DE NUEVO SOBRE EL ARTÍCULO 788 DEL CÓDIGO CIVIL (LA PERPETUIDAD Y LA HIPOTECA).

Abstract

In the light of article 788, paragraphs three, four and five, the point is to settle two questions: That of the perpetuity of the thing given and that of determining in whose favour the mortgage at issue in paragraph three of said article is made. As for the first question, after discarding a number of solutions (trust substitution, obligation propter rem, real burden, censo-type encumbrances...), the solution proposed is the creation of a foundation to take charge of granting dowries (sic), scholarships, etc. There are three requirements a foundation must meet: Economic support, which is the immovable property encumbered with the charge; an altruistic or beneficent purpose, which is the dowries, scholarships, etc.; and an organisation, to which article 788 refers with the word «order», which used to be entrusted to the applicable administrative authority and is currently entrusted to the Protectorate in the new Foundations Act. Jurisprudence includes the Supreme Court Sentence of 12 December 1963. Legislation recognises the personality of the foundation, which can be endowed in two ways: by the delivery of the encumbered immovable property, or with the result of the securitisation of the charge, this latter possibility being permitted by article 788 of the Civil Code. The mortgage cannot be made in favour of the unmarried women, students, etc., because that would contradict the principle of speciality, which requires the full names of the holders of a mortgage to be given (Mortgage Regulation, art. 51), and it is not a mortgage to secure an income either, because of the need to fix its duration (Mortgage Regulation, art. 248). The solution lies in making the mortgage in favour of the foundation in the event that the heir securitises the charge; i.e., the mortgage will guarantee that the resulting capital is handed out as an endowment. Rules are given as to the proper deed.