Liquidation of a common asset paid by personal incomes

In terms of marital relations, the article 1398 of the Civil Code provides what can be considered as a debt of the community of property. The third point of the article establishes that the quantities that only one of the spouses paid and they should have been paid by the community of property, they constitute a credit for the payer and a debt for the community.

The application of the said article is discussed in the judgment of the Supreme Court num. 498/2017 of September 13th. The case derives from the proceedings of liquidation of the joint assets of the community of property and the first appeal was based on the article 1358 of the Civil Code, in which it is provided that the privative or common goods obtained with common or personal money during the community of property, it will generate it appropriate credit in favour of the other spouse or the community of property. Because of this article, the Court understood that including the sale of a property by this way as a debt against the community of property is valid.

The appeal to the Supreme Court was issued by the initial claimant and based on the possible infringement of the article 1355 of the Civil Code, which says that the spouses by a common agreement can change the term of a privative asset into a common asset of the community of property, so the initial defendant could not claim to the community of property the privative quantities paid by him for the property that it was sold.

The appeal is dismissed; the Supreme Court appreciates that the article 1355 should not be applied in this case because there was not a common agreement or attribution of the property. The judgment is based on the article 1398 of the Civil Code and the prior judgment is affirmed. The costs shall be deemed against the appellant.

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