall cover the shortfall in the same proportion.
2275. If no specific agreement has been made and the
provisions of this Chapter regarding final settlement of accounts
between members do not suffice, the provisions of Section 1075
are correspondingly applicable.
2276. If a partnership contract applies only to certain
specific transactions that were to be carried out by a member in
his or her name but on joint account, he or she shall also
conduct such transactions alone after the termination of the
partnership, and shall provide to the other members an account
thereof.
2277. If the liquidation is performed by the persons referred
to in Section 2270, they shall account to the members of the
partnership.
2278. If a member withdraws from the partnership, his or her
share in the joint property shall accrue to the shares of the
other members.
The remaining members shall return to the withdrawing member
his or her contributions in accordance with the provisions of
Section 2272; he or she shall also be released from joint debts,
and shall be paid everything that would be due to him or her upon
final settlement of accounts in the event of termination of the
partnership. If the term for payment of joint debts has not yet
expired, the other members need not exempt the withdrawing
partner, if he or she does not provide security as necessary.
The value of the joint property, insofar as necessary, shall
be determined by evaluation.
2279. If the joint property cannot cover debts and
contributions, the withdrawing member shall cover the shortfall
in proportion with his or her share in losses.
2280. A member shall share the profits and losses arising from
transactions that were not completed at the time of his or her
withdrawal. The other members may complete such transactions in a
way that seems to them most advantageous.
A member who has withdrawn may request, at the end of each
year of operation, an account regarding matters completed during
the relevant period of time, as well as payment of amounts due to
him or her, and information regarding the state of the matters
not yet completed.
CHAPTER 17
Contracts regarding Games of Chance
Sub-chapter One
Gambling and Wagers
2281. A gambling contract is a contract by which profit to one
party and loss to the other party are made contingent on an
unknown future event.
2282. A wager is a contract by which the parties agree, with
respect to a disputable assertion, that the party whose assertion
is shown to be wrong shall perform something for the benefit of
the other party or a third person (Section 1521 and subsequent
Sections).
2283. Neither gambling nor wager shall give rise to
obligations. What has been lost and voluntarily paid in gambling
or wager may not be reclaimed, unless the winning party has acted
in bad faith.
2284. A loan willingly provided by someone for purposes of
gambling or wager may not be recovered by judicial process.
However, if such debt has been settled, the amount received may
not be reclaimed.
Sub-chapter Two
Lottery
2285. Lottery is a contract by which the owner of an object
obtains the object according to a definite plan, but the
participants in the lottery acquire, for a certain price or free
of charge, the chance of winning it.
2286. A lottery may be conducted only in compliance with the
provisions of the Law on Lotteries.
2287. The operator of a lottery shall be liable not only for
the existence of the object of lottery, but shall also assume
risk for any accident with respect to such object until the
lottery. If the object is destroyed prior to the lottery, the
operator of the lottery shall return his or her contributions to
the participants in the lottery.
2288. After the lottery has been completed, the operator of
the lottery shall transfer the object to the full ownership of
the person who has won it, and shall be liable therefor.
CHAPTER 18
Claims arising from Management of the Property of Other
Persons
Sub-chapter One
Authorisation Contract
I. GENERAL
PROVISIONS
2289. Pursuant to an authorisation contract one party
(authorised person, assignee) undertakes to perform a certain
assignment for the other party (person granting the
authorisation, authorising person, assignor), and the person
granting the authorisation undertakes to recognise the activity
of the authorised person as binding on him or her.
2290. An authorisation contract shall be based on the
agreement of the contracting parties, which may also occur
implicitly if a person knowingly allows a third person to conduct
his or her affairs. Notwithstanding, the silence of the person to
whom the assignment was given shall not be considered sufficient
and, in case of doubt, shall be interpreted as a sign of
disagreement.
2291. An authorised person may be assigned not only the
conducting of separate and specific affairs with a special power
of attorney, but also management of all the affairs of the
authorising person with a universal power of attorney, or only
affairs of a particular category only with a general power of
attorney.
2292. Not only may the conducting of a person's own affairs be
assigned, but also the management of another person's
affairs.
2293. If solely the assignee is interested in the relevant
activity, it shall not be recognised as an assignment, but as
advice or recommendation (Section 2318 and subsequent
Sections).
2294. Relationships of the contracting parties with third
persons shall be determined in compliance with the general
regulations regarding representation.
II. Legal
Relations Arising from an Authorisation Contract
1. Duties of an
Authorised Person
2295. In performing the assignment given to him or her, the
authorised person shall act with utmost care and he or she shall
be liable to the authorising person for any negligence.
2296. If an authorised person has not performed the
assignment, but no losses have been caused thereby to the
authorising person, the failure to perform such duties shall not
give the latter the right to any claims.
2297. An authorised person shall be liable for the
consequences of accidental events only if he or she has expressly
assumed risk.
2298. An authorised person, who gives false information to the
authorising person regarding his or her assignment, shall be
liable for the losses caused thereby.
2299. If an authorised person is, for reasons arising from
himself or herself, hindered in the personal performance of the
assignment undertaken, but moreover the nature of the matter does
not permit it to be delayed, then he or she shall perform his or
her duties through a third person, provided that he or she is not
directly prohibited from further assignment of the authorisation
to another person (substitution) pursuant to the contract.
Except for the urgent cases referred to above, an authorised
person may replace himself or herself with another person only if
the authorising person has expressly granted such right to him or
her.
Substitution shall not release the initially authorised person
from liability to the authorising person, including, therewith,
from liability regarding the choice of a substitute; but the
latter shall not enter into any contractual relationship with the
authorising person on the basis of substitution, and shall be
liable to him or her only as an unauthorised manager.
2300. An authorised person shall not exceed the limits of the
assignment given to him or her, and firstly shall act in
compliance with the instructions of the authorising person.
2301. If there are no specific instructions, an authorised
person, notwithstanding that he or she may have a universal power
of attorney (Section 2291), shall act not solely according to his
or her will, but in such a way as it could be expected the
authorising person would act in the relevant situation in order
to complete the matter in the most advantageous way; authorised
persons acting under general or special powers of attorney may
commence only such activities as are required by the nature of
the assignment given to them and necessary in connection with
such assignment.
A person authorised under a universal power of attorney may
perform alienation, pledge or encumbering of immovable property
with property rights, conduct court proceedings, make novations,
as well as make and receive payments, if he or she does not have
a special power of attorney regarding such acts, only where
necessary and in order to protect his or her authorising person
from potential losses.
A person who has only a general or a special power of
attorney, while he or she is permitted to complete the assignment
entrusted to him or her on more advantageous conditions than
those determined by the authorising person, does not have the
right, however, to complete it under more onerous conditions or
to perform another assignment instead of the one assigned to him
or her, notwithstanding that he or she may regard it as more
advantageous for the authorising person.
2302. If an authorised person has exceeded the limits of his
or her authorisation, actions performed by him or her shall be
valid only insofar as they are performed in accordance with the
assignment.
In such case the authorised person may also claim remuneration
only to the extent that he or she has acted within the limits of
his or her authority, provided generally that it is possible to
separate out the authorised person's activity conforming to such
authorisation.
2303. If an authorised person has performed, apart from the
assignment given to him or her, another assignment, he or she
shall be subject, with respect to it, to the provisions regarding
unauthorised management.
2304. It is not permissible for an authorised person to gain
profit for himself or herself from the assignment, and he or she
shall transfer everything he or she has gained or obtained
through the authorisation to the assignor, including all
property, rights and claims he or she has obtained on the basis
of the assignment, also including excess profits he or she has
gained as a result of mistake or by exceeding the scope of his or
her authority, except only what the authorising person has
granted to him or her from such gains.
An authorised person shall also transfer to his or her
authorising person the profit received or to be received fruits,
interest and everything that was entrusted to him or her for the
performance of the assignment.
2305. An authorised person shall provide an accounting to his
or her authorising person regarding the performance of the
assignment and particularly regarding all related income and
expenditures in connection therewith.
2306. If the conducting of affairs has been assigned to
several persons jointly, they shall be liable to their
authorising person as joint debtors; but if one of them satisfies
the authorising person, the other or others shall be released
from any further liability.
2. Duties of an
Authorising Person
2307. An authorising person shall compensate the authorised
person for everything that the authorised person was obliged to
expend in performing the assignment given to him or her; apart
therefrom, the authorising person shall pay interest regarding
amounts that the authorised person has advanced from his or her
own money. An authorised person may nevertheless require that the
resources necessary for the conducting of the assignment be given
to him or her by the authorising person, and in no event is he or
she required to wait until the assignment is completed in order
to recover the money he or she has expended.
If the assignment was given by several persons jointly, they
shall have solidary liability for the money spent by the
authorised person, as well as for the obligations he or she has
undertaken; but if losses have been occasioned by any of such
persons, only the persons at fault shall be liable.
2308. Unless otherwise agreed, the duty of an authorising
person to compensate for expenditures shall not depend on whether
or not the authorised person, in conducting the affairs of the
authorising person, has attained desirable results.
2309. An authorising person shall either release the
authorised person from all charges, guarantees, pledges of the
authorised person's own property etc., that the assignee has
undertaken in conducting the affairs of the authorising person,
or provide the authorised person with adequate security.
The authorising person shall recognise and fulfil the
obligations assumed by the authorised person as the authorising
person's own obligations, provided that the authorised person has
not exceeded the limits of his or her assignment.
2310. The authorising person shall compensate for all losses
that the authorised person has suffered, in performing the
assignment, as are due to the negligence of the authorising
person; however, the authorising person is not required to
compensate for accidental losses.
2311. If it is not otherwise contractually agreed, or the
contrary may not be construed from the duration of the assignment
or other circumstances, remuneration shall be paid to the
authorised person only after completion of the assignment and
submission of a requested account.
III. Termination
of an Authorisation Contract
2312. An authorisation contract shall terminate:
1) by mutual agreement;
2) upon completion of the particular assignment given;
3) when the authorising person withdraws his or her
authorisation;
4) when the authorised person gives notice regarding
authorisation;
5) upon the death of either party;
6) upon expiration of the period of authorisation.
2313. An authorising person has the right to, at any time,
unilaterally revoke his or her authorisation; but if the
authorised person has already commenced the performance of the
assignment, the authorising person shall compensate the
authorised person for all expenditures he or she has incurred
with respect to it.
2314. After the authorised person has knowledge of the
revocation of the authorisation, his or her actions thereafter
shall not be valid, except for the cases where a third person has
not known of the revocation of authorisation and together
therewith has participated without fault on his or her part.
2315. An authorised person may give notice regarding
authorisation but, in order that the authorising person might
take other measures regarding management of the transactions, the
authorised person shall not give it in bad faith or in untimely
fashion. An authorised person may withdraw from the performing of
an assignment at any given time only for good cause, but in such
case he or she shall notify the authorising person thereof
without delay. If the authorised person fails to comply with
these provisions, he or she shall compensate the authorising
person for all losses caused to the authorising person
thereby.
A court shall decide whether or not the reasons given for
withdrawal constitute good cause.
2316. The death of the authorising person shall determine
contractual relations in the same way as revocation (Section
2314).
Excepted from this provision shall be cases where the
authorising person has given such assignment as was to be
performed, or could be performed, only after his or her
death.
If, when coming to know of the death of the authorising
person, the authorised person has already started to conduct the
matter assigned to him or her, the authorised person has not only
the right, but also a duty to take care of it as long as the
heirs have not given their instructions.
2317. Authorisation shall also terminate upon the death of the
authorised person, and it shall not devolve to his or her
heirs.
If the performance of the assignment was already commenced
before the death of the authorised person, and threat of loss
would be posed to the authorising person by discontinuation of
performance, the heirs of the authorised person have the right
and the duty, after immediate notification of the death of the
authorised person to the authorising person, to continue the
assigned matter pending further instruction.
The heirs of the authorised person may claim remuneration for
the activity of the estate-leaver and compensation for his or her
expenditures, however, together therewith they also assume
liability as against the authorising person with respect to the
activity of their estate-leaver to the extent of the inheritance
received from him or her.
III.1
Future Authorisation
[29 November 2012 /
Division shall come into force on 1 July 2013. See Law of 29
November 2012]
2317.1 By a future authorisation an authorising
person assigns an authorised person to conduct his or her matters
in case when the authorising person due to health disorders or
other reasons or condition will not be able to understand the
meaning of his or her action and will not be able to control his
or her action.
An authorised person shall act in the interests of the
authorising person.
2317.2 A future authorisation agreement shall be
made in the form of a notarial deed at the personal presence of
an authorising person and authorised person and it shall be
registered in accordance with the procedures laid down in the
Notariate Law.
2317.3 A future authorisation agreement shall come
into effect on the day of entering thereinto, but an authorised
person shall be authorised to commence his or her activity at the
time when in accordance with the procedures laid down in special
laws such status or legal fact of the authorising person is
detected and registered due to which he or she is unable
temporarily or permanently to understand the meaning of his or
her action and is unable to control his or her action.
2317.4 A court may suspend the right of an
authorised person to represent an authorising person if it is
detected that the authorised person does not perform his or her
duties at all or perform them in the contradiction of the
interests of the authorising person. The suspension of the right
of the authorised person shall be registered in accordance with
the procedures laid down in the Notariate Law.
2317.5 A future authorisation shall terminate in
the cases laid down in Section 2312 of this Law.
2317.6 Transfer of a future authorisation to other
person is prohibited.
2317.7 A future authorised person has the right to
revoke other authorisations issued by the authorising person to
such extent in which the future authorised person is entitled to
act.
Sub-chapter Two
Advice and Recommendation
2318. Advice given by one person to another shall not, by
itself, establish any legal relations between the parties, and as
the recipient of advice is not required to follow it so also the
provider of advice is not required to compensate for any losses
if the advice is unsuccessful.
2319. By way of exception, a provider of advice shall be
liable for the losses caused by the advice if he or she has given
harmful advice in bad faith.
2320. Recommendation alone by which someone praises the good
characteristics of a person or property to another person with
the purpose of making the latter act in a certain way shall not,
by itself, establish any obligation, except for the case where
the recommendation was made in bad faith.
Sub-chapter Three
Commission Contract
2321. A commission contract shall be understood to mean such
contract as by which one party entrusts to the other movable
property in order that it be sold at a certain price, upon the
condition that the recipient shall, after a certain period of
time or, if no time has been specified, pursuant to the
requirement of the owner, either pay the price referred to or
return the property.
Note. Provisions regarding a commercial commission contract
are to be found in the laws regulating commerce.
2322. Right of ownership in regard to the property, after it
has been delivered to the recipient for the sale thereof, shall
still remain with the owner on whom the risk of loss therefore
also falls, provided that the recipient has not expressly assumed
it.
2323. The recipient of the property has the right, at his or
her discretion, either to pay the owner the price for the
property or to return the property unimpaired; but the owner may,
so long as the property has not been sold, at any time require
its return.
2324. If the recipient of the property sells it at a higher
price than the price earlier set by the owner, the surplus shall
belong to him or her. Additionally, the recipient may claim
remuneration for his or her efforts, if such has been contracted
for. If the recipient of the property had an opportunity to sell
it at the set price, but did not do so, he or she shall not in
any manner be liable therefor to the owner.
Sub-chapter Four
Unauthorised Management
I. GENERAL
PROVISIONS
2325. If a person undertakes, without being invited to do so,
to manage another person's affairs in accordance with the true
interests of such person and under such circumstances as where it
could be accepted that such person, if he or she had been given
an opportunity to express his or her volition, would have
consented to this agency, then with such management legal
relations are established, similar to those regarding a contract,
between the manager and the represented person.
2326. If management of another person's affairs is undertaken
by a person lacking the capacity to act, his or her obligations
to the represented person shall be in effect only to the extent
that he or she has been enriched thereby; but if such person
himself or herself brings an action on account of the management,
his or her liability shall be unlimited.
2327. If the represented person also lacks capacity to enter
into obligations by stating his or her consent, he or she shall
be liable for the activities of his or her manager to the extent
that he or she is still enriched as of the time when action is
brought against him or her.
2328. Unauthorised management also takes place where the given
assignment is not valid, it was not given by the represented
person or it was not given to the manager, and also in cases
where the management relates to such matter as several persons
are interested in, but the assignment has been given by only one
of them. It is of no significance whether the manager knew that
the assignment was not given to him or her, or mistakenly
presumed that it was assigned to him or her.
2329. If someone later confirms the management of his or her
matters that has been commenced or has already been completed
without his or her assignment, the legal status of the manager
shall not be altered thereby, but with respect to a person
confirming management of matters, the provisions regarding
authorisation contracts are applicable.
2330. Persons who interfere with another person's matters only
in their own interests and for their own benefit shall be fully
liable to the represented person, but may bring an action against
such represented person only to the extent that he or she has
been enriched from such management, provided it was not possible
for them to recover their expenditures by retaining the property
of the represented person.
2331. Where persons conduct matters they are expressly
prohibited from conducting, such persons may not claim the
expenditures they may have incurred thereby, notwithstanding that
they may have accomplished what they had undertaken.
II. Legal
Relations Arising from Unauthorised Management
1. Duties of a
Manager
2332. Managers are not required to oversee all the affairs of
a represented person. Their liability primarily is related only
to such matters as they have commenced the managing of, however,
they shall also take account of all related ancillary matters.
For not conducting matters that are not related to their
management, managers shall be held liable only to the extent that
their interference has hindered other persons in managing such
matters.
Managers shall complete matters they have commenced, and even
the death of the represented person shall not give them the right
to discontinue their management.
2333. A manager shall supervise the transactions he or she has
started with utmost care, consequently, he or she shall be held
liable for any losses caused to the represented person by
negligence.
If management was started under very pressing circumstances,
the manager shall be liable only for acting with malicious intent
or with gross negligence.
A manager shall be held liable even for accidental losses that
he or she has caused through his or her management:
1) if he or she has acted contrary to an express prohibition
by the represented person;
2) if he or she starts a new transaction contrary to the
nature of the activity of the represented person;
3) if he or she expressly assumes risk pursuant to a contract
with a third person.
2334. If a manager commences a new matter contrary to the
nature of the activity of the represented person, the manager may
not claim compensation for the expenditures he or she has made
with respect to such matter, and all the profit gained by it
shall accrue to the benefit of the represented person. Only if
among several new matters commenced by a manager some have a
successful outcome, but others fail, shall the manager be
permitted to set off respectively profit and losses arising from
such transactions.
2335. If a manager assigns management to another person, he or
she shall be held liable for negligence in the selection
thereof.
2336. If several persons participate in management, each shall
be liable only for his or her own part.
2337. A manager shall provide an accounting of what he or she
has received or gained for the represented person, as well as for
his or her activity in its entirety, and on the basis of such
accounting shall deliver everything he or she is in possession
of, even though among the items of property received by the
manager might be included items that actually do not belong to
the represented person.
2338. Duties arising from management shall also devolve to
heirs, but only to the extent of the inheritance. However, if the
heirs continue the management, their liability for their own
actions shall be determined on a general basis (Section 2332 and
subsequent sections).
2. Duties of the
Represented Person
2339. A represented person shall compensate the manager for
expenditures incurred in managing the represented person's
matters to the extent such expenditures were necessary, together
with interest; in any case he or she shall permit the manager, if
the manager does not have the right to reclaim such expenditures,
to take back everything the manager has expended to the extent
that it is possible without causing loss to the represented
person.
If a manager has undertaken any duties or charges on behalf of
the represented person, the manager may require that he or she be
released therefrom.
2340. The duties of a represented person (Section 2339) do not
cease for reason that no benefit has accrued to him or her as a
result of the management, where at the beginning a favourable
outcome was expected therefrom but the manager cannot be faulted
for non-fulfilment of the results hoped for.
2341. A person who, believing that it is the person's own
debt, pays the debt of another person may, pursuant to his or her
discretion, either reclaim the non-existent debt from the
recipient, or submit a claim to the actual debtor as his or her
manager.
2342. Relations of the represented person with third persons
with whom the manager has had dealings shall be subject to the
general provisions regarding agents.
SUB-CHAPTER 5
Duty to Account
2343. A person who manages another person's affairs with or
without an invitation to do so, or alienates another person's
property, or administers joint property as a shareholder, or
manages property on any other legal basis, or is required to
transfer another person's property together with fruits, shall
provide an accounting regarding his or her management to the
represented person, the other joint owners, the other members in
a partnership, or any other person who has a right thereto.
2344. The person who has a duty to provide an accounting shall
prepare a detailed list regarding all income and expenditures,
attaching substantiating documentation, and shall account for the
balance.
2345. If a person who must provide an accounting has been
relieved of such duty altogether, this shall still not result in
extinguishment of claims as may be based on his or her acts in
bad faith in the course of administration.
2346. An accepted and adequately receipted accounting shall
protect the submitter of the accounting from any further
claims.
If a calculation error is subsequently found in a receipted
account, and if the matter has not yet been decided by a judgment
of a court that has come into effect or by a settlement,
correction of the abovementioned error may still be demanded.
CHAPTER 19
Claims on Various Grounds
Sub-chapter One
Claims Due to Private Delicts
I. Compensation
for Bodily Injuries
2347. If a person inflicts a bodily injury upon another person
through an action for which he or she is at fault and which is
illegal, the first-mentioned person shall compensate the other
person for medical treatment expenses and, apart therefrom and
pursuant to the discretion of a court, also for potential lost
income, and remuneration (material compensation) for moral
injury.
A person whose activity is associated with increased risk for
other persons (transport, undertakings, construction, dangerous
substances, etc.) shall compensate for losses caused by the
source of increased risk, unless he or she proves that the
damages have occurred due to force majeure, or through the
victim's own intentional act or gross negligence. If a source of
increased risk has gone out of the possession of an owner, holder
or user, through no fault of theirs, but as a result of unlawful
actions of another person, such other person shall be liable for
the losses caused. If the possessor (owner, bailee, user) has
also acted without justification, both the person who used the
source of increased risk and its possessor may be held liable for
the losses caused, having regard to what extent each person is at
fault.
[22 December 1992; 29 November 2012]
2348. If such bodily injury renders the victim permanently
unable to continue his or her occupation and deprives him or her
of a possibility to earn income in other ways, the person at
fault shall also compensate him or her for the income he or she
would be subsequently deprived of. However, if there are other
persons who are dependants of the victim, the provisions of
Section 2351 shall also apply, in addition to what is set out
above.
2349. If the consequences of a bodily injury are mutilation or
disfigurement, compensation shall also be determined therefor, in
accordance with the discretion of a court.
[26 January 2006]
2350. If someone is at fault for the death of a person, he or
she shall compensate the heirs of the deceased for medical
treatment and burial expenses.
2351. If the deceased had a duty to maintain someone, such
duty shall pass over to the person who is at fault for his or her
death. The amount of such compensation shall be determined
pursuant to the discretion of a court; the age of the deceased,
his or her ability to earn a living at the time of death, and,
finally, the needs of the person for whom compensation is to be
determined. If the latter has adequate means of livelihood, the
duty to provide compensation shall cease.
II. Right to
Compensation for Offences against Personal Freedom, Reputation,
Dignity and Chastity of Women
[22 December 1992]
2352. If a person unlawfully deprives another person of his or
her personal freedom, the first-mentioned person shall restore
the other person's freedom and provide, in accordance with the
discretion of a court, full compensation also for moral
injury.
[22 December 1992]
2352.1 Each person has the right to bring court
action for the retraction of information that injures his or her
reputation and dignity, if the disseminator of the information
does not prove that such information is true.
If information, which injures a person's reputation and
dignity, is published in the press, then where such information
is not true, it shall also be retracted in the press. If
information, which injures a person's reputation and dignity, is
included in a document, such document shall be replaced. In other
cases, a court shall determine the procedures for retraction.
If someone unlawfully injures a person's reputation and
dignity orally, in writing or by acts, he or she shall provide
compensation (financial compensation). A court shall determine
the amount of the compensation.
[22 December 1992; 26 January 2006]
2353. If someone has raped a woman or copulated with her while
she was unconscious, he shall also provide her full compensation
also for moral injury.
[22 December 1992]
Sub-chapter Two
Claims Due to Illegal Damage of Property
2354. The provisions of Sections 1776-1792 shall be applied to
claims regarding illegal damage of property.
2355. The same provisions (Section 2354) are in force
regarding compensation for damage caused by the arbitrary taking
of another person's property, additionally, the provisions of the
subsequent Sections (Sections 2356 and 2357) shall also be
complied with regarding it.
2356. If stolen property does not exist anymore, or is
damaged, the victim may claim from the offender the highest price
the property had from the time of the arbitrary taking.
2357. A person who takes property arbitrarily does not have
the right to claim compensation for the expenditures he or she
has made with regard to it, and he or she shall return the
property in such form and with such good qualities as it has
acquired through his or her acts.
Sub-chapter Three
Compensation for Losses Caused by Throwing, Pouring or
Falling
2358. If loss is caused by something being thrown or poured
out into the street or another place where people walk or stay,
or by inadequately fastened objects falling from a house onto the
street, etc., a person suffering such loss may claim compensation
for the loss from a person indicated in Section 2359.
2359. Compensation for losses shall not be claimed from the
owner of the building, but from the person living in it or
having, for whatever reason, possession of the building or that
part of the building from which something was poured or
thrown.
2360. The person who occupies the dwelling or building shall
have the right to reclaim the amount of compensation paid for the
loss from the person who was actually at fault for causing the
loss.
If the same dwelling or building is occupied by several
persons, they shall be held liable for losses as joint debtors;
but any of such persons who has paid more than his or her share
may claim recovery of the overpaid amount from the others.
2361. Compensation for damages shall be determined pursuant to
the provisions of Sections 2347-2351 and 2354, depending on
whether the injury has been caused to persons or property.
2362. The right to bring action for compensation of losses
caused by pouring, etc. is prescribed after one year.
Sub-chapter Four
Compensation for Losses Caused by Animals
2363. The keeper of a domestic or wild animal shall be liable
for losses caused by such animal, unless the keeper can prove
that he or she took all safety measures required by the
circumstances, or that the damages would have occurred
notwithstanding all of the safety measures.
2364. It makes no difference whether the damages were caused
through speed, fright or sudden wildness of an animal, and
whether an animal caused it directly or indirectly.
2365. If an animal belongs to several owners, they shall be
liable as joint debtors for the losses it has caused.
2366. If its owner entrusted the animal that caused the
damages to a keeper or guard, the latter shall be liable for all
damages, and the owner shall be liable only where the guard is
insolvent.
2367. If the damages were caused by the fact that a third
person teased the animal, or due to lack of attention by the
attendant of the animal, the duty to compensate for the losses
shall fall upon such person.
2368. If someone, while defending himself or herself, kills or
injures another person's animal which is attacking him or her or
damaging his or her property, when he or she has no other means
of defence, he or she is not required to compensate the owner for
losses. However, a person who arbitrarily kills or injures an
animal shall compensate for losses.
SUB-CHAPTER 5
Claims Arising from Unjust Enrichment
I. Reclaim of
Satisfaction of Non-existent Debt
2369. A person who does something, or promises to do something
for the benefit of another person, without lawful basis and
mistakenly considering it to be his or her duty, may request
either that what has been done be returned or that he be relieved
from a promise given.
It makes no difference, whether there was no legal basis from
the start for the mistakenly paid debt or it subsequently became
void.
2370. If such non-existent debt obligation is performed, as a
legal basis subsequently comes into existence regarding, the
right to reclaim becomes void.
2371. The right to reclaim shall also be allowed in a case
where a debt has actually existed, but a mistake has taken place
either regarding the substance of the debt obligation, or
regarding the obligee or the obligor.
2372. A person who was only to perform something in exchange
for the providing of security, but has mistakenly performed it
without exercising such right of his or hers, also has a right to
reclaim.
2373. It is required that a mistake due to which something has
been performed (Section 2369) be excusable.
The right to reclaim may also be exercised if performance has
not been under mistake, if this has been done by a person lacking
capacity to act.
Mistake gives rise to the rights associated with it only in a
case where the recipient of the performance was also, together
with the performer, acting under mistake. However, if the former
acted in bad faith, the provisions regarding compensation for the
arbitrary taking of property are applicable (Sections
2355-2357).
2374. A guarantor, who has guaranteed the performance of a
non-existent debt and paid it, has the right to reclaim.
2375. If joint debtors have paid more than what is due from
them, each of them may reclaim the overpaid amount in proportion
to his or her share.
2376. The subject-matter of the right to reclaim is either
recovery of that which has been performed without relevant
obligation therefor or, if such performance no longer subsists,
compensation for its value.
2377. The purpose of the right to reclaim shall be the
following: 1) when a promise has been given, to relieve from such
promise and therewith return the debt document, if such has been
issued; 2) if work has been performed - to compensate for the
value thereof; and 3) where a servitude has been established or
revoked - to restore the former situation.
2378. If fungible property has been given, property of the
same kind and the same quality shall be returned.
2379. Non-fungible property shall be returned together with
augmentations thereto and the fruits thereof, those already
collected as well as those not collected due to negligence after
action is brought against the defendant; therewith, however, the
defendant shall be compensated for expenditures made for such
purpose.
2380. If a recipient in good faith has already alienated
property, he or she shall return only the payment received for
it; but if the property has been destroyed or damaged during his
or her possession, then in the former case such recipient is not
required to compensate for it, but in the latter case shall
return the property in its present state.
2381. A plaintiff must prove that the performance was done
without lawful basis.
2382. By way of exception, the recipient shall prove that the
debt actually existed, in the following cases:
1) where he or she, in bad faith, denies the receipt of
payment;
2) where such debt document is reclaimed, as the lawful basis
of the obligation is not recorded in.
2383. If the right to reclaim has a legal basis, it shall not
be terminated by prior renunciation thereof.
II. Reclaiming
of Performance in Anticipation of a Future Event
2384. If someone has given something, assuming on grounds as
are directly expressed or arise with certainty from the
circumstances that a certain future event shall take place, he or
she may reclaim that which has been given from the recipient, if
the event does not take place.
It is of no consequence whether the anticipated event does not
take place at all or takes place otherwise than anticipated, or
whether the anticipated goal remains completely unachieved or was
not achieved in such manner as was expected.
2385. With respect to the subject matter of reclaim, the
provisions of Sections 2376-2380 are applicable.
2386. If the anticipated event (Section 2384) was impossible
from the very beginning and the provider was aware of this, he or
she does not have the right to reclaim what has been given.
If the provider himself or herself hinders the taking place of
the anticipated event, he or she shall lose the right to
reclaim.
If the anticipated event does not take place due to an
accident and through no fault of the recipient, the provider does
not have the right to reclaim.
III. Reclaim on
Grounds of Immorality or Unlawfulness
2387. That which a person has received for an immoral or
unlawful purpose may be reclaimed by the provider from the
recipient or his or her heirs, provided that the provision itself
was not immoral or unlawful, irrespective of whether or not the
intended aim was achieved.
2388. With respect to the subject-matter of reclaim, the
provisions of Sections 2376-2380 shall apply, with the exception
that in this instance interest shall not, in any event, be
required.
IV. Reclaim on
the Grounds of Absence of Any Basis
2389. If a person, without any basis therefor, is in
possession of some item of another person's property, it may be
reclaimed from the first-mentioned person.
It shall not matter, with respect to such reclaim, whether
there did not from the beginning exist any basis for the
acquisition of such item of property or the basis initially
existing later ceased.
2390. With respect to the subject matter of reclaim, the
provisions of Sections 2376-2380 are applicable.
V. A General
Reclaim on Grounds of Enrichment
2391. No one has the right to unjustly enrich himself or
herself, harming and at the expense of another person.
If a person has suffered losses therefrom, he or she may
demand the return of that which and the amount the other person
has been enriched by.
2392. As enrichment shall be considered only that which is
still part of the property of the defendant at the time when an
action to reclaim is brought against him or her, whether or not
it exists naturally or in the form of objects that the person has
acquired in exchange for what was alienated or consumed in good
faith. The right to reclaim shall not be applicable to all that
which the defendant, prior to that time and without acting in bad
faith, has given away as a gift, consumed or accidentally
lost.
CHAPTER 20
Right to Request Showing of Property
2393. A person who intends to exercise a right regarding
certain movable property and therefore wishes first to see it,
may request from each holder of this property that such holder
show it to him or her.
2394. Showing of property may be requested not only by a
person who claims ownership rights to it, but also by a person
who wishes to exercise other property rights, recover possession
of property or exercise his or her right to choose, or also by a
person who proves that he or she has some legal interest in
having the property shown to him or her.
2395. An action for the showing of property may be conducted
not only against the possessor, but also against any holder of
the property, and against a person who has had possession of the
property but has intentionally given the property to another
person or destroyed it. Such action shall also be allowed where
the defendant may not even know whether the property is actually
in his or her possession.
2396. The defendant shall be held liable for any negligence on
his or her part from the time when he or she is notified of the
action. If the possessor acts in bad faith, he or she shall also
bear the risk for destruction and deterioration, it being assumed
that it would not have happened if the property had been given to
the plaintiff in due time.
2397. The property shall be shown at the location where it is
situated at the time when action is brought against the
defendant; but if the defendant has removed it in bad faith, he
or she shall return it to that location at his or her
expense.
2398. If a defendant fails, without cause therefor, to show
the property, or intentionally makes showing impossible, he or
she shall compensate the plaintiff for all losses.
2399. A defendant may claim from the plaintiff compensation
for showing of the property expenses and accidental losses
suffered thereby.
2400. An heir of the defendant shall be liable only to the
extent that he or she or it is able to show the property and has
not eliminated such possibility by his or her own illegal action,
and to the extent that through the illegal acts of the
estate-leaver profits accrued to his or her property and such
profits have passed to the heir.
Informative Reference to European
Union Directives
[26 January 2006; 23 May
2013]
This Law contains legal norms arising from:
1) Council Directive 87/102/EEC of 22 December 1986 for the
approximation of the laws, regulations and administrative
provisions of the Member States concerning consumer credit;
2) Council Directive 90/88/EEC of 22 February 1990 amending
Directive 87/102/EEC for the approximation of the laws,
regulations and administrative provisions of the Member States
concerning consumer credit;
3) Directive 98/7/EC of the European Parliament and of the
Council of 16 February 1998 amending Directive 87/102/EEC for the
approximation of the laws, regulations and administrative
provisions of the Member States concerning consumer credit;
4) Council Directive 93/13/EEC of 5 April 1993 on unfair terms
in consumer contracts;
5) Directive 2000/31/EC of the European Parliament and of the
Council of 8 June 2000 on certain legal aspects of information
society services, in particular electronic commerce, in the
Internal Market ('Directive on electronic commerce');
6) [23 May 2013];
7) Directive 2011/7/EU of the European Parliament and of the
Council of 16 February 2011 on combating late payment in
commercial transactions.
Annex I (to Section 1102)
List of Public Lakes and
Rivers
[16 September 2021]
1. Public
Lakes
No.
|
Name of
lake
|
Earlier
name in the Civil Law (if differs)
|
Rural
territory or city/town
|
Area
(ha)
|
Coordinates (LKS-92)
|
X
|
Y
|
Aizkraukle
municipality
|
1.
|
Dāmenezers
|
|
Aiviekste rural territory
|
46.1
|
282412
|
609549
|
2.
|
Līdacis
|
Līdaces ezers
|
Aiviekste rural territory
|
8.5
|
280788
|
607779
|
3.
|
Odzes ezers
|
|
Aiviekste rural territory
|
268.7
|
281971
|
604697
|
4.
|
Znotiņu ezers (Aklais
ezers)
|
|
Daudzese rural territory
|
24.6
|
262130
|
569983
|
Alūksne
municipality
|
5.
|
Alūksnes ezers
|
|
Alūksne town, Jaunalūksne
rural territory
|
1543.7
|
372293
|
685294
|
6.
|
Ilgāja ezers (Ilgajs)
(Latvian part)
|
Ilgāja ezers
|
Veclaicene rural
territory
|
8.7
|
386705
|
670587
|
7.
|
Indzeris
|
Indzera ezers
|
Alsviķi rural territory
|
145.3
|
363740
|
680562
|
8.
|
Murata ezers (Latvian
part)
|
Muratu ezers
|
Ziemeri rural territory
|
11.2
|
385638
|
684438
|
9.
|
Sudals (Sudalezers)
(part in Gulbene district, see No. 83)
|
Sudalezers
|
Zeltiņi rural territory
|
182.3
|
355639
|
661961
|
10.
|
Vaidavas ezers
|
|
Ziemeri rural territory
|
23.3
|
383707
|
685785
|
Augšdaugava municipality
|
11.
|
Audēju ezers
|
|
Svente rural territory
|
1.8
|
194148
|
643880
|
12.
|
Beļānu ezers (Latvian
part)
|
Beļānu ezers (Baltais
ezers)
|
Skrudaliena rural
territory
|
55.4
|
177708
|
679613
|
13.
|
Boltazars
|
Baltezers
|
Vabole rural territory
|
48.5
|
216474
|
654522
|
14.
|
Briģenes ezers (Briģines
ezers)
|
Briģenes ezers
|
Demene rural territory
|
136.4
|
180550
|
659640
|
15.
|
Demenes ezers
|
|
Demene rural territory
|
30.2
|
179390
|
659217
|
16.
|
Dūnakļu ezers
|
|
Saliena rural territory
|
17.5
|
183226
|
680463
|
17.
|
Galiņu ezers (Latvian
part)
|
|
Šēdere rural territory
|
15.5
|
187952
|
640097
|
18.
|
Grendzes ezers (Latvian
part)
|
|
Medumi rural territory
|
1.1
|
176382
|
650516
|
19.
|
Kamenkas ezers (Latvian
part)
|
|
Saliena rural territory
|
11.0
|
186059
|
682941
|
20.
|
Klepinu ezers
|
|
Saliena rural territory
|
34.0
|
183071
|
678421
|
21.
|
Koša ezers (Kosinis)
|
Kāša ezers (Koša ezers)
|
Līksna rural territory
|
59.2
|
209919
|
648599
|
22.
|
Kurcuma ezers
|
|
Medumi rural territory
|
12.1
|
178614
|
648942
|
23.
|
Laucesas ezers (Latvian
part)
|
Laucesas ezers (Smelīnes
ezers)
|
Medumi rural territory
|
94.8
|
180982
|
644263
|
24.
|
Lielais Ilgas ezers
(part of the lake in the area of 109.2 ha)
|
|
Medumi rural territory
|
109.2
|
186933
|
645378
|
25.
|
Lielais Kolupa ezers
(part in Preiļi municipality, see No. 167)
|
Lielais Kalupes ezers
(Salenieku ezers)
|
Kalupe rural territory
|
175.0
|
225344
|
656835
|
26.
|
Lielais Kumpinišku ezers
(Latvian part)
|
Lielais Kumpinišķu ezers
|
Medumi rural territory
|
44.1
|
183053
|
642179
|
27.
|
Lielais Kumpotis (Latvian
part)
|
Lielais Kumpoša ezers
|
Medumi rural territory
|
7.4
|
176282
|
654164
|
28.
|
Lielais Subates ezers
|
|
Subate town
|
51.0
|
208751
|
619639
|
29.
|
Luknas ezers
|
|
Višķi rural territory
|
409.0
|
217179
|
672666
|
30.
|
Marinovas ezers (Marijas
ezers)
|
Marijas ezers
|
Šēdere rural territory
|
19.3
|
195036
|
639229
|
31.
|
Mazais Ilgas ezers
|
|
Medumi rural territory
|
21.7
|
185995
|
644848
|
32.
|
Mazais Kolupa ezers
|
Mazais Kalupes ezers (Keišu
ezers)
|
Kalupe rural territory
|
110.0
|
221444
|
657504
|
33.
|
Mazais Kumpinišku ezers
|
|
Medumi rural territory
|
3.6
|
183345
|
642725
|
34.
|
Mazais Subates ezers (Latvian
part)
|
|
Subate town
|
22.0
|
207829
|
618791
|
35.
|
Meduma ezers
|
|
Medumi rural territory
|
271.5
|
185317
|
646837
|
36.
|
Riču ezers (Latvian part)
|
|
Demene rural territory
|
587.7
|
176299
|
670090
|
37.
|
Robežas ezers (Latvian
part)
|
|
Medumi rural territory
|
12.0
|
176769
|
649181
|
38.
|
Samaņkas ezers (Latvian
part)
|
|
Medumi rural territory
|
18.0
|
176308
|
649660
|
39.
|
Sasaļu ezers
|
|
Svente rural territory
|
27.4
|
200698
|
643971
|
40.
|
Sila ezers
|
|
Skrudaliena rural
territory
|
262.0
|
180352
|
675059
|
41.
|
Sitas ezers (Latvian
part)
|
|
Skrudaliena rural
territory
|
43.1
|
173880
|
674729
|
42.
|
Skirnas ezers (Latvian
part)
|
|
Demene rural territory
|
31.8
|
173451
|
661077
|
43.
|
Sventes ezers
|
|
Svente rural territory
|
734.8
|
192562
|
647362
|
44.
|
Šarlotes ezers
|
|
Šēdere rural territory
|
27.2
|
195388
|
637330
|
45.
|
Šķirnates ezers (Latvian
part)
|
Šķirnates ezers (Kimbarcišķu
ezers)
|
Demene rural territory
|
10.0
|
174063
|
657103
|
46.
|
Šķirstiņu ezers
|
|
Medumi rural territory
|
26.3
|
187677
|
646888
|
47.
|
Višku ezers
|
Višķu ezers
|
Višķi rural territory
|
360.1
|
215547
|
676265
|
48.
|
Zabolotņiku ezers
|
|
Saliena rural territory
|
21.0
|
181476
|
676642
|
Ādaži
municipality
|
49.
|
Dūņezers
|
|
Ādaži rural territory
|
274.1
|
334104
|
521700
|
50.
|
Dzirnezers
|
|
Carnikava rural territory
|
140.9
|
332808
|
518937
|
51.
|
Garezeri
|
|
Carnikava rural territory
|
24.4
|
336009
|
518681
|
52.
|
Lielais Baltezers
(part in Ropaži municipality, see No. 190)
|
|
Ādaži rural territory
|
597.5
|
320202
|
517673
|
53.
|
Līlastes ezers
|
|
Ādaži rural territory
|
183.6
|
337223
|
521575
|
54.
|
Mazais Baltezers
|
|
Ādaži rural territory
|
198.7
|
322620
|
519870
|
Balvi
municipality
|
55.
|
Bolvu ezers
|
Balvu ezers
|
Kubuli rural territory
|
167.9
|
336693
|
695672
|
56.
|
Pārkunu ezers
|
Pērkonu ezers
|
Kubuli rural territory
|
229.7
|
337848
|
699503
|
57.
|
Svātiunes ezers
|
Svētaunes ezers (Jorzavas
ezers)
|
Baltinava rural territory
|
36.0
|
310502
|
715569
|
58.
|
Viļakas ezers
|
|
Viļaka town
|
137.6
|
344916
|
722935
|
Bauska
municipality
|
59.
|
Taurkalnes Aklais ezers
|
Taurkalnes Aklezers
|
Valle rural territory
|
20.0
|
269431
|
555267
|
Cēsis
municipality
|
60.
|
Alauksts
|
Alauksta ezers
|
Vecpiebalga rural
territory
|
774.8
|
329190
|
607379
|
61.
|
Āraišu ezers
|
|
Drabeši rural territory
|
32.6
|
345904
|
577625
|
62.
|
Inesis
|
Ineša ezers
|
Ineši rural territory
|
519.5
|
322405
|
608094
|
63.
|
Juveris
|
Juvera ezers
|
Dzērbene rural territory
|
77.5
|
343248
|
601050
|
64.
|
Mazums
|
Mazuma ezers
|
Vaive rural territory
|
25.9
|
343413
|
583709
|
65.
|
Ratnieku ezers
|
|
Līgatne rural territory
|
44.1
|
336062
|
562216
|
66.
|
Riebiņu ezers
|
|
Straupe rural territory
|
75.5
|
359833
|
557215
|
67.
|
Taurenes ezers
|
|
Taurene rural territory
|
31.6
|
336623
|
602388
|
68.
|
Ungurs (Rustēgs)
|
Rustēga ezers (Unguru
ezers)
|
Raiskums rural territory
|
393.6
|
355737
|
565321
|
Daugavpils
local government territory
|
69.
|
Lielais Stropu ezers
|
|
State city of Daugavpils
|
417.9
|
198866
|
662252
|
70.
|
Šuņazars
|
Šuņezers
|
State city of Daugavpils
|
74.8
|
197839
|
656786
|
Dienvidkurzeme municipality
|
71.
|
Durbes ezers
|
|
Dunalka rural territory,
Durbe rural territory, Tadaiķi rural territory
|
670.0
|
277770
|
337764
|
72.
|
Kalšu ezers (Latvian
part)
|
|
Vaiņode rural territory
|
19.2
|
248707
|
368324
|
73.
|
Liepājas ezers
(part in the State city of Liepāja, see No. 116)
|
|
Grobiņa rural territory,
Otaņķi rural territory, Nīca rural territory
|
3715.0
|
261040
|
318897
|
74.
|
Papes ezers
|
|
Rucava rural territory, Nīca
rural territory
|
1205.0
|
231742
|
317944
|
75.
|
Tāšu ezers
|
|
Medze rural territory
|
94.9
|
277385
|
329368
|
Dobele
municipality
|
76.
|
Apguldes ezers
|
|
Naudīte rural territory
|
40.8
|
266454
|
453657
|
77.
|
Lielauces ezers
|
|
Lielauce rural territory
|
376.0
|
265940
|
432487
|
78.
|
Zebrus ezers
|
|
Biksti rural territory
|
443.0
|
276918
|
437830
|
Gulbene
municipality
|
79.
|
Ādmiņu ezers
|
|
Lejasciems rural
territory
|
28.2
|
349492
|
644699
|
80.
|
Kalmodu ezers
|
|
Ranka rural territory
|
23.0
|
348352
|
632095
|
81.
|
Lielais Virānes ezers
|
|
Tirza rural territory
|
60.9
|
326285
|
642773
|
82.
|
Ludza ezers
|
|
Stāmeriena rural
territory
|
280.9
|
350499
|
673800
|
83.
|
Sudals (Sudalezers)
(part in Alūksne municipality, see No. 9)
|
Sudalezers
|
Lejasciems rural
territory
|
182.3
|
355639
|
661961
|
84.
|
Ušurs
|
Ušura ezers
|
Jaungulbene rural
territory
|
160.8
|
326329
|
661251
|
Jēkabpils
municipality
|
85.
|
Baļotes ezers
|
|
Kūkas rural territory
|
149.2
|
268484
|
623971
|
86.
|
Ilzu ezers (Garais ezers)
(Latvian part)
|
Garais ezers (Akmeņu ezers,
Ilzes ezers)
|
Rite rural territory
|
39.0
|
225543
|
595245
|
87.
|
Pīslaistas ezers
|
Pieslaista ezers
|
Atašiene rural territory
|
54.7
|
272987
|
657771
|
88.
|
Saukas ezers
|
|
Sauka rural territory
|
718.2
|
236542
|
590843
|
89.
|
Vārzgūnes ezers
|
|
Kalns rural territory
|
43.0
|
250559
|
616750
|
90.
|
Viesītes ezers
|
|
Viesīte rural territory
|
232.0
|
246176
|
601226
|
Jūrmala
local government territory
|
91.
|
Slokas ezers
|
|
State city of Jūrmala
|
250.0
|
312536
|
473360
|
Krāslava
municipality
|
92.
|
Baltais ezers (Latvian
part)
|
Baltais ezers (Belojes
ezers)
|
Robežnieki rural
territory
|
35.3
|
205203
|
728598
|
93.
|
Cārmins
|
Cērmenes ezers (Cārmaņa
ezers)
|
Auleja rural territory
|
221.8
|
215885
|
698173
|
94.
|
Dagdas ezers
|
|
Asūne rural territory
|
484.1
|
221189
|
722380
|
95.
|
Dolgojes ezers (Latvian
part)
|
|
Indra rural territory
|
9.0
|
193796
|
727465
|
96.
|
Dreidzs
|
Drīdža ezers
|
Kombuļi rural territory,
Skaista rural territory
|
753.0
|
208369
|
705494
|
97.
|
Eša ezers (Ežezers)
|
Ežezers (Ješa ezers)
|
Ezernieki rural territory
|
987.9
|
231295
|
723961
|
98.
|
Kairišu ezers
|
Kairīšu ezers
|
Svariņi rural territory
|
91.7
|
222400
|
730018
|
99.
|
Lielais Gusena ezers (Lielais
Ūseņa ezers)
|
Lielais Gusena ezers
|
Robežnieki rural
territory
|
120.5
|
208403
|
725722
|
100.
|
Maksimovas ezers (Latvian
part)
|
|
Indra rural territory
|
16.1
|
200317
|
726759
|
101.
|
Malcānu ezers (Nazaru
ezers)
|
Nāzaru ezers (Malcānu
ezers)
|
Bērziņi rural territory
|
12.5
|
225516
|
739909
|
102.
|
Matejka
|
Matejka ezers
|
Robežnieki rural
territory
|
9.9
|
208462
|
724839
|
103.
|
Medvedka
|
Medvedka ezers (Lāču
ezers)
|
Robežnieki rural
territory
|
8.4
|
209552
|
726295
|
104.
|
Melnais ezers (Latvian
part)
|
Melnais ezers (Čornojes
ezers)
|
Robežnieki rural
territory
|
8.0
|
204627
|
728377
|
105.
|
Nauļānu ezers
|
|
Robežnieki rural
territory
|
55.9
|
209573
|
729352
|
106.
|
Osvas ezers
|
|
Bērziņi rural territory
|
51.8
|
221727
|
734614
|
107.
|
Rušons
(part in Rēzekne and Preiļi municipalities, see No. 169 and
No. 182)
|
Rušona ezers (Cīruļu
ezers)
|
Kastuļina rural territory
|
2373.0
|
230447
|
687652
|
108.
|
Sivers
|
Sīvera ezers
|
Auleja rural territory,
Skaista rural territory
|
1759.0
|
213005
|
707775
|
109.
|
Žabinka
|
Žabinka ezers
|
Robežnieki rural
territory
|
3.4
|
209206
|
724498
|
Kuldīga
municipality
|
110.
|
Ķikuru ezers
|
|
Turlava rural territory
|
21.6
|
297678
|
357144
|
111.
|
Lielais Nabas ezers
|
|
Padure rural territory
|
70.5
|
327243
|
367275
|
112.
|
Mazais Nabas ezers
|
|
Padure rural territory
|
66.8
|
326968
|
368983
|
113.
|
Slujas ezers
|
|
Renda rural territory
|
57.3
|
329766
|
389174
|
114.
|
Vilgāles ezers
|
|
Kurmāle rural territory
|
242.5
|
305520
|
366425
|
115.
|
Zvirgzdu ezers
|
|
Alsunga rural territory,
Gudenieki rural territory
|
74.7
|
312695
|
356733
|
Liepāja
local government territory
|
116.
|
Liepājas ezers
(part in Dienvidkurzeme municipality, see No. 73)
|
Liepājas ezers
|
State city of Liepāja
|
3715.0
|
261040
|
318897
|
117.
|
Tosmares ezers
|
|
State city of Liepāja
|
405.0
|
273264
|
319278
|
Limbaži
municipality
|
118.
|
Augstrozes Lielezers
|
|
Umurga rural territory
|
400.0
|
376591
|
560747
|
119.
|
Dūņezers
|
|
Limbaži rural territory
|
135.6
|
376828
|
541960
|
120.
|
Katvarezers (Pepītis)
|
Katvaru ezers
|
Katvari rural territory
|
64.7
|
379874
|
547629
|
121.
|
Lādes ezers (Nabes ezers)
|
Lādes ezers
|
Limbaži rural territory
|
246.0
|
366368
|
541427
|
122.
|
Limbažu Lielezers
|
|
Limbaži rural territory,
Limbaži town
|
256.4
|
371159
|
542058
|
Līvāni
municipality
|
123.
|
Daguma ezers
|
Deguma ezers (Pelēčāres
ezers)
|
Rudzāti rural territory
|
59.0
|
261241
|
653847
|
124.
|
Jersikas ezers
|
|
Jersika rural territory
|
41.0
|
236366
|
637513
|
Ludza
municipality
|
125.
|
Cirms
|
Cirma ezers
|
Cirma rural territory
|
1261.2
|
274140
|
721773
|
126.
|
Čornojes ezers (Latvian
part)
|
|
Briģi rural territory
|
5.0
|
259069
|
758633
|
127.
|
Dziļais ezers
|
Dziļezers
|
Istra rural territory
|
150.9
|
241546
|
747569
|
128.
|
Istras ezers
|
|
Istra rural territory
|
155.3
|
240372
|
746376
|
129.
|
Kurjanovas ezers
|
|
Līdumnieki rural
territory
|
127.8
|
272334
|
745247
|
130.
|
Laudera ezers
|
|
Lauderi rural territory
|
55.3
|
252295
|
746498
|
131.
|
Lielais Ludzas ezers
|
|
Zvirgzdene rural
territory
|
846.4
|
272379
|
731477
|
132.
|
Mazais Ludzas ezers
|
|
Ludza town
|
36.5
|
273415
|
728172
|
133.
|
Nierzas ezers
|
Nirzas ezers (Nierzas
ezers)
|
Nirza rural territory
|
551.6
|
256465
|
741026
|
134.
|
Nūmiernes ezers
|
Nūmērnes ezers
|
Salnava rural territory
|
73.8
|
305983
|
714936
|
135.
|
Peiteļa ezers (Latvian
part)
|
Pīteļa ezers
|
Līdumnieki rural
territory
|
138.5
|
280376
|
747579
|
136.
|
Pildas ezers
|
|
Ņukši rural territory
|
294.6
|
265102
|
732348
|
137.
|
Plisūns
|
Plisūna ezers (Plusons,
Dunduru ezers)
|
Istra rural territory
|
480.0
|
237774
|
748387
|
138.
|
Šešku ezers
|
|
Pasiene rural territory
|
38.7
|
233905
|
755771
|
139.
|
Zilezers (Sīnojs) (Latvian
part)
|
Zilezers
|
Līdumnieki rural
territory
|
95.0
|
270174
|
754050
|
140.
|
Zviergzdines ezers
|
Zvirgzdenes ezers
|
Zvirgzdene rural
territory
|
134.2
|
274740
|
726545
|
Madona
municipality
|
141.
|
Apaļais dīķis
|
Apaļais ezers
|
Arona rural territory
|
0.6
|
308156
|
629773
|
142.
|
Dreimaņa ezers (Svētes
ezers)
|
|
Mārciena rural territory
|
49.0
|
293643
|
631688
|
143.
|
Gulbēris
|
Gulbēra ezers
|
Liezēre rural territory
|
87.2
|
317984
|
620948
|
144.
|
Ilziņš
|
Ilziņa ezers
|
Vestiena rural territory
|
21.9
|
303983
|
614881
|
145.
|
Jumurdas ezers
|
|
Jumurda rural territory
|
173.7
|
312650
|
606807
|
146.
|
Kaijenieks
|
|
Arona rural territory
|
9.4
|
308343
|
629823
|
147.
|
Kalsnavas ezers
|
|
Kalsnava rural territory
|
23.4
|
290772
|
624443
|
148.
|
Kālezers
|
|
Vestiena rural territory
|
407.1
|
303416
|
611366
|
149.
|
Kurtavas ezers
|
|
Mētriena rural territory
|
74.0
|
279343
|
644174
|
150.
|
Lielais Līdēris
|
|
Arona rural territory
|
125.2
|
313372
|
623225
|
151.
|
Liezēris
|
Liezēra ezers
|
Liezēre rural territory
|
105.9
|
319815
|
624625
|
152.
|
Lubāns
(part in Rēzekne municipality, see No. 178)
|
Lubāna ezers
|
Barkava rural territory,
Ošupe rural territory
|
8210.0
|
295170
|
674972
|
153.
|
Mazais Virānes ezers
|
|
Cesvaine rural territory
|
47.2
|
324745
|
643410
|
154.
|
Odzienas ezers
|
|
Mētriena rural territory
|
47.0
|
281125
|
642019
|
155.
|
Rāceņu ezers (Plaksnis)
|
Rāceņu ezers
|
Lazdona rural territory
|
34.9
|
300620
|
635508
|
156.
|
Salu ezers (Baznīcas
ezers)
|
Salas ezers
|
Madona town
|
31.8
|
302248
|
637298
|
157.
|
Talejs
|
Talejas ezers
|
Vestiena rural territory
|
79.7
|
303838
|
617214
|
158.
|
Viešūrs
|
Viešūra ezers (Kaķīšu
ezers)
|
Vestiena rural territory
|
175.0
|
307467
|
619807
|
Mārupe
municipality
|
159.
|
Babītes ezers
|
|
Babīte rural territory, Sala
rural territory
|
2555.7
|
308702
|
484338
|
Ogre
municipality
|
160.
|
Lobes ezers
|
|
Krape rural territory
|
533.5
|
287150
|
578340
|
161.
|
Pečors
|
Pečora ezers
|
Ķeipene rural territory
|
102.6
|
305331
|
568954
|
162.
|
Plaužu ezers
|
|
Ķeipene rural territory
|
95.6
|
305632
|
576341
|
Preiļi
municipality
|
163.
|
Bicānu ezers
|
|
Rušona rural territory
|
149.4
|
234911
|
680387
|
164.
|
Bieržgaļa ezers
|
Biržgaļa ezers (Biržkalnu
ezers, Kapiņu ezers)
|
Aglona rural territory
|
272.2
|
227090
|
693425
|
165.
|
Cirišs
|
Ciriša ezers
|
Aglona rural territory
|
630.6
|
224835
|
684882
|
166.
|
Feimaņu ezers
(part in Rēzekne municipality, see No. 174)
|
|
Rušona rural territory
|
625.7
|
240611
|
685709
|
167.
|
Lielais Kolupa ezers
(part in Augšdaugava municipality, see No. 25)
|
Lielais Kalupes ezers
(Salenieku ezers)
|
Rožkalni rural territory
|
175.0
|
225344
|
656835
|
168.
|
Pelēča ezers
|
|
Aizkalne rural territory
|
82.0
|
228306
|
669007
|
169.
|
Rušons
(part in Rēzekne and Krāslava municipalities, see No. 107
and No. 182)
|
Rušona ezers (Cīruļu
ezers)
|
Rušona rural territory
|
2373.0
|
230447
|
687652
|
Rēzekne
local government territory
|
170.
|
Kovšu ezers (Rēzeknes
ezers)
|
Rēzeknes ezers
|
State city of Rēzekne
|
22.0
|
266402
|
704287
|
Rēzekne
municipality
|
171.
|
Ciskodu ezers (Tiskādu
ezers)
|
Tiskādu ezers (Ciskada
ezers)
|
Silmala rural territory
|
179.5
|
260697
|
689658
|
172.
|
Černostes ezers
|
|
Malta rural territory
|
213.3
|
241986
|
694363
|
173.
|
Dziļūts
|
Dziļūta ezers
|
Stoļerova rural territory
|
33.1
|
253440
|
725612
|
174.
|
Feimaņu ezers
(part in Preiļi municipality, see No. 166)
|
|
Feimaņi rural territory
|
625.7
|
240611
|
685709
|
175.
|
Idzipoles ezers
|
|
Kaunata rural territory
|
48.0
|
249851
|
727296
|
176.
|
Ismeru ezers (Žogotu
ezers)
|
Ismeru-Žogotu ezers
|
Čornaja rural territory
|
147.0
|
253749
|
705937
|
177.
|
Kaunatas ezers
|
|
Kaunata rural territory
|
54.5
|
247951
|
717766
|
178.
|
Lubāns
(part in Madona municipality, see No. 152)
|
Lubāna ezers
|
Gaigalava rural territory,
Nagļi rural territory
|
8210.0
|
295170
|
674972
|
179.
|
Meirānu ezers
|
|
Bērzgale rural territory
|
114.7
|
282015
|
716552
|
180.
|
Pušas ezers
|
|
Puša rural territory
|
241.4
|
237670
|
698448
|
181.
|
Rāznas ezers
|
Rāznas ezers (Rēznas
ezers)
|
Čornaja rural territory,
Kaunata rural territory, Mākoņkalns rural territory
|
5756.4
|
247491
|
713780
|
182.
|
Rušons
(part in Preiļi and Krāslava municipalities, see No. 107
and No. 169)
|
Rušona ezers (Cīruļu
ezers)
|
Feimaņi rural territory
|
2373.0
|
230447
|
687652
|
183.
|
Solojs
|
Salāja ezers (Lakstīgalu
ezers, Solovju ezers)
|
Mākoņkalns rural
territory
|
174.7
|
234337
|
711435
|
184.
|
Virauds
|
Viraudas ezers
|
Lendži rural territory
|
95.4
|
275974
|
715849
|
185.
|
Viertiukšnis
|
Virtūkšņa ezers (Vertūkšņas
ezers)
|
Lūznava rural territory
|
52.8
|
250799
|
697276
|
186.
|
Zosnas ezers
|
|
Lūznava rural territory
|
156.5
|
248095
|
705319
|
Rīga local
government territory
|
187.
|
Juglas ezers
|
|
State city of Rīga
|
570.0
|
315390
|
516812
|
188.
|
Ķīšezers
|
|
State city of Rīga
|
1730.0
|
319796
|
510581
|
Ropaži
municipality
|
189.
|
Langstiņu ezers
|
|
Garkalne rural territory
|
35.7
|
318770
|
520524
|
190.
|
Lielais Baltezers
(part in Ādaži municipality, see No. 52)
|
|
Garkalne rural territory
|
597.5
|
320202
|
517673
|
191.
|
Lielais Jūgezers
|
|
Garkalne rural territory
|
35.5
|
323342
|
514565
|
Saldus
municipality
|
192.
|
Brocēnu ezers (Brocenu
ezers)
|
|
Ciecere rural territory
|
43.6
|
284700
|
411342
|
193.
|
Cieceres ezers
|
|
Ciecere rural territory
|
276.8
|
279373
|
411933
|
194.
|
Ķerkliņu ezers
|
|
Zvārde rural territory
|
50.0
|
265209
|
418584
|
195.
|
Remtes ezers
|
|
Remte rural territory
|
75.5
|
288838
|
419589
|
196.
|
Saldus ezers
|
|
Saldus town
|
22.0
|
282016
|
408626
|
197.
|
Zvārdes ezers (Odzēnu
ezers)
|
Zvārdes ezers (Odzānu
ezers)
|
Zvārde rural territory
|
20.0
|
270880
|
414020
|
Saulkrasti
municipality
|
198.
|
Pabažu ezers
|
|
Sēja rural territory
|
38.2
|
346113
|
535814
|
Sigulda
municipality
|
199.
|
Aijažu ezers
|
|
Lēdurga rural territory
|
311.4
|
360098
|
543357
|
200.
|
Jūdažu ezers
|
|
Sigulda rural territory
|
32.7
|
329449
|
557500
|
Smiltene
municipality
|
201.
|
Draudzesskolas ezers
|
Skolas ezers (Drustu
ezers)
|
Drusti rural territory
|
34.3
|
343405
|
610968
|
202.
|
Lizdoles ezers
|
|
Launkalne rural territory
|
53.9
|
351526
|
610758
|
203.
|
Zvārtavas ezers
|
|
Gaujiena rural territory
|
23.3
|
379292
|
641552
|
Talsi
municipality
|
204.
|
Engures ezers
(part in Tukums municipality, see No. 208)
|
|
Mērsrags rural territory
|
4130.7
|
346791
|
445516
|
205.
|
Sasmakas ezers
|
|
Ārlava rural territory
|
252.0
|
358865
|
416410
|
Tukums
municipality
|
206.
|
Dūņieris
|
Dūņiera ezers
|
Lapmežciems rural
territory
|
25.3
|
316250
|
469574
|
207.
|
Dzirciema ezers
|
|
Zentene rural territory
|
27.1
|
330465
|
440162
|
208.
|
Engures ezers
(part in Talsi municipality, see No. 204)
|
|
Engure rural territory,
Zentene rural territory
|
4130.7
|
346791
|
445516
|
209.
|
Kaņieris
|
Kaņiera ezers
|
Lapmežciems rural territory,
Smārde rural territory
|
1122.1
|
317649
|
467622
|
210.
|
Lielapsauju ezers
|
Lielapsauju ezers (Apsauju
ezers)
|
Jaunpils rural territory
|
20.0
|
286348
|
443819
|
211.
|
Pālansu ezers
|
|
Lestene rural territory
|
36.0
|
292457
|
443227
|
212.
|
Sēmes ezers
|
|
Sēme rural territory
|
48.6
|
323517
|
443749
|
213.
|
Valguma ezers
|
|
Smārde rural territory
|
60.3
|
316580
|
458223
|
Valka
municipality
|
214.
|
Cepšu ezers
|
|
Kārķi rural territory
|
25.3
|
411713
|
599454
|
215.
|
Valdis (Valžezers)
|
Valda ezers
|
Ērģeme rural territory
|
24.8
|
402060
|
605369
|
Valmiera
municipality
|
216.
|
Burtnieks
|
Burtnieku ezers
|
Burtnieki rural territory,
Matīši rural territory, Vecate rural territory
|
4006.0
|
400647
|
573981
|
217.
|
Dauguļu Mazezers
|
|
Dikļi rural territory
|
62.5
|
378819
|
561727
|
218.
|
Ķiruma ezers (Kreņa
ezers)
|
Ķiruma ezers
|
Vecate rural territory
|
53.5
|
404592
|
562633
|
219.
|
Ramatas Lielezers
|
|
Ramata rural territory
|
162.0
|
428250
|
555201
|
220.
|
Rāķis
|
Rāķa ezers
|
Dikļi rural territory
|
67.0
|
384686
|
555218
|
221.
|
Vaidavas ezers
|
|
Vaidava rural territory
|
87.2
|
367774
|
576261
|
Ventspils
municipality
|
222.
|
Klāņezers
|
|
Pope rural territory, Tārgale
rural territory
|
67.0
|
371426
|
366604
|
223.
|
Puzes ezers
|
|
Puze rural territory
|
520.5
|
356449
|
377404
|
224.
|
Usmas ezers
|
|
Usma rural territory
|
3469.2
|
339027
|
390832
|
Ventspils
local government territory
|
225.
|
Būšnieku ezers
|
|
State city of Ventspils
|
330.0
|
369423
|
358617
|
2. Public
rivers
1.
|
Abava - from the junction with the (the
River) Viesata to its junction with (the River) Venta; |
2.
|
Aiviekste (with forking canals) - full
length; |
3.
|
Aktica - section along the Latvia-Belarus
border; |
4.
|
Asūnīca - section along the Latvia-Belarus
border; |
5.
|
Bārta - from the Latvia-Lithuania border to
its junction with (the Lake) Liepājas ezers; |
6.
|
Brasla - from the Brasla reservoir dam to its
junction with (the River) Gauja; |
7.
|
Buļļupe ((the River) Lielupe branch in the
territory of Rīga) - full length; |
8.
|
Daugava (its branches un Pļaviņas, Ķegums and
Rīga HES reservoirs) - from the Latvia-Russia border to its
outfall in the Gulf of Rīga (including the section along the
Latvia-Belarus border); |
9.
|
Dubna - from the outlet from (the Lake)
Sivers to its junction with (the River) Daugava; |
10.
|
Gauja - from its junction with (the River)
Tirza to its outfall in the Gulf of Rīga (including the
section along the border), the Gauja-Baltezers canal; |
11.
|
Gauja - section in the territory of Lizums
rural territory; |
12.
|
Iecava - from its junction with (the River)
Dzērvīte to its junction with (the River) Lielupe; |
13.
|
Irbe - full length; |
14.
|
Jugla - from the confluence of (the Rivers)
Lielā Jugla and Mazā Jugla to (the Lake) Juglas ezers and
from (the Lake) Juglas ezers to its junction with (the Lake)
Ķīšezers; |
15.
|
Jugla canal - from (the Lake) Lielais
Baltezers to its junction with (the River) Jugla; |
16.
|
Lielā Jugla - full length (from the
confluence of (the Rivers) Mergupe and Suda to its confluence
with (the River) Mazā Jugla); |
17.
|
Lielupe and its branches - full length; |
18.
|
Ludza - from the outlet from (the Lake)
Lielais Ludzas ezers to the Latvia-Russia border, including
the section along the border; |
19.
|
Mazā Jugla - from its junction with (the
River) Abza to its confluence with (the River) Lielā
Jugla; |
20.
|
Melnupe - section along the Latvia-Estonia
border; |
21.
|
Mēmele - from the Latvia-Lithuania border
(including the section along the border) to its confluence
with (the River) Mūsa; |
22.
|
Mērsrags canal - full length; |
23.
|
Misa - from its junction with (the River)
Zvirgzde to its junction with (the River) Iecava; |
24.
|
Mīlgrāvis - full length; |
25.
|
Mūsa - from the Latvia-Lithuania border
(including the section along the border) to its confluence
with (the River) Mēmele; |
26.
|
Ogre - from its junction with (the River)
Valola to its junction with (the River) Daugava; |
27.
|
Pededze - from its junction with (the River)
Alūksne to its junction with (the River) Aiviekste; |
28.
|
Pernovka - section along the Latvia-Russia
border; |
29.
|
Pērse - from its junction with (the River)
Pelava to its junction with (the River) Daugava; |
30.
|
Rēzekne - full length; |
31.
|
Rinda - full length; |
32.
|
Roja - from the Lube windmill to its outfall
in the Gulf of Rīga; |
33.
|
Saka - full length; |
34.
|
Salaca - full length; |
35.
|
Sarja (Sarjanka) - section along the
Latvia-Belarus border; |
36.
|
Sīnupe (Zilupe) - sections along the
Latvia-Russia border; |
37.
|
Suseja (Dienvidsusēja) - section along the
Latvia-Lithuania border; |
38.
|
Sventāja - section along the Latvia-Lithuania
border; |
39.
|
Svēte - from the Latvia-Lithuania border
(including the section along the border) to its junction with
(the River) Lielupe; |
40.
|
Užava - from its junction with (the River)
Kauliņa (Kauliņupe) to its outfall in the Baltic Sea; |
41.
|
Vadakste with the Latvian part of Vadakste
reservoir - from the Latvia-Lithuania border (including the
section along the border) to its junction with (the River)
Venta; |
42.
|
Vaidava - section along the Latvia-Estonia
border; |
43.
|
Venta - from the Latvia-Lithuania border
(including the section along the border) to its outfall in
the Baltic Sea; |
Annex II (to Section 1115)
List of Lakes in which Fishing
Rights Belong to the State
[16 September 2021]
No.
|
Name of
lake
|
Earlier
name in the Civil Law (if differs)
|
Rural
territory or city/town
|
Area
(ha)
|
Coordinates (LKS-92)
|
X
|
Y
|
Alūksne
municipality
|
1.
|
Grundu ezers
|
|
Mālupe rural territory
|
48.9
|
355769
|
699072
|
2.
|
Ķiploks
|
Ķiploku ezers
|
Zeltiņi rural territory
|
25.2
|
357174
|
663383
|
3.
|
Lukumītis (Lukumietis)
|
Lūkumīša ezers
|
Mārkalne rural territory
|
51.9
|
377318
|
686615
|
4.
|
Pātražs
|
Pātraža ezers
|
Zeltiņi rural territory
|
31.0
|
358673
|
663664
|
5.
|
Pullans
|
Pullanu ezers
|
Alsviķi rural territory
|
17.8
|
366048
|
682709
|
6.
|
Raipals
|
Raipala ezers
|
Veclaicene rural
territory
|
36.1
|
386478
|
678108
|
Augšdaugava municipality
|
7.
|
Bruņu ezers (Bruņenes
ezers)
|
Bruņu ezers
|
Skrudaliena rural
territory
|
37.0
|
186077
|
668479
|
8.
|
Čerņavas ezers
|
Černavas ezers (Drisvjates
ezers)
|
Demene rural territory
|
86.2
|
178633
|
666550
|
9.
|
Dārza ezers
|
|
Demene rural territory
|
51.1
|
175952
|
660399
|
10.
|
Dervanišku ezers
|
Dervanišķu ezers (Ustaukas
ezers)
|
Demene rural territory
|
68.7
|
185531
|
658660
|
11.
|
Kamiņčas ezers
|
|
Eglaine rural territory,
Bebrene rural territory
|
27.6
|
206499
|
628180
|
12.
|
Kirjanišku ezers
|
|
Saliena rural territory
|
40.4
|
184521
|
681922
|
13.
|
Kumbuļu ezers
|
|
Demene rural territory
|
41.4
|
181381
|
667242
|
14.
|
Ļūbasts
|
Ļūbasta ezers
|
Līksna rural territory
|
59.0
|
203362
|
652955
|
15.
|
Smiļģines ezers
|
Smiļģinu ezers
|
Skrudaliena rural
territory
|
49.0
|
178619
|
676659
|
16.
|
Šēnheidas ezers
|
|
Skrudaliena rural
territory
|
59.0
|
182501
|
671837
|
17.
|
Veirūgnes ezers (part in
Preiļi municipality, see No. 172)
|
Vīragnas ezers
|
Dubna rural territory
|
128.4
|
220866
|
670632
|
Ādaži
municipality
|
18.
|
Kadagas ezers
|
|
Ādaži rural territory
|
25.0
|
330484
|
521536
|
19.
|
Ummis
|
Umma ezers
|
Carnikava rural territory
|
25.4
|
336147
|
520063
|
Balvi
municipality
|
20.
|
Kalnis
(part in Gulbene municipality, see No. 47)
|
Kalņa ezers
|
Rugāji rural territory
|
119.5
|
331845
|
680812
|
21.
|
Lazdags
(part in Gulbene municipality, see No. 48)
|
Lazdaga ezers
|
Rugāji rural territory
|
148.1
|
327760
|
679395
|
22.
|
Lielais Pokuļovas ezers
|
Lielais Pokuļevas ezers
|
Vīksna rural territory
|
21.3
|
346165
|
708168
|
23.
|
Ploskīnes ezers
|
Plaskines ezers
|
Lazduleja rural territory
|
68.2
|
324229
|
712984
|
24.
|
Sprūgu ezers
|
|
Vīksna rural territory
|
47.9
|
348707
|
703371
|
25.
|
Tepenīcas ezers
|
|
Susāji rural territory
|
30.9
|
348126
|
717640
|
Cēsis
municipality
|
26.
|
Arāja ezers (Āraisis)
|
Āraiša ezers
|
Dzērbene rural territory
|
16.6
|
340808
|
600918
|
27.
|
Auciema ezers
|
|
Raiskums rural territory
|
41.4
|
354613
|
569041
|
28.
|
Bānūžu ezers
|
|
Taurene rural territory
|
42.6
|
334686
|
596258
|
29.
|
Lielais Bauzis
(part in Valmiera municipality, see No. 205)
|
Lielais Bauža ezers
|
Raiskums rural territory
|
57.6
|
364876
|
571259
|
30.
|
Mazais Bauzis
(part in Valmiera municipality, see No. 206)
|
Mazais Bauža ezers
|
Raiskums rural territory
|
32.0
|
363865
|
572437
|
31.
|
Nedzis
|
Nedža ezers
|
Ineši rural territory
|
82.8
|
319600
|
609555
|
32.
|
Pūricas ezers (Ikuldas
ezers)
|
Pūricu ezers
|
Straupe rural territory
|
32.1
|
353326
|
561073
|
33.
|
Raiskuma ezers
|
|
Raiskums rural territory
|
78.5
|
352989
|
570163
|
34.
|
Ruckas ezers
|
|
Stalbe rural territory
|
41.0
|
363980
|
554868
|
35.
|
Sārumezers
|
|
Straupe rural territory
|
189.1
|
364441
|
549445
|
36.
|
Tauns
|
Tauna ezers
|
Vecpiebalga rural
territory
|
71.9
|
325368
|
607825
|
37.
|
Zobols
|
Zobola ezers
|
Vecpiebalga rural
territory
|
82.5
|
327147
|
603327
|
Dienvidkurzeme municipality
|
38.
|
Reiņa ezers
|
Reiņu ezers
|
Bunka rural territory,
Priekule rural territory
|
23.0
|
269476
|
356920
|
39.
|
Sepenes ezers
|
|
Embūte rural territory
|
67.0
|
270336
|
360656
|
40.
|
Tīdu ezers
|
|
Kalvene rural territory
|
30.5
|
278501
|
362409
|
Dobele
municipality
|
41.
|
Gaurata ezers
|
Gauratas ezers
|
Dobele rural territory
|
13.8
|
280325
|
456397
|
42.
|
Lielais Vipēdis
|
Lielais Vipēda ezers
|
Zebrene rural territory
|
20.1
|
272198
|
438419
|
43.
|
Spārņa ezers (Spārnis)
|
Spārņa ezers
|
Īle rural territory
|
14.0
|
268084
|
440937
|
44.
|
Svētes ezers
|
|
Zebrene rural territory
|
55.0
|
275288
|
437595
|
Gulbene
municipality
|
45.
|
Augulienas ezers
|
|
Beļava rural territory
|
78.3
|
350732
|
662703
|
46.
|
Galgauskas ezers
|
|
Galgauska rural territory,
Lejasciems rural territory
|
30.5
|
345326
|
652918
|
47.
|
Kalnis
(part in Balvi municipality, see No. 20)
|
Kalņa ezers
|
Litene rural territory,
Stradi rural territory
|
119.5
|
331845
|
680812
|
48.
|
Lazdags
(part in Balvi municipality, see No. 21)
|
Lazdaga ezers
|
Stradi rural territory
|
148.1
|
327760
|
679395
|
49.
|
Mezītis
|
Mezīša ezers
|
Stradi rural territory
|
69.2
|
330979
|
676435
|
50.
|
Pintelis (Liss)
|
Pinteļa ezers
|
Beļava rural territory
|
65.7
|
351177
|
664873
|
51.
|
Pogas ezers
|
|
Stāmeriena rural
territory
|
27.9
|
344414
|
675085
|
52.
|
Sprīvulis (Putriņu ezers)
|
Sprīvuļu ezers
|
Beļava rural territory
|
52.3
|
355913
|
670095
|
53.
|
Stāmerienas ezers
|
|
Stāmeriena rural
territory
|
92.6
|
345872
|
674590
|
Jēkabpils
municipality
|
54.
|
Baltezers
|
|
Varieši rural territory
|
45.0
|
278678
|
633883
|
55.
|
Baltiņu ezers
|
|
Sēlpils rural territory
|
32.8
|
265585
|
601250
|
56.
|
Dumblis
|
Aizdumbles ezers (Dumbļa
ezers, Dutvulu ezers)
|
Elkšņi rural territory
|
100.0
|
224915
|
597860
|
57.
|
Ildzenīks
|
Ildzenieku ezers
|
Kūkas rural territory
|
26.8
|
262433
|
624572
|
58.
|
Krīgānu ezers
|
|
Rite rural territory
|
61.5
|
229527
|
591091
|
59.
|
Laukezers (Loukazars)
|
|
Kūkas rural territory
|
50.4
|
262588
|
623554
|
60.
|
Piksteres ezers
|
|
Viesīte rural territory
|
255.0
|
257258
|
596734
|
61.
|
Sūpes ezers
|
|
Viesīte rural territory
|
37.9
|
238334
|
602525
|
62.
|
Vīķu ezers
|
|
Sēlpils rural territory
|
85.4
|
269020
|
604461
|
Krāslava
municipality
|
63.
|
Aksenovas ezers
|
Aksenavas ezers
|
Šķeltova rural territory
|
118.0
|
214863
|
690524
|
64.
|
Arla ezers
|
Arla ezers (Rokuļu ezers)
|
Andzeļi rural territory
|
27.0
|
233496
|
720395
|
65.
|
Aulejs
|
Aulejas ezers
|
Auleja rural territory
|
190.4
|
216597
|
704086
|
66.
|
Ārdavs
|
Ārdavas ezers
|
Kombuļi rural territory
|
229.8
|
212256
|
703242
|
67.
|
Baltais ezers
|
Baltais ezers (Belojes
ezers)
|
Indra rural territory
|
34.0
|
194945
|
718817
|
68.
|
Bierža ezers
|
Birža ezers
|
Auleja rural territory
|
107.1
|
220421
|
705701
|
69.
|
Bižas ezers
|
|
Andrupene rural territory
|
173.6
|
229538
|
709308
|
70.
|
Bolts
|
Balta ezers (Baltais
ezers)
|
Krāslava rural territory
|
58.2
|
203195
|
703978
|
71.
|
Cierps
|
Cērpa ezers (Tērpes
ezers)
|
Auleja rural territory
|
134.9
|
219979
|
702832
|
72.
|
Dorotpoles ezers
|
|
Kalnieši rural territory
|
37.8
|
199714
|
714387
|
73.
|
Dubulis
|
Dubuļu ezers
|
Kastuļina rural territory
|
72.4
|
226889
|
701724
|
74.
|
Gaļšūns
|
Galšūna ezers (Rapšu
ezers)
|
Dagda rural territory
|
65.3
|
225060
|
721432
|
75.
|
Garais ezers
|
|
Indra rural territory
|
71.2
|
192727
|
718061
|
76.
|
Garais ezers
|
|
Robežnieki rural
territory
|
103.1
|
212253
|
720008
|
77.
|
Geraņimovas Ildzs
|
Geraņimovas Ilzas ezers
|
Kastuļina rural territory
|
327.8
|
227580
|
696532
|
78.
|
Gordojs
|
Gordovas ezers (Gordoja
ezers)
|
Šķaune rural territory
|
45.3
|
234091
|
748410
|
79.
|
Idaņa
|
Jidausa ezers (Idaņas ezers,
Kurlais ezers)
|
Kastuļina rural territory
|
37.6
|
229704
|
704448
|
80.
|
Ildzs
|
Ildzas ezers
|
Skaista rural territory
|
26.0
|
205278
|
708715
|
81.
|
Iļdžs
|
Indricas ezers (Iļdža
ezers)
|
Robežnieki rural
territory
|
24.3
|
213740
|
716363
|
82.
|
Indrs
|
Indras ezers
|
Skaista rural territory
|
202.3
|
211054
|
716089
|
83.
|
Ižiuns
|
Ižūna ezers
|
Skaista rural territory
|
101.4
|
215351
|
714312
|
84.
|
Ižuņa
|
Užuņu ezers
|
Kastuļina rural territory
|
265.2
|
228598
|
703128
|
85.
|
Janovas ezers
|
Janovas ezers (Beitānu ezers,
Puteņu ezers)
|
Dagda rural territory
|
23.7
|
226601
|
721379
|
86.
|
Jazinks
|
Jezinakas ezers (Jazinkas
ezers)
|
Grāveri rural territory
|
263.9
|
218704
|
695312
|
87.
|
Jolzas ezers (Aldzs)
|
Jolzas ezers
|
Asūne rural territory
|
52.2
|
214524
|
722831
|
88.
|
Kaitras ezers
|
|
Asūne rural territory
|
51.4
|
219061
|
727632
|
89.
|
Kaļveiša ezers
|
Kalvīšu ezers
|
Grāveri rural territory
|
33.5
|
216846
|
693430
|
90.
|
Karašu ezers
|
Karašu ezers (Karpa
ezers)
|
Šķeltova rural territory
|
61.4
|
220681
|
691956
|
91.
|
Košiuns (Patmaļnīku
ezers)
|
Patmalnieku ezers
|
Ezernieki rural territory
|
36.5
|
237629
|
723497
|
92.
|
Koškinas ezers
|
Koškina ezers
|
Kastuļina rural territory
|
91.5
|
225626
|
700095
|
93.
|
Kuļa ezers
|
|
Skaista rural territory
|
35.8
|
204201
|
709521
|
94.
|
Kustaru ezers
|
|
Kastuļina rural territory
|
144.2
|
222991
|
700151
|
95.
|
Lejs
|
Lejas ezers
|
Kombuļi rural territory
|
177.4
|
212616
|
699723
|
96.
|
Lielais Gausls
|
Lielais Gaušļa ezers
|
Auleja rural territory
|
72.2
|
216515
|
701009
|
97.
|
Lielais Ožukns
|
Lielais Āžukņa ezers (Lielais
Ožukna ezers)
|
Skaista rural territory
|
88.5
|
206394
|
706091
|
98.
|
Mazais Gausls
|
Mazais Gaušļa ezers
|
Auleja rural territory
|
20.5
|
217340
|
700954
|
99.
|
Ojots
|
Ojatu ezers (Ojatnieku
ezers)
|
Konstantinova rural
territory
|
30.9
|
217533
|
710199
|
100.
|
Okras ezers
|
|
Kastuļina rural territory
|
63.5
|
225187
|
704158
|
101.
|
Olksns
|
Alksnas ezers (Volksnas
ezers, Olksnas ezers)
|
Krāslava rural territory
|
54.1
|
202674
|
700357
|
102.
|
Olovecs (Olouss)
|
Olovecas ezers (Volovecas
ezers)
|
Andrupene rural territory
|
164.9
|
229806
|
713380
|
103.
|
Ormijs
|
Ormijas ezers
|
Robežnieki rural
territory
|
67.6
|
210340
|
723138
|
104.
|
Ostrovnas ezers
|
|
Indra rural territory
|
31.5
|
192713
|
721628
|
105.
|
Ots
|
Ata ezers (Ota ezers)
|
Kombuļi rural territory
|
122.8
|
209833
|
704437
|
106.
|
Rešetnīku ezers
|
Rešetnieku ezers (Gubena
ezers)
|
Andzeļi rural territory
|
48.2
|
233427
|
718384
|
107.
|
Rokolu ezers
|
Isakovas ezers (Rokoļu ezers,
Lielais ezers)
|
Andzeļi rural territory
|
47.9
|
233531
|
719472
|
108.
|
Saviņu ezers (Saveļu
ezers)
|
Saviņu ezers (Saveļu
ezers)
|
Grāveri rural territory
|
55.3
|
218968
|
697142
|
109.
|
Seklis
|
Seklais ezers (Sekļa
ezers)
|
Kombuļi rural territory
|
26.9
|
206962
|
698954
|
110.
|
Skaists
|
Skaistas ezers
|
Krāslava rural territory
|
46.7
|
204523
|
706071
|
111.
|
Soms
|
Sama ezers (Soma ezers)
|
Skaista rural territory
|
33.6
|
206292
|
707815
|
112.
|
Stirns
|
Stirnu ezers
|
Kalnieši rural territory
|
148.0
|
203122
|
711736
|
113.
|
Šilovkas ezers
|
Šilovkas ezers
|
Kaplava rural territory
|
81.5
|
190925
|
703494
|
114.
|
Udrijas ezers
|
Ūdrāju ezers (Ūdriņu
ezers)
|
Ezernieki rural territory
|
53.5
|
233724
|
724978
|
115.
|
Varnaviču ezers
|
|
Kaplava rural territory
|
55.3
|
191218
|
706433
|
116.
|
Vilnīšu ezers
|
Vilnīšu ezers (Krivojes
ezers)
|
Kaplava rural territory
|
45.0
|
189678
|
706325
|
117.
|
Visolda ezers
|
Visaldas ezers (Viraudas
ezers, Kazimirovas ezers)
|
Andrupene rural territory
|
96.4
|
226872
|
713621
|
118.
|
Zirga ezers
|
|
Krāslava rural territory
|
38.0
|
201191
|
699416
|
Kuldīga
municipality
|
119.
|
Gulbis
|
|
Renda rural territory
|
24.6
|
331120
|
396372
|
120.
|
Kukšu ezers
|
|
Alsunga rural territory
|
42.0
|
315064
|
359044
|
121.
|
Pinku ezers
|
|
Ēdole rural territory
|
29.0
|
319477
|
359729
|
Limbaži
municipality
|
122.
|
Auziņezers
|
Auziņu ezers
|
Limbaži rural territory
|
56.5
|
370288
|
536055
|
123.
|
Āsteres ezers
|
|
Viļķene rural territory
|
84.9
|
386543
|
542520
|
124.
|
Riebezers
|
|
Limbaži rural territory
|
82.2
|
372305
|
534710
|
Ludza
municipality
|
125.
|
Audzeļu ezers
|
|
Istra rural territory
|
64.9
|
242209
|
746407
|
126.
|
Bižas ezers (Bīžas ezers)
|
Bižas ezers
|
Rundēni rural territory
|
166.3
|
241069
|
730606
|
127.
|
Brigu ezers
|
Briģu ezers
|
Briģi rural territory
|
28.0
|
259693
|
751035
|
128.
|
Diunokļa ezers
|
Dūnākļu ezers
|
Ludza town
|
82.7
|
274385
|
728107
|
129.
|
Dukanu ezers
|
Dukānu ezers
|
Cirma rural territory
|
143.8
|
267580
|
724061
|
130.
|
Franapoles ezers
|
|
Zvirgzdene rural
territory
|
70.4
|
274682
|
732564
|
131.
|
Ilza ezers
|
|
Istra rural territory
|
68.6
|
239807
|
752377
|
132.
|
Kiudalu ezers
|
Lielais Kivdalovas ezers
|
Pureņi rural territory
|
40.7
|
263225
|
726257
|
133.
|
Križutas ezers
|
Križutu ezers
|
Cirma rural territory
|
67.1
|
265178
|
715788
|
134.
|
Leidiukšņa ezers
|
Līdūkšņas ezers
|
Pildas parish, Nirzas
parish
|
95.5
|
256777
|
738229
|
135.
|
Lielais Kūrmas ezers
|
Lielais Kurmas ezers
|
Pilda rural territory
|
83.8
|
258114
|
733504
|
136.
|
Mazais Kūrmas ezers
|
Mazais Kurmas ezers
|
Pilda rural territory
|
59.8
|
259280
|
734215
|
137.
|
Opolais Snidzins
|
Apaļais Sniedziņa ezers
(Augšsniedziņu ezers)
|
Ņukši rural territory
|
46.9
|
254206
|
727636
|
138.
|
Pintu ezers
|
|
Pasiene rural territory
|
39.4
|
234258
|
755702
|
139.
|
Rogaižas ezers
|
Rogaižu ezers
|
Pilda rural territory
|
58.0
|
252212
|
730426
|
140.
|
Rojevkas ezers
|
Rajevkas ezers
|
Blonti rural territory
|
42.9
|
293230
|
737383
|
141.
|
Soidu ezers
|
|
Cirma rural territory
|
30.0
|
269062
|
724812
|
142.
|
Sološu ezers
|
|
Lauderu parish, Zaļesjes
parish
|
88.5
|
250971
|
751965
|
143.
|
Škaunas ezers
|
|
Istra rural territory
|
254.9
|
242668
|
751376
|
144.
|
Zeiļu ezers
|
|
Isnauda rural territory
|
44.8
|
269015
|
725866
|
Madona
municipality
|
145.
|
Driksnis
|
Driksņa ezers
|
Ļaudona rural territory
|
40.5
|
283616
|
635480
|
146.
|
Dūku ezers
|
|
Mārciena rural territory
|
39.7
|
294589
|
632241
|
147.
|
Dziļūkstes ezers
|
|
Liezēre rural territory
|
28.3
|
316976
|
625756
|
148.
|
Ilzins
|
Ilzēnu ezers
|
Sausnēja rural territory
|
21.6
|
302958
|
603764
|
149.
|
Labones ezers
|
|
Mārciena rural territory
|
26.0
|
295715
|
629233
|
150.
|
Lazdonas ezers
|
|
Lazdona rural territory
|
30.2
|
300004
|
636725
|
151.
|
Pakšēns
|
Pakšēnu ezers
|
Jumurda rural territory
|
41.6
|
310044
|
603937
|
152.
|
Pulgosnis
|
Pulgosņa ezers
|
Ērgļi rural territory
|
93.3
|
305713
|
602943
|
153.
|
Salājs
|
Salāja ezers
|
Vestiena rural territory
|
44.4
|
304843
|
614116
|
154.
|
Sāvienas ezers
|
|
Ļaudona rural territory
|
57.9
|
282094
|
628522
|
155.
|
Sezēris
|
Sezēra ezers
|
Liezēre rural territory
|
29.0
|
319343
|
626435
|
156.
|
Stirnezers
|
|
Sausnēja rural territory
|
68.2
|
304057
|
605685
|
157.
|
Ūbēris
|
Ūbēra ezers
|
Liezēre rural territory
|
30.6
|
315704
|
620517
|
Preiļi
municipality
|
158.
|
Biešons
|
Bešēnu ezers (Biešona
ezers)
|
Aglona rural territory
|
64.2
|
221602
|
691835
|
159.
|
Bleidas ezers
|
|
Vārkava rural territory
|
33.8
|
233682
|
663804
|
160.
|
Eikša ezers
|
|
Rušona rural territory
|
57.5
|
231773
|
679263
|
161.
|
Gerlaks
|
Garlaku ezers
|
Rožkalni rural territory
|
37.0
|
231528
|
645422
|
162.
|
Jašazars
|
Jāšezers
|
Rušona rural territory
|
107.6
|
233366
|
679282
|
163.
|
Kameņecas Ilzis
|
Ilzas ezers
|
Aglona rural territory
|
33.5
|
226343
|
687524
|
164.
|
Kategrades ezers
|
Kategradas ezers
|
Rušona rural territory
|
133.1
|
235603
|
682052
|
165.
|
Kaučers
|
Kaučera ezers
|
Rušona rural territory
|
49.9
|
239950
|
676982
|
166.
|
Lielā Kurtoša
|
Lielais Kurtaša ezers
|
Rušona rural territory
|
48.8
|
232148
|
684905
|
167.
|
Lielā Solka
|
Lielais Salkas ezers
|
Rušona rural territory
|
48.5
|
229552
|
676914
|
168.
|
Mazā Solka
|
Mazais Salkas ezers
|
Rušona rural territory
|
27.0
|
229824
|
678088
|
169.
|
Pakalnis
|
Pakalņa ezers
|
Aglona rural territory
|
54.8
|
220598
|
682005
|
170.
|
Salmejs
|
Salmeja ezers
|
Rušona rural territory
|
104.3
|
242058
|
677878
|
171.
|
Šusta ezers
|
|
Aizkalne rural territory
|
73.0
|
230896
|
666384
|
172.
|
Veirūgnes ezers (part in
Augšdaugava municipality, see No. 17)
|
Vīragnas ezers
|
Pelēči rural territory
|
128.4
|
220866
|
670632
|
Rēzekne
municipality
|
173.
|
Adamovas ezers (Odumovas
ezers)
|
Adamovas ezers
|
Vērēmi rural territory
|
186.0
|
273440
|
708332
|
174.
|
Bižu ezers
|
Bižas ezers
|
Griškāni rural territory
|
140.1
|
270270
|
714713
|
175.
|
Ilzas ezers
|
|
Mākoņkalns rural
territory
|
40.0
|
239621
|
702589
|
176.
|
Kaugurs
|
Kaugaru ezers
|
Mākoņkalns rural
territory
|
52.0
|
237778
|
704878
|
177.
|
Lielais Kiuriņa ezers
|
Lielais Kūriņu ezers
|
Gaigalava rural territory
|
65.8
|
295115
|
686999
|
178.
|
Micānu ezers
|
|
Bērzgale rural territory
|
242.8
|
280525
|
714784
|
179.
|
Pārtovas ezers
|
Pārtavas ezers
|
Kaunata rural territory
|
83.4
|
246450
|
725509
|
180.
|
Pujatu ezers
|
Pujatu ezers
|
Nautrēni rural territory
|
36.6
|
287102
|
704292
|
181.
|
Sedziers
|
Sedzera ezers (Zeltiņu
ezers)
|
Lendži rural territory
|
57.7
|
273703
|
718454
|
182.
|
Sološnīku ezers
|
Sološnieku ezers (Salošu
ezers)
|
Dricāni rural territory
|
81.2
|
284946
|
703868
|
183.
|
Stībraišs
|
Stiebrāja ezers
|
Mākoņkalns rural
territory
|
45.1
|
237300
|
707021
|
184.
|
Svātovas ezers
|
Svētavas ezers (Svātavas
ezers)
|
Puša rural territory
|
133.9
|
234517
|
694830
|
185.
|
Umaņu ezers (Umins)
|
Umaņu ezers
|
Puša rural territory
|
56.5
|
235176
|
705145
|
186.
|
Viraudas ezers
|
|
Mākoņkalns rural
territory
|
124.1
|
236023
|
710408
|
187.
|
Zeļteņu ezers (Sološu
ezers)
|
Labvārža ezers (Salatu ezers,
Sološu ezers)
|
Lendži rural territory
|
66.2
|
274932
|
711297
|
Ropaži
municipality
|
188.
|
Sudrabezers
|
|
Garkalne rural territory
|
91.4
|
320587
|
521028
|
189.
|
Sunīšu ezers
|
|
Garkalne rural territory
|
22.2
|
314445
|
522122
|
Saldus
municipality
|
190.
|
Veiķenieku ezers
|
|
Lutriņi rural territory
|
28.0
|
289770
|
392613
|
Sigulda
municipality
|
191.
|
Aģes ezers
|
|
Lēdurga rural territory
|
111.2
|
350963
|
549173
|
Smiltene
municipality
|
192.
|
Garais ezers
|
|
Trapene rural territory
|
19.2
|
369061
|
661010
|
Talsi
municipality
|
193.
|
Gulbju ezers
|
|
Ģibuļi rural territory
|
115.5
|
342453
|
394555
|
194.
|
Kāņezers
|
|
Ģibuļi rural territory
|
33.0
|
335002
|
396622
|
195.
|
Laidzes ezers (Sārcenes
ezers)
|
Laidzes ezers
|
Laidze rural territory
|
170.5
|
351313
|
420732
|
196.
|
Lubezers
|
|
Ārlava rural territory
|
129.6
|
362136
|
418291
|
197.
|
Mordangsezers
|
|
Ģibuļi rural territory
|
45.0
|
334883
|
396182
|
198.
|
Pluncezers
|
Plunču ezers
|
Ģibuļi rural territory
|
42.1
|
338463
|
402390
|
199.
|
Spāres ezers
|
|
Ģibuļi rural territory
|
201.1
|
342661
|
398055
|
Tukums
municipality
|
200.
|
Kliģu ezers
|
|
Lestene rural territory
|
21.8
|
286607
|
445469
|
201.
|
Seklis
|
Sēkļa ezers
|
Tume rural territory
|
34.2
|
318215
|
446616
|
Valka
municipality
|
202.
|
Salainis
|
Salaiņa ezers
|
Zvārtava rural territory
|
77.8
|
384406
|
628991
|
203.
|
Vadainis
|
Vadaiņa ezers
|
Zvārtava rural territory
|
49.6
|
383943
|
627798
|
204.
|
Vēderis
|
Vēdera ezers
|
Zvārtava rural territory
|
50.8
|
385106
|
628335
|
Valmiera
municipality
|
205.
|
Lielais Bauzis
(part in Cēsis municipality, see No. 29)
|
Lielais Bauža ezers
|
Vaidava rural territory
|
57.6
|
364876
|
571259
|
206.
|
Mazais Bauzis
(part in Cēsis municipality, see No. 30)
|
Mazais Bauža ezers
|
Vaidava rural territory
|
32.0
|
363865
|
572437
|
Annex III (to the note on Section
1117)
List of Rivers with Parts in which
Fishing Rights belong Exclusively to the State.
[14 May 1998; 16 September
2021]
1.
|
Aiviekste (with forking canals) - full
length; |
2.
|
Bārta - from the Latvia-Lithuania border to
its junction with (the Lake) Liepājas ezers; |
3.
|
Brasla - from the Brasla reservoir dam to its
junction with (the River) Gauja; |
4.
|
Buļļupe ((the River) Lielupe branch in the
territory of Rīga) - full length; |
5.
|
Daugava (its branches un Pļaviņi, ķegums un
Rīga HES reservoirs) - |
|
from the Latvia-Russia border to its outfall
in the Gulf of Rīga (including the section |
|
along the Latvia-Belarus border); |
6.
|
Gauja - from its juction with (the River)
Brasla to its outfall in the Gulf of Rīga; |
7.
|
Gāte - full length; |
8.
|
Irbe - full length; |
9.
|
Lielupe and its branches - full length; |
10.
|
Mērsrags canal - full length; |
11.
|
Mīlgrāvis - full length; |
12.
|
Rīva - from its junction with (the River) Aga
to its outfall in the Baltic Sea; |
13.
|
Roja - from the Lube windmill to its outfall
in the Gulf of Rīga; |
14.
|
Saka - full length; |
15.
|
Salaca - full length; |
16.
|
Užava - from its junction with (the River)
Kauliņa to its outfall in the Baltic Sea; |
17.
|
Venta - from the Latvia-Lithuania border to
its outfall in the Baltic Sea. |
Translation © 2024 Valsts valodas centrs (State
Language Centre)