Communities often pose problems. In the communities we find some subjects, the commoners or co-owners. An object, the good that is in community, and a form, the document in which it is embodied.
We can also distinguish two types of communities: those that fall on an object and those that fall on several objects-Also those that fall on a heritage, these are called universal communities. The most frequent universal communities are inheritance and matrimonial community of gains. They are two special communities since the subjects are the heirs or spouses and the object is a heritage. In the case of inheritance, hereditary patrimony or marital patrimony.
The dissolution or partition of these communities poses problems. Let's see what is the legal, economic and human problem that underlies after the sentence TS (Civil Chamber) Sentence no. 458/2020 of July 28. The facts are interesting. Dolores and Segundo separate and want to agree to the dissolution of their joint venture. Uniqueness: the object of the community is composed of a farm and shares of an SL called Xamons Martinez SL. This society has as partners: 1 / Segundo's brother (46%); 2 / to Dolores y Segundo's own community property company (46%) and Segundo as a private asset (8%). This asset is the most important in society as it is valued in 314.123, 33.
In 1st Instance, the shares are awarded to the husband, SECOND, and Dolores the Tuy farm and a compensation of 148.344,77 euros.
The Hearing of Orense rectifies and accepts the proposal made by the designated party. According to this, the actions are divided between Dolores (23%) and Segundo (23%).
The husband appealed in Cassation and the TS married the sentence and returned to the thesis of the Court, that is, to award the shares of the SL to Segundo, and the Tuy estate and the compensation to Dolores. But the ruling of the Supreme Court is not unanimous: it has a disagreeing vote of 3 magistrates who believe that the hearing solution should be applied.
The conflict of interest between Dolores and Segundo is evident. Dolores does not want the shares of Xamones Martinez SL She sees that her economic rights as a minority member will be null and void and she will not be able to sell these shares because no one - except her ex-husband and her brother - will buy them. Second, he does not want to pay the 148.344,77 Euros, which is what the Judge asks for and which is in the end what the Supreme Court confirms.
The solution seems fair to me but there is no doubt that it raises interpretive problems in relation to article 1061 and 1062 of the CC.
Article 1061 establishes a principle of equality between the joint heirs, forcing the partition to award them goods of the same nature, quality, and kind. Only, when the property is indivisible or detracts from its division (art, 1062 CC), it is allowed to award the property to one of the joint heirs, compensating the others in cash. The TS applies article 1062 to the assumption, even recognizing that the shares are divisible. This criterion is fought by the vote of the dissenting magistrates who understand that article 1062 should be applied. According to the dissenting vote, the shares (nature) should be awarded x equal (quality and species) to Dolores and Segundo.
The interpretation that the Supreme Court gives to articles 1061 and 1062 in this case is very flexible. What is it based on? In the first place, this is the criterion of the named party that awards the shares to Segundo with the obligation to compensate Dolores. A second reason is that the solution of awarding shares to the Dolores woman makes her a minority member and this is detrimental to her. In short, it considers the shares in this case as indivisible.
But in addition, the TS does not properly apply article 1062 either. From the outset, it starts from the consideration of the indivisible nature of the shares. This is debatable. The Supreme Court also argues that in this case the possibility of an auction is not clear. In fact, the argument starts from a matter of principle, which is that no third party would want to buy these shares in this case.
All these statements are disputed by the dissenting vote.
Conclusion.
1 / I believe that the interpretation of articles 1061 and 1062 made by the Supreme Court is correct and not the one made by the dissenting vote.
2 / The case raised is not resolved by the CC.
You can on request more about divorces in our Notary of Barcelona.
Antoni Bosch Carrera. Notary of Barcelona at the Bosch-Bages notary's office on Paseo de Gracia. University Professor, Mediator, specialist in inheritances and wills.
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