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The patrimony: slight knowledge, concept and theories

1. Introduction 2. Slight knowledge 3. Concept 4. Theories that try about the Patrimony 5. The separated Patrimonies 6. Independent patrimony 7. The patrimonial responsibility 8. Subrogation actions 9. Pauliana action 10. Action of simulation 11. Bibliography

Introduction
To all person they belong a certain set to him of things, being corporal or tangi possunt " or in other words incorporeal these tangi possunt that is to say, not constituting the patrimony of each individual. All person has a patrimony, although their liabilities are major that the assets. Being this so essential element in the life it is essential not to know more of it. In order to explain the patrimony, it is made precise to remember basic slight knowledge of the Subjective Right, studied during Introduction to the Right. We know that the Subjective Right is a power of the will, a faculty to build within the limits of the Objective Right, power that is had the charge of and protected by that Right. The man settles down relations of all species; and, given the multiple variety of existing relations between the men, like individuals or subjects of rights and members of a society, easy it is to include/understand the multiple existence of subjective rights and for that reason the necessity prevails to classify them. It does not correspond to us to establish the classification of the Subjective Right, simply we will limit ourselves one: the Deprived Subjective Rights, that are subdivided as well in patrimonial and nonpatrimonial. The distinguishing criterion between both is in the economic content of the faculties corresponding to the subject and by the concept of the patrimony.

Slight knowledge
Etymological sense of Patrimony He is probable that etymological Patrimony comes from patris munium, (joint of goods that a person has received from her parents or parents); but one long historical explanation would be necessary unemployment to show the existing relation between that meaning of the word and the meanings that at the moment occur so much him in the vulgar language as in the legal

technician. Meanings of Patrimony in the Vulgar Language. 1. Frequently patrimony to the set of goods or wealth of a person is called, so that it only says that a person has patrimony when she has fortune in the material sense of the word. 2. Often, especially in the commercial language. it is spoken of gross patrimony to allude to the value of the assets; of net patrimony to talk about to the difference between the value of the assets and the value of the liabilities, and of passive patrimony when the value of this one is superior to the value of the assets. 3 does not lack occasions in which the common language patrimony is simply a set of goods Difficulty To need the Legal Notion Patrimony Although the meanings of patrimony in the vulgar language bear relation to the legal notion from the word, this notion is not identical and is difficult to need. 1. History has not helped to clarify the matter. Indeed, although in the Roman Right a notion of general patrimony in the regulation of diverse institutions was watched, that notion practically vanished in old the Straight French and although they reappear antecedent in the Subjective School of the Natural Right the certain thing it is that the modern legal doctrine in the matter takes of the conceptions of the romanista doctrine and pandectista German, that elaborates the call German theory of the patrimony, as well as of the French doctrine formulated especially by Aubry and Rau with base in the Napoleonic Code and that it is known like classic theory. The two mentioned theories diverge noticeably to each other without no has managed to eradicate to the other. 2. The exposed thing explains that contemporary Literature on the subject that occupies to us is very ample, but that at the same time discusses the concept, the legal nature and the content of the patrimony, the relations between patrimony and person, the characters of the patrimony and until the classifications of the same. In synthesis, legal Literature in the matter helps more to complicate than to solve its problematic one. Location of the Study of Patrimony 1. The location is not uniform either that the authors to the study of the patrimony within the systematics of the Civil Right give him: A) Sometimes studies it within the general theory of the subjective rights even though is obvious that they exist right subjective nonpatrimonial. B) Sometimes the object of the right studies within the general theory of the real rights with regard to the subject , even though hardly it can admit that the patrimony is a right object or that exists a real right whose object is the patrimony. C) Some times the patrimony with regard to the successions studies which leads to jointly deal with the concepts of patrimony and inheritance, with results that do not seem to be very happy, and D) Other authors realize the study of the patrimony within the Right of the Obligations when dealing with the responsibility of the indebted one, which presents/displays some advantages in the Rights of the French system. 2 the programs of many Venezuelan Faculties of Right, place the subject at the beginning of the

program of Real Rights apparently with the idea to set out a common introduction to these rights and to the rights of credit. In fact everyone are right patrimonial; but from the pedagogical point of view it seems that the subject sets out the pupils before their knowledge allow him to take advantage of it properly. By such reason, although we know that it is not justified from the systematic point of view we have chosen to deal with the matter at the end of the study the Real Rights so that it finds it the student in the course where it demands his Training program; it approaches but it when already they have majors knowledge that at the beginning of that same course. However, always kind to the pedagogical considerations we will make a exhibition of the matter limited its basic aspects.

Concept
The most current definition is the one than the patrimony is a set of goods pertaining to a person that have an economic utility and that can be evaluated in money. Nevertheless when in this definition set of goods is said we must reject it, because the goods are object of the rights (where it falls the power of the man) and the patrimony is not it. It is defined to the patrimony like the set of legal relations pertaining to a person, that have an economic utility and for that reason they are susceptible of pecuniary estimation. These legal relations are constituted by right duties and, by assets and liabilities. They will be the three elements that integrate the patrimony: 1) Its composition like unitary set of rights (not of things) and also of obligations. 2) Its economic and pecuniary meaning, since the legal relations of pecuniary character (right real, right of credit) only form the content of the patrimony; and. 3) Its attribution to a holder like center of its legal relations. The word Patrimony sometimes is used in improper sense; in some cases to designate the mathematical value that turns out to reduce the sum of the values of the liabilities of the sum of the values of the assets. in this meaning it is the Net Patrimony. in opposition to the Gross Patrimony, that is the represented one by the sum of the values of the assets, without the deduction of the liabilities burden that it. The set of things will be then Net Patrimony and the credits, deduced the debts, that is to say, less passive assets will be equal to net patrimony. The Gross Patrimony, is constituted by the set of patrimonial relations without making this deduction (active more liabilities), since the patrimony in legal sense, is that one that presents/displays assets superior, equal or inferior to the liabilities, without mattering that his holder does not constitute a wealth in economic sense. The Patrimony is one of the basic concepts of the Civil Right and as much has interest from the theoretical point of view like from the practical point of view, all this because it is related to many institutions of the Private Right.

Theories that try about the Patrimony


They emphasize two theories that have tried to outline the legal figure of the patrimony, these theories are:

1) Classic, Subjective theory or of the Patrimony Personality

2) German, Objective theory or of the Patrimony Affectation

1) CLASSIC, SUBJECTIVE THEORY or of PATRIMONY PERSONALITY

Origin: The original form of the classic, subjetivista or personalista theory of the patrimony must to Aubry and Rau both elaborated that it on the basis of articles of the Napoleonic Code which they correspond to articles 1863 and 1864 of our Civil Code. Article 1.863 The forced one personally is subject to fulfill its obligation with all had goods and by having. Article 1.864 The goods of the indebted one are the common article of their creditors, who have in them an equal right; if there are no legitimate causes of preference. The legitimate causes of preference are 109 privileges and the mortgages. Concept of Patrimony: For Aubry and Rau the patrimony is the set of the legal relations of a person, assessable in money, considered as a legal universality and ligatures to each other to be subject to the will of a same person. Content of the Patrimony Consequently, for the classic theory the patrimony includes/understands so much assets as liabilities. 1 the assets is formed by all the right presents and futures, assessable in money, of which it can be to title a person. Although Aubry and Rau do not clarify the things to it in themselves do not comprise of the patrimony but the components of the assets are the real property and other rights, the rights of credit and the calls Right of intellectual and industrial property. By the way, such rights even comprise of the patrimony in the cases in that they are not susceptible of unavoidable execution or they are not transmissible by inheritance whenever in one or the other case have pecuniary character. They are outside the assets of the patrimony the political rights or public, the rights of the personality and at least most of the familiar rights. Nevertheless it is to observe that the violation of such rights can impose to the author of the same to have to compensate pecuniarily, case in which the right to the indemnification yes comprises of the assets of the patrimony. 2 the liabilities constitute so much the obligations as the loads or burdens that weigh on the goods of in question person. Legal characters of the Patrimony Even though Aubry and Rau did not use the terms that we are going to use, can say that the classical doctrine attributes to the patrimony two fundamental characteristics of each one of as others are derived. 1 the first fundamental character can be enunciated thus: the patrimony notion depends closely on the notion of legal personality.

Aubry and Rau even affirmed that the patrimony notion could be deduced of the person notion, since it is the human will what gives unit to the set of legal relations that constitute the patrimony. Fitted more modern authors within the same current express the idea saying that the patrimony is an attribute of the personality or that are part of the legal sphere of the person, which would be constituted by the totality of rights pertaining to her. From that personalista conception of the patrimony, the classic theory derives several consequences: A) Only the people (natural or legal), can have patrimony. Indeed, for want of person that will would not exist that is the one that unifies the set of legal relations submissive its empire to constitute them in patrimony. B) All person has a patrimony necessarily. In order to be able to hold this position the classical doctrine affirms that the patrimony is a continent that at a certain time can be empty without leaving for that reason to exist. Other times one says that when a person lacks rights and pecuniary duties its patrimony consists of the aptitude to acquire fortune. However, if all person has a patrimony necessarily follow the following consequences: a) The creditors cannot exhaust that patrimony so that their measures of execution do not go against the patrimony like so but against singular goods that they are within the patrimony of his indebted one. b) The patrimony is inalienable by act between alive because if the alienating one could be alienated it would be without patrimony which opposes the basic principle of which all person has patrimony necessarily. Thus, if a person it alienated all properties in possession always would have left a patrimony represented by its aptitude to acquire other goods. c) Of equal way, the classic doctrine would have to maintain that the patrimony is not transmitted mortis causa, since when passing away the one of cujus disappears the will that when unifying the legal relations under to its turned them empire into a patrimony. Nevertheless, before the evident fact that the patrimony transmits the heirs, the classic theory resorted to explain it to the old Roman notion of which the heirs are the continuators of the person of the cause. With this explanation they also dealt to avoid another logical difficulty: If the patrimony is not but an emanation of the personality how it is explained that it is transmitted without that personality is transmitted at the same time? d) Each person does not have but a patrimony. Indeed, if what unifies the patrimony is the common subjection to the will of the person of its holder and if that will and that personality are unique and indivisible as well, the patrimony of a person cannot only be but one. When a person inherits to another one. the two personalities are based and for that reason the heir receives so much the assets as the liabilities and is forced to pay the debts of the inheritance with the goods of this one and their own personal goods. Nevertheless, the majority of the sostenedores of the classic theory admits that the law has created exceptions to this principle; the accepted inheritance for the benefit of the inventory, the separation of patrimony requested at the request of the creditors of deceased person, diverse situations that appear in the matter of absence. the fideicommissary substitution, etc. But must be observed that the division of the inheritance in aliquot even constitutes in certain way a situation that the classical doctrine cannot explain satisfactorily. 2 the second fundamental character of the patrimony according to the classic theory can be enunciated thus: The patrimony is comprehensive a legal universality of the legal relations of pecuniary character.

In this aspect the following thing stands out: The goods and obligations contained in the patrimony form what a Universality of Right is called; this means that the patrimony constitutes an abstract unit different from the rights and obligations compose that it. These can change, diminish, disappear entirely and not thus patrimony that is always the same, during the life of the person, So that for this current, the rights and obligations of a person turn on their patrimony in which they form a patrimonial mass. For the classic ones, the purpose of the patrimony resides in the satisfaction of the creditors of the holder of that patrimony, so that the indebted one responds its patrimony yet, will respond with the future properties in possession and, had and by having, this it is the argument of the Articles 1363 and 1864 of the Venezuelan Civil Code, that establish the patrimonial responsibility of the indebted one. . The creditors can be privileged (those who have a legitimate cause of preference, privilege or a mortgage) and general or the ordinary ones. First, in case of insolvency of the indebted one they can attack specific goods that conform the patrimony of the indebted one, since they guaranteed his credit (with mortgage, it pledges); however, the seconds, do not have guarantee some and in case of insolvency of the indebted one, they will attack his patrimony that is the common article of the creditors, For this one last class of creditors, to our protects them legislator with the Subrogation actions, Pauliana and of Simulation. A) The assets are tie to the satisfaction of the liabilities of the patrimony. For some authors it is this entailment the one that differentiates to right universalities of universalities in fact. B) The elements of the patrimony are fungible. Indeed as all the patrimonial legal relations have pecuniary character in last term can be reduced to sum of money and therefore they are interchangeable. Aubry and Rau use this idea to explain the sentence to pay to damages and damages in money as a result of the breach of obligations that did not intend extreme of money and as a result of illicit facts or enrichments without cause. C) In the patrimony it operates the real subrogation. Indeed the patrimony contains a mass of goods holds to continuous transformations. However when a good is alienated and another one is received in return, this one occupies the same legal position of the previous one. Thus it is explained that the creditor cannot be against to that or leaves the patrimony of the indebted one (unless is fraud), because its interest is sufficiently had the charge of by the possibility of executing or that del entered the patrimony in return that left. Within this order of ideas the rule is explained of which the indebted one responds of its obligations with all had goods and by having by virtue of which the creditor not only can execute the goods that he had of the indebted one when he was born the obligation but also other that he has at the moment. Nevertheless, for Aubry and Rau. the consequence of the real subrogation was that the forced one to restitute or to give a legal universality must give the goods that have been subrogated to others before the restitution or gives. It is more, the mentioned authors maintained that the real subrogation did not operate when actions regarding considered goods are exerted uti singulis, except for express disposition of the law. Critics 1 From diverse points of view the affirmations of the classic theory around the entailment between patrimony and personality are criticized. A) Some authors deny the thesis of which only the people can have patrimony with the argument of which if all the legal relations of a person form a whole is not because the unifying element is the will of the person of the holder but the unification comes from the fact that all those relations are affected the satisfaction of the needs of that person. Therefore, where he wants that there are

goods affected to a purpose can be clear the existence of a patrimony. B) Many authors deny that all person has a patrimony necessarily as would demonstrate the fact to it of the pauperism. In the same sense one alleges that the retort of the classical doctrine of which a person without goods conserves her patrimony and that this one consists of its aptitude to acquire goods in the future, which does is to change the patrimony concept that originally established the classical doctrine In other words, the retort would consist of calling patrimony to which patrimonial capacity only can be called. C) He also insists themselves on the insufficiency of the explanation of the transmission of the mortis causa patrimony consequently is opposed the thesis of the intransmisibilidad of the patrimony. D) He is also indicated that the indivisibilidad of the patrimony is a close notion that it would prevent to constitute separated patrimonies of the general patrimony for the fulfillment of certain aims. 2 In volume to the affirmations of the classic theory on the real subrogation becomes emphasis in which the same do not explain the reason that the indebted one responds of its obligations with its had goods and of by having. Indeed, if that norm were only based on the real subrogation in the common article of the creditors would enter the goods that the indebted one acquired in exchange for other goods after the birth of the obligation; but they would be excluded those that it acquired without it left no or its patrimony as it would be the case, among others, of the goods that it acquired by inheritance, legacy or donation or by way of remuneration of its work. 3 does not lack authors who criticize to the classic theory the fact to exclude from the patrimony the nonassessable goods and rights in money. In this sense they allege: A) That exclusion would be only justified because these goods and rights are inejecutables on the part of the creditors; but that of being logical would have then that to also exclude goods and assessable rights in money that by legal exception is not susceptible of unavoidable execution; and. B) That the injury of those goods and nonassessable rights in money can generate the right to a pecuniary indemnification. From both arguments they derived the assessable critics of the theory that at least is difficult to separate the goods sharply and rights in money of which they are not it.

2) GERMAN, OBJECTIVE THEORY OR OF THE PATRIMONY AFFECTATION

Origin The German or objetivista theory of the patrimony, was not born from the critics to the classic theory of the patrimony but of own elaborations of the romanista doctrine and pandectista German. Their main exponents are Brinz and Bekker. According to the postulates of the theory of the patrimony-affectation, the patrimonial mass is not identified with the personality idea nor tolerates the characters of inalienabi1idad and indivisibilidad. According to the same objective thesis it is, also, possible that a person is holder of more of a patrimony (divisibility of the patrimony) and that a same patrimony belongs shared in common to several subjects (supra and Swiss article 181 CC. of the obligations). So that the patrimony acquires autonomy based on the legal-economic bond to that they are

destined the goods requires: a) That it exists a set of goods, rights and obligations; b) That this set of goods, rights and obligations is destined to the accomplishment of an aim; c) That the right organizes with own appearance and, therefore, autonomy all the legal relations (active and passive) that tie to indebted creditors and based on the independent mass of goods, rights and obligations. The affectation patrimony will be always an economic value in as much is integrated by really existing goods, rights and obligations. The patrimony is not, therefore, a mere possibility of acquiring those rights and obligations. Concept The central idea of the German theory is that the bond that it unifies to the diverse elements of the patrimony is its common affectation to an aim. According to some authors of this current that coarse affectation common to maintain the diverse elements of the patrimony united without it is necessary the existence of a person to those who all of them belong, so that allied of the patrimonies with subject or personal, there would be patrimonies without subject between which usually they mention the lying inheritance, the inheritance left to concepturus and the foundations. Nevertheless, famous sostenedores of the German theory, in spite of the great importance that they give to the fact of the common affectation to an aim, accept that a relation between patrimony and personality exists arriving to define that one like the set of rights which they serve to satisfy the needs with a person and being added that in principle is unique and that only the law can separate from the general patrimony a set of rights to affect them to the satisfaction of specific needs. Characters of the Patrimony Affectation:

1) That it exists a set of goods, rights and obligations. 2) That this set of goods and rights, are destined to the accomplishment of an aim. 3) That the right organizes with own appearance and, therefore, autonomy all the legal relations (active and passive) that tie to indebted creditors and based on the independent mass of goods, rights and obligations.

Consequences Independence radical or mitigated between the ideas of patrimony and personality allows to conceive the divisibility of the patrimony. Indeed, nothing would prevent in this doctrine so that a same person had so many different patrimonies as different aims persecute. Also within the German doctrine nothing prevents so that the patrimony by act between alive can be transmitted nor so that can exist patrimonies without subject. Nevertheless, the majority of those in favor of the German theory does not admit such consequences but in mitigated or adjusted form. Thus, for example, they emphasize that the division of the patrimony cannot be realized by the single private will but it requires a legal disposition authorizes that it and as soon as it touches to the distraction of the patrimony by act between alive, indicate that rather is the transmission of all the present goods of a person, and not it transmission of its patrimony proper.Critic In the positive aspect it is praised to the German theory that it emphasizes the common

affectation to an aim as unifying element of the patrimony and admits the divisibility of the patrimony; Fundamental considerations on the Patrimony The patrimony is based on the personality idea: but it is not a simple attribute of this one. Indeed: 1 Is impossible to do without the person like unit center of the patrimonial legal relations. She is the person who contracts the obligations, that acquire and exert the rights, and that can demand their responsibility to another one. 2 cannot admit that a set of legal relations can be affected a same purpose, independent of that is the holder of this set. 3 cannot Either admit the idea that the goods are those that give unit to the patrimony.

The separated Patrimonies


In the present state of the Venezuelan legal ordering, like in the systems trimmed on the French Civil Code, the patrimony is one for each subject. Technically considered, the patrimony includes/understands a diversity of legal relations, of economic content, aimed at a subject that serves to them, of gravitation center. The separated patrimonies indicate, nevertheless, when two or more singular masses of goods or of rights pertaining to a single subject they have own existence. The utility and the practical function of the creation of separated patrimonies are:

a) The possibility of giving or of reserving certain goods with a certain exclusive destiny, so that they are loose of any other purpose; b) Or, to reserve to a certain group of creditors a set of goods on which they can be satisfied, excluding other creditors.

But the patrimonial separation and the correlative isolation of the integral relations of the separated patrimony do not eliminate the fact that this one can undergo more or less sensible alterations. by intrinsic causes to the same patrimony. So it happens, as it is stated immediately, to the set of goods transferred in trust. A group of cases, some of which are still placed in debatable plane reason why respecta. to the qualification within the category in study, it will allow to forge an idea of the separated patrimonies in the Venezuelan positive system: A) The home. The Venezuelan Civil Code (Article 632 and following) authorizes the constitution of a home - for the component and its family excluded from the global patrimony and the action of the creditors. The home is unattachable and inalienable, in principle (article 640 CC.), and once produces all effects fulfilled the formalities preceptuadas for its formation. B) The patrimony of the bankrupt. Declared the bankruptcy of a retailer, the active mass of its goods is affected the satisfaction of the mass of creditors. These, by means of the receiver, will administer the goods of the bankrupt (Code of Commerce, articles 939, 940, 942, 943, 951 and 952). C) The patrimony of the community conjugal, diverse of the goods integrated in the patrimonies of the spouses and affected by different loads (CC. Venezuelan, articles 151, 152, 156 and 164). D) The patrimony of the absentee, determined by a purpose of legal order, what is the

conservation of the goods of a person who in a while determined does not know if she exists nor where is. The normative ordering allows to organize the patrimony of this person and to designate, a representative of the same (Venezuelan CC., following articles 419 and). E) The accepted hereditary patrimony for the benefit of the inventory (Venezuelan CC., articles 996 and 1,036). F) The set of the goods transferred in trust and that constitute the object of this one. Such goods and those that replace these are excluded from the common article of the creditors of the fiduciary. The fiduciary - except for special disposition of the law, only it will be forced to fulfill these goods the obligations that derive from the trust or its accomplishment, and is authorized to be against to all measurement (preventive or of execution) dictated to request of creditors who come by virtue of credits that do not derive from the trust or its accomplishment G) The familiar patrimony. The Law of the Agrarian Reformation of 5 of March of 1960 organizes one distinguished species of separated patrimony, the denominated familiar patrimony. Placed as a result of the technical devices (article 102 and following of the Law) outside the power of disposition of the component and the range of the creditors (preventive or of execution), the familiar patrimony can be constituted to request of the interested one in the National Agrarian Institute, being fulfilled on the matter the formality of its inscription by before the respective Registry offices of the Rural Property, Public Registry and Registry of the Familiar Patrimony (article 102). The created exceptional discipline with respect to the familiar patrimony - of excellent way: the inalienabilidad, the indivisibilidad and its exclusion as object of burdens supports to a serious cut by interference of certain aims indicated in the own Law (collective utility, social benefit or public interest, voluntary constitution of agricultural cooperatives approved by the National Agrarian Institute) and by virtue of the revocation or extinction of In awarding of the parcel by the organisms whose position is the privative tasks of the agrarian reform. The desincorporacin of the familiar patrimony only can be realized by the interested ones after passed five years of its inscription, justifying properly this desincorporacin before the Institute and fulfilling the established formalities in the heading of article 102. Articles 103 and following of the Law contain performance standards with respect to the familiar patrimony: nature of the parcels destined to the formation of the familiar patrimony, forms of operation and policy to fulfill by the National Agrarian Institute for the promotion of associations with aims of mutual support, cooperation, representation, administrative between the holders of familiar patrimonies (articles 103, 104 and 105). The small independent proprietors whose property are free of all burden and reunite the characteristics indicated in article 76 of the Law, can take refuge in the institution of the familiar patrimony by means of authorization granted by the National Agrarian Institute. Granted the constitution declaration, the interested ones will have to satisfy the other requirements legal. The Institute will come to equip do earth to the aspiring who does not meet the conditions settled down in article 76 (Law of the Agrarian Reformation, article 106). In an attempt of harmonization of the normative technical devices of the patrimonial activity, professor Frdric Speth h to drawing up. a picture of the norms that, in his opinion, adapt to the lineamientos of the traditional doctrine and of that, in such scheme, they consecrate remarkable exceptions. It express the author who articles 2,092 and 2,093 of Civil the Code Belgian (equivalent, with certain variants, to articles 1,863 and 1,864 of the Venezuelan Civil Code), give margin to two principles already known: a) All the properties in possession and future of a person constitute the guarantee (it pledges) common of the creditors;

b) All the creditors are, in principle, equally with respect to indebted the common one. Nevertheless, the mentioned norms do not discard the possibility of erecting a set of exceptions that subsist insofar as legally they have been recognized. In other terms, such exceptions (separated patrimonies) will be acceptable and valid whenever a norm or a set of norms specifically authorizes their segregation of the common article.. With this last one it is wanted to exclude, like in opposition to the basic principle of article 1,863, the reserve, only by unilateral will. of certain goods excluded from the action of the creditors. The cases of diverse exception that constitute cough types of separated patrimonies fit perfectly in the following concept: Who is forced personally, he is subject to fulfill his commitments with all personal and immovable, present and future property, unless it has affected a part of those goods to the constitution of separated patrimonies in the cases legally authorized Each patrimony, recognized in this form, constitutes the article of the creditors of this universality. They will be in an equality plane, unless legitimate causes of preference exist. The ideas set out by Speth reduce the patrimony to a residual notion. The goods of the holder that have not been affected especially integrate the residual patrimony, general guarantee of the creditors and attribute of the personality. Any subject, even lacking of goods, or with all affected goods, is holder of a patrimony (residual and in power). On the other hand the residual patrimony will be confused with the general patrimony when the holder has not affected some for separated patrimony well. He is unique and indivisible.

Independent patrimony
The senses are diverse that occur to the independent patrimony, thus some authors indicate that it will be that one set of rights and obligations that is not imputed a certain legal person, which is unacceptable in our legal ordering, because it does not conceive the existence of rights and duties that are not imputed a natural or legal person For a sector of the doctrine, the denomination alludes to a separate and new patrimony with an own collective subject, or at least, with own purposes, awaiting recognition and which independent rights and obligations affect. Before the existence of the person to which the patrimony will be assigned, the autonomy is only factual in sense that the goods do not stop remaining to the beings contribute that them. Straight understood, the autonomy does not verify when the patrimony belongs to a certain subject submissive a special regime (patrimony of minors and prohibitions, by. example), but is conceivable in the hypotheses in that still lacking or is uncertain the subject (case of the lying inheritance, of the goods of the absentee, the goods destined to a foundation to constitute, but of which the particular bases settle down). The subject will happen and the law organizes the conservation and administration of the patrimony until then. I. occurs to the name of independent patrimonies destined or in administration to those sets of goods and rights to those who it lacks the holder or whose holder temporarily remains stranger. When lacking titling or remaining this one stranger the nexus between the elements of these patrimonies derives or of the ownership that previously had corresponded to a person, or of the destiny to that they are affected. Main patrimonies of this category between us are: 1 the patrimony of the person who is to be born (nasciturus); but that has been only conceived (conceptus) or that there will be to be it (concepturus). 2 the patrimony of the absentee. As much of the absentee as of conceptus and concepturus

reference in the first course of Civil Right became. 3 the patrimony of the lying inheritance, that is to say, of the inheritance whose heir or heirs does not know themselves or whose testamentary heirs or ab intestato have resigned to her and that has still not been declared vacant (c.c., arto 1,060). Vacanta must be pronounced by the past Judge who is a year after fixed the edictos that the law anticipates without to have presented/displayed nobody protesting essentially right to the lying famous inheritance (C.C., arto 1065). The study of the regime of the lying inheritance corresponds to the Right of the Successions. They are common characters to the patrimonies before indicated: 1 The fact that they are destined to have a holder and a well-known holder even though at present lack titling or the holder is not known. 2 Is subject to a temporary regime of administration while the nonexistence or ignorance of its holder lasts. 3 Except for the patrimony of the absentee who is always a separated patrimony is rather part of general patrimonies that become separated when the person of her holder defines itself.

The patrimonial responsibility


The handled slight knowledge previously demonstrate the ambiguity to that it leads all attempt to construct a doctrine of the patrimony on a base of articles 1,863 and 1,864 of the Civil Code. Such devices are - exactly the founding of the patrimonial responsibility, that is to say, the subjection to the reactive effects of the legal ordering against the adverse conduct to the prescribed one by having legal. Said in other terms, the mentioned articles accomplish a mission of estatuir that the goods - or more concretely, the legal-patrimonia set of relations inserted them in the patrimonial assets of the forced one are exposed to the power of aggression of the pretensile subject, given the hypothesis of a conduct of the forced one, opposite when having that envelope gravitates yes. A person (the indebted one), consequently, responds with all goods when their action or its omission constitutes the budget of a sanction. In the sphere of the contractual responsibility, for example, such conduct is materialized in the breach of the benefit involved in the legal relation born from the contract. Before that eventuality a power from aggression of the creditor against the inserted goods of the forced one in its patrimony arises, authorizes which it to obtain an uprising of the competent jurisdictional organisms, directed to obtain the sum of money sufficient to repay the experienced damage. In the area of the extra-contractual illicit fact, the conduct of the material author of the damage allows to direct against him a sanction that is solved by regulating, and in last term, in the execution of goods sufficient of the patrimony to overwhelm the pretensions with the victim (compensation of the damage). The responsibility, for that reason; she is conditional to the breach of having in charge of the indebted one. For the traditional doctrine, the responsibility is a true obligation that allows the creditor to attack the goods (patrimonial) of the indebted incumpliente if the voluntary execution has not taken place. The compensation of the damages, by means of the payment of a monetary sum, will operate by a judicial uprising (of sentence) attainable on the goods of the indebted one. But not solely on the goods that existed for the moment at which it was born to have to render, but, also, it builds those that are in the patrimony when carrying out the execution. This way, the legal guarantee represented by economically assessable elements updates by virtue of the conferred actions the creditor.

They are, or they can be, guarantors: the goods of the direct author of the fundante fact of the responsibility, or those of a third party (like in the assumption of the call responsibility by the other people's fact, for example). The preceding exhibition does not mean that all the goods incorporated to the patrimony are put under the typical rules of the responsibility. The legal ordering allows to remove one or several goods the pointed consequences (therefore unattachable and the declared ones, generally, outside the common article of the creditors). The observations spilled in this section reveal the necessity to print a less distant content of the technical exigencies to the present articles 1,863 and 1,864, in a future reform of the Civil Code (similar, perhaps, to the guide that provide articles 2,740 and 2,741 of the Italian Civil C6dlgo of 1942, or article 601 of the Portuguese Civil Code of 1966, in use from the 1,0 of June of 1967).

Subrogation actions
The people we must right to freely handle, to prepare and to administer our patrimony; nevertheless, the creditors also must right to preserve and to protect their guarantee (the guarantee of the general creditor is the patrimony of its indebted one); but, if the patrimony of the indebted one is running risk of diminishing itself of insolvency and in addition the indebted one is negligent in the exercise of its actions, the legislator allows the general creditor who exerts the actions that correspond to the indebted one. This it is the sense of Article 1278 of the Civil Code that represents the legal foundation of the Subrogation action: The creditors can exert, for the collection than he must to them, the rights and the actions of the indebted one, except the rights that are exclusively inherent to the person of the indebted one. The creditors are only authorized to send against a third party, exerting under the action form a right pertaining to the indebted one. One assumes then, that the indebted one has an action to exert (like acquiring a credit, vindicating or, a etc.), also supposes that this action is in danger to be extinguished, or as a result of the prescription or by the contest next of the subject to her and that the indebted holder of this action does not exert it is going and it to let perish, his creditor will act in his place and will exert those rights to name of him. So that if the legislator has allowed the inherencia of the general creditors as far as the handling of the patrimony of the indebted one only does in case this one is insolvent and in addition it neglects the exercise of his actions, causing to him a damage. Through exercise of this action, the creditor does not replace the indebted one, because this one legally continues tie to its indebted one, the creditor only exerts the right of his indebted one, for that reason is a subrogation action and in addition conservatoria is an action, because the creditor does not try to be pleased his credit, but to conserve the patrimony of the indebted one. All the rights of the indebted one cannot more be object of the subrogation action. This comes in those actions that have patrimonial content, as the case of the acceptance of an inheritance repudiada or resigned by the heir (Art. 1017 of the Civil Code); but, it will not have effect in those actions of the indebted one that can give rise to the constitution of a new legal situation (like accepting a supply of sale by the indebted one, to rent by a price superior a good of the indebted one, because it would be inmiscuira in the administration of the goods of his indebted one). Some actions of patrimonial content exist that nevertheless cannot be exerted by the creditor as the credits inembargab1es (collection of food pension). The inherent actions to the same person

of the indebted one could not be exerted (revocatory of donation because of ingratitud of the donatario, originating action for damages of a moral damage, separation of goods between spouses). So that it prospers the exerted subrogation action, the following requirements must fill:

It is required that interest on the part of the creditor exists, something that does not happen when the indebted one is reliable. Therefore, the insolvency of the indebted one, creates interest on the part of the creditor. It is required that the indebted one is negligent in the exercise of their actions leaving them to perish or to prescribe. The credit must be certain, liquid and indispensable (the insolvency makes the credit indispensable). It is not necessary that the credit against the third party, is previous, does not matter that is later, because conservatoria is an action. The right ones neglecting by the indebted one must be patrimonial, therefore the personal are excluded extrapatrimonial and.

The effects of the subrogation action summary in the following thing: a) The result of the action takes advantage of all the general creditors, because the patrimony of the indebted one is the common article of its creditors.

b) The creditor does not obtain the payment of his credit, only obtains that the payment enters the patrimony of the indebted one, soon will try his executive action.

Pauliana action
The assumption of the pauliana action arises when a indebted one, with the purpose of to avoid execution on its goods, alienates everything or leaves from them for a third party, with the intention of to defraud its creditor. So that the purpose of the action is in obtaining the revocatory one of the acts celebrated by the indebted one in fraud of the rights of the creditor. The legal foundation of this action is predicted in Article 1279 of the Civil Code: The creditors can attack in their own one names the acts that the indebted one has executed in fraud of its rights The requirements so that the action comes are:

They must indeed have carried out these acts (sale, cession, donation, resign, mortgage, etc.), since if the conducted act is only apparent, the action comes from simulation. The real loosening of the goods or rights has left to the indebted one in insolvency state or has increased the one that already existed. when not being able to make against its obligation and salary stopped in payments. Eventus is the call damni, because is evident the damage suffered by the creditor. The consilium fraudis, that is the fraudulent agreement between indebted and the third party, is the subjective element of the pauliana action. That the creditor has interest in the exercise of the action (the indebted one he must be insolvent). The credit must be certain, liquid and indispensable (the indebted one must know what

must and why it must, the quantity must be certain or can be gotten to determine in brief term, the insolvency of the indebted one makes expire the term).

The credit must be previous to the fraudulent act. The later creditors cannot try the action because he presumes himself knew the patrimonial situation the indebted one.

The acts of indebted the insolvent one that can be attacked by the exercise of the Pauliana Action are: 1. The acts executed in fraud of the rights of the creditor and indicated in Article 1279 of the Civil Code. 2. They are excluded the acts that do not constitute impoverishment (the repudiation of the inheritance is an act that constitutes impoverishment, for that reason its acceptance is allowed him the creditor. in accordance with Article 1017 of the Civil Code). 3. The creditor can make merit the prescription when the indebted one resigns to her (Art. 1958 of the Civil Code). 4. The payment realized by the indebted one, can raise the following situations:

When a simulated payment becomes, simulating a debt COI1 a third party and pays to this apparent creditor, is not due to exert the pauliana action, but the action of simulation. If the payment of a true debt takes place, this act cannot be opposed. If the debt is certain, but it pays before his victory, the creditor is legally forced to give back to the mass of creditors which was given to him. The action to the acts of the indebted one is not admitted that fall on unattachable properties (interest in the action does not exist). The action is not admitted when the act falls on inherent rights to the person (repair of moral damage).

The effects of exerted the Pauliana Action are the following: A) The creditor obtains the revocatory one of the fraudulent act. The creditor must right to obstruct to the third party the good alienated by his indebted one, as if he was still in the power of this one last one; the exit of this good of the patrimony that served to him as guarantee, stops being for him an obstacle. B) This revocation is partial and it is declared solely in his interest. The restituted value does not enter the patrimony of the alienating one and by the same it does not return to comprise of the common guarantee of his creditors, it only can be distributed enters the deserving plaintiff and those that were associated to him in their managements. C) It is not considered extinguished the fraudulent act in the relations of the third party with the indebted one, with respect to this one must produce all effects.

Action of simulation
When the indebted one, instead of to carry out a real act, pretends that it carries out certain legal transactions, which diminish their patrimonial assets or increase their liabilities, in order gives! an insolvency image that allows him to avoid the fulfillment of its obligations, exists simulation. The simulation can be absolute and relative. He is absolute, when the parts pretend to have

celebrated an act that does not exist in form some (as the case of the mandators, being placed the property of a thing to name of a person who has in fact not acquired it). She is relative, when a determined act has been realized, but the parts have simulated determined conditions of this act (for example. they have simulated a sale when in fact a donation has been made). The Venezuelan Civil Code in Article 1281, establishes the Declaratory judgment action of Simulation, in the following terms: The creditors can also request the declaration of simulation of the acts executed by the indebted one. This action lasts five years to tell from the day in that the creditors had the news of the simulated act. The simulation, once declared, does not produce effect to the detriment of the third parties, that not having knowledge of her, they have acquired right on the buildings prior to the registry of the demand by simulation . In all simulation there are two agreements of wills. First, confidential secret and - that can be verbal, but that of ordinary is written - intends to agree to pretend a later act and to declare that this one does not have real existence some or has diverse nature of the apparent one, reason why it would not have to produce the corresponding legal effects; and that, if so will be destroyed at the request of anyone of the parts. The document where slogan is known like contradocumento (Article 1362 of the Civil Code). The second, is the act witnessed by notary public and pretends that it has been simulated by the parts and that reality does not contain some or has a diverse nature of which it shows. The Declaratory judgment action of Simulation can be exerted by any previous creditor or subsequent to the simulated act, since with his exercise it is tried to make state what is true the patrimonial situation of the indebted one. It is because declaratory judgment action, not tends to revoke no act, tends simp1emeote, to that it is stated which is the patrimony of the indebted one, declares the existence of a pretended act that has been realized under the appearance of a valid legal transaction. Also conservatoria is an action because it persecutes to state that certain or or it has straight not left in fact the patrimony of the indebted one, consequently the integrity of the same stays. Unlike the two previous actions, to exert the Action of Simulation it is not required that the credit is indispensable, because is not to execute the credit, but it only is to demonstrate the patrimonial situation, and for this reason, this action takes advantage of the other creditors. Of the explained thing previously, the differences between these actions can settle down:

The pauliana action combat acts really conducted; the simulation action attacks fictitious acts and in the subrogation action the indebted actions of the negligent one are exerted. The exercise of the subrogation actions and pauliana is reserved to the creditors. Although it does not establish our Civil Code directly, the simulation action can be tried by any interested third party, although he is not deserving, for example, when under they break laws of public order, therefore the Public Ministry when the simulation affects the Public Property, also can be tried by own the indebted one that realized the simulated act and by its assignees for a reason or purpose universal. The subrogation actions and pauliana require that the indebted one is in insolvency state and that the credit is indispensable. whereas in the simulation action the demandability of the credit is not required, since it does not have as an aim to make the credit effective.

The pauliana action requires that the credit is previous to the fraudulent act; whereas in the subrogation actions and of simulation, it does not matter if the credit is previous or later.

Bibliography
Aguilar Real G., J. (2001) Things Goods and Rights (Straight Civil II) Second Edition. Caracas, Ex- Editorial, a.c. Venezuelan Civil code. (1982). Official newspaper of the Bolivariana Republic of Venezuela, 2990 (Extraordinary), June 26, 1982. Garay J. and Garay M. (2004) Code of Written down Commerce. (2004). Fifth Edition. Caracas. Editions Juan Garay Gratern Real G., Ms. Goods and Rights (Straight Civil II) Second Edition. Caracas. Kummerow G. (1990). Real compendium of Goods and Rights (Straight Civil II) the Third Caracas Reprinting. Publishing walls limited liability company.