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1 PPT:

Property Law:

Basic concepts

Good ​(​bien​): a thing or an object that has an economic value and function. It is a serving thing.

Patrimony​: ​aka​ equity, assets or heritage. It is the array or group of assets, rights and obligations that belong to
a person (whether an individual or a legal body).

Classes of goods:​ corporeal or tangible goods (​cosas corporales)​ are those capable of being apprehended by the
senses. Non corporeal or intangible goods are the rights (real and personal rights, ​in rem / in personam​).
Caveat: in American Law, the real property term is used to name the real estate (immovable property).

Goods and their classification

Examples:​ the right of domain, property or ownership is a real right and a monetary credit or obligation is a
personal right.

The most used classification is the one that distinguishes between ​Real estate​ or immovable property
(​inmuebles​) and ​chattels​ or movable property (​muebles​). This classification has several effects:

➢ Real estates are to be registered; chattels are not to be registered (except for ships, cars, airplanes and
stocks).

➢ The sale of a real estate shall be made by a public deed; the sale of a chattel may be verbal.

​Right of property or domain

It is the most complete real right, conferring the holder of the right more faculties upon the property than any
other right.

➢ Right of use of the property (​jus utendi​)

➢ Right of enjoy its benefits (​jus frutendi​)

➢ Right of disposal of the property (​jus disponiendi​)

Means to acquire the property. In our legal system, it is required a title and a mode. The ​title​ is the legal source
to acquire the domain, a deal that serves as background to transfer the property from one person to another.
Thereafter, a ​mode​ is required to indeed transfer the property.

The ​title​ shall be transferring (​translaticio)​: capable of conveying the property from one party to another.
Example​: sale of goods, exchange, donation (endowment), contribution to a company or partnership, payment
in kind (​dación en especie​). A title of tenure (​título de tenencia​) is not capable of transferring the property.

The ​mode​ to work with those titles is the ​tradición (traditio)​, which is the delivery of a good (whether corporeal
or intangible) made with the intent to transfer its ownership from the delivering to the acquiring party.

Title + mode =​ transfer of the property.


A personal right is also capable of being transferred via a title and mode. ​Example​: assignment of a credit,
cession of a litigated right, etc.

Other ​modes​:

➢ Finding of a good which has not owner (​ocupación​)

➢ Accession between immovable / movable goods.

➢ Succession of a person who passed away.

➢ Usucapión (​prescripción adquisitiva)​

Possession

In our legal system, possession is the tenancy of a good (whether corporeal or intangible) with the aim or intent
of owning it. It is different to the mere tenancy (mera tenencia), where the holder acknowledges the domain of
someone else. ​Example​: a tenant or lessee, a borrower and the bailee are not possessors.

In English Law, the possession is used to name the tenancy.

The possession during a period of time may lead to the domain of the possessed good via the ​usucapion.​

The tenancy shall in no case lead to the domain.

Other real rights

Usufruct: ​the right to use and take a benefit from a corporeal good (​jus utendi ​and ​jus frutendi)​ , does not include
the right of disposal (​jus disponiendi)​ . The ownership of an object which is subject to usufruct is named as bare
or nude property.

Use:​ the right to employ an object (​jus utendi​)

Dwelling​: the right to live in a real estate (​jus utendi​).

Servitude​: an encumbrance upon a real estate for the benefit of another real estate. ​Example​: transit, view,
aqueduct, etc.

Mortgage​: a mortgage can be seen as a contract or as a real right. As a real right, is a security of a credit upon a
real estate, so the creditor has the right to pursue and seize the real estate, auction it and pay his credit with the
proceeds of the auction.

Pawn or pledge: ​is similar to the mortgage, but upon chattels. In the traditional pledge, the chattel is delivered
to the creditor, meanwhile in the pledge without transfer, the chattel remains in the hands of the owner.

Mining:​ the right to exploit a mine. Governed in the Mining Code.

Inheritance​: the right to succeed a person who passed away. This right is upon the entire patrimony of the
deceased, or a part thereof, but not upon specific assets. To pass a specific asset ​mortis causa​, a legacy is used.

Use of water: ​the right to consume the water. Governed in the Code of Waters.
Environmental preservation​: a recently created right, that is created by an agreement of the parties on the
conservation of the environmental features of a real estate.

Registration of the property and other real rights

The property upon a Real Estate is subject to public deed and subsequent registration in the ​Register of
Property​, in charge of an officer called ​Conservador de Bienes Raíces​.

A Real Estate is registered in order to legally make its delivery (​traditio​).

Mortgage, usufruct, use, dwelling and servitudes upon Real Estates are subject to a public deed and subsequent
registration, as a formal requirement for those rights to be constituted. The same is applicable to certain
pledges without transfer. They are registered in the ​Register of Mortgages and Encumbrances​.

In the ​Register of Prohibitions​, other encumbrances are registered. ​Examples:​ seizures or embargoes,
retentions, conventional or judicial prohibitions of disposal or of constituting real rights, or prohibitions to enter
into acts and contracts (​aka ​injunctions: judicial order).

Noteworthy, although chattels, the domain and other real rights upon vessels and aircrafts are to be registered
in the Register of Ships and Register of Aircrafts, in charge of the Maritime Authority and Aviation Authority,
respectively.

Vehicles are registered in the Register of Vehicles in charge of the Civil Register Officer.

2 PPT:

The Law of Succession.

Introduction.

When an individual dies, his / her personality vanishes, but his/her patrimony remains and has to be distributed.

His / her criminal liability and certain personal rights will be extinguished (​e.g.​, usufruct, use), but not necessarily
his / her obligations and civil responsibility. The marriage will terminate after the death of a spouse, but its
economic regime shall have effects upon the surviving spouse and the common successors of the spouse who
passed away.

This is what the Law of Succession is about: distribution of the assets and obligations pertaining to the
patrimony of a deceased.

General concepts.

The basic distinction is to be drawn whether the demise issued a will: testamentary succession or intestate
succession.

Generally speaking, when the deceased has issued a will, he / she has distributed his / her assets. In the absence
of a will, the Law of Succession will provide for such distribution. In our Legal system, the Law allows a relative
(but not absolute) freedom to will, since certain mandatory rules control the destiny of our assets after we leave
away.

We will commence with the law of the intestate succession, which is the applicable law by default.
Intestate Succession.

Upon the death of a person, his / her heirs will acquire the real right of heritage (​Derecho Real de Herencia​) by
virtue of the Law (​sucessio mortis causa​).

This real right is upon the entire patrimony of the deceased, or a share thereof, and although the right is
acquired ​ex lege​, after the heritage is accepted, the heirs shall initiate a legal procedure in order to dispose of
the assets and rights of the patrimony (named judgment of effective possession).

This is required in both testamentary and intestate succession, but in the latter it may be made in the Civil
Register and not in a court.

Who are the heirs?​. There are different orders of succession.

➢ Children and spouse. The spouse receives twice of the children, unless there is only one child (equal
portion), with the minimum of a quarter (25%) of the heritage.

➢ Spouse and parents of the deceased. Spouse receives twice the share of the parents.

➢ Siblings (brothers / sisters). Father / mother siblings are only entitled to a half of the quota of the carnal
siblings.

➢ Collateral relatives (cousins, nephews and nieces, ants and uncles), the closest ones exclude others, and

➢ Chilean State.

The Law of​ ​Testamentary Succession.

Will or Testament: ​it is an act whereby the testator disposes of his assets and rights after his / her death, ​aka
bequest. The will may be formal or verbal; there are different types of wills.

Formal will:​ it is written under a public deed and it can be ​secret​: closed, sealed and kept under the custody of
the issuing Notary Public, who will open and read it only after the death of the testator. It is ​open​ when it is
issued under a public deed and anyone can read it.

Military will:​ issued by a soldier during war operations and in front off his / her chief or superior officer.

Maritime will:​ issued on board a warship by a marine during war operations and in front of his / her commander
or superior officer. It may also be issued on board of merchant vessels by the crewmembers.

Verbal will​: issued verbally when the testator is before an imminent peril of death, in front of 3 witnesses, and
then it shall be written before a judge based on their testimony, in a judicial procedure.

The testator essentially maintains his / her right to revoke and replace a will, whatever its type is, as many times
as desired.

The faculty of issuing a will is not subject to any delegation.

Heritage and Legacy:​ the will may be used to appoint universal successors, who are entitled to inherit in the
whole or a quota of the patrimony of the demise (named right of heritage), or to institute legacies or particular
successors, who are entitled to receive a particular asset, whether immovable, movable or a right (named
legacy).

The will may also contain other statements which are not disposal of the assets or rights. ​Example​: recognition
of a child, appointment of the executor of the will (​albacea)​ or of an arbitrator liquidator (J​uez Partidor)​ .

Freedom / restrictions to dispose of the patrimony:

Half of one’s patrimony shall be disposed only to the legitimates: spouse, descendants and parents. No freedom
as to the successor or the amount.

A quarter of the patrimony may be disposed to one or more legitimates, to improve their legitimate share.
Relative freedom: successor and amount.

The remaining quarter may be freely disposed at the discretion of the testator. Absolute freedom: successor and
amount.

If there are no legitimates, then the testator is free to dispose of his entire patrimony. Absolute freedom.

Acceptance, refusal, representation, transmission and substitution

When an individual dies, the successors (appointed by will or by the law, as default) are called to accept or
refuse their legacies or heritages.

They are entitled to accept the heritage or legacy with the ​benefit of inventory​: accepting the succession only
up to the net amount of assets and rights, excluding the debts.

If a successor dies before accepting, such right to accept is transmitted to his/her successors, who can accept it
under ​representation​.

Acceptance, refusal, representation, increase, transmission and substitution.

Another similar situation is the right that another successor of a same asset, right or share has to ​increase​ in the
part of the successor who did not or could not accept his / her part.

Substitution​ is the appointment of one person for the event that a successor does or could not accept his
heritage or legacy in the first instance.

Transmission excludes substitution and substitution excludes increase.

Donation.

A donation, ​aka​ bequest, ​donum​, endowment, gift, grant or gratuity is an agreement whereby a donator
transfer the title and possession of a good to another person (named beneficiary) without any consideration,
i.e., gratuitously.

There are donations ​inter vivos​ and donations ​causa mortis.​

In our legal system, donations shall be offered before a court and accepted by the beneficiary, because no one is
bound to accept rights or undertake obligations without his / her consent.

Donations inter vivos and causa mortis are levied with a donation tax.
Trusts.

A trust is a fiduciary deal whereby the ​trustor​ or settler transfers assets to a ​trustee​, with the commitment of
managing them for the advantage of a ​beneficiary​ (who can be a third party, the trustor or the trustee).

A trust can be set up during the life of the trustor or through a testament (testamentary trust), in which event it
will enter into effect after his / her demise. A trust can be revocable or irrevocable.

Examples​:

Marital trust: to the benefit of a surviving spouse.

Charitable trust: to the benefit of charity.

3 PPT:

Family Law:

Basic concepts

Individuals: ​human person who exists from birth to death. The fetus is not considered a person until the birth
day; his / her rights are deferred while on the mother’s womb until the birthday.

Legal bodies: ​a legal creation. Group of people that create a legal entity, which is different to its members and
has legal capacity to acquire rights and bear obligations, as if it were an individual.

Types of legal bodies:​ of Public or Private Law, profit and non profits. ​Examples​: companies, foundations,
corporations, State, Municipalities, International Organizations, etc.

Attributes of the individuals: ​individuals have attributes, like name, patrimony, marital status, nationality,
domicile, legal capacity and personality. Legal bodies also have some attributes like name, patrimony, address
and nationality.

Marital status: ​(​estado civil​)​ ​it is a legal standing or position of an individual that stems from his / her family
relationships ​Example​: single, married, divorced or widow; son, daughter, father, mother, whether biological or
adopted. Legal bodies do not have marital status, because they do not have families.

Concepts of Family

Traditional and modern concepts of family: ​Chilean Civil Code is based on the traditional concept of family,
which is built upon the marriage (one man and one woman who engage for their entire lives), and only
descendants born within the family were deemed as legitimate (under the original Code).

Modern concepts of family include extra marriage descendants, adoption, marriage of persons of the same sex
and adoption by them; single father / mother and one parent adoption.

Agreement of Joint Life: ​it is an agreement which creates both personal and economic effects, but it does not
give rise to a family (under the traditional concept) and it does not create a marital status either.

Definition and effects


Contract of marriage: ​it is a family contract between a man and a woman whereby they agree to spend their
lives together. The marriage is a contract that founds a family (under traditional concept of family).

The marriage has effects on different issues:

➢ Spouses, both their personal and economic relations;

➢ Parents and descendants relationships (personal and economic);

➢ Marital status, and

➢ Successions.

Effects

Personal relationships between spouses:

➢ Spouses have the right and duty to live in their common home.

➢ Spouses have to respect and protect one to each other.

➢ Spouses have to be loyal one to each other.

➢ They shall contribute to the expenses of the family in proportion to their financial capacity, and
depending on the economic regime.

Economic relationship between spouses:

It refers to the economic system they have in order to manage their individual / common assets / debts: There
are 3 different regimes: (i) Separate patrimonies; (ii) Marital society, and (iii) Share of earnings.

Separate patrimonies:

Each spouse has his / her own assets / debts, which he / she can manage independently. Economically, it is like
if they remain single, although, they shall contribute to the family expenses, and they owe alimonies to each
other and to their mutual descendants. It can be agreed upon the commencement of the marriage or during its
effectiveness.

Marital society:

It is a community of the earnings of both spouses.

Any revenue or asset that has been acquired onerously belongs to the marital society; the gratuities, heritages
or legacies will pertain to the respective spouse who received it. The husband is in charge of managing the
marital society and also the assets of the wife, but has certain restrictions for the sale of specific assets that
pertain to the society or the wife.

Marital society can only be agreed at the beginning of the marriage and will be the applicable regime by default.

The wife who has a profession, industry or business is entitled to have and manage a separate and independent
patrimony.
The marital society terminates upon the end of the marriage or when spouses agree to have separate
patrimonies. After its termination, the debts will be paid and the remaining assets and funds will be divided in
equal parts.

Share of earnings:

It is a combined regime. During the effectiveness of marriage, each spouse shall manage his/her assets / debts
independently (with certain restrictions), and after the termination of the regime, each patrimony will be
liquidated, paying off its debts and the net earning of both patrimonies will added.

The combined net earnings shall be divided into two equal parties, one for each spouse. If a spouse has not
earnings but losses, he / she shall solely bear them.

Both marital society and share of earnings can be replaced by a separation of patrimonies during the
effectiveness of the marriage.

Spouses are also entitled to enter into certain Pre Nuptial Agreements in order to deal with their economic
regime, but their scope is restricted. In the American Law, pre nuptial agreements (​aka​ pre nups) are widely
used and generally contain liquidated damages to be paid in the event of faulty divorce.

Marriage Termination

The marriage terminates in cases of (i) death of a spouse (both actual or constructive); (ii) annulment of the
contract of marriage, or (iii) divorce.

Annulment​: it shall be declared by a Judge when the spouses have entered into the contract of marriage
without meeting the legal requirements. ​Example​: not celebrated before an officer; spouses are not single;
spouses without legal capacity, etc. The effect of annulment is that the marriage shall be deemed as never
celebrated, but not for descendants, which shall be considered as marital descendants (named ​matrimonio
putativo)​ .

Marriage - Divorce

Divorce​: in the original Civil Code (1854), the divorce only caused the termination of the economic regime and
some duties of the marriage that were inherent to the common life, but it did not terminate the marital link and
spouses remained as married, being not entitled to marry again.

After the Civil Marriage Act (2004), a new divorce was introduced. Its causes are the faulty and material breach
of one of the duties created by the marriage, or the duties in relation to the descendants, which turns the
common life unsustainable.

Examples​: attempt of murder or physical or psychological damage to the other spouse or descendants;
homosexuality; certain crimes against family.

Abuse of alcohol and drugs; attempt to prostitute the other spouse or descendants; repeated and material
breach of the duties of marriage; repeated absence of common home, etc.

Divorce has to be declared by a Family Judge after a trial and its effects are the termination of the marriage with
dissolution of the marital link, so the former spouses change their marital status from married to divorced and
are authorized to marry again. The duties of the marriage cease and the economic regime terminates. Spouses
will also loose their right to inherit one to each other.

Judicial or conventional ​separation​ will also terminate the economic regime and certain personal duties inherent
to the common life, but not the marital link.

Marriage

Effects

Parents and descendants relationships.

Parents have the right and duty to educate and raise up their descendants and the duty to finance their
up-brought.

Parents have economic rights to manage and dispose of the assets of their descendants until they become
adults.

Descendants have the right to alimonies until they become adults.

Both parents have to finance the expenses of the common family, depending on the economic regime they have
and on their respective financial capabilities.

Marital status​ (​estado civil)​ .

Marriage shifts the marital status of spouses from single to married. Hence, they are not allowed to marry
again, so as that would be punished as a criminal offense: bigamy.

Once the married is terminated, spouses will become single (by annulment), widow (by death of the other
spouse) or divorced (by divorce). The marital status of widow will entitle the surviving spouse to inherit to the
deceased one.

Successions.

Upon the demise of a spouse, the marriage is terminated and the economic regime has to be liquidated. If the
spouses have separate patrimonies, there is no common patrimony to distribute, but only effects in the Law of
Succession.

In both the marital partnership and the sharing of earnings, the regime have to be liquidated: paying the debts
off and distributing the assets between the surviving spouse and the successors of the one who passed away. In
the sharing of earnings, the net earning of both patrimonies shall be added and then distributed also between
the surviving spouse and successors.

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