EL LEGADO ALTERNATIVO Y LA FACULTAD DE ELECCIÓN O CONCENTRACIÓN: LA MEDIACIÓN COMO FÓRMULA RECOMENDADA JUDICIALMENTE PARA LA RESOLUCIÓN DE CONTROVERSIAS PATRIMONIALES Y FAMILIARES DERIVADAS DE LA SUCESIÓN MORTIS CAUSA.

Abstract

These lines review one of the types of bequests provided for by the Spanish Civil Code. Particular focus is aimed at the characteristics of the alternative bequest as discussed in section 874 of the Civil Code, which declares that, in alternative bequests, «the provisions for obligations of the same species will be observed, save modifications stemming from the testator's express wishes». So, the concept's very legal configuration reserves ample freedom for the testator, by allocating to him the possibility of determining who shall have the power to choose, assuming, of course, that the necessary concurrence and plurality of benefits that are consubstantial with the concept exist. The rules and criteria applicable to the object of the bequest are contained in sections 1,131 to 1,136 on alternative obligations. In fairness, logically the heir is supposed to be constrained to comply with a single obligation from amongst several obligations provided for by the decedent. From amongst the issues most often discussed on the profiles of the institution, the authors stress the contents of the doctrine established by the Directorate-General of Registries and Notarial Affairs, Supreme Court case law and provincial appellate courts'pronouncements on the subjects of form of payment and registration of the choice made and its acceptance. Nor do the authors overlook the fact that the two facets (the asset-related facet and the family-related facet) of the controversies stemming from mortis causa succession can be dealt with using one of the non-judicial techniques of conflict resolution, such as mediation. The authors report on the status of the legislative process of the future national law on the matter and on the morerelevant aspects of Directive 2008/52/EC of the European Parliament and of the Council of 21 May on certain aspects of mediation in civil and commercial matters.