PACTOS Y GARANTÍAS IDÓNEAS PARA EL ASEGURAMIENTO DEL PATRIMONIO DEL MAYOR/CEDENTE, QUE DEVIENE EN DISCAPACITADO.

Abstract

The ex lege obligation "to provide support among relatives" stems from the regulation envisaged in the Spanish Civil Code, articles 142 et seqq. To that regulation is added the parallel contractual obligation that was introduced, after the entry in force of Act 41/2003 of 18 November (on the protection of the assets of persons with disabilities and the amendment of the Civil Code, the Civil Proceeding Act and tax legislation for this purpose), by what is termed a "support contract" in articles 1791 to 1797 of the Civil Code (in Book IV, title XII, chapter II). Among the security measures to assure the property of the assigner under such a contract, other business provisions can be included. Some of these provisions are proposed by legislation, outside the customary regulations governing support contracts; others guarantee the assigning person will receive the food, aid and care he or she requires. When such legislative solutions are arranged to protect the assigner's property, they can on many occasions become ineffectual, especially when the individual who has the standing to demand compliance is an elderly person of diminished faculties. Special mention should go to both parties' faculty to abandon the contract (CC, art. 1792) upon allowing the initial support contract to be converted into a life annuity agreement. When this happens, the principle of identity of the consideration owed is broken (twisted from what we might regard as an extremely personal obligation to a generic obligation), probably to the detriment of the weaker party to the contract. Breach of contract would have an indubitable impact on the life of the elderly person and would probably also be injurious to government (which will be obligated to provide the insufficiently assisted elderly person with aid and care). Yet insufficient coverage is provided by criminal law, which harshly penalizes breach of family obligations and only very vaguely penalizes breach of the same obligations if they are born of agreements.