Parental authority is nothing more than a singular complex of rights and obligations, singular, because in large part, they are rights to fulfill obligations or rights-duties.
The content of the Law is the satisfaction of the owner's interest for the benefit of the other party, there being no bilaterality because the provision is not reciprocal but is done in the interest of the recipient.
Thus we find that parental authority corresponds to both parents and both have the right and duty to have their children under their care and care, attending to their physical and moral development, attending to their education, directing their social, ethical and ideological formation and Last, but not least, to manage in your interest and proper enjoyment of your assets.
This constitutes the subject of this work, approached from the perspective of a general analysis of the institution of legal usufruct, precisely as an exercise of parental authority. Which has been divided into two sections to achieve the development of this central objective:
The historical-legal evolution of the institution and Analysis of the institution from the doctrinal point of view and comparative law.
Historical-legal evolution of the institution.
The concept of parental authority and therefore the institution of legal usufruct within it, has undergone a complete evolution from the time of Roman Law to the present.
Thus, for the ancient Romans, parental authority was the set of rights that the head had over the people who were part of the family, so there was not only a relationship between the father and the children but even the descendants of these were subject to paterfamilies. On the other hand, it was assumed that it was a set of rights.
This set of rights was so broad that the Romans boasted of being the people who had recognized the head of the family with the greatest authority.
The rights of parents over children were unlimited.
They had the right of life and death over them, the power to sell them, and the prerogative to belong to them all that the children acquired.
This power extended even beyond the age of majority of those subjected, and ended only, by the death of the head, by the loss of freedom or citizenship, by the emancipation of the child or by giving it up for adoption..
The loss of freedom or citizenship of the father or son also implied the loss of parental authority, since this was only recognized to Roman citizens and could only fall on individuals of the same condition.
This organization of parental authority was undergoing modifications over time. From the right to life and death that the pater-families had over their children, they went through a very different regime.
This absolute right was weakened, so Constantine came to punish with the penalty established for the parricide, the pater-families who killed a son without the authorization of the magistrate. The same happened with regard to the sale of the children.
In the law of the XII Tables it was established that three consecutive sales resulted in the liberation of the son from the father's power. Later the jurisprudence went further: it came to establish that the first sale produced the freedom of the son.
We thus arrive at the time of Justinian, in which the law of the pater-familia is so modified that it is reduced to moderate correction and under the supervision of authority.
It was possible in this way to establish a perfect distinction between the rights of the father over his children, and the power over slaves and things.
During this evolution the recognition of peculiarities begins to be introduced. First the prophecy.
This is a simple parental concession. The son was given a specified amount of property to manage, although it remained the property of the father.
It is recently, the creation of the military property which will bring a recognition of the legal personality of the alieni-juris or subject. Alieni-juris was recognized with the right to dispose of assets acquired in military services by will.
This is the origin of the military money, a set of assets that belonged to the son.
Then came the adventitious property, over which the father had the usufruct. But today its conception has been broadened, so that legal usufruct, as some call it, entails the Right granted to parents to use and enjoy the property of their children,
as well as the fruits and income that these assets accrue. Establishing limitations to the exercise of parental authority, in this case regarding the disposition of the child's assets, tending, every day, in modern doctrine to increase, always in defense of the interests of the disabled minor or elderly person.
Analysis of the institution from the doctrinal point of view and comparative law.
Starting from the most modern concept of the institution and to which we alluded in the previous section, we consider it prudent to adhere to Borda's thesis when it recognizes it as a special institution of Family Law, since it obviously appears that it arises as a consequence of the filiatory ties between parents and children, which is true that it is provided by law and that gives parents the possibility to use and enjoy the property of their children, but classifying it as usufruct tends to confuse this right with purely usufruct patrimonial and take away its very essence, which is none other than setting limits on the administration of the children's assets, all of them being members of Family Law.
In this way, parents are responsible for managing, in a broad sense, the assets that children obtain during their minority, always in their name and benefit.
Modern doctrine coincides in pointing out that this function participates in the legal nature of the mandate, with the exceptions that the various laws establish with respect to this contract, such as its legal source since it corresponds to them to assume the administration of full right, or the obligation to render accounts, for example.
The acts that parents can grant in exercise of this duty can be classified into conservatories, administration and disposition.
The distinction matters, since the type of act in question will require greater conditions for its granting and consequent validity.
Conservatory acts consist of operations aimed at maintaining the child's assets in good condition, whether it is their repair, or the sale of perishable goods regardless of their commercialization, legal actions that interrupt prescription periods, the acceptance of a donation not subject to an onerous charge or benefit.
In short, acts aimed at the preservation of the child's heritage.
In the systems that contemplate the joint exercise of parental authority, conservatory acts can be granted indistinctly by any parent, firstly because it does not imply detriment to the child's assets, and secondly, to guarantee third parties who contract with parents, interested in the validity of the legal business they celebrate.
The acts of administration are those whose purpose is to make the child's assets yield the corresponding fruits and profits according to their amount and value, and even increase them.
These acts may consist of risk-free investments, deposits in bank accounts, leasing of the child's things, disposals of the business line, improvements in the children's real estate, acquisition in their name of assets or rights by the principle of real subrogation., accept inheritances or bequests.
In those laws that recognize the common exercise of both parents, the acts of administration must be granted jointly.
Acts of disposition are understood to be those that diminish a person's assets, or tend to compromise its content. A purchase-sale is an example of the first case, and the security rights in the second.
The importance of the same has caused the law to surround its celebration with the greatest guarantees: joint intervention of the parents, judicial authorization, and in various laws, to prove the need or advantage in carrying out the act of disposition.
The exercise of the duty of administration requires a particular consideration, since two tendencies are evident in the American continent.
Traditionally, parents have taken advantage of the fruits, natural, civil or industrial, of their children's goods, as opposed to the products, to the extent that they diminish the substance of the thing (an exception is that produced by a mine).
The limitations to this employment for their own benefit were given by the attention to the own burdens that weigh on the usufructuary; Another restriction on use consisted in using the earnings normally made by the child's estate for living and education expenses.
Consequently, it can be affirmed that the parents incorporated the surplus of such fruits into their patrimony.
- This scheme is still preserved in the Civil Codes of the Region (Argentina; Brazil; Chile, which calls “parental authority” the exercise of the administration of the child's assets; Ecuador; Mexico, etc.).
However, the Family Codes (Bolivia, Costa Rica, El Salvador, etc.) deprive the parents of the usufruct of the child's assets (except, in some Code, extreme personal need for them) and even require the preparation of inventory of such assets and render accounts at the end of the administration.
Thus, for example, in the State of Navarra, in Spain, through Law 1/1973, of March 1st, which approves the compilation of the Provincial Civil Law of this state, it is established that the parents will administer all the property of the children subject to its authority, with the exception of the following:
1- The goods object of liberality when whoever grants it excludes the administration of the parents.
The grantor may also exclude the usufruct of the parents and establish the regime it deems appropriate for the administration and disposal of those assets, including excluding the need for judicial authorization and the intervention of a judicial defender.
2- Those acquired mortis causa when the father, mother or both could not acquire them due to incapacity due to indignity.
These assets will be administered by the other parent and, failing that, by a judicially appointed administrator.
When the parents' administration endangers the property of the child, the Judge, at the request of the interested party or the Public Prosecutor, may demand from them an adequate guarantee, or take other measures for the security of the property, and even deprive the parents of the administration and appoint an administrator.
At the end of the administration, the children, the judicial administrator or the Public Prosecutor may ask the parents to render accounts of the former and demand compensation for the damages and compensation for the damages that may be appropriate. The corresponding action will prescribe after three years.
Parents may not waive the rights of their children, or alienate or encumber real estate, industrial or commercial establishments, or their essential elements, or objects of extraordinary value, without prior judicial authorization, heard by the Public Prosecutor.
This authorization will not be necessary for the cancellation of the mortgage or other real guarantee consequent to the collection of the insured credit, for the resale by exercise of a legal or voluntary right of withdrawal, or for any acts of disposition that must be complied with.
Parents may accept by themselves any provisions for profit in favor of their children, without the need for judicial authorization; this will be necessary, however, for the repudiation of the former.
If the minor has reached sixteen years of age and consents in a public document, the judicial authorization referred to in the two previous paragraphs will not be required.
As it is affiliated with the modern trend, in the sense that it recognizes, in principle, the general faculty of parents over the property of the children, setting limits to the exercise of parental authority, clearly establishes which are the excepted property and demands judicial intervention and the prosecutor's office, in cases of disposition of the aforementioned assets.
In the case of Puerto Rico, in its Civil Code, which emanates from Law # 99/1976, it also recognizes as a general principle the power of both parents to use and enjoy the property of the children, but adds the figure of the child who to Despite being under the influence of parental authority, he lives far from his parents.
The Code has the virtue of collecting each and every one of the circumstances in which the institution occurs and develops, which is the subject of this work, since it not only conceptualizes it, but also regulates the obligations of parents, by virtue of their exercise, since it includes within them the special ones on legal mortgage and of course, in accordance with most of the codes of the world, prohibits the acts of alienation and encumbrance, always demanding for their verification, the legal authorization, which for the case of Cuba, is carried out through the process of voluntary jurisdiction of utility and / or necessity, very correctly called this way, because not only is it recognized for the case that is useful for the minor, but also the necessity is required, being able appear one or the other or both indistinctly.
Although, in Puerto Rico, the possibility that parents have of selling the fruits of a rustic farm, in its last harvest, is excepted from the previous rule.
Providing for the appointment of a defender and extending the institution to recognized and adoptive children and also provides for the situation of the children's assets, in the case of divorce of the parents.
In the particular case of our country, it is significant to note that our Family Code, in contradiction to the examples used and also in contrast to the most modern family codes in the world, does not regulate the institution in detail, but rather limits to enunciate it in article 85, in its fourth section, representing it within the institution of parental authority, as one of the rights and duties that it comprises, without issuing considerations beyond simple administration and care of the children's assets diligently and of course the prohibition of their free disposal and then in article 87, it introduces the procedural element to which we referred in advance, that is, to the process of utility and / or necessity.
In a general sense, the most advanced doctrinal trend recognizes in terms of the administration of the minor's assets, whatever the institution is called, that when the minor children possess assets, the spouses will decide which will be the one that exercises the administration of them except the exceptions provided for in the laws themselves and hence they recognize the possibility that the other spouse has to claim judicial intervention when he considers that it is necessary to prevent or correct the acts or procedures of another, harmful to the minor already in his person and in his goods.
Thus, then, those who exercise parental authority are legitimate representatives of those under it, and have the legal administration of the assets that belong to them.
It happens that when parental authority is exercised both by the father and the mother, or by the grandfather and grandmother, or by the adopters, it is good here to point out that they recognize that other people other than the parents can ensure the rights of minors in total contradiction with the provisions of our substantive civil law, the administrator of the assets will be appointed by mutual agreement; but the designated person will consult his consort in all business and will require her express consent for the most important acts of the administration.
Likewise, the current doctrinal criteria have agreed to differentiate the assets that make up this special institution of Family Law and thus divide them into two classes, the Assets that they acquire through their work and the Assets that they acquire through any other title.
The first belong in property, administration and usufruct to the son and the second the property and half of the usufruct belong to the son; the administration and the other half of the usufruct correspond to the persons who exercise parental authority.
However, if the children acquire assets by inheritance, legacy or donation and the testator or donor has arranged that the usufruct belongs to the child or that it be used for a specific purpose.
When by law or by the will of the father, the child has the administration of the assets, he will be considered as emancipated with respect to the administration, with the restriction established by law to encumber or mortgage real estate.
Those who exercise parental authority may not alienate or encumber in any way the real estate and precious furniture that correspond to the child, except for reasons of absolute necessity or of obvious benefit, and prior authorization from the competent judge.
Neither may they enter into lease contracts, or receive the anticipated rent for the time established in each legislation; sell commercial and industrial securities, income securities, shares, fruits and livestock, for a lower value than that which is quoted in the market on the day of the sale; make donation of the goods of the children or voluntary remission of their rights; nor give security on behalf of the children.
1. Also within this theme have been included the so-called special curatorships.
The appointment of a special curator is determined if the parents are deprived of the administration of any of the property of the children subject to their parental authority, whether this happens by law, as in the case of disinheritance or indignity, and It happens at the will of individuals, such as in cases of donation or testamentary disposition with an express prohibition of administration by parents.
Bibliography:
1- Buch Santos, E. “Comments on the Family Code”, Cuban Law Review, year VII, January-December, 1978, p. 243-251.
2- Castán Tobeñas, J. Spanish Civil Law, common and provincial. TV. Editorial Reus. Madrid. 1983.
3- Dictionary of Private Law. IT and II. Editorial Labor SA 1950.
4- Varona, Francisco. "Comments to the Family Code", Cuban Law Magazine, year XI, May-August, 1975, p. 57-58.
Legal provisions used.
1930- Civil Code of Puerto Rico.
1973- Law # 1, Compilation of Civil and Foral Law, Navarra.
1976- Law # 1289, Family Code in force in Cuba.
1987- Law # 59, Civil Code in force in Cuba.
