The obligation to pay the debt imposed by the testator on the legatee of the mortgaged property

Abstract

The bequest of mortgaged property creates a potentially contentious legal situation between the heir and the legatee; the former must pay the debt owed by the testator —a debt incurred, often to acquire the mortgaged property— while the legatee is awarded the mortgaged property. To avoid future disagreements between the two parties, the testator could impose on the legatee the obligation to pay the secured debt, an option that requires upholding the dispositive nature of Article 867 of the Spanish Civil Code.

The purpose of this paper is threefold. Firstly, the classification of this legacy, for which the figure of the debt legacy stricto sensu and its differences with the sublegacy and the modal legacy are analysed. The latter will be used to identify the legacy under examination, which is considered a new obligation, arising from the will, that requires the legatee to repay the capital borrowed under the terms and conditions set out in the mortgage loan agreement. Secondly, the issue arises of the significance that the obligation to pay the debt imposed on the legatee may have with respect to the creditor (art. 1205 CC) and to the liability that corresponds to the heir as successor to the debts of the deceased (art. 661 CC). Finally, the consequences of the legatee’s compliance or non-compliance with the obligation to pay the debt on the mortgaged property are addressed.