Disposal of a Minor’s Property Without Court Authorization Null And Void Or Voidable

16 September 2010

Until April 2010, the Supreme Court case law had not uniformly ruled on the effects of disposal, without court authorization, by the minor’s custody holder.

On the one hand, there were those in favour of complete nullity as envisaged in article 1. 261 CC, as it was deemed to be an nonexistent action due to the lack of one of the essential requirements (consent) and because it goes against an imperative rule (the Civil Code); while on the other hand, there was a defence of the nullity envisaged in article 1.259 CC, since it was deemed that it was an action which exceeded one’s authority. A third opinion deemed it voidable, and considered that the act was consented to, but that said consent was defective and had to be complemented.

Ruling no. 225/2010 of April 22, 2010, unified case-law by declaring that an act of disposal undertaken without court authorization by the custody holder for a minor is incomplete. The agreement has a provisional effectiveness but, in order to be definitively effective, it must be ratified by the minor in question, once they have the legal capacity. This ratification can be express or tacit.

This is not a case of absolute nullity that cannot be subject to validation, but rather an agreement which is not considered definitive in view of the lack of the legally required court authorization. Said authorization can be provided afterwards by the interested party’s ratification. However, if the act is not ratified by the individual, it will be considered nonexistent and, therefore, shall be penalized with nullity.

For further information please contact Ana Lizano: alizano@mmmm.es