Earnings company: Qualification of assets

In order to be able to determine, at the time of proceeding to liquidation, what are the assets that make up the property company and correctly prepare its assets and liabilities, it is necessary to analyze, first, what assets are exclusive to each spouse and which have the character of ganaciales.

I. Private assets

They should be considered proprietary:

Property and property rights at the beginning of the company
Those that were already possessed when contracting marriage or before beginning the regime of society of marital property, that is to say, those acquired in a state of singles or in regime of separation of goods and that have not been donated to society.

Goods acquired by free title
Donations and assets left in will are included among these assets.

Donations made to one of the spouses, whether inter-living or by will, are private, as long as it has been expressly provided. Otherwise, the presumption of gain of the donations made to the marriage governs, unless expressly provided by the donor.

Goods acquired at the expense or in substitution of private goods
Those acquired by one of the spouses with money obtained by the sale of a private asset, taking into account the principle of real subrogation.

In this sense it is considered exclusive, for example, the furniture acquired in the marriage to replace the furniture of one of the spouses that has been damaged by its use.

Assets acquired by right of withdrawal of one of the spouses
This figure, generally applicable to the retraction between heirs, villagers or neighbors, as well as to the leases of housing or business premises, can be exercised by one of the spouses, because the right corresponds to having acquired it before the company of property.

Assets and property rights inherent to the person
In this case there seems to be a contradiction between assets and rights inherent to the person and their patrimonial nature, since it would appear that if such assets and rights are inherent to the personality, they could not have a patrimonial character.

Non-communicable rights “inter vivo”
Within the analysis of them, the discussion about their patrimonial character is raised again. It should be understood that the right to retirement is included here. Also the right of pensions. The same consideration must be made, as the pensions received during the validity of the society of property, will enjoy this character.

Compensation for damages inferred to the person of one of the spouses
It corresponds to any compensation that has as its object the repair of a damage caused in the private sphere, so it must also have such character. Among such compensation are the following:

• for injuries or damages;
• by dismissal.

Compensation for damages caused to private property
In this case, we must distinguish:

1. If the damage affects the essence of the thing itself, it seems clear that being the exclusive asset the compensation should also be: compensation for forest fire with loss of trees, flooding, etc.
2. If the damage affects the fruits of private property, it seems more appropriate that the compensation of the damage be earned. It is understandable, for example, with agricultural insurance, called harvest, in which there is no doubt that if compensation is received for the fruits not received for the damage caused in the private asset, it would have a gain character, since the fruits of private assets, are gain: Compensation for loss of harvest due to flood, frost, etc.
3. With respect to subsidies for the exploitation of private assets, they have been attributed privatively – thus, to the subsidy granted by IRIDA to one of the spouses to improve privately owned farms. The same treatment has the European subsidies granted to a spouse for the conversion of their farms, as they are not intended to help production, but to improve property.

Clothes and objects of personal use that are not of extraordinary value
When one of the spouses dies, the clothes, furniture and equipment that constitute the garment of the common habitual residence of the spouses, they are awarded to the survivor, without counting it to his credit. The jewels, artistic, historical and other objects of extraordinary value are not included in the trousseau. Likewise, in case of dissolution of the marital property regime, each spouse has the right to be included with preference, to the extent of this, personal property not included in the consideration of private property because it is of extraordinary value.

Instruments necessary for the exercise of the profession or trade
The instruments necessary for the exercise of the profession or trade are exclusive, except when these are an integral part or belongings of a common establishment or exploitation.

Thus, the instruments necessary for the exercise of the profession or trade are exclusive, even if they have been acquired at the expense of the company of property, although it is creditor to the spouse for the amount paid for its acquisition.

In case of liquidation of the company of marital rights, the spouse has the right to be included in his credit the agricultural, commercial or industrial exploitation that he had taken with his work and the place where he had been exercising his profession. In this second case, industrial exploitation is a preferential property of a preferential nature when it is awarded to a spouse.

Proprietary Credit Rights
The private credit rights, although the terms are charged during the validity of the company of property, remain private. Although the amounts corresponding to capital are exclusive, the interest earned is earned.

Shares and shares subscribed with private assets
The new shares and other corporate titles or shares subscribed as a result of the ownership of other privative ones, are also exclusive. So are the amounts obtained by the alienation of the right to subscribe.

Goods acquired for deferred price whose first disbursement was exclusive
The property acquired by deferred price whose first disbursement was privative, is private, although the following terms are satisfied with gain money.

Goods purchased in installments by one of the spouses before starting the partnership
The property purchased by one of the spouses before the start of the partnership is exclusive, even if all or part of the deferred price is satisfied with gain money.

Buildings, plantations and improvements on private assets
The buildings, plantations and any other improvements that are made in the private property are exclusive, without prejudice to the reimbursement of the capital paid by the company of property. However, the company of the property company is creditor of the increase of the value that the goods have as a result of the improvement, at the time of the dissolution of the company or the alienation of the improved good.

Capital increases incorporated into a holding, commercial establishment or other type of company of a private nature
If the capital increases incorporated into a holding, commercial establishment and other type of company of a private nature, have been made with gain money or with the activity of the spouse, they are private, but they also give the right to a refund on the increase in value as a consequence of the improvement.

Donations due to marriage
Due to a future marriage, donations can be made:

a) By third parties: any person can make donations for one or both spouses by reason of marriage. These acts of liberality are carried out in consideration of the future marriage and before its celebration, so they do not have the character of marital property.

b) Among the future spouses: these gifts are conceived as donations by reason of marriage, so if said marriage does not take place within one year, these donations are without effect.

II. Commercial property

They are gain goods:

Goods obtained by the work or industry of either spouse
For the work of either spouse, it is necessary to understand any activity that generates income, including creative or intellectual activity. Although the copyright is proprietary, the income that it generates during the validity of the society of profits, is gainable.

Fruit, income or interest of goods
They are gancial:

• rentals of private goods;
• benefits of private companies or commercial establishments;
• pensions received during the property company, even if the right is exclusive;
• interests of private compensation: dismissal, accidents, etc .;
• interests of funds, accounts, etc., of a private nature.

Goods obtained for consideration at the expense of the common flow
The goods that are obtained for consideration at the expense of the common flow, whether the acquisition is made for the community, or for only one of the spouses, are gainful.

This assumption includes again the principle of real subrogation: if the satisfied money has a common character, the good acquired at its expense enjoys the same consortial character.

Goods acquired by right of withdrawal of a gain nature
The assets acquired by right of withdrawal of a gain nature, even if they were with private funds, in which case the company is indebted to the spouse for the value satisfied.

Companies and establishments founded during the validity of the company
The companies and establishments founded during the validity of the company by any one of the spouses at the expense of the common goods are marital.

If the formation of the company or establishment includes private capital and common capital, the following applies: assets acquired in part by private property and partly private, correspond to the property company and the spouse in proportion.

Assets acquired by means of a price that is partly earned and partly private
The assets acquired by means of a price or consideration in part of the property and in part privative, correspond to the property company and the spouse or spouses in proportion to the value of the respective contributions.

Assets acquired by spouses for consideration
The assets that the spouses acquire for consideration during the marriage, regardless of the origin of the price or consideration and the manner and terms in which it is satisfied, provided that the spouses, by mutual agreement, attribute the status of property to them as gain.

Goods acquired by one of the spouses at deferred price
The assets acquired by one of the spouses, the company constant by deferred price, are profitable, if the first disbursement had such character, although the remaining terms are satisfied with private money. The spouse is entitled to reimbursement for the money invested in the property.

Buildings, plantations and other improvements in property
They are earned, without prejudice to the reimbursement of the satisfied value, if it was made with the private money of one of the spouses.

If the land or the good on which the buildings are built is gainful, the building has that character.

Likewise, the improvement made on a gain property is for the benefit of society.

The spouse who contributed private money to make the improvement or building, is a creditor in front of the company of property for the satisfied value, which will be determined to the liquidation of the company, which does not entail difficulty provided that the private origin of the investment.

Capital increases on property
As with the capital increases produced in private assets with marital money, it is also allowed the valuation of the capital increase over a marital property with private money of one of the spouses, in which case it should be computed in the liabilities of the company a Credit right against the creditor spouse.

Goods donated or left in will to the spouses without special designation of parties
Assets donated or left in will to the spouses without special designation of parties, constant society, are understood to be marital, provided that the liberality was accepted by both and the donor or testator had not provided otherwise.

1. Inventory of the liquidation of the property company.
2. Lease inherent to the performance of office or function.

b) Leases of business premises. Regarding these leases, it is worth highlighting:

1. Lease of the subscribed premises during the validity of the company of property whose business is jointly operated by both spouses: the lease belongs to the company of property and is awarded to the one to whom the operation of the business is awarded to its liquidation.
2. Lease of premises for the operation of a business owned by only one of the spouses.

Goods acquired by the spouses after the de facto separation
According to the general principle of the presumption of gain, said assets would have a gain character. However, as the Supreme Court has recognized, the company of property companies would have been dissolved after the de facto separation, in which each spouse would have had separate assets and economies and an unequivocal will to end the matrimonial economic regime.