LAW 1/2000, OF 7 JANUARY, ON

CIVIL PROCEDURE

2015
 Colección: Traducciones del Derecho Español

Edita
Ministerio de Justicia
Secretaría General Técnica
NIPO
051-15-045-4
ISBN
978-84-7787-434-8
Actualización
Linguaserve
Maquetación
Subdirección General de Documentación y Publicaciones

Incluye las modificaciones introducidas por la Ley 42/2015 de 5 de octubre.

“El presente texto es una traducción de un original en castellano que no tiene carácter oficial en el sentido
previsto por el apartado 1º) artículo 6 del Real Decreto 2555/1977, de 27 de agosto, por el que se aprueba el
Reglamento de la Oficina de Interpretación de Lenguas del Ministerio de Asuntos Exteriores y de Cooperación.”
 LAW 1/2000, OF 7 JANUARY, ON CIVIL PROCEDURE

(«OFFICIAL STATE GAZETTE» No. 7, of 8 January 2000; correction of errors in OFFICIAL

STATE GAZETTES numbers 90, of 14 April 2000, and 180, of 28 July 28 2001)

PRELIMINARY TITLE
ON PROCEDURAL RULES AND THEIR IMPLEMENTATION

Article 1. The principle of procedural legality.

In civil procedure, the courts and those who appear and act in court shall
act in keeping with the provisions herein.

Article 2. Application of civil procedural rules in time.

Unless otherwise stipulated in the legal provisions of transitory law, the

cases which correspond to the civil courts shall always be substantiated
by these in keeping with the procedural rules in force, which shall never be
retroactive.

Article 3. Territorial scope of civil procedural rules.

With the sole exceptions which may be stipulated in international treaties

and conventions, civil procedure taking place in Spain shall only be
regulated by Spanish procedural rules.

Article 4. Supplementary nature of the Civil Procedural Act.

In the absence of provisions in the laws which regulate criminal,

contentious-administrative, employment and military proceedings, the
provisions herein shall apply to all of these.

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 Book one . On the general provisions concerning civil trials

BOOK ONE
ON THE GENERAL PROVISIONS CONCERNING CIVIL TRIALS

TITLE ONE
ON COURT APPEARANCE AND PROCEDURE FOR TRIALS

Article 5. Classes of jurisdictional protection.

1. The following may be sought from the courts, a ruling to perform a

certain service, the declaration of the existence of rights and judicial
situations, the constitution, modification or expiry of these, enforcement,
the issuance of injunctions and any other form of protection which is
expressly stipulated in law.

2. The pleas referred to in the preceding paragraph shall be made before

the competent court and against the parties which are to be affected by the
ruling being sought.

CHAPTER ONE
ON THE CAPACITY TO BE A PARTY, THE LEGAL CAPACITY TO SUE
OR PLEAD, AND STANDING

Article 6. Capacity to be a party.1

1. The following may be parties in the proceedings before civil courts:

(i). Natural persons.
(ii). Those conceived but not born, to all those effects favourable to
such person.
(iii). Legal persons.
(iv). Estate or separated estate which temporarily lacks an owner or
whose owner has been deprived of his powers to dispose of and
administer this.

1
Item added by Act 39/2002, of 28 October.

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 Law 1/2000, of 7 january, on civil procedure

(iv). The entities lacking legal personality which the law recognises as
having the capacity to be a party.
(vi). The Public Prosecution Service with regard to proceedings in
which, in accordance with law, it must act as a party.
(vii). The groups of consumers or users affected by a damaging event
when the parties which compose this are determined or easily
determined. In order to lodge a claim in court, the group must
necessarily be constituted by the majority of those affected.
(viii). The entities authorised pursuant to European Community
Regulations to exercise cessation in defence of collective interest and
the diffuse interest of consumers and users.

2. Notwithstanding the liability which, according to law, may correspond to

the managers or the participants, in any case, claims may be placed
against the entities which have not complied with the legally established
requirements to be constituted as legal persons and are made up of a
multiplicity of personal and asset components placed at the service of a
specific objective.

Article 7. Appearance in court and representation.2

1. Only those who fully exercise their civil rights may appear in court.

2. Natural persons not included in the case of the preceding paragraph

must appear by representation or with the assistance, authorisation, and
empowerment, or by the defender required by law.

3. With regard to those conceived and not born, the persons who would
legitimately represent them if they had been born shall appear.

4. Those who legally represent legal persons shall appear.

5. Estates or separated estates referred to in number 4 of paragraph 1 of

the preceding article shall appear in court represented by those who
manage these, pursuant to law.

6. The entities lacking personality referred to in number 5 of paragraph 1 of

the preceding article shall appear in court represented by those to whom
the law attributes this representation.

2
Paragraph added by Act 22/2003, of 9 July.

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 Book one . On the general provisions concerning civil trials

7. With regard to the entities with no personality referred to number 7 of

paragraph 1 and in paragraph 2 of the preceding article, the persons who,
in fact or due to agreements made by the entity act on its behalf with
regard to third parties, shall appear in court.

8. The limitations to the capacity of those in temporary receivership and

the manners to make up for them shall be regulated by what is established
in Bankruptcy Act.

Article 8. Integration of the legal capacity to sue or plead.3

1. When an individual is involved in the case mentioned in paragraph 2 of

the preceding article and there is no person to legally represent or assist
them to appear in court, the clerk of the court shall issue an order appointing
a counsel for the defence who shall assume the representation and
defence, until such a representative is appointed.

2. In the event referred to in the preceding paragraph and in any others

which involve the appointment of a counsel for the defence of the
defendant, the Public Prosecution Service shall assume the representation
and defence until such counsel is appointed.

In any case, the proceedings shall be suspended until the Public

Prosecution Service intervenes.

Article 9. Ex officio appreciation of the lack of capacity.

The lack of capacity to be a party and the lack of the legal capacity to sue
or plead may be ex officio appreciated by the court at any time during the
proceedings.

Article 10. The condition of legitimate party to the proceedings.

Legitimate parties shall be those who appear and act in court as parties to
the judicial relationship or the matter in dispute.

The cases in which, by law, standing is attributed to a person other than

the party are excepted.

3
Section 1 is amended by final provision 3.1 of Law 15/2015, of 2 July.

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 Law 1/2000, of 7 january, on civil procedure

Article 11. Standing for the defence of the rights and interests of consumers
and users.4

1. Notwithstanding the individual standing of those aggrieved, legally

constituted associations of consumers and users shall be authorised to
defend the rights and interests of their members and of the association in
court, as well as the general interests of consumers and users.

2. Where the aggrieved in a harmful event are a group of consumers or

users whose members are perfectly determined, or are easily determined,
authorisation to seek to protect such collective interests falls to the
associations of consumers or users, legally incorporated entities that have
the defence or protection of the latter as their object, and the affected
groups themselves.

3. When those aggrieved by an event are an undetermined number of

consumers or users, or a number difficult to determine, the standing to
bring proceedings in defence of these diffuse interests shall correspond
exclusively to the associations of consumers and users which, in
accordance with the law, are representative.

4. The authorised entities referred to in Article 6.1.8. shall be authorised to

exercise an action for an injunction for the defence of the collective
interests and the diffuse interests of the consumers and users.

Judges and Courts shall accept this list as proof of the capacity of the
authorised entity to be a party, without prejudice to examination of whether
bringing an action is legitimised by the aims of the entity and the interests
of the affected parties.

5. The Public Prosecution Service is authorised to take any action to

defend the interests of consumers and users.

Article 11bis. Standing for the defence of the right to equal treatment for
men and women.5

1. For the defence of the right to equal treatment for men and women,
besides those affected and only with their authorisation, Trade Unions and
legally constituted associations whose primary objective is the defence of

4
Section 4 is amended and section 5 is added by additional provision 2 of Law 3/2014, of 27 March.
Paragraph 4 added by Article 1.2 of Law 39/2002 of 28 October.
5
Article added by Organic Act 3/2007, of 22 March.

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 Book one . On the general provisions concerning civil trials

equal treatment for men and women shall be legitimised with regard to
their affiliates and members, respectively.

2. When those affected are an indeterminate number of persons or a

number difficult to determine, the standing to lodge a claim in court in
defence of these diffuse interests shall correspond exclusively to the public
bodies with competence in the matter, to the more representative Trade
Unions and to the associations at State level whose primary objective is
equality between men and women, notwithstanding their procedural
standing if those affected are determined.

3. The person harassed shall be the only person with standing in cases of
sexual harassment or gender harassment.

CHAPTER II
ON THE MULTIPLICITY OF PARTIES

Article 12. Joint litigation.

1. Several persons may appear in court as claimants or defendants when

the actions are due to a single claim.

2. When the jurisdictional protection sought may only become effective

with regard to several parties considered as a whole, all of these shall
have to be claimed against as co-litigants unless otherwise expressly
stipulated by law.

Article 13. Intervention of parties who are neither claimants nor

defendants.6

1. While proceedings are pending, whoever accredits a direct and

legitimate interest in the outcome of the case may be considered to be
admitted as a claimant or defendant in the case.

In particular, any consumer or user may intervene in proceedings lodged

by legally recognised entities in defence of the interests of these.

2. The application for supervision shall not suspend the course of the
procedure. The court shall resolve in proceedings, once the parties have
been heard, within a period of ten days.

6
Paragraph worded in accordance with Act 13/2009, of 3 November.

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 Law 1/2000, of 7 january, on civil procedure

3. When the supervision has been allowed, there shall be no reactive

action, but the party involved shall be considered to be a party to the
proceedings and shall be able to defend the pleas formulated by the
co-litigant or those formulated by the person intervening if this might
procedurally be allowed even though the co-litigant waives, accepts,
desists or abandons the proceedings due to any other reason.

The party acting shall be also be given permission to make the pleas
required for his defence which he might not have made as they
corresponded to procedural times prior to their admission to the
proceedings. In any case, the Court Clerk shall notify the other parties of
these pleas within a period of five days.

The party acting may also use the appeals possible against the decisions
he considers to be damaging to his interests even though his co-litigant
consents to these decisions.

Article 14. Intervention of parties who are neither claimants nor

defendants.7

1. In the event that the law permits the claimant to call a third party to
intervene in the proceedings, without being considered to be a defendant,
the application for intervention must be included in the claim unless the
law expressly states otherwise. Once the third party is given permission to
enter the proceedings by the court, they shall have the same powers to act
as the law grants to the parties.

2. When the law permits the defendant to call a third party to intervene in
the proceedings, procedure shall be in accordance with the following rules:
(i). The defendant shall request the court to notify the third party of the
case in dispute. The request must be submitted within the time limit
granted to respond to the claim.
(ii). The Clerk of the Court shall order the interruption of the time limit
to respond to the claim with effect from the day on which the request
was submitted and shall agree to hear the claimant within a period of
ten days, and the court shall resolve by order as appropriate.
(iii). The time limit granted to the defendant to respond to the claim
shall be resumed by notifying the defendant of the dismissal of their
request or, if it is accepted, with the notification of the response

7
Section 2 is amended by single article 1 of Law 42/2015, of 5 October.

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 Book one . On the general provisions concerning civil trials

submitted by the third party and, in any case, on the expiry of the time
limit granted to respond to the claim.
(iv). If the third party appears and the respondent considers that their
place in the proceedings must be occupied by the third party, procedure
shall be in accordance with the provisions of Article 18.
5. In the event that the third party is absolved by the judgment, the
costs may be imposed on whoever sought their intervention in
accordance with the general criteria of Article 394.

Article 15. Announcement and intervention in proceedings for the

protection of collective and diffuse rights and interests of consumers and
users.8

1. in the proceedings lodged by associations or entities constituted for the

protection of the rights and interests of consumers and users or by groups
affected, those who have been damaged due to being consumers of the
product or users of the service which gave rise to the proceedings shall be
called to appear in order to assert their individual rights or interest. This
call shall be made by the Court Clerk, who shall announce the admission
of the claim in the media with territorial coverage where the damage to
these rights or interests has occurred.

The Public Prosecution Service shall be a party to these proceedings

when social interest justifies this. The court which knows of these
proceedings shall notify the Public Prosecution Service of their
commencement in order to evaluate its appearance

2. When the proceedings involve determined or easily determined

damaged parties, the claimant or claimants must have previously notified
those concerned of their intention to lodge a claim. In this case, after the
call, the consumer or user may act in the proceedings at any time, but may
only conduct the procedural acts which have not been precluded.

3. When the proceedings involve damage to an indeterminate number of

persons or a number which is difficult to determine, the call shall suspend
the course of the proceedings for a time limit which shall not exceed two
months and which shall be determined by the Court Clerk in each case

8
Added to paragraph 1 for the final disposition 1 Act 29/2009, of 30 december.
Paragraphs 1, 2 and 3 of this article were worded in accordance with Act 13/2009, of 4 November,
except the second paragraph of section 1 which was included by Act 29/2009, of 30 December.
Paragraph 4 added by Act 39/2002, of 28 October.

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depending on the circumstances or complexity of the event and the

difficulties concerning the determination and localisation of those damaged.
The proceedings shall resume with the intervention of all the consumers
who have obeyed the call, and the individual appearance of consumers or
users shall not be allowed subsequently, notwithstanding the fact that
these may assert their rights or interests in accordance with the provisions
of Articles 221 and 519 herein.

4. The proceedings initiated through the exercise of a cessation action for

the defence of collective interests and the diffuse interests of consumers
and users are excepted.

Article 15 bis. Intervention in proceedings involving defence of

competition.9

1. The European Commission, the National Free Competition Commission

and the competent bodies of the autonomous regions, within their
jurisdiction, may intervene without the condition of parties, on their own
initiative or at the request of a judicial body, through the contribution of
information or the presentation of written comments on questions
concerning the application of Articles 81 and 82 of The Treaty of the
European Community or Articles 1 and 2 of the Free Competition Act. With
the approval of the corresponding judicial body, verbal comments may be
submitted. For these effects, they may request the competent jurisdictional
body to send or have sent to them any documents that are needed to
evaluate the case in question.

The contribution of the information shall not include the data or documents
obtained within the scope of the circumstances of application of the
exemption or reduction of the amount of the fines stipulated in Articles 65
and 66 on the Free Competition Act.

2. The European Commission, the National Commission on Free Competition

and the competent bodies of the autonomous regions shall contribute the
information or shall present the comments stipulated in the preceding
number ten days before the hearing referred to in Article 433 herein or within
the period for opposition or challenging the appeal lodged .

9
Article added by Act 15/2007, of 3 July.

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CHAPTER III
ON PROCEDURAL SUCCESSION

Article 16. Procedural succession due to death.10

1. When the transfer of the subject of the hearing is mortis causa, the
person or persons who succeed the claimant may continue to occupy his
position in the hearing for all purposes.

On notification of the death of any litigant by the party which succeeds him,
the Court Clerk shall agree to the suspension of the proceedings and shall
inform the other parties Once the death and the right to succession are
accredited and the pertinent formalities have been complied with, the
Court Clerk shall consider, in any case, the successor as appearing on
behalf of the deceased litigant and the court shall take this into account in
the judgement.

2. When the death of a litigant is known by the court responsible for the
case and the successor does not appear within a time limit of five days,
the Court Clerk, through an order to move the proceedings forward, shall
allow the other parties to request notification of the proceedings, with
identification of the successors and their addresses, requiring that they
appear within a time limit of ten days.

In this decision concerning the notification, the Court Clerk shall agree to
the suspension of the proceedings until the successors appear or the time
limit for appearing terminates.

3. When the deceased litigant is the defendant and the other parties do not
know the successors or these either cannot be located or do not want to
appear, the proceedings shall continue, and the defendant shall be
declared to be in contempt of court by the Court Clerk.

If the deceased litigant is the claimant and his successors fail to appear
due to any of the first two circumstances stated in the preceding paragraph,
an order shall be pronounced by the Court Clerk in which the claimant
shall be considered to have ceased his claim, the proceedings shall be
filed unless the respondent challenges this, in which case the provisions
set forth in the third paragraph of Article 20 shall apply. If the appearance

10
Article worded in accordance with Act 13/2009, of 3 November.

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of the successors is due to the fact that they do not wish to appear, it shall
be understood that the claimant waives the action.

Article 17. Succession by transfer of the matter in dispute.11

1. When the transfer has been carried out, pending a trial on its subject,
the acquirer may seek to be included as a party in the position held by the
transmitter by accrediting the transfer. The Court Clerk shall dictate an
order to suspend the procedure and shall grant a period of ten days to the
other party so that he might allege what he has the right to.

If this is not challenged within this time limit, the Court Clerk shall order the
case to be suspended and declare that the acquirer occupy the position of
the transferor in the case.

2. Within the time limit granted in the preceding paragraph, if the other
party states his opposition to the acquirer entering the case, the court shall
resolve what it considers to be appropriate by a court order.

The claim shall not be accepted when the party accredits that he has rights
or defence which, with regard to the subject of the trial, can only be
asserted against the party transferring, or a right to counterclaim, or a
counterclaim is pending, or if the change of party might seriously damage
the defence.

When the plea made by the acquirer is not accepted, the transferor shall
continue in the case, and the private judicial relationships between the
parties shall continue to exist.

3. The procedural succession arising from the transfer of property and

rights in litigation in bankruptcy proceedings shall be governed by the
provisions of Bankruptcy Act. In such cases, the other party may
efficaciously challenge the acquirer with regard to any rights and exceptions
which might correspond to him instead of the party in bankruptcy.

Article 18. Succession in the cases of provoked intervention.12

In the case referred to in rule 4 of paragraph 2 of Article 14, on the

application submitted by the defendant, the Court Clerk shall notify the

11
Paragraph 1 worded pursuant to Act 13/2009, of 3 November.
Paragraph 3 added by Act 22/2003, of 9 July.
12
Article worded pursuant to Act 13/2009, of 3 November .

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other parties so they might put forward the allegations corresponding to

them in law, within a time limit of five days, and the court shall decide what
is fitting concerning succession through an order.

CHAPTER IV
THE PARTIES’ POWER OF DISPOSITION OVER THE PROCEEDINGS
AND THEIR PLEAS

Article 19. The litigants’ right of disposition. Settlement and stay.13

1. Litigants are empowered to dispose of the matter at issue in the

proceedings and may waive, acquiesce, submit themselves to mediation
or arbitration and reach agreements on the matter at issue, except where
the Law should prohibit it or set forth limitations for reasons of general
interest or to the benefit of a third party.

2. Should the parties aim to reach a court settlement and the agreement or
accord they reach is in keeping with the preceding paragraph, it shall be
sanctioned by the court dealing with the matter in dispute with the aim of
bringing it to a close.

3. The actions referred to in the preceding paragraphs may be performed,

on the basis of their nature, at any time during the first instance, the
appeals or the enforcement of judgement.

4. The parties may likewise seek a stay of proceedings, which shall be

agreed upon by the Court Clerk through an order whenever it does not
harm the general interest or a third party and the stay does not exceed
sixty days.

Article 20. Waiver and abandonment.14

1. Where the claimant may state he is waiving the action or the right upon
which the pleas are grounded, the courts shall issue a judgement absolving
the defendant, except where such waiver is legally inadmissible. In such
an event, a court order shall be issued ordering the proceedings to
continue.

13
Paragraph 1 amended by final provision 3.1 of Act 5/2012 of 6 July.
Paragraph 4 worded in accordance with Act 13/2009 of 3 November.
14
Paragraph 3 of this article has been worded in accordance with Act 13/2009 of 3 November.

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2. The claimant may unilaterally abandon the claim before the defendant is
ordered to attend to tender a plea or summoned to trial. The claimant may
likewise unilaterally abandon the claim at any time where the defendant is
in default.

3. Once the defendant is ordered to attend, the document of abandonment

shall be transferred to the defendant with a time limit of ten days.

Should the defendant grant his consent to the abandonment or not contest
it within the time limit set forth in the preceding paragraph, an order shall
be issued by the Court Clerk agreeing upon dismissal of action and the
claimant may file a new claim on the same matter at issue.

Should the defendant contest the abandonment, the Judge shall issue a
judgement in accordance with what he may deem appropriate.

Article 21. Acceptance of claim.15

1. Should the defendant accept all of the claimant’s pleas, the court shall
issue a judgement against the defendant in keeping with the claimant’s
pleas. Nevertheless, should such acceptance of claim have been made in
abuse of law or against the general interest or to the detriment of a third
party, a court order dismissing it shall be issued and the proceedings shall
continue their course.

2. Should the acceptance of claim be partial, the court may, at claimant’s

request, immediately issue a court order upholding the pleas on the
matters at issue of such acceptance of claim. In order to do so, it shall be
necessarily be possible to issue a separate judgement on such pleas
without pre-judging the remaining matters at issue which have not been
accepted, regarding which the proceedings shall continue. This court order
shall be enforceable in accordance with the provisions set forth in the
Articles 517 and the following herein.

3. Should the acceptance of claim result from an undertaking for the

purposes of the settlement set forth in paragraph 3, Article 437 for eviction
proceedings due to the failure to pay rent or any amounts due, or to legal
or contractual expiry of term, the ruling sanctioning the settlement shall
state that, should the premises not be vacated within the time limit set forth
in the settlement, such settlement shall be rendered ineffective and the
party convicted shall be evicted without any further ado or notice on the

15
Paragraph 3 added by Act 19/2009 of 23 November.

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date and time set in the summons if it is subsequent to or on the date set
in such ruling.

Article 22. End of proceedings due to out-of-court settlement or ex-post

facto lack of cause. Special case rendering eviction ineffective.16

1. Where, due to a change in circumstances to the claim and the

reconvention, there ceases to be legitimate interest in obtaining the legal
protection sought, because the claims of the claimant and, as appropriate,
the counter-claimant are settled out of court, or for any other reason, this
circumstance will be declared and, if there is agreement between the
parties, the Clerk of the Court will decree the proceedings to have
terminated without giving an order as to costs.

2. Should either of the parties allege the persistence of a legitimate interest

and deny, stating their grounds, that they have received any out-of-court
settlement of their claims, or with other arguments, the Clerk of the Court
shall summon the parties, within the time limit of ten days to a hearing
before the Court, which shall deal with this sole issue.

Once the hearing has been brought to a close, the court shall decide within
the next ten days by means of a court order whether or not it is appropriate
to continue with the hearing, imposing the costs of these proceedings on
whoever may have had their claim dismissed.

3. No appeal may be lodged against the court order ordering the hearing to
proceed. An appeal may be lodged against the court order resolving an
end to the proceedings.

4. Eviction proceedings concerning urban or rural properties due to the

tenant’s failure to pay rent or any amounts owed shall come to an end by
means of an order issued to such an effect by the Clerk of the Court if,
once the tenant is summonsed under the terms provided for in Paragraph
3 of Article 440, the tenant pays the claimant or deposits the amounts
claimed with the court or a notary public, within the time limit granted in the
summons, as well any amounts owed at the time such payment is made to
render the eviction ineffective. Should the claimant contest the rendering
ineffective of the eviction due to the preceding requirements not being
met, the parties shall be summonsed to the hearing provided for in Article
443 herein, after which the Judge shall issue a judgment either rendering

16
Paragraph 4 amended by Article 2.1 of Law 4/2013 of 4 June.

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the action ineffective or otherwise upholding the claim and the eviction
appropriate.

The provisions set out in the preceding paragraph shall not apply whenever
the tenant has rendered the eviction ineffective on a previous occasion,
except where the payment has not taken place due to causes attributable
to the landlord, or where the landlord has served a demand for payment to
the tenant by a reliable means at least thirty days before lodging the claim
and payment has not been made before such claim was lodged.

5. Any judgment declaring the eviction action ineffective shall impose any
costs due to the tenant, except where the rent and any amounts owed
have not been collected due to causes attributable to the landlord.

CHAPTER V
ON PROCEDURAL REPRESENTATION AND TECHNICAL DEFENCE

Article 23. Intervention of the procurator.17

1. Appearance at the hearing will be via procurator, who must have a Law
Degree, be a Law Graduate or hold another equivalent university Degree,
be authorised to carry out their profession in court and who knows the
case.

2. Notwithstanding the provisions of the preceding paragraph, litigants

may appear on their own behalf:
(i). In oral hearings decided in relation to the amount where this does
not exceed €2.000, and to bring small claims proceedings in
accordance with the provisions of this Act.
(ii). In actions on behalf of all creditors, where the appearance is limited
to the submission of entitlements to credit or rights, or to attend
Meetings.
(iii). In incidents relating to contesting decisions regarding legal aid
and where urgent pre-hearing measures are requested.

3. Legally authorised procurators may appear in any kind of proceedings

without the need for a lawyer, where they do so for the sole purpose of
hearing and receiving notices and making non-personal appearances on

17
Paragraphs 1 and 2 amended and paragraphs 4 to 6 added by single article 2 of Law 42/2015, of
5 October.

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 Book one . On the general provisions concerning civil trials

behalf of the represented parties when requested by the Judge, Court or

Clerk of the Court. No applications may be filed when performing such
actions. Simultaneously performing the professions of lawyer and
procurator to the courts is deemed incompatible.

4. Under the terms provided for in this Act, the procurator is responsible for
practising procedural acts of notification and carrying out tasks aiding and
cooperating with the courts.

5. To carry out acts of notification, they will have the power to certify and
will be given the necessary credentials.

To exercise the duties included in this section, and without prejudice to the
possibility of substitution by another procurator in accordance with the
provisions of the Judiciary Act, they will act personally and indelegably and
their acts may be challenged before the Clerk of the Court in accordance
with the procedure provided for in articles 452 and 453. An appeal for
judicial review may be made against the decree resolving this challenge.

6. The Procurators’ Associations will organise the necessary services for

the practice of procedural acts and other duties to be carried out by
procurators.

Article 24. Granting Power of Attorney to the Procurator.18

1. The power of attorney the party grants to the procurator must be

witnessed by a notary or be granted “apud acta” by personal appearance
before the Clerk of the Court in any court office or electronically on the
relevant judicial headquarters web site.

2. The electronic copy of the notarial power of attorney for representation,

either computerised or digitised, will be attached to the first writ submitted
by the procurator.

3. Execution “apud acta” by personal or electronic appearance must be

done at the same time as the first writ is submitted or, as appropriate, prior
to the first act, without the need for the procurator to be present at such
execution. The power of attorney may also be accredited by certification of

18
Amended by single article 3 of Law 42/2015, of 5 October.
Please note that the provisions relating to the electronic “apud acta” powers of attorney archive will
come into force on 1 January 2017, as provided for in final provision 12.2 of the afore-mentioned Law.

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its registration in the electronic “apud acta” powers of attorney archive at

the court offices.

Article 25. General and special powers of attorney.

1. A general power of attorney for lawsuits shall empower the court

representative to validly perform any procedural actions normally
performed in claims on behalf of the grantor of power of attorney.

The grantor of power of attorney may nonetheless exclude from the

general power of attorney any matters for which the law does not require a
special power of attorney. Such exclusion shall be expressly and
unequivocally set forth.

2. A special power of attorney shall be necessary:

(i). For waivers, settlements, abandonment, acceptances of claim,
submission to arbitration and statements that may lead to a dismissal
of the proceedings due to out-of-court satisfaction or supervening loss
of the matter in dispute.
(ii). To exercise any powers the grantor of power of attorney may have
excluded from the general power of attorney in accordance with the
provisions set forth in the preceding paragraph.
(iii). In all other cases required under the law.

3. Any actions that must be performed personally by the litigants under the
law may not be performed through the court representative.

Article 26. Acceptance of power of attorney. Procurator’s duties.19

1. Acceptance of the power of attorney shall be assumed by the fact of the

procurator making use of it.

2. Once the power of attorney is accepted, the procurator is under the

obligation to:
(i) Carry on with the matter at hand whilst their power of representation
does not cease due to any of the causes set out in Article 30. The
procurator shall be under the obligation to collaborate with the courts
to rectify procedural defects, as well as to perform any actions that

19
Point 7 of paragraph 2 amended by single article 4 of Law 42/2015, of 5 October.

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 Book one . On the general provisions concerning civil trials

may turn out to be necessary to move the proceedings forward

properly.
(ii) Send to the lawyer chosen by their client or by themselves, where
the power of attorney covers such matters, any documents, background
facts or instructions that may be sent to them or that they may acquire,
doing whatever may further the defence of the interests of their
principal under the liability the laws impose on the representative.
Where the procurator lacks instructions or should the ones sent by the
grantor be insufficient, the procurator shall do whatever may be
required by the nature or kind of the matter in question.
(iii) Keep the principal and the lawyer duly informed of the course of
the matter entrusted to them at all times, immediately passing on
copies of all decisions notified and of the writs and documents
transmitted by the court or by the procurators of the other parties.
(iv) Transfer their principal’s and lawyer’s writs to the procurators of the
other parties in the manner provided for in Article 276.
(v) Collect from a lawyer who ceases to be in charge of the matter all
copies of writs and documents and other information on the matter to
hand them over to the lawyer in charge of carrying on with the case or
to the principal.
(vi) Inform the court immediately of the impossibility of performing any
act entrusted to him.
(vii) Pay all the expenses incurred at their request, except for the
lawyer’s fees and those for experts, the fees for exercising jurisdictional
power and the deposits needed to lodge appeals, unless the principal
has handed over the funds needed to pay them.
(viii) Serve notices and any other actions of cooperation with the
Justice Administration which the party he represents may request or
are in such party’s interest, where agreed upon during the course of
the legal proceedings by the Clerk of the Court, in accordance with the
provisions of procedural laws.
(ix) Attend the courts where the procurator exercises their profession,
and chambers where notices are served and common services
provided during the correct time for acts.

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 Law 1/2000, of 7 january, on civil procedure

Article 27. Additional legislation on the granting of power of attorney.

Lacking any express provisions on the relationship between the grantor of

power of attorney and the court representative, the rules set forth for
agency agreements in civil legislation shall apply.

Article 28. Court representative’s passive power of attorney.

1. Whilst the power of attorney remains in force, the court representative shall
hear and sign all kinds of summonses, requirements and notices, including
judgements referring to his party, during the course of the proceedings and
until the judgement is enforced. These actions shall have the same force as if
the grantor of power of attorney had been directly involved in them without it
being legitimate for him to seek involvement in them.

2. For the purposes of notice, time limits or deadlines, the court representative
shall also receive copies of the documents issued by the court representatives
of the other parties in the manner set forth in Article 276.

3. There shall be a notice reception service organised by the Association

of Court Representatives in all judicial premises housing courts. The
reception by such service of notices and copies of documents served by
court representatives for transfer to the other parties shall take full effect.
The copy made to record reception shall state the number of copies served
and the name of the court representatives to whom they are addressed.

4. Any transfers, notices, summonses and requirements that the law sets
forth which must be served in person to the litigants are excluded from the
preceding paragraphs.

Article 29. Provision of funds.20

1. The grantor of power of attorney shall be obliged to provide funds to the

court representative pursuant to the civil legislation that applies to the
agency agreement.

2. Should the grantor of power of attorney fail to provide his court

representative with the necessary funds to continue with the proceedings
after they are initiated, the latter may apply for the former to be compelled
to do so.

20
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.

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 Book one . On the general provisions concerning civil trials

Such plea shall be decided before the Court dealing with the matter. Once
the plea has been decided upon, the Court Clerk shall transfer the decision
to the grantor of power of attorney within a time limit of ten days and the
Court Clerk shall immediately decide through an order the appropriate
course of action, setting, as appropriate, the amount deemed necessary
and the time limit within which it shall be handed over, along with the threat
of serving a distraint order.

Article 30. Dismissal of the court representative.21

1. The court representative shall cease to hold his powers of representation:

(i). Due to the express or implicit revocation of the power of attorney
after it is entered in the records. The power of attorney shall be deemed
to have been implicitly revoked by the subsequent appointment of
another court representative to deal with the issue.
In the latter case, should the court representative who has been acting
in the proceedings raise questions about the effective existence or
validity of the power of attorney granted to the court representative
meant to replace him, the matter shall be resolved through an order
after hearing the person or persons appearing as grantors of the
respective powers of attorney.
(ii). Due to voluntary relinquishment or due to leaving the profession or
being sanctioned with a suspension from exercising the profession. In
the former two cases, the court representative shall be obliged to give
prior irrefutable notice of the fact to the grantor of power of attorney
and to the Court. In the event of suspension, the corresponding
Association of Court Representatives shall give the Court notice
thereof.
Whilst the relinquishment or dismissal is not duly recorded and the
court representative is deemed as having relinquished or been
dismissed, the court representative may not cease to represent his
grantor of power of attorney and shall continue to do so for a time limit
of ten days until another court representative is appointed.
Once this time limit has elapsed without a new court representative
being appointed, the Court Clerk shall issue an order stating that the
former no longer holds the powers of representation held up to then.
(iii). Due to the grantor of power of attorney or of the court
representative’s death.

21
The first paragraph of this article has been worded in accordance with Act 13/2009 of 3 November.

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 Law 1/2000, of 7 january, on civil procedure

In the former case, the court representative shall be obliged to give

notice to the Court, duly providing proof of death and, should he not file
a new power of attorney granted by the heirs or successors, the
provisions set forth in Article 16 shall apply.
Should the court representative die, the Court Clerk shall give the
grantor of power of attorney notice of the death, so that he may proceed
with the appointment of a new court representative within a time limit
of ten days.
(iv). Due to the grantor of power of attorney setting aside the plea or
the defence put forward and, in any event, due to the matter at issue
coming to an end or due to the action for which the power of attorney
was granted being duly performed.

2. Where the power of attorney has been granted by the legal representative
of a legal person, the administrator of joint or separate assets, or a person
appearing in the proceedings on behalf of an entity lacking legal personality
in accordance with the law, any changes in the powers of representation or
administration of such legal persons or joint or separate assets or entities
lacking legal personality shall not extinguish the power of attorney of the
court representative nor shall they give rise to a new party to the
proceedings.

Article 31. Lawyer’s intervention.22

1. The litigants shall be counselled by lawyers duly authorised to exercise

their profession in the court and who know about the matter. No applications
may be filed without the lawyer’s signature,

2. With the sole exception of:

(i). In oral hearings decided in relation to the amount where this does
not exceed €2.000, and to bring small claims proceedings in
accordance with the provisions of this Act.
(ii). Writs in application to become a party to the lawsuit, to seek urgent
pre-hearing measures or to seek an urgent stay of hearings or acts.
Where the stay of hearings or acts being sought is grounded in causes
particularly referring to the lawyer, the latter must also sign the writ, if
possible.

22
Section 2.1 is amended by single article 5 of Law 42/2015, of 5 October.

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 Book one . On the general provisions concerning civil trials

Article 32. Non-compulsory involvement of attorney and court

representative.23

1. Where the involvement of an attorney or court representative is not

compulsory and the claimant should wish to appear on his own behalf and
be defended by an attorney, or be represented by a court representative,
or be assisted by both professionals, the claimant shall state such a fact in
the statement of claim.

2. Should the defendant also wish to be assisted by an attorney and court

representative once the notice of claim has been served, the defendant
shall give the court notice thereof within a time limit of three days and may
also seek the right to free legal assistance, as appropriate. In the latter
case, the court may agree to a stay of proceedings until such right is
upheld or dismissed or until an attorney and court representative are
provisionally appointed.

3. The defendant shall also be entitled to be a party to the lawsuit with the
assistance of the professionals referred to in paragraph 1 where the
claimant is not assisted by an attorney or court representative. The
defendant shall give the court notice of his decisions within a time limit of
three days from the date the notice of claim is served, and the claimant
shall in turn be given notice of such circumstance. Should the claimant
then also wish to use an attorney and court representative, the claimant
shall give the court notice thereof within the three days of receiving notice and,
should the claimant apply for the right to free legal assistance, a stay may
be agreed upon under the terms set forth in the preceding paragraph.

4. The notice served to a party of the counter-party’s intention of using an

attorney and court representative shall also include information on the
party’s entitlement pursuant to Article 6.3 of the Free Legal Assistance Act,
so that such party may file the relevant application.

5. Where the involvement of an attorney and court representative is not

compulsory, any fees for such professionals shall be excluded from any
costs awarded in favour of the other party, unless the Court deems the
behaviour of the party ordered to pay costs as reckless or the address of
the party counselled and represented should be located in a place other
than where the proceedings were conducted. In the latter case, the
limitations set forth in paragraph 3, Article 394 herein shall apply. In any
event, any duties due to the court representative arising from any merely

23
Paragraph 5 worded in accordance with Act 13/2009 of 3 November.

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 Law 1/2000, of 7 january, on civil procedure

optional actions that may have been conducted by Court Offices shall also
be excluded.

Article 33. Appointment of court representative and attorney.24

1. Apart from the cases of ex officio appointment set forth in the Free Legal
Assistance Act, the parties are responsible for contracting the services of
the court representative and the attorney who shall represent and defend
them during the proceedings.

2. Nonetheless, any litigant not entitled to free legal assistance may seek that
an attorney, a court representative or both professionals be appointed for him
where their involvement is compulsory or, where it is not, whenever the
counter-party has given the court notice that he or she shall be defended by an
attorney and represented by a court representative.

Should the application be made by the defendant, it shall be filed within a

time limit of three days from the date the summons is served.

Such applications shall be filed and decided upon in accordance with the
provisions set forth in the Free Legal Assistance Act without the need of
certify entitlement to such assistance, as long as the applicant undertakes
to pay the fees of the professionals that may be appointed on the applicant’s
behalf.

3. Where any of the parties should seek recognition of the entitlement to

free legal assistance in any of the proceedings referred to in item 1,
paragraph 1, Article 250, the Court shall, upon having been served notice
of such a fact, issue a grounded decision requiring the professional
associations to provisionally appoint an attorney and court representative
whenever such appointments have not been performed beforehand and
notwithstanding the applicant subsequently paying for the fees should he
be later denied entitlement to free legal assistance.

Notice of such decision shall be given to the Bar Association and to the
Association of Court Representatives as quickly as possible and the
application shall then be processed in keeping with the provisions set forth
in the Free Legal Assistance Act.

24
Paragraph 3 added by Act 23/2003 of 10 July.
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.
Paragraph 4 added in accordance with Act 19/2009 of 23 November.

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 Book one . On the general provisions concerning civil trials

4. In the proceedings referred to in the preceding paragraph, the defendant

shall apply for the recognition of entitlement to free legal assistance or the
appointment of an ex officio attorney or court representative within a time
limit of three days of being served notice of claim. Should the application
be filed subsequently, the failure of the professional associations to appoint
an attorney and court representative shall not lead to a stay in the
proceedings, except in the cases set forth in paragraph 2, Article 16 of Act
1/1996 of 10 January on Free Legal Assistance.

Article 34. Procurator’s account.25

1. Where a procurator has to demand payments from their principal in

arrears of any fees and expenses outlaid by the former for the matter, the
procurator may file detailed accounts with the Clerk of the Court of his
place of establishment setting out the amounts owed and not paid arising
from such accounts that are being claimed. Successors of the procurators
shall enjoy the same entitlement with regard to credits of this nature as the
latter may leave them. Intervention by a lawyer or procurator will not be
compulsory.

2. Once the accounts have been filed and admitted by the Clerk of the
Court, the latter shall demand payment from the principal for such amount
or require them to contest the accounts within a time limit of ten days, with
a warning of a surcharge if they do not pay or lodge a challenge to them.

If, within this time limit, the principal lodges an objection, the Clerk of the
Court will give the procurator three days to respond to the challenge. After
this time, the Clerk of the Court will examine the account and procedural
steps, along with the documentation provided, and will issue a decision
within a period of ten days determining the amount to be paid to the
procurator, subject to surcharge if payment is not made within the five
days following the notification.

The decision referred to in the preceding paragraph shall not be subject to

appeal, but it may not –not even partially– pre-empt the judgment that may
be passed in any subsequent ordinary proceedings.

3. If the principal does not contest the accounts within the time limit set, an
enforcement order will be made for the amount of the account.

25
Amended by single article 6 of Law 42/2015, of 5 October.

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 Law 1/2000, of 7 january, on civil procedure

Article 35. Lawyers’ fees.26

1. Lawyers may claim payment for the fees due to them for the matter at
issue from the party they have counselled by submitting a detailed fee
note formally stating that such fees are due to them and have not yet been
paid. Successors of the lawyers shall enjoy the same entitlement with
regard to credits of this nature as the latter may leave them. Intervention
by a lawyer or procurator will not be compulsory.

2. Once the claim has been submitted, the Clerk of the Court will demand
that the debtor pay such amount or contest the account, within a time limit
of ten days, with a warning of surcharge if they do not pay or lodge a
challenge to them.

Should the fees be contested within that time limit as not being due, the
provisions in the second and third paragraphs of section 2 in the preceding
article shall apply.

If the fees are contested as being excessive, the Clerk of the Court will
give the lawyer three days to respond to the challenge. If the reduction in
fees claimed is not accepted, the Clerk of the Court will proceed beforehand
to regulate them in accordance with the provisions of articles 241 et seq,
unless the lawyer can prove the existence of a prior written quote accepted
by the appellant, and will pass a decision fixing the amount due, subject to
surcharge if it is not paid within five days after the notification.

This decision shall not be subject to appeal and it may not – not even
partially – pre-empt the judgment that may be passed in any subsequent
ordinary proceedings.

3. If the debtor of the fees does not contest the accounts within the time
limit set, an enforcement order will be made for the amount of the fee note.

26
Amended by single article 7 of Law 42/2015, of 5 October.

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 Book one . On the general provisions concerning civil trials

TITLE II

ON JURISDICTION AND COMPETENCE

CHAPTER ONE
ON THE JURISDICTION OF THE CIVIL COURTS AND PRE-TRIAL
MATTERS

Section 1. On the scope and limits of the jurisdiction

of the civil courts

Article 36. Scope and limits of civil jurisdiction. Lack of international

competence.27

1. The scope and limits of the jurisdiction of Spanish civil courts is

determined by the provisions contained in the Organic Act on the Judiciary
Branch and in the international treaties and conventions to which Spain is
a party.

2. Spanish civil courts shall refrain from dealing with any matters brought
before them where any of the following circumstances may exist:
a) Where a claim is brought or an application for enforcement is filed
concerning individuals or assets enjoying immunity from jurisdiction or
enforcement in accordance with spanish law and the rules of the Public
International Law.
b) Where a matter is exclusively attributed to another state’s jurisdiction
by virtue of an international treaty or convention to which Spain is a
party.
c) Where a defendant duly summoned to attend should fail to appear
in cases where the international competence of Spanish courts may
only be grounded on the implicit submission of all parties.

Article 37. Lack of jurisdiction. Abstention of the civil courts.

1. Where a court of the civil jurisdiction should deem that the matter
brought before it corresponds to either the military jurisdiction or to a public
administration or to the Court of Auditors acting in its accounting role, such
court shall refrain from dealing with the matter.

27
Amended by final provision 4 of Organic Act 16/2015 of 27 october.

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 Law 1/2000, of 7 january, on civil procedure

2. Civil courts shall likewise refrain from dealing with any matters brought
before them that should be dealt with by the courts of another jurisdiction
within the ordinary jurisdiction. Where the Court of Auditors exercises
jurisdictional functions, it shall be deemed to form part of the contentious-
administrative jurisdiction.

Article 38. Ex officio appreciation of the lack of jurisdiction and international

competence.

The abstention referred to in the preceding two articles shall be agreed

upon ex officio after hearing the parties and the Public Prosecution Service,
as soon as the lack of international competence or the lack of jurisdiction
due to the matter belonging to another jurisdiction is known.

Article 39. Appreciation of the lack of international competence or

jurisdiction at the request of a party.28

By means of a declinatory plea, the defendant may allege a lack of

international competence or jurisdiction due to the matter at issue
belonging to another jurisdiction or having been submitted to arbitration or
mediation.

Section 2. On the preliminary points of law

Article 40. Criminal preliminary points of law.29

1. When a civil action evidences a fact that has the appearance of an

offence or misdemeanour that is indictable ex officio, the civil court shall
inform the Department of Public Prosecution by direction of the court, in
case there are grounds for the initiation of criminal proceedings.

2. In the case referred to in the preceding paragraph, suspension of the

actions of the civil proceedings shall only be ordered under the following
circumstances:
a) The existence is evidenced of a criminal case wherein one or more
of the grounds on which the plea of the parties in the civil procedure is
based are being investigated as an allegedly criminal matter.

28
Amended by final provision 3.2 of Act 5/2012 of 6 July.
29
Paragraphs 5 and 6 of this article have been worded in accordance with Act 13/2009 of 3 November.

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 Book one . On the general provisions concerning civil trials

b) The decision of the criminal court concerning the fact constituting

the ground for the criminal proceedings may have a decisive influence
on the decision concerning the civil case.

3. The stay referred to in the preceding paragraph shall be agreed by

means of a court order once the proceedings are only pending judgement.

4. However, the stay motivated by the possible existence of an offence of

misrepresentation in any of the documents submitted to the court shall be
decided without waiting for the conclusion of the proceedings, as soon as
it is evidenced that a criminal case is in progress regarding the said offence
and if, in the opinion of the court, the document may be of decisive
importance to resolve on the merits of the case.

5. In the case referred to in the preceding paragraph the Court shall not
decide the suspension or the Court Clerk shall not execute the suspension
agreed by the former, as the case may be, if the party whom the document
may benefit waives the latter. Once the waiver has taken place, the Court
Clerk shall order the document to be separated from the proceedings.

6. The stays referred to in this article shall be carried out by the Court
Clerk if it is evidenced that the criminal proceedings have concluded or
have been suspended for reasons preventing their normal continuance.

7. If the criminal case concerning the misrepresentation of a document is

the result of a complaint or a petition filed by one of the parties and has
been concluded with a decision in which the document is declared
authentic or its misrepresentation has not been proved, the party that
would have incurred damages as a result of the stay of proceedings may,
in the said civil proceedings, claim compensation of damages in accordance
with the provisions of Article 712 and subsequent articles.

Article 41. Appeals against the decision to suspend legal actions on the
grounds of criminal first ruling procedure.30

1. An appeal for reversal against the decision denying the suspension of

the civil cause may be filed. The application for suspension may,
nevertheless, be reproduced during second instance and, where relevant,
during the hearing of the extraordinary appeals for breach of procedure or
motions to vacate.

30
Paragraph added by Act 13/2009 of 3 November.

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 Law 1/2000, of 7 january, on civil procedure

2. A remedy of appeal may be filed against the suspension and, where

relevant, an extraordinary appeal for breach of procedure may be filed
against the decisions passed in appeal deciding or confirming the
suspension.

3. A direct appeal for judicial review may be filed against the decision of
the Court Clerk resolving the execution of the suspension.

Article 42. Non-criminal pre-trial matters.31

1. For merely pre-trial purposes, the civil courts may examine matters
attributed to the contentious-administrative and social courts.

2. The decisions of civil courts on the matters referred to in the preceding

paragraph shall have no effect outside the proceedings in which they are
issued.

3. The provisions of the preceding paragraphs notwithstanding, if required

by law or requested by the parties in mutual agreement or by one of the
parties with the consent of the other, the Court Clerk shall stay the
execution of the procedures prior to passing judgement until the pre-trial
matter has been resolved by the competent public administration, the
Court of Auditors or the Courts of the corresponding jurisdictional level, as
appropriate. In this case, the Civil Court shall be bound by the decision of
the said bodies in relation to the pre-trial matter.

Article 43. Civil first ruling procedure.

When, to decide on an issue in litigation, a decision must be reached on

an issue that, in turn, is the main issue of a different proceedings in the
same or a different civil court and a joinder of actions is not possible, the
court, at the request of the parties or of one party, having heard the other
party, may issue a court order to stay the proceedings at the level it has
reached, until the proceedings on the pre-trial issue has ended.

An appeal for reversal may be brought against the order denying the
petition and a remedy of appeal may be lodged against the order deciding
the suspension.

31
Paragraph 3 worded in accordance with Act 13/2009 of 3 November.

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 Book one . On the general provisions concerning civil trials

CHAPTER II
ON THE RULES FOR DETERMINING THE JURISDICTION

Article 44. Legal predetermination of the jurisdiction.

For the civil courts to be competent in each case, the hearing of the lawsuit
must have been assigned to them in accordance with legally binding rules
and prior to bringing action.

Section 1. On the objective jurisdiction

Article 45. Jurisdiction of the Courts of First Instance.32

1. The Courts of First Instance are responsible, in first instance, for hearing
all civil cases not expressly assigned to other courts by legal provisions.

2. These Courts will also hear:

a) Matters, acts, issues and appeals as assigned to them under the
Judiciary Act.
b) Insolvency of individuals who are not entrepreneurs.

Article 46. Specialisation of certain Courts of First Instance.

The Courts of First Instance which, by virtue of the provisions of Article 98

of the Organic Act on the Judiciary Branch, have been assigned the
hearing of certain specific matters shall extend their jurisdiction exclusively
to the proceedings in which the said matters are being resolved and shall
remit the case to another competent court where the proceedings are
dealing with other matters. Any matters raised in this respect shall be
conducted in the same manner as conflicts of competence.

Article 47. Competence of the Magistrates’ Courts.

The Magistrates’ Courts shall be competent to hear, in first instance, the

civil matters of an amount not exceeding € 90 and not included in any of
the cases which, by reason of the subject matter, are referred to in
paragraph 1 of Article 250.

32
Amended by final provision 4.1 of Law 7/2015 of 21 July.

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 Law 1/2000, of 7 january, on civil procedure

Article 48. Ex officio finding of the lack of objective jurisdiction.33

1. The lack of proper jurisdiction shall be found ex officio as soon as it is

verified by the court hearing the case.

2. If the court examining the case in second instance or an extraordinary

appeal for a breach of procedure or cassation considers that the court
which heard the case in first instance lacked the objective jurisdiction, it
shall decree the nullity of the entire proceedings, maintaining the right of
the parties to lodge their actions before the corresponding rank of court.

3. In the cases referred to in the preceding paragraphs, the Court Clerk

shall assign a hearing to the parties and to the Public Prosecution Service
within a common time limit of ten days and the Court shall decide by
means of a court order.

4. The court order declaring the lack of objective jurisdiction shall indicate
the type of court that should hear the case.

Article 49. Finding the lack of objective jurisdiction at the request of a

party.

The defendant may denounce the lack of objective jurisdiction by filing a

declinatory plea.

Article 49 bis. Loss of competence in the event of acts of violence against

women.34

1. When a judge hearing a civil procedure in first instance becomes aware

of the perpetration of an act of violence as defined in Article 1 of the
Organic Act on Measures of Integral Protection against Gender Violence
which gave rise to a criminal trial or a protection order shall, after verifying
compliance with the preliminary requirements set forth in paragraph 3 of
Article 87 of the Organic Act on the Judiciary Branch, remit the case at its
current status to the competent judge of violence against women, unless
the case has reached the stage of hearing of evidence.

2. When a Judge hearing a civil procedure becomes aware of the possible

perpetration of an act of gender violence that did not give rise to criminal
proceedings or the issuing of a protection order shall, after verifying

33
Paragraph 3 worded pursuant to Act 13/2009, of 3 November.
34
Article added by Organic Act 1/2004 of 28 December.

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 Book one . On the general provisions concerning civil trials

compliance with the requirements of paragraph 3 of Article 87 of the

Organic Act on the Judiciary Branch, immediately summon the parties to
appear with the Public Prosecution Service at a hearing to be held in the
next 24 hours, in order for the said Judge to examine all relevant details in
connection with the facts. Upon termination of the hearing, the Public
Prosecutor shall without delay, within the next 24 hours, decide whether or
not it is appropriate to report the acts of gender violence or to apply to the
competent Court of Violence against Women for a protection order. In the
event that a complaint is lodged or a protection order sought, the Public
Prosecutor shall deliver a copy of the complaint or the application to the
court, which shall continue to hear the case until the competent Judge of
Violence against Women requests that the case be sent to another court.

3. If a Judge of Violence against Women hearing criminal case concerning

gender violence becomes aware of the existence of a civil procedure and
verifies partial overlapping of the requirements of paragraph 3 of Article 87
of the Organic Act on the Judiciary Branch, he shall request the Civil Court
to refrain from involvement. The Civil Court shall then send the case on to
the requesting body.

For the purposes of the preceding paragraph, the request to pass the case
on shall be accompanied by an attestation of the initiation of committal
proceedings or a summary trial in minor offences, the order of admission
of the complaint or the protection order adopted.

4. In the cases set forth in paragraphs 1 and 2 of this article, the Civil Court
shall send the records to the Court of Violence against Women. The
provisions of Article 48.3 of the Code of Civil Procedure shall not apply
and, as of that moment, the parties shall be bound to appear before the
said latter court.

In such cases, the remaining rules of this paragraph shall not apply, nor
shall a declinatory plea be given permission to proceed, and the parties
wishing to invoke the competence of the Court of Violence against Women
shall submit testimony of one of the decisions issued by the said Court
referred to in the final paragraph of the preceding number.

5. The Courts of Violence against Women shall exercise their competence

in civil matters in an exclusive and excluding manner and in all respects in
accordance with the procedures and remedies set forth in the Code of Civil
Procedure.

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Section 2. On territorial jurisdiction

Article 50. General jurisdiction of natural persons.

1. Unless the law establishes otherwise, the territorial jurisdiction shall

correspond to the court of the place of residence of the defendant and, if
the latter has no place of residence within the national territory, the
competent Judge shall be the Judge of his place of residence in the
territory concerned.

2. Those who do not have an address or place of residence in Spain may

be sued in the place where they are within the national territory or that of
their latest place of residence in the said territory and, if the jurisdiction
cannot be determined in this manner either, in the place of residence of the
plaintiff.

3. Businessmen and professionals involved in litigation deriving from their

business of professional activity can also be sued in the place where the
said activity is being carried out and, if they have establishments under
their responsibility in various places, in any of such places at the discretion
of the plaintiff.

Article 51. General jurisdiction of corporate entities and entities without

legal personality.

1. Unless the law establishes otherwise, corporate entities shall be sued in

the place of their address. They can also be sued in the place where the
situation or the legal relation to which the litigation refers has originated or
must take effect, provided that they have an establishment open to the
public or a representative authorised to act in the name of the entity in the
said place.

2. Entities without legal personality can be sued at the address of their

administrators or in any place where they are carrying out their activity.

Article 52. Territorial jurisdiction in special cases.35

1. The jurisdictions established in the preceding articles shall not apply

and the jurisdiction shall be determined in accordance with the provisions
of this article in the following cases:

35
Paragraph 2 amended and paragraph 3 added by single article 8 of Law 42/2015 of 5 October

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 Book one . On the general provisions concerning civil trials

(i) In hearings where rights in rem are exercised over immovable

property the competent court will be that in the place where the subject
of the litigation is located. When the action in rem is being exercised
over several immovable properties or over just one located in different
districts, the competent court shall be that of any one of those districts,
at the discretion of the plaintiff.
(ii) In claims relating to the presentation and approval of accounts to
be rendered by the administrators of property of others, the competent
court shall be that of the place where such accounts must be submitted
and, if the address of the principal, grantor or owner of the goods, or
that of the place where the administration is being carried out has not
been established, at the discretion of the plaintiff.
(iii) In complaints concerning guarantee obligations or accessory to other
prior obligations, the competent court shall be the court that is competent
to hear, or is hearing, the principal obligation to which they relate.
(iv) In hearings concerning matters of inheritance, the competent court
shall be that of the place where the deceased had his last place of
residence and, if he had his last place of residence in a foreign country,
that of the place of his last residence in Spain or where he had the
majority of his assets, at the discretion of the plaintiff.
(v) In legal proceedings in which actions are being exercised
concerning the assistance or representation of individuals of unsound
mind, disabled or declared prodigal, the competent court shall be that
of the place where they reside.
(vi) In matters relating to the rights to honour, personal and family
privacy and personal image and, in general, in matters of civil protection
of fundamental rights, the competent court shall be that of the place of
residence of the plaintiff and, if the latter has no place of residence in
Spain, the court of the place where the event infringing the fundamental
right concerned occurred.
(vii) In hearings concerning the lease of immovable properties and
those of eviction the competent court shall be that of the place where
the property is located.
(viii) In hearings concerning property in condominium the competent
court shall be that of the place where the property is located.
(ix) In hearings where compensation for damages deriving from the
circulation of motor vehicles is demanded, the competent court shall
be that of the place where the damages were caused.

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(x) In matters contesting corporate resolutions, the competent court

shall be that of the place of the registered office.
(xi) In proceedings where claims are lodged concerning the
infringement of intellectual property rights, the competent court shall
be that of the place where the infringement was committed or where
there is evidence that it has been committed or where there are
unlawful copies, at the discretion of the plaintiff.
(xii) In hearings relating to unfair competition, the competent court shall be
that of the place where the defendant has their establishment and, failing
such establishment, their address or place of residence and, should they
not have such address or place of residence on Spanish territory, the
court of the place where the act of unfair competition was committed, or
where its effects are occurring, at the discretion of the plaintiff.
(xiii) In matters relating to patents and trademarks, the competent court
shall be that indicated by the specific legislation governing those matters.
(xiv) In proceedings in which actions are taken requesting an order not
to incorporate the general contracting conditions in the contract or the
nullity of the said conditions, the competent court shall be that of the
address of the plaintiff. On this same matter, where declaratory,
injunction or retraction actions are taken, the competent court shall be
that of the place where the defendant has their establishment and,
failing such establishment, that of their residence; and if the defendant
does not have an address in Spanish territory, the court of the place
where accession took place.
(xv) In third-party claims to ownership or third-party interventions with
a paramount right lodged in relation to an administrative collection
procedure, the competent court shall be that of the address of the
body ordering the attachment, notwithstanding the special cases
provided for public authorities in matters of territorial jurisdiction.
(xvi) In proceedings where injunction action is taken in defence of the
collective and diffuse interests of consumers and users, the competent
court will be that of the place where the defendant has an establishment
and, failing such establishment, that of their residence; if they do not
have an address in Spanish territory, the court of the place where the
plaintiff resides.
(xvii) In proceedings against resolutions and acts by the Department of
Registries and Notaries regarding the Civil Register, with the exception
of applications for nationality due to residence, the competent court

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will be the Court of First Instance in the capital of the province where
the appellant resides.

2. Where the rules of the preceding paragraph do no not apply to litigation

regarding insurance, hire purchase of movable tangible property and
contracts for their finance, as well is in matters of contracts for the provision
of services or relating to movable property which were entered into after a
public tender, the competent court shall be that of the address of the
insured, purchaser or borrower or that of the address of the person who
accepted the offer, respectively, or the court provided for in the rules of
article 50 and 51, at the discretion of the plaintiff.

3. Where the rules in the preceding paragraphs do not apply to litigation

arising from individual actions taken by consumers and users, the
competent court will, at the discretion of the consumer or user, be that of
their residence or the relevant court in accordance with articles 50 and 51.

Article 53. Territorial jurisdiction in the event of joinder of causes of action and
in the event of multiple defendants.

1. When different legal actions are exercised jointly against one of more
individuals, the competent court shall be that of the actions forming the
basis of the remaining actions, failing the latter, that where the highest
number of accumulated actions must be examined and, in the last instance,
that of the place corresponding to the most important action from a
quantitative point of view.

2. If there are several defendants and, in accordance with the rules set
forth in this and preceding articles, the territorial jurisdiction may correspond
to the judges of more than one place, the complaint may be lodged with
any of them, at the discretion of the plaintiff.

Article 54. Dispositive nature of the rules on territorial jurisdiction.

1. The legal rules attributing the territorial jurisdiction shall be applied only
in the absence of an explicit or tacit submission by the parties to the courts
of a specific judicial district. An exception applies to the rules established
under points (i) and (iv) to (xv) of paragraph 1 and in paragraph 2 of Article
52 and other provisions in which this or another law expressly establishes
their imperative nature. Nor shall the explicit or tacit submission apply to
matters that must be resolved in oral trials.

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2. The explicit acceptance contained in contracts of adherence or contracts

containing general conditions imposed by one of the parties or that have
been entered into with consumers or users shall not be valid.

3. The submission of the parties shall be valid and effective only when
made to courts with objective jurisdiction to hear the relevant case.

Article 55. Explicit submission.

Explicit submission shall be understood as that agreed upon by the parties

involved with specification of the judicial district to whose courts they
submit themselves.

Article 56. Tacit submission.36

The following shall be considered submitted tacitly:

(i). The plaintiff, by the mere fact that he presented himself at the
courts of a specific judicial district lodging the complaint or filing a
petition or application required to be presented to the court competent
to hear the complaint.
(ii). The defendant who, having appeared at the hearing after the filing
of the complaint, undertakes any action other than that of filing a
declinatory action in due form. Likewise, the defendant to, having been
summoned or served notice in due form, fails to appear at the hearing
or does appear after the faculty to propose the declinatory action has
precluded shall be deemed to have submitted himself tacitly.

Article 57. Explicit submission and assignment.

The explicit submission of the parties shall determine the judicial district whose
courts must hear the case. When, in the said judicial district, there are several
courts of the same class, the assignment of the cases shall determine to
which of them it shall correspond to hear the case, and the parties shall not be
entitled to submit themselves to a specific court to the exclusion of the others.

Article 58. Ex officio appreciation of the territorial jurisdiction.37

When the territorial jurisdiction is established pursuant to imperative rules,

the Court Clerk shall examine the territorial jurisdiction immediately after

36
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.
37
Article worded in accordance with Act 13/2009 of 3 November.

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the complaint has been filed and if, after having heard the Public Prosecutor
and the parties appearing, he considers that the Courts lacks the territorial
jurisdiction to hear the case, shall inform the Judge in order for the latter to
resolve as appropriate by means of a court order and, if appropriate, to
refer the procedure to the Court which, in his opinion, has the territorial
jurisdiction. In case elective jurisdictions apply, the defendant’s preference
shall be adhered to, pursuant to a notice served upon the latter to this
effect.

Article 59. Allegation of the lack of territorial jurisdiction.

Apart from those cases in which the territorial jurisdiction is determined by

the law by virtue of imperative rules, the lack of territorial jurisdiction may
only be appreciated if the defendant or those who may be legitimate parties
to the case propose the declinatory action in due time and form.

Article 60. Negative conflict of territorial jurisdiction.

1. If the decision of disqualification of a court due to the lack of territorial

jurisdiction has been adopted pursuant to a declinatory action or at a
hearing of all the parties involved, the court to which the procedure is
referred shall adhere to the decision and cannot declare its lack of territorial
jurisdiction ex officio.

2. If the decision of disqualification due to the lack of territorial competition

has not been adopted pursuant to a hearing of all the parties involved, the
court to whom the procedure is referred may declare its lack of territorial
jurisdiction ex officio if the latter must be determined by virtue of imperative
rules.

3. The decision declaring the lack of jurisdiction shall order the referral of
all the records to the immediately superior ordinary court, which shall
decide by means of an order without the possibility of subsequent appeal
which court shall hear the case, ordering, if appropriate, the referral of the
procedure and the citation of the parties within the next ten days to appear
before the said court.

Section 3. On the functional jurisdiction

Article 61. Functional jurisdiction by connectivity.

Barring a legal provision to the contrary, the court that is competent to hear
a case shall equally be competent to resolve on its incidents, to put into

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effect the decisions and orders it may pass and to execute the judgement
or covenants and transactions it may approve.

Article 62. Ex officio appreciation of the jurisdiction to hear the appeals.

1. The appeals filed with a court that lacks the functional jurisdiction to
hear the said appeals shall not be given leave to go ahead. Notwithstanding
the above, if, after having leave for an appeal to go ahead, the court with
which the said appeal has been filed determines that it lacks the functional
jurisdiction to hear the case shall issue an order abstaining from hearing
the case, after having heard all the parties appearing within an ordinary
term of ten days.

2. The order referred to in the preceding paragraph having been served,

the parties to the suit shall dispose of a term of five days for the appropriate
filing or announcement of the appeal, which term shall be added to the
legally established term for the said procedures. If the parties exceed the
resulting period without appealing in due form, the decision concerned
shall become final.

CHAPTER III
ON DECLINATORY ACTIONS

Article 63. Contents of the declinatory plea, legal capacity to propose it

and competent court to examine it.38

1. By means of a declinatory plea, the defendant and those who may be

legally entitled to be party to the case filed can claim the lack of jurisdiction
of the court before which the complaint has been lodged on the grounds
that the hearing of the case corresponds to foreign courts, to bodies of a
different jurisdictional order or to arbitrators or mediators.

A declinatory plea may also be lodged to claim the lack of jurisdiction of

any nature whatsoever. Should the declinatory plea be grounded on the
lack of territorial jurisdiction, the court holding territorial jurisdiction to which
the records are to be forwarded shall be indicated.

2. The declinatory action shall be filed with the same court that is hearing
the case and is considered to lack jurisdiction of competence. However,
the declinatory action may also be filed with the court of the address of the

38
Paragraph 1(1) amended by final provision 3.3 of Law 5/2012 of 6 July.

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defendant, and the said court shall forward the said action using the most
rapid means of communication to the court with which the complaint was
filed, notwithstanding its obligation to refer it officially on the day following
that of its presentation.

Article 64. Procedural time for submission of a jurisdictional plea and

immediate effects.39

1. A jurisdictional plea must be submitted within the first ten days of the
time limit for responding to the claim and will, until resolved, have the
effect of staying the time limit to respond and the course of the main
proceedings and the suspension will be declared by the Clerk of the Court.

2. The suspension of the main proceedings caused by the prior jurisdictional

claim shall not prevent the court with which the cause is pending from
conducting, at the request of a legitimate party, any actions taking evidence
and any precautionary measures whose delay could result in irreparable
damage to the plaintiff, unless the defendant deposits a sufficient bond to
cover the damages that may arise from processing a jurisdictional plea
lacking grounds.

The bond may be provided in cash, by joint and several guarantee for a definite
duration and payable on first request, issued by a credit entity or a mutual
guarantee company or any other means that, in the opinion of the court,
guarantees the immediate availability, if appropriate, of the amount involved.

Article 65. Processing and decision on the declinatory plea.40

1. The writ of declinatory action shall be accompanied by the documents or

principles of evidence on which it is grounded, with a number of copies
equal to that of the remaining litigants, who shall avail of a term of five days
as of the notification of the declinatory action to allege and to present
whatever they deem convenient to sustain the jurisdiction or the competency
of the court, which shall resolve the matter within the next five days.

If the declinatory action concerns the lack of territorial jurisdiction, the

plaintiff who challenges the said the said declinatory action may also allege
the lack of territorial jurisdiction of the court in whose favour the hearing of
the cause is being contested.

39
Section 1 is amended by single article 9 of Law 42/2015, of 5 October.
40
Paragraph 2 (2) amended by final provision 3.4 of Law 5/2012 of 6 July.

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2. If the court considers that it has no jurisdiction because the hearing of

the case corresponds to courts of another State, it shall so declare by
means of an order, abstaining from hearing the case and declaring the
stay of the proceedings.

The court shall proceed in like manner should it deem that the declinatory
plea is grounded on the matter at issue having been submitted to arbitration
or mediation.

3. If the court considers that it has no jurisdiction because the matter

concerned corresponds to the courts of a different jurisdictional level, in its
order abstaining from hearing the case it shall inform the parties of the
bodies before which they shall exercise their rights. The same decision
shall be passed if the court considers that it lacks objective jurisdiction.

4. If a declinatory action has been lodged relating to the territorial jurisdiction

and the latter is not determined by imperative rules, in order to allow the said
action to proceed the court shall be bound to consider the body indicated by
the party who filed the declinatory action to be the competent body.

5. The tribunal, when allowing the declinatory action relating to the

territorial jurisdiction to proceed, shall disqualify itself in favour of the body
to which the jurisdiction corresponds and shall resolve to refer the
procedure to the said court, summoning the parties to appear before the
latter within a term of ten days.

CHAPTER IV
ON THE APPEALS CONCERNING JURISDICTION AND COMPETENCY

Article 66. Appeals concerning international competence, jurisdiction,

submission to arbitration or mediation and subject-matter jurisdiction.41

1. A remedy of appeal may be filed against the order abstaining from

hearing the case on the basis of a lack of international competence, on the
grounds that the matter corresponds to another jurisdictional level,
because the matter has been submitted to arbitration or mediation, or on
the basis of a lack of subject-matter jurisdiction.

2. The only remedy available against the order rejecting the lack of
international competence, jurisdiction or subject-matter jurisdiction shall

41
Amended by final provision 3.5 of Law 5/2012 of 6 July.

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be an appeal for reversal, notwithstanding the right to allege the lack of the
said procedural prerequisites in the appeal against the final judgment.

The provisions set forth in the preceding paragraph shall equally apply
when the order rejects the submission of the matter to arbitration or
mediation.

Article 67. Appeals concerning territorial jurisdiction.

1. No remedy of any nature shall be possible against the orders resolving

on the territorial jurisdiction.

2. Allegations of lack of territorial jurisdiction in remedies of appeal and

extraordinary appeals for breach of procedure shall be only be given
permission to proceed when imperative rules apply to the case concerned.

CHAPTER V
ON THE DISTRIBUTION OF THE CAUSES

Article 68. Compulsory nature of the distribution. Procedural treatment.42

1. All civil causes shall be distributed among the Courts of First Instance if
there are several in the judicial district. The same rule shall apply to the
causes to be heard by the Provincial Courts when the latter are divided in
Divisions.

2. The Court Clerks shall not allow any cause subject to distribution to be
filed if the corresponding proceeding is not set forth in the said cause. If
the said proceeding is not mentioned, at the request of any of the parties,
any action not consisting in ordering the cause to be assigned shall be
annulled.

3. No declinatory action shall be allowed against the decisions concerning

the distribution, although any of the litigant parties shall have the right to
challenge the infringement of the distribution rules in force at the time of
presentation of the brief or of the application to initiate the procedure.

4. The decisions passed by courts other than the court or courts competent
to hear the case according to the rules of distribution shall be declared null
at the request of the party to whose disadvantage the said decisions have

42
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.

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been passed, provided that the nullity has been requested during the court
procedure immediately following the moment when the party has become
aware of the infringement of the rules of distribution and the said
infringement has not been remedied in accordance with The provisions set
forth in the preceding paragraph.

Article 69. Term within which the distribution has to take place.43

The causes shall be distributed and remitted to the relevant Court Office
within a time limit of two days following the presentation of the brief or
application to initiate the procedure.

Article 70. Urgent measures in unassigned cases.

The Deans and the presiding judges of Courts and High Courts may, at the
request of a party, adopt urgent measures in unassigned cases if failure to
do so may violate a specific right or cause a certain serious and irreparable
damage.

TITLE III
ON THE JOINDER OF ACTIONS AND PROCEEDINGS

CHAPTER ONE
ON THE JOINDER OF ACTIONS

Article 71. Main effect main joinder. Objective joinder of actions.

Contingent joinder.

1. The joinder of actions given permission to proceed shall lead to all the
actions being dealt with in the same proceedings and their decision in a
single judgement.

2. The claimant may join as many actions against the defendant he is

entitled to in the claim, though they may arise from different titles, as long
as they are not mutually incompatible.

3. It shall be incompatible to simultaneously bring two or more actions in

the same proceedings where they are mutually exclusive or mutually

43
Article worded in accordance with Act 13/2009 of 3 November.

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contradictory, so that choosing one such action shall impede or render

ineffective the bringing of the other action or actions.

4. Notwithstanding the provisions set forth in the preceding paragraph, the

claimant may join contingent actions that are mutually incompatible by
stating the main action and the other action or actions brought for the sole
purpose of the main action being deemed groundless.

Article 72. Subjective joinder of actions.

Actions may be joined and simultaneously brought against several or

single subjects, as long as such actions have some sort of link or grounds
on the basis of a title or the causes of plea.

It shall be construed that the title or grounds are identical or connected

where the actions are grounded in the same facts.

Article 73. Admissibility of a joinder of actions due to procedural reasons.44

1. The following shall be necessary for a joinder of actions to be admissible:

(i). That the Court should deem that it enjoys jurisdiction and
competence over the main action due to the matter at issue or due to
its amount in order to deal with the joined action or actions. Nonetheless,
any action that has to be heard for reasons of its amount in an oral trial
may be joined to an action that has to be conducted through declaratory
actions.
(ii). That the joined actions may not for reasons of their subject matter
be heard in trials of a different kind.
(iii). That the law does not prohibit joinder in cases where specific
actions are brought due to reasons of the matter at issue or due to the
kind of proceedings that have to be followed.

2. In certain cases, different actions may also be joined in the same claim
where the law should so provide.

3. Should several actions have been unduly joined, the Court Clerk shall
require the claimant to rectify the defect within a time limit of five days,
keeping the actions whose joinder is possible, before granting the claim
leave to proceed. Once this period has elapsed without the rectification

44
This article is worded in accordance with Act 13/2009 of 3 November.

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being carried out, or should the circumstance of the inadmissibility persist

concerning the joinder of the actions the claimant wishes to bring, the
Court Clerk shall give the Court notice thereof, which shall then issue a
ruling on the claim’s admission.

CHAPTER II
ON THE JOINDER OF PROCEEDINGS

Section 1. On the joinder of proceedings: General

provisions

Article 74. Purpose of the joinder of proceedings.

By virtue of a joinder of proceedings, the proceedings shall be conducted

in a single procedure and brought to a close through a single judgement.

Article 75. Capacity to seek a joinder of proceedings.45

Ex officio joinder. Joinder may be requested by whoever may be a party to

the proceedings whose joinder is sought or agreed upon on an ex officio
basis by the Court, as long as any the circumstances set forth in the
following article are met.

Article 76. Circumstances in which the joinder of proceedings may

proceed.46

1. The joinder of proceedings may be agreed upon whenever:

(i) The judgment to be issued in one of the proceedings may bring
about injurious effects on the other.
(ii) Such connection exists between the matters at issue in the
proceedings whose joinder is sought, so that, if they are conducted on
a separate basis, judgments containing contradictory, incompatible or
mutually exclusive decisions or grounds may be issued.

2. Joinder may also be given leave to proceed under the following

circumstances:

45
Article worded in accordance with Act 13/2009 of 3 November.
46
Number (iii) added and the last paragraph of paragraph 2 amended by Article 4.1 of Law 26/2015,
of 28 July.

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(i) Where proceedings have been brought to protect collective or

diffuse rights and interests granted by the law to consumers and users,
which may be joined in accordance with the provisions of paragraph
1.1 of this article or in Article 77 whenever the diversity of proceedings
has been impossible to avoid through the joinder of actions or the
intervention provided for in Article 15 of this Act.
(ii) Where the matter at issue in the proceedings is to contest corporate
resolutions adopted at the same Meeting or Assembly or at the same
meeting of a collegiate body of governance. In this event, all the
proceedings initiated through claims seeking a declaration that such
decisions are null and void or voidable shall be joined, as long as such
claims are brought within a time limit not exceeding forty days from the
date the first claim was brought.
(iii) Where proceedings have been brought in which objection to
administrative resolutions regarding protection of a minor is
substantiated, processed in accordance with article 780, as long as
none of them have started to be heard.

At any event, in places where there is more than one Court having
jurisdiction in company matters, in the cases of numbers (i) and (ii) or, in
civil matters, in the case of number (iii), claims lodged after another claim
will be distributed to the Court where the first should have been heard.

Article 77. Proceedings that may be joined.47

1. Apart from the provisions of Article 555 of this Act on the joinder of
enforcement proceedings, the joinder of declaratory proceedings shall
only proceed where they are conducted by the same procedures or such
procedures may be joined without a loss of procedural rights, as long as
any of the grounds set out in this chapter exist.

It will be understood that there is no loss of procedural rights where a

joinder of an ordinary hearing and an oral hearing is agreed, which will
continue under ordinary court proceedings, with the court passing an order
agreeing to the joinder, and, if necessary, stay the oral court action that is
being joined until such time as the claim is responded to, so that the
proceedings provided for an ordinary hearing may be followed.

2. Should the proceedings be awaiting judgment before different courts,

the joinder shall not be appropriate if the court dealing with the oldest

47
Section 1 is amended by single article 10 of Law 42/2015, of 5 October.

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proceedings should lack objective competence due to the matter at issue

or to the amount of the proceedings that are to be joined.

3. The joinder shall likewise not be appropriate where the territorial

jurisdiction of the court dealing with the newest proceedings is irrevocable
for the parties under the Law.

4. For the joinder of proceedings to be admissible, the proceedings must

be in the first instance and none of them shall have brought to a close the
hearing referred to in Article 433 of this Act.

Article 78. Inappropriateness of a joinder of proceedings.Exceptions.48

1. A joinder of proceedings shall not be appropriate where the risk of

judgements containing contradictory, incompatible or mutually exclusive
rulings or grounds may be avoided through the exception of lis pendens.

2. Neither shall a joinder of proceedings at the request of a party be

appropriate where it is not duly proven that proceedings could not have
been brought through the initial claim or, as appropriate, through the
expansion of such claim or through the counterclaim which includes pleas
and matters at issue that are substantially the same as those arising from
the various proceedings whose joinder is sought.

3. Should the proceedings whose joinder is being sought have been

brought by the same claimant or by a defendant filing a counterclaim,
either alone or in joint litigation, it shall be deemed, except where duly
proven otherwise, that they could have been brought in single proceedings
under the terms of the preceding paragraph and the joinder shall not be
appropriate.

4. The provisions set forth in the preceding paragraphs shall not apply to
the proceedings referred to in item 2.1, Article 76.

Article 79. Proceedings in which joinder shall be applied for or agreed

upon ex officio.49

1. An application for a joinder of proceedings shall always be filed in the

Court dealing with the oldest proceedings, to which the more recent

48
Paragraphs 2 and 4 of this article have been worded in accordance with Act 13/2009 of 3 November.
49
Article worded in accordance with Act 13/2009 of 3 November.

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 Book one . On the general provisions concerning civil trials

proceedings shall be joined. Should this requirement not be met, the Court
Clerk shall issue a decision dismissing the application.

Pursuant to the provisions set forth in Article 75, the Court dealing with the
oldest proceedings shall hold responsibility for ordering the joinder on an
ex officio basis.

2. Age shall be determined by the date the claim was brought and a
document certifying such date shall be filed along with the application for
joinder.

Should the claims have been brought on the same date, the proceedings
assigned first shall be construed as the oldest.

Should it be impossible to determine which of the claims was assigned first

due to the proceedings being pending before different Courts or for any
other reason, the application may be filed in any of the proceedings whose
joinder is being sought.

Article 80. Joinder in oral hearings.50

In oral hearings, the joinder of proceedings that are pending before the
same Court shall be governed by the rules set out in the following section.

Section 2. On the joinder of proceedings pending

before the same court

Article 81. Application for joinder of proceedings.51

Where the proceedings are being conducted before the same Court, the
joinder shall be applied for in writing, clearly stating the proceedings whose
joinder is being requested and the procedural stage at which they are to be
found and setting forth the grounds to justify the joinder.

The application for joinder of proceedings shall not lead to a stay in the
course of the proceedings whose joinder is being sought, except as set
forth in Article 88.2. The Court may, nonetheless, abstain from issuing a
judgement in any of the proceedings until a decision is taken on the
appropriateness of the joinder.

50
Amended by single article 11 of Law 42/2015, of 5 October.
51
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.

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Article 82. Initial dismissal of the application for joinder of proceedings.

The court may dismiss the application for joinder by means of a court order
when it may lack the details required by the preceding article or whenever the
joinder may not be appropriate according to such application’s contents due to
the kind or type of proceedings, their procedural stage and any other procedural
requirements set forth in the preceding articles.

Article 83. Performance and decision on the joinder of proceedings. Appeals.52

1. Once an application for a joinder of proceedings has been filed, the

Court Clerk shall transfer it to all the other parties to any of the proceedings
whose joinder is being sought, even though they may not be a party to the
proceedings in which the application has been filed, so that they may file
their pleas about such joinder within the common time limit of ten days.

2. Once such time limit has elapsed or the pleas have been received and
should all the parties be in agreement with the application for joinder, the
Court shall resolve in favour of the joinder within the next five days should
it deem that the necessary requirements have been met.

3. Should there be no agreement among the parties or should none of

them file any pleas, the Court shall resolve whatever it may deem
appropriate, either upholding or dismissing the joinder being sought.

4. Should the joinder be put forward on an ex officio basis, the Court shall give
a hearing to all the parties of the proceedings whose joinder is being proposed
within a common time limit of ten days, so that they may file their pleas.

5. No appeal other than an appeal for reversal may be lodged against the
court order deciding upon the joinder.

Article 84. Effects of the court order granting the joinder.53

1. Once the joinder has been upheld, the Court shall order that the more
recent proceedings be joined to the older proceedings, so that they may
be conducted with the same procedure or by the same formalities and be
decided upon through the same judgement.

52
Article worded in accordance with Act 13/2009 of 3 November.
53
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.

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2. Should the joined proceedings not be at the same stage within the first
instance, the Court Clerk shall resolve upon a stay for the most advanced
proceedings until the others reach the same stage. In any event, the
provisions set forth in the paragraph two, Article 77.1 shall be met.

Article 85. Effects of the court order dismissing the joinder.

1. Once the joinder has been dismissed, the proceedings shall be

conducted separately.

2. The court order dismissing the joinder shall impose costs on the party
that had filed the joinder application.

Section 3. On the joinder of proceedings pending

before different courts

Article 86. Governing rules.

The joinder of proceedings pending before different courts shall be

governed by the preceding rules of this chapter, with the peculiarities set
forth in the following articles.

Article 87. Application for joinder of proceedings.

In addition to the provisions set forth in Article 81, the written application
for joinder of proceedings shall specify the court before which the other
proceedings whose joinder is being sought are pending.

Article 88. Non-suspensive effect of the application or of the initiation of

ex officio procedures for the joinder of proceedings.54

1. The application or the initiation of ex officio procedures for the joinder of

proceedings shall not lead to a stay in the course of the proceedings affected,
except from the moment at which any of them is only pending judgement. In
such a case, the time limit for issuing judgement shall be suspended.

2. Notwithstanding the preceding, the Court may agree to suspend the trial
or the hearing in order to prevent the holding of such events from affecting
the outcome and the evidence to be taken in the other proceedings.

54
Article worded in accordance with Act 13/2009 of 3 of November.

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 Law 1/2000, of 7 january, on civil procedure

3. As soon as the application for joinder is filed, the Court Clerk shall give
notice thereof as quickly as possible to the other Court, so that it may abstain
from issuing a judgement or decide upon the stay set forth in the preceding
paragraph until a definitive decision is taken on the joinder being sought.

4. The Court Clerk shall transfer the application for joinder to all the other
parties involved, so that they may file their pleas within the common time
limit of ten days on the appropriateness of the joinder. The Court shall then
issue a ruling within a time limit of five days in accordance with the provisions
set forth in Article 83 herein. Should the joinder be dismissed, notice thereof
shall be given by the Court Clerk to the Court, which may then issue a
judgement or, as appropriate, proceed to hold the trial or hearing.

Article 89. Contents of the court order upholding the joinder of proceedings.

Should the Court uphold the joinder, it shall instruct through the same court
order that a formal written request be sent to the court dealing with the other
proceedings, requiring the joinder and the transfer of the relevant proceedings.

A certification of the background facts the same court may have determined
as sufficient to know the grounds upon which the joinder is being sought,
along with any pleas the parties other than the joinder’s applicant may
have filed shall be attached to such formal request.

Article 90. Reception of the requirement for joinder by the Court required
and hearing of the litigants.55

1. Once the formal request and certification have been received by the
Court required, the Court Clerk shall transfer them to all the litigants that
have appeared before the Court.

2. Should any of the parties appearing before the Court not have entered
an appearance in the proceedings conducted in the Court making the
requirement, they shall be given five days to know about the formal request
and certification at the Court Office and to file a document stating whatever
they may deem most convenient for their rights.

Article 91. Decision of the requirement for joinder.

1. Once the five-day time limit referred to in the preceding article has
elapsed, the Court shall issue a court order, as appropriate, either
accepting or dismissing the requirement for joinder.

55
Article worded in accordance with Act 13/2009 of 3 November.

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2. Should none of the parties appearing before the court required contest
the joinder or should they not file pleas or arguments that differ from those
filed before the court making the requirement, the court required shall
abstain from contesting the grounds of the court order requiring the joinder
on the basis of the existence of the requirements set forth in Articles 76
and 77, and it may only ground its rejection of the requirement on the fact
that the joinder should be performed in the proceedings pending before
the court thus required.

Article 92. Effects of the acceptance of joinder by the Court required.56

1. Once the requirement for joinder has been accepted, the Court Clerk
shall immediately give notice thereof to all the parties involved in the
proceedings conducted before the Court required, so that they may within
a time limit of ten days enter an appearance before the Court making the
requirement, to which the records shall be sent, so that the proceedings
may move forward before such court, as appropriate.

2. Once the joinder of proceedings has been agreed upon, the Court Clerk
shall resolve to stay the course of the most advanced proceedings until the
other proceedings reach that procedural stage, which shall be the moment
at which the joinder is made.

Article 93. Effects of the rejection of joinder of proceedings by the Court

required.

1. Should the court required not accept the requirement for joinder because
it deems such joinder inappropriate or considers that the joinder should be
effectuated in the proceedings pending before it, it shall give notice thereof
to the court making the requirement and both shall submit themselves to
the court holding competence to resolve the discrepancy.

2. The immediately higher court to both the court required and the court
making the requirement shall hold competence to resolve such
discrepancies.

Article 94. Conducting the discrepancy before the competent court.

1. For the purposes set forth in the preceding article, both the court making
the requirement and the court required shall send the competent court a
certification of the records of the proceedings in their respective courts as

56
Article worded according to Act 13/2009 of 3 November.

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 Law 1/2000, of 7 january, on civil procedure

quickly as possible, so that the discrepancy regarding the joinder may be

resolved.

2. Both the court making the requirement and the court required shall
summon the parties so that they may appear within the non-extendable
time period of five days before the competent court and file pleas in writing
as to whatever they may deem most convenient to their rights.

Article 95. Decision on the discrepancy.57

1. The competent court shall issue a decision within a time limit of twenty
days in view of the background facts appearing in the records and of the
written pleas filed by the parties, should they have been filed, by means of
court order. No kind of appeal may be lodged against the court order.

2. Should the joinder of proceedings be upheld, the provisions set forth in

Article 92 herein shall be ordered. Should it be dismissed, the proceedings
shall follow their course separately and any stays agreed upon shall be
lifted by the Court Clerk.

Article 96. Joinder of more than two proceedings. Multiple requirements

for joinder.58

1. The provisions set forth in this chapter shall apply should there be more
than two proceedings whose joinder is being sought.

2. Where the same Court may be required for joinder as regards two or
more proceedings being followed in different Courts, the Court Clerk shall
send the records to the higher court of all of them and shall give notice
thereof to the requiring courts, so that they may defer to the decision
issued by such higher court. In such a case, the provisions set forth in the
two articles above shall apply.

Article 97. Prohibition of a second instance of joinder.59

1. Should an instance of joinder in proceedings in a case have been raised,

a subsequent application for joinder to other proceedings shall not be
allowed if the party filing the application had initiated the proceedings to be
joined.

57
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.
58
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.
59
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.

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2. The Court Clerk shall reject the application filed through a decision to
such a purpose. Should a new instance arise despite the preceding
prohibition, the Court shall declare null and void any procedures conducted
as a result of such application as soon as it is known, imposing costs on
whoever may have filed it.

Section 4. On the joinder of specific proceedings to

general proceedings

Article 98. Cases in which the joinder of specific proceedings to general

proceedings applies.60

1. The joinder of proceedings shall also be ordered:

(i). Where bankruptcy proceedings are pending involving assets against
which any kind of claim has been brought or is brought. In such cases,
the courts shall proceed pursuant to the provisions set forth in bankruptcy
legislation.
(ii). Where probate proceedings are being followed involving an estate
against which any kind of claim has been brought or is brought.
The joinder referred to in this item shall exclude any enforcement
proceedings solely involving mortgaged or pledged assets, which on
no accounts may be included in probate proceedings, whatever the
initiation date of the enforcement proceedings may have been.

2. In the cases set forth in the preceding paragraph, the application for
joinder shall be filed before the court dealing with the general proceedings
independently of which of the proceedings is the oldest.

3. The joinder of proceedings, where appropriate, shall be governed in this

case by the rules of this chapter with the specificities set forth in special
legislation on bankruptcy and probate proceedings.

60
Paragraph 2 (1.2) worded according to the Bankruptcy Act 22/2003 of 9 July.

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 Law 1/2000, of 7 january, on civil procedure

TITLE IV
ON ABSTENTION AND OBJECTION

CHAPTER ONE
ON ABSTENTION AND CHALLENGES: GENERAL PROVISIONS

Article 99. Scope of the law’s application and the principle of legality.

1. The abstention and challenging of Judges, Senior Judges, as well as

members of the Public Prosecution Service, Court Clerks, experts and
personnel at the service of the Administration of Justice in civil proceedings
shall be governed by the provisions set forth in this Title.

2. Any abstentions and, if appropriate, challenges set forth in the preceding

paragraph may only proceed where any of the causes set forth in the
Organic Act on the Judiciary Branch for the abstention and the challenging
of Judges and Senior Judges should exist.

Article 100. Duty of abstention.61

1. Any Judge or Senior Judge who may meet any of the causes legally set
forth for abstention shall abstain from dealing with the matter at issue
without waiting for a challenge to be filed.

2. Court Clerks and civil servants belonging to the Administrative and

Case Management Service, to the Procedural and Administrative
Handling Service or to the Legal Assistance Service, as well as members
of the Public Prosecution Service or experts appointed by the Courts
incurring in any of the causes set forth by the law shall be subject to the
same duty.

Article 101. Legal capacity to challenge.

In civil matters only the parties may file a challenge. The Public Prosecution
Service may also file challenges, as long as it is can or should be involved
in the proceedings due to the nature of the rights at issue.

61
Paragraph worded in accordance with Act 13/2009 of 3 November.

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CHAPTER II
ON THE ABSTENTION OF JUDGES, MAGISTRATES, COURT
SECRETARIES, PUBLIC PROSECUTORS AND
PERSONNEL AT THE SERVICE OF CIVIL COURTS

Article 102. Abstention of Judges and Senior Judges.62

1. Notice of the abstention of a Senior Judge or Judge shall respectively

be given to the Division or Chamber of which he forms part or to the court
holding the functional competence to deal with appeals against judgements,
which shall then issue a decision within a time limit of ten days. Notice of
abstention shall be reasoned and be given in writing as soon as the cause
for the abstention is known.

2. The abstention of a Judge or Senior Judge shall lead to a stay of the

proceedings until the abstention is resolved and such stay shall be decided
upon by the Court Clerk.

3. Should the Court referred to in paragraph 1 of this article deem that the
abstention is unjustified, it shall order the Judge or Senior Judge to continue
dealing with the matter at issue, notwithstanding the parties’ right to file a
challenge. Once the order is received, the Court Clerk shall issue an order to
move the proceedings forward, putting an end to the stay of proceedings.

4. Should the abstention be upheld by the competent court in accordance

with paragraph 1, the abstaining Judge or Senior Judge shall issue a court
order definitively removing himself from the matter and ordering the
records to be sent to whomever may replace him. Should the abstaining
Judge or Senior Judge form part of a Chamber court, the court order, which
shall not be subject to any kind of appeal, shall be issued by the Chamber or
Division of which the abstaining Judge or Senior Judge forms part.

In both cases, the stay of proceedings shall respectively be brought to an

end when the replacement receives the records or joins the Chamber or
Division to which the abstaining Judge or Senior Judge belonged.

5. Notice of the abstention and of the replacement for the abstaining Judge
or Senior Judge shall be given to the parties, including the name of such
replacement.

62
Paragraphs 2 and 3 of this article are worded in accordance with Act 13/2009 of 3 November.

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Article 103. Abstention of Court Clerks.63

The abstention of Court Clerks shall be governed by the rules set forth in
the Organic Act on the Judiciary Branch.

Article 104. Abstention of civil servants belonging to the Administrative

and Procedural Case Management Service, the Procedural and
Administrative Handling Service and the Legal Assistance Service.64

1. Notice of abstention of civil servants belonging to the Administrative and

Procedural Case Management Service, the Procedural and Administrative
Handling Service and the Legal Assistance Service shall be reasoned and
given in writing to whomever may hold competence for taking the decision
to bring the matter at issue or case to an end in the appropriate instance,
who shall then decide upon its appropriateness.

2. Should the abstention be upheld, the civil servant incurring in the legal
causes for abstention shall be replaced in the proceedings by whoever
may legally replace him. Should it be dismissed, the civil servant shall
continue dealing with the matter.

Article 105. Abstention of experts.65

1. Any expert appointed by the Judge, Division or Chamber dealing with

the matter at issue or, as appropriate, by the Court Clerk shall abstain
should any of the circumstances legally set forth come about. The
abstention may be done orally or in writing and shall be duly justified.

2. Should the cause for abstention exist at the time of appointment, the
expert shall not accept the appointment and shall be immediately replaced.
Should the replacement expert also refuse to accept the appointment due
to incurring in the same or other causes for abstention, the provisions set
forth in paragraph 2, Article 342 herein shall apply. Should the causes be
known or come about after the expert’s acceptance of the appointment,
the abstention shall be resolved after a hearing of the parties by whoever
may have made the appointment. No kind of appeal may be lodged against
the decision.

63
Article worded in accordance with Act 13/2009 of 3 November.
64
Article worded in accordance with Act 13/2009, of 3 of November on the reform of procedural
legislation for the implementation of the new Court Office.
65
Article worded in accordance with Act 13/2009 of 3 November.

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Article 106. Abstention of members of the Public Prosecution Service.

The abstention of members of the Public Prosecution Service shall be

governed by the rules set forth in such Service’s Statutes.

CHAPTER III
ON CHALLENGING JUDGES AND MAGISTRATES

Article 107. Time and manner of filing the challenge.66

1. The challenge shall be filed as soon as knowledge of its causes is

known, as it shall not be given leave to proceed otherwise. More specifically,
challenges shall not be given leave to proceed:
(i). Where they are not filed within a time limit of ten days from the date
notice is served of the first decision revealing the identity of the Judge
or Senior Judge to be challenged, should the existence of the cause
for the challenge have been known beforehand.
(ii). Where they are filed with the proceedings already underway,
should the cause for the challenge have been known before the
procedural stage at which the challenge is filed.

2. The challenge shall be filed in writing and shall specifically and clearly
state the legal causes and the reasons on which it is grounded, attaching
preliminary evidence thereof. Such document shall be signed by the
attorney and the court representative should they be involved in the
proceedings, as well as by the person filing the challenge or by someone
on his behalf should he be illiterate. In any event, the court representative
shall attach a special power of attorney for the challenge in question.
Should no attorney and court representative be involved, the person filing
the challenge shall have to ratify it before the Court Clerk in question.

3. Once the challenge is filed, it shall be transferred to the other parties

involved in the proceedings, so that they may state within a common time
limit of three days whether or not they back or contest the challenge thus
filed and whether they know of any other causes for a challenge at that
moment. Any party that may fail to put forward a challenge within said time
limit may not do so subsequently, except where such party may fully prove
that they did not know about the new cause for a challenge at the time.

66
Paragraph (1.2) worded in accordance with Act 13/2009, of 3 of November on the reform of pro-
cedural legislation for the implementation of the new Court Office.

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4. On the next business day following the end of the time period set forth
in the preceding paragraph, the judge thus challenged shall issue a ruling
on whether or not the cause or causes for the challenge filed are given
leave to proceed.

Article 108. Competence for examining challenges.67

1. The following shall examine challenges:

(i). Where the presiding judge or a Senior Judge of the Supreme Court
or of a High Court of Justice is challenged, a Senior Judge of the
Chamber to which the challenged Senior Judge belongs, appointed
according to the rota established by order of seniority.
(ii). Where the presiding judge or a Senior Judge of a Provincial Court
is challenged, a Senior Judge of the Civil and Criminal Chamber of the
corresponding High Court of Justice, appointed according to the rota
established by order of seniority.
(iii). Where the Judge challenged is a High Court Judge, a Judge of the
same High Court, appointed according to the rota established by order
of seniority, as long as such Judge does not belong to the same
Division as the Judge challenged.
(iv). Where all the Judges of a Court of Justice are challenged, a Judge
forming part of the Court in question, appointed according to the rota
established by order of seniority, as long as such Judge is not affected
by the challenge.
(v). Where the Judge or Senior Judge challenged is in charge of a
single-judge court, a Senior Judge of the Provincial Court, appointed
according to the rota established by order of seniority.
(vi). Where a Justice of the Peace or Magistrate is challenged, the
Judge of First Instance of the court district in question or, should there
be several Courts of First Instance, the Judge appointed according to
the rota established by order of seniority.
Seniority shall be ordered by ranking in the judiciary.

2. In cases where it is impossible to comply with the provisions set forth in

the preceding paragraph, the Governing Body of the Court in question shall
appoint the examining judge, ensuring he is as highly ranked as possible or
at least a judge having greater seniority the judge or judges challenged.

67
Paragraph 1 of this article is worded in accordance with Act 13/2009 of 3 November.

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Article 109. Performing the challenging and the effects thereof on the main
case.68

1. On the same day on which the time limit referred to in paragraph 3 of

Article 107, or on the next working day, the Court Clerk shall make the
case or action known to the substitute, and it must be forwarded to the
Court which must examine the incident, the written statements and the
documents of the challenge.

A report must also be attached on the party challenged regarding whether

the challenge is given permission to proceed or not.

2. The challenges which do not state the reasons on which they are
grounded and those which do not have the documents referred to in
paragraph 2 of Article 107 shall not be allowed.

3. If the party challenged accepts the challenge as certain, the incident

shall be resolved with no further ado. Otherwise, if the instruction judge
allows the challenge proposed to proceed, he shall order the taking of the
pertinent evidence requested and which he considers necessary within a
period of ten days, and shall then forward the examination to the competent
court so that it might decide on the incident.

Once the work is received by the competent court in order to decide on the
challenge, the Court Clerk shall transfer this to the Public Prosecutor for a report
within a period of three days. Once this time limit has elapsed, the incident shall
be decided on within the following five days with or without a report from the
Public Prosecutor. There shall be no appeal against this decision.

4. The challenge shall suspend the course of the case until the challenging
incident.

Article 110. Competence for deciding on the challenging incident.69

Challenging incidents shall be decided on by the following:

(i). The Chamber set forth in Article 61 of the Organic Act on the
Judiciary Branch, when the party challenged is the presiding judge of
the Supreme Court, the president of the Civil Chamber or two or more
Senior Judges of this Chamber.

68
Paragraph 1, 3, 4 are worded in accordance with Act 13/2009 of 3 November.
69
Article worded in accordance with Act 13/2009, of 3 November.

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(ii). The Civil Chamber of the Supreme Court when one of the Senior
Judges who compose this is challenged.
(iii). The Chamber referred to in Article 77 of the Organic Act on the
Judiciary Branch when the presiding judge of the high Court of Justice,
the presiding judge of the Civil and Criminal Chamber of this High
Court, the presiding judge of the Provincial Court located in the
corresponding autonomous region or two or more Senior Judges of a
Division or Provincial Court have been challenged.
(iv). The Civil and Criminal Chamber of the High Courts of Justice when
one or several of the Senior Judges of these courts are challenged.
For the purposes stated in the preceding paragraphs, the party
challenged shall not form part of the Chamber.
(v). When the party challenged is a Senior Judge of a Provincial Court,
the Provincial Court without the Judge challenged, or, if this is
composed of two or more Divisions, the Division the judge challenged
is not a part of or the Division which follows the Division which the
challenged Judge forms a part of in numerical order.
(vi). When the party challenged is a judge of First Instance or a judge
of a Commercial Court, the Division of the Provincial Court which
knows of the appeals against his decisions, and, if there are several, a
rota shall be established commencing with the First Division.
(vii). When the party challenged is a Justice of the Peace, the
Examining Magistrate of the challenging incident shall decide.

Article 111. Specialities of the challenging incident in oral trials. Other

special cases.70

1. In the proceedings which are substantiated through oral trials, if the

judge challenged does not accept the challenge as certain, the proceedings
shall pass to the party which must deal with the incident, and the main
case shall remain suspended. The Court Clerk shall convene the parties
before the Examining Magistrate, within the following five days, and once
the parties have been heard and the evidence declared to be relevant
examined, the Examining Magistrate shall decide through a procedural
court order on whether the challenge applies or not at the same act.

70
Paragraph worded in accordance with Act 13/2009 of 3 November.

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2. As regards challenges to Judges or Senior Judges subsequent to the

setting of a date for the hearing, the provisions set forth in Articles 190 to
192 herein shall apply.

Article 112. Decision on the incident, costs and fine.

1. The court order which dismisses the challenge shall agree to return the
information on the case or action in the state it is in to the party challenged
and shall sentence the challenger to pay the costs unless there are
exceptional circumstances which might justify another pronouncement.
When the decision the incident expressly declares that the challenger had
bad fait, a fine of € 180 to one € 6000 may be imposed on him.

2. The court order which upholds the challenge shall definitively separate
the party challenged from knowledge of the proceedings or action. The
party who substitutes him shall continue with the case until its termination.

Article 113. Notification of the court order and appeals.

There shall be no appeal against the decision on the challenging incident,

notwithstanding an appeal against the decision taken in the proceedings
or action and asserting the possible nullity of the decision as the Judge or
Senior Judge who issued the decision appealed against or formed part of
the corresponding Chamber or Division is involved in the alleged challenge
proceedings.

CHAPTER IV
ON THE CHALLENGE TO THE COURT CLERKS OF THE CIVIL COURTS71

Article 114.72

Without content.

Article 115. Challenge. Jurisdiction for examining and resolving

challenging incidents.73

1. The provisions set out in the Judiciary Act for Judges and Magistrates will
apply to challenges of the Clerk of the Courts, with the following particulars:

71
Signature worded in accordance with Act 13/2009, of 3 November.
72
This article remains without content due to Act 13/2009, of 3 November.
73
Amended by final provision 4.2 of Law 7/2015 of 21 July.

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a) Clerk of the Courts cannot be challenged during any proceedings or

actions for which they are responsible.
b) The challenge will be resolved by the relevant Governance
Secretary, having being instructed on the incident by the appropriate
Coordinating Secretary or, as appropriate, the Clerk of the Court
appointed by the former.

Article 116. Report of the party challenged.74

Once the writ of challenge is submitted, the Clerk of the Court challenged
will provided a detailed written report on whether they acknowledge the
alleged grounds to be true and legitimate, or not, and this writ will be sent
to the Coordinating Secretary so that they may give account of it to the
Governance Secretary, or, as appropriate, it will be sent directly to the
Governance Secretary who needs to be aware of the challenge.

Article 117. Acceptance of the challenge by the party challenged.75

1. When the party challenged acknowledges the reason for the challenge
as being true, the Governance Secretary shall pass an order, without
further proceedings and with no further appeal, upholding the challenge if
the grounds are considered to be legal.

2. If the court upholds that the case is not one of those classified by the
Act, it shall declare that there is no place for the challenge. There can be
no appeals against this order.

Article 118. Opposition by the challenged party and substantiation of the

challenge.76

When the party challenged denies the certainty of the alleged reason which
grounds the challenge, if the Examining Magistrate allows the challenge
proposed to proceed, the Coordinating Secretary shall order the taking of
evidence requested which he considers to be appropriate and useful within
a period of ten days, and shall forward this to the Public Prosecution Service
for a period of three days. Once this time limit has elapsed, whether or not
there is a report from the Public Prosecution Service, it will be referred to the

74
Amended by final provision 4.3 of Law 7/2015 of 21 July.
75
Amended by final provision 4.4 of Law 7/2015 of 21 July.
76
Amended by final provision 4.5 of Law 7/2015 of 21 July.

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Governance Secretary who will pass a decision on the incident within the
following five days. There can be no appeal against this decision.

Article 119. Substitution of the Court Clerk challenged.

The Court Clerk challenged shall be replaced by his legal substitute from
the time the statement of the challenge is submitted.

CHAPTER V
ON THE CHALLENGE OF CIVIL SERVANTS BELONGING TO THE BODIES
OF PROCEDURAL AND ADMINISTRATIVE MANAGEMENT, OF PROCEDURAL
AND ADMINISTRATIVE PROCESSING, AND OF JUDICIAL ASSISTANCE77

Article 120.78

Without content.

Article 121. Challenge. Competence for examining and resolving the

challenging incident.79

1. The challenge of civil servants belonging to the Bodies of Procedural and

Administrative Management of Procedural and Administrative Processing and
Judicial Assistance, shall only be possible for the reasons provided in law.

2. The Court Clerk they depend on in the hierarchy shall be competent to

examine the challenging incident and this shall be decided by the party
competent to dictate the decision which finalises the proceedings or action
at the respective instance. There shall be no appeal against the decision
which decides on the incident.

Article 122. Inadmissibility of the challenge.80

In the light of the written notice of a challenge, if the Court Clerk considers
that the reason is not one of those characterised in law, the request stating
the reasons for the inadmissibility shall not be allowed. There shall be no
appeal against this decision.

77
Signature worded in accordance with Act 13/2009, of 3 November.
78
Article with no content in accordance with Act 13/2009, of 3 November.
79
Article worded in accordance with Act 13/2009, of 3 November, on the reform of procedural
legislation for the implementation of the new Court Office.
80
Article worded in accordance with Act 13/2009 of 3 November.

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Article 123. Performance of the incident; acceptance or rejection of

the challenge by the party challenged.

1. Once the written notice of the challenge is given leave to proceed, on

the day following its reception, the party challenged shall state to the Court
Clerk whether or not the alleged reason exists. When the reason for the
challenge is recognised to be certain, the Court Clerk shall agree to replace
the party challenged by the party which the law provides must substitute
him. There is no appeal against this decision.

2. If the party challenged denies the certainty of the reason alleged as

grounds for the challenge, the Court Clerk shall have five days in which
to verify whether the challenged party’s proposals are relevant and
decide whether they are appropriate, after which he shall forward the
case to the party which has to decide on the matter.

CHAPTER VI
ON THE CHALLENGE TO EXPERTS

Article 124. Scope of the challenge to experts.

1. Only the experts appointed by the court by drawing lots may be

challenged, in the terms stipulated in this chapter. This provision is
applicable to full-time experts and their substitutes.

2. The experts who are the authors of opinions submitted by the parties can
only be the subject of objections for the reasons and in the manner set forth
in Articles 343 and 344 herein, but they cannot be challenged by the parties.

3. In addition to the reasons for challenges stipulated in the Organic Act on

the Judiciary Branch, the following are reasons for challenging experts:
a) Having previously given an opinion on the same case contrary to
the challenging party either within the proceedings or not.
b) Having provided services as an expert to the counter litigant or
being dependent on or an associate of the counter litigant.
c) Having a stake in a company, establishment or firm which is a party
to the proceedings.

Article 125. The manner of proposing the challenge to experts.

1. The challenge shall be made in writing and signed by the attorney and
the court representative of the party if these are involved in the case, and

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shall be sent to the head of the court or the Senior Reporting Judge if there
is a Chamber. This document shall specifically state the reason for the
challenge and the means to prove this, and copies shall be enclosed for
the party challenged and for the other parties in the proceedings.

2. If the reason for the challenge was prior to the appointment of the expert,
the document must be submitted within the two days following the day
notice was given of the appointment.

If the reason is subsequent to the appointment, but prior to the issue of the
opinion, the written notice of a challenge may be submitted before the date
stipulated for the case or hearing or at the beginning of these.

3. An expert cannot be challenged after a case or a hearing, notwithstanding

the possibility that any reasons for challenges that may have existed at the
time the opinion was issued but were only known after the opinion may be
stated to the court before a decision is pronounced and, if this is not
possible, to the court competent in the second instance.

Article 126. Admission of the written notice of a challenge.81

Once the challenge is proposed in time and form, a copy of the written
notice shall be forwarded to the expert challenged and to the parties. The
party challenged must state whether or not the reason for the challenge is
certain before the Court Clerk. If it is recognised as certain and the Court
Clerk considers the recognition to be grounded, he shall be deemed as
challenged without further ado and he shall be replaced, where relevant, by
a substitute. If the party challenged is the substitute, and recognises that the
reason is certain, the provisions set forth in Article 342 herein shall apply.

Article 127. Performance and decision on the challenging incident.82

1. When the expert denies the certainty of the reason for the challenge or
does not accept the recognition made by the expert of the occurrence of
this reason, the Court Clerk shall order the parties to appear in court on
the day and time stated by him, with the evidence they intend to use and
assisted by their attorneys and court representatives if the involvement of
the latter is compulsory in the proceedings.

81
Article worded in accordance with Act 13/2009, of 3 November .
82
Paragraphs 1 and 2 of this article are worded in accordance with Act 13/2009, of 3 November.

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2. If the party challenging fails to appear the Court Clerk shall consider him
to have abandoned the challenge.

3. If the party challenging appears and insists on the challenge, the court
shall allow the relevant and useful evidence and shall immediately decide
what it deems proper through a court order.

In the event that the challenge is upheld, the expert challenged shall be
replaced by the substitute. If the substitute is the party challenged and
there are no more experts, procedure shall be in accordance with the
provisions set forth in Article 342 herein.

4. There shall be no appeal against the decision which resolves the

challenge to the expert, notwithstanding the right of the parties to submit
the question to a higher court.

Article 128. Costs.

The regime for awarding court costs when challenging experts shall be the
same as the regime for challenging judges and Senior Judges.

TITLE V
ON COURT PROCEDURES

CHAPTER ONE
ON THE PLACE OF THE COURT PROCEDURES

Article 129. The place of the court procedures.83

1. Court procedures shall take place at the Court Office except for those
which, due to their nature, must take place elsewhere.

2. The procedures which must take place outside the judicial district of the
court which deals with the case, shall be carried out, where relevant, with
legal assistance.

3. Notwithstanding the provisions of the preceding paragraph, courts may be

set up anywhere in the territory of their jurisdiction in order to conduct their
procedures when this is necessary or advisable for the proper administration
of justice.

83
The title and paragraph 1 of this article are worded in accordance with Act 13/2009, of 3 November.

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They may also move out of their jurisdictions in order to conduct procedures
involving evidence as provided herein and in Article 275 of the Organic Act
on the Judiciary Branch.

CHAPTER II
ON THE TIME OF COURT PROCEDURES

Section 1. On working days and hours

Article 130. Working days and hours.84

1. Court proceedings shall be conducted on working days and during work

hours.

2. Saturdays and Sundays, 24 and 31 December, Spanish national

holidays and the public holidays which are specific to the respective
Autonomous Regions or cities and towns are non-working days. All the
days of the month of August shall also be non-working days.

3. Work hours are understood to be from 8 a.m. to 8 p.m. unless the law
provides otherwise for a specific act.

Working hours for acts of notification and enforcement shall be from 8 a.m.
to 10 p.m.

4. The provisions of the above paragraphs will be taken without prejudice

to what may be provided for electronic proceedings.

Article. 131. Authorisation of working days and hours.85

1. Ex officio or at the request of a party, the courts may authorise non-

working days and hours when there is an urgent reason for this. The
authorisation shall be given by the Court Clerks when it is intended to
conduct court procedures which must be done concerning matters of their
sole competence, when the procedures are ordered by them or when they
tend to comply with the decisions issued by the courts.

84
Paragraph 4 is added by single article 12 of Law 42/2015, of 5 October.
Paragraph 2 worded pursuant to Act 13/2009, of 3 November.
85
Paragraphs 1 and 4 of this article are worded in accordance with Act 13/2009, of 3 November .

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2. Procedures of the court whose delay may lead to serious damage for
the persons concerned or to the proper administration of justice or lead to
the inefficacy of a judicial decision shall be deemed to be urgent.

3. For the urgent procedures referred to in the preceding paragraph, the

days in the month of August shall be working days with no need for express
authorisation. Likewise, no authorisation shall be needed to continue
working during non-work hours on urgent procedures commenced during
work hours, for as long as required.

4. No appeals may be made against decisions to authorise non-working

days and hours.

Section 2. On time limits and terms

Article 132. Time limits and terms.86

1. The procedures of cases shall be carried out in the terms or within the
time limits stated for each procedure.

2. When neither time limits nor terms are established, it shall be construed
that they must be conducted without delay.

3. Infringement of the provisions set forth in this article by the courts and
personnel at the service of the Administration of Justice, unless there is a
just reason, shall be corrected in keeping with the provisions set forth in
the Organic Act on the Judiciary Branch, notwithstanding the right of the
party damaged to request any other relevant liabilities.

Article 133. Calculation of the time limits.87

1. The time periods shall begin on the day following the day on which the
notice which the law makes the commencement of the time limit depend
on is given and this shall include the expiry date, up to 12 p.m..

However, when the law states a time limit which begins to run from the
expiry of another time limit, the former shall be calculated, with no need for
further notice, from the day following the date of expiry of the latter.

2. Non-working days shall be excluded from the calculation of the time

limits indicated by days.

86
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.
87
Paragraphs 2 and 4 of this article are worded in accordance with Act 13/2009, of 3 November .

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For the time limits which are stated in the urgent procedures referred to in
paragraph 2 of Article 131, the days of the month of August shall not be
considered to be non-working days and only Saturdays, Sundays and
feast days shall be excluded from the calculation.

3. The time limits indicated by months or years shall be calculated from

date to date.

In the expiry month, when there is no date equivalent to the initial date of
the calculation, it shall be construed that the time limit expires on the last
day of the month.

4. The time limits which terminate on Saturdays, Sundays or another non-

working day shall be construed to be extended until the following working day.

Article 134. Impossibility to extend the time limits.88

1. The time limits established herein cannot be extended.

2. However, the time limits may be interrupted and the terms delayed in
the event of force majeure which prevents them from being complied with,
and the calculation shall be renewed at the time when the cause of the
interruption or delay ceases. The occurrence of force majeure must be
appreciated by the Court Clerk through a decree, ex officio, or at the
request of the party suffering force majeure, with a hearing of the other
parties. An appeal for judicial review may be lodged against this order and
shall have suspensory effects.

Article 135. Submission of writs for the purposes of the time requirements
of procedural acts.89

1. Where court offices and the individuals appearing in a process are

under the obligation to use existing computer or electronic systems at the

88
Paragraph 2 worded pursuant to Act 13/2009, of 3 November .
89
Amended by single article 13 of Law 42/2015, of 5 October.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.

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Justice Administration in accordance with article 273, they will send and
receive all writs, whether initial submissions, or not, via these systems,
apart from the exceptions provided for in the law, in such a way that the
authenticity of the communication is guaranteed and that there is written
proof of sending and receipt as a whole, along with the date on which they
were carried out. This will also be applicable to those parties intervening
who, although not under the obligation to do so, choose to use the
computer or electronic systems.

Writs and documents may be submitted in electronic format twenty-four

hours a day, every day of the year.

Once writs and documents are submitted by electronic means, an automatic

receipt will be issued by the same means, showing the entry number on the
register and the date and time of submission on which, for all purposes, they
will be taken to have been submitted, In the event that the submission takes
place on a non-working day or at a non working time for procedural purposes
in accordance with law, it shall be construed to have been made on the first
following working day and at the first working hour.

For the purposes of evidence and compliance with the legal requirements
which require the original documents or authoritative copies to be available,
the provisions of Article 162 shall apply.

2. Where submission of imperative writs using the computer or electronic

means referred to in the previous paragraph is not possible within the time
limit due to an unplanned interruption in computer or electronic
communications services, in as far as possible means will be made
available so that the user is informed of this circumstance, along with the
effects of the suspension, with express indication, as appropriate, of the
extension of the time limits which are about to expire. The sender may
proceed, in this event, to make the submission at the court office on the
first following working day together with the proof of the interruption.

In the event of planned interruption to the service, this must be publicised

sufficiently in advance, with a notification of the alternative means of
submission that are appropriate in such an event.

3. If the computer or electronic communications service is insufficient to

submit the writs or documents, they must be submitted in electronic format
to the court office on that day or the next working day together with the
proof issued by the server of the unsuccessful attempt to submit. In these
cases an acknowledgement of receipt will be given.

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4. Without prejudice to the foregoing, writs and documents will be submitted

in hard copy where the interested parties are not under the obligation to
use electronic means and have not chosen to use them, where they are
not liable to conversion into electronic format and in other cases provided
for by law. These documents, and instruments or effects attached to them,
will be deposited and stored on the case file, whether in progress or
definitive, at the court office, at the disposition of the parties, and they will
be given a file number and a record will be made on the electronic judicial
case file of its existence.

In the event that writs and documents are submitted in hard copy, the civil
servant appointed shall stamp the written notices for commencement of
proceedings and any others whose submission is subject to a peremptory
time limit with a stamp which will record the Court Office at which it was
submitted and the day and time of submission.

5. Submission of writs and documents, in whatever format, it they are

subject to a time limit, may be made up until 15:00 on the working day
following expiry of the time limit.

In the court proceedings before civil courts, the submission of written

statements in the court providing duty service is not allowed.

Article 136. Final deadline.

Once the time limit has elapsed or the terms stated for carrying out a
procedural act has passed, the fixed and final deadline shall have elapsed
and the opportunity to conduct the act in question shall be lost. The Court
Clerk shall leave a record of the elapse of the time limit in an official
document and shall agree to what is applicable or shall serve notice to the
court so the corresponding decision can be ordered.

CHAPTER III
ON IMMEDIACY, ANNOUNCEMENTS AND OFFICIAL LANGUAGE

Article 137. Judicial presence at declarations, evidence and hearings.90

1. The Judges and Senior Judges members of the court which is dealing
with a case shall be present at the declarations of the parties and the

90
A new paragraph 3 has been added and the preceding paragraph 3 becomes paragraph 4, pur-
suant to Act 13/2009, of 3 November.

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witnesses, confrontations, presentations, explanations and responses

provided by the experts, as well as at the oral criticism of their decisions
and any other act concerning evidence which, in accordance with the
provisions set forth herein, must be carried out with examination and
cross-examination and in public.

2. The hearings and appearances which are intended to hear the parties
before issuing a decision shall always be held before the Judge or the
Senior Judges who make up the court dealing with the case.

3. The provisions set forth in the preceding paragraphs shall be applicable

to the Court Clerks with regard to the procedures which must be carried
out only before them.

4. The infringement of the provisions set forth in the preceding paragraphs

shall determine the nullity of the corresponding procedures fully in law.

Article 138. Public oral proceedings.91

1. The evidence procedures, hearings and appearances intended to hear

the parties before passing a decision shall be conducted at a public
hearing.

2. However, the proceedings referred to in the preceding paragraph may

be heard in closed session when this is necessary for the protection of
public order, or national security in a democratic society, or when the
interests of minors, or the protection the private lives of the parties and
other rights and liberties require this or, insofar as the court deems this to
be strictly necessary when, due to the occurrence of special circumstances,
being heard publicly might damage the interests of justice.

3. Before agreeing to holding proceedings in closed session, the court

shall hear the parties who are present at the act. The decision shall take
the form of a court order and no appeal shall be allowed against it, without
prejudice to any protests and raising the question, if admissible, in the
applicable appeal against the final judgment.

The Clerk of the Courts may adopt the same measure in such proceedings
which must be carried out in matters of their sole jurisdiction by means of
an order. Only an appeal for reversal can be lodged against this order.

91
Paragraph 4 is added by final provision 4.6 of Organic Law 7/2015, of 21 July.
Paragraph 2 (3) added in accordance with Act 13/2009, of 3 November.

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4. The details of the directions of the judicial body must be made public. The
Clerk of the Courts will ensure that the relevant civil servants at the Judicial
body publish, in publicly visible place, on the first working day of each week,
the list of directions relating to their respective judicial body, with an indication
of the date and time they were held, type of action and proceedings number.

Article 139. The secret of deliberations on Chamber.

The deliberations of Chamber of Judges are secret. The result of the voting
is also secret, notwithstanding the provisions of the law on the
announcement of dissenting votes.

Article 140. Information on procedures.92

1. Justice Administration lawyers and the relevant civil servants at the Court
Office will provide any person proving a legitimate and direct interest with
any information they request about the status of court proceedings, which
they may examine and have knowledge of, unless they are or have been
declared restricted in accordance with the law. Such persons may also
request uncertified copies of writs and documents relating to the proceedings,
which have not been declared as restricted, at their own expense.

2. At the request of the persons referred to in the preceding paragraph,

and at their own expense, the Justice Administration Lawyer shall issue
the testimonies and certificates they request, stating the receiver.

3. Notwithstanding the provisions of the preceding paragraphs the courts,

through court orders, may classify the whole or part of the proceedings as
restricted when this measure is justified due to the circumstances stated in
paragraph 2 of Article 138.

Proceedings classified as restricted may only come to the knowledge of

the parties involved and their representatives and defenders, without
prejudice to the provisions regarding events and data of a criminal or tax or
other nature.

Article 141. Access to books, files and judicial registers.

The persons who accredit a legitimate interest may access the books, files
and judicial registers which are not of a reserved nature and, at their own
expense, obtain testimony or certification of the data stated therein.

92
Paragraphs 1 and 2 amended by final provision 4.7 of Law 7/2015 of 21 July.

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Article 141 bis.93

In the cases stipulated in the two preceding articles, personal data, images,
names and surnames, addresses and any other data or circumstance
which directly or indirectly might permit the identification of minors must be
omitted in the simple copies, testimonies and certifications issued by the
Court Clerks, regardless of the storage system used for this, when it is
necessary to protect the higher interest of the minors and preserve their
privacy.

Article 142. Official Language.

1. In all judicial procedures, the Judges, Senior Judges. public Prosecutors,

Court Clerks and other civil servants in courts and tribunals shall use
Castilian Spanish, the official language of the State.

2. The Judges, Senior Judges, Court Clerks. Public Prosecutors and other
civil servants in Courts and courts may also use the official language of the
Autonomous Authority, providing none of the parties opposes this, alleging
that they do not know this language, which would lead to lack of proper
defence.

3. The parties, court representatives and attorneys, as well as witnesses

and experts, may use the language which is also official in the Autonomous
Authority in whose territory the court procedure takes place, both as
regards oral and written declarations.

4. The court procedure carried out and the documents submitted in the
official language of an autonomous region shall have full validity and
efficacy with no need for translation into Castilian Spanish; however, these
shall be translated ex officio when they shall take effect beyond the
jurisdiction of the judicial bodies located in the autonomous region, unless
these are Autonomous Authorities with an official own language which
coincides. These shall also be translated when this is provided for in the
laws or at the request of a party who alleges lack of proper defence.

5. In oral procedures, by a procedural court order the court may authorise

any person who knows the language used as an interpreter once he has
sworn or promised that the translation is true to the original.

93
Article added by Act 54/2007, of 28 December.

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Article 143. Intervention of interpreters.94

1. When a person who does not know Castilian Spanish nor, in the event,
the own official language of the Autonomous Authority has to be questioned
or make a declaration, or when it is necessary to personally let him know a
decision, the Court Clerk may issue an order authorising any person who
knows the language concerned to act as interpreter, in which case the said
interpreter shall be required to swear or promise that the translation is true
to the original.

Notwithstanding the above, the provision of interpretation services shall be

guaranteed in trans-border litigation for the persons who do not know
Castilian Spanish nor, as appropriate, the own official language of the
Autonomous Authority, in the terms established in Act 1/1 996, of January
10, regulating free legal assistance.

As regards the procedures which are carried out in the above cases, a
record shall be kept with the texts in the original language and their
translation to the official language, which shall be signed by the interpreter.

2. In the same cases as in the preceding paragraph, if the person is deaf,

an interpreter of the proper sign language shall always be appointed,
pursuant to the provisions in the aforementioned paragraph.

A proper record shall be kept of the procedure carried out with deaf
persons.

Article 144. Documents worded in an unofficial language.95

1. Any document worded in a language other than Spanish or, as

appropriate, the official language of the Regional Authority in question
shall have a translation of such document attached thereto.

2. Such translations may be done privately, in which case, should any

party contest it within a time limit of five days of it being translated, stating
that it is not a true and faithful translation and stating the reasons for such
discrepancy, the Court Clerk shall order an official translation of the part of
the document placed into question at the cost of whoever may have
submitted it.

94
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.
Paragraph worded in accordance with Organic Act 19/2003, of 23 December.
95
Paragraph 1 (2) worded in accordance with Act 13/2009 of 3 November.

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Nonetheless, should the official translation made at the request of a party

turn out to be substantially the same as the private translation, the costs
shall be incurred by whoever may have requested it.

CHAPTER IV
ON ATTESTING TO AND RECORDING THE PROCEDURES

Article 145. Judicial authority to attest.96

1. The Court Clerk shall hold sole and full responsibility for attesting to
procedural actions.

More specifically, the Court Clerk shall:

(i). Attest by himself or through the corresponding records, of which he
shall be in charge, to the reception of written statements and any
documents and receipts attached thereto, issuing, as appropriate, any
certifications the parties may request.
(ii). Irrefutably attest to the performance of procedural actions at the
Court or before it, as well as any significant procedural events that
may come about through the relevant certificates and procedural steps
in whatever media may be employed.
(iii). Issue certifications or affidavits on court procedures which have
not been declared secret or reserved to the parties, expressing the
recipient and purpose for which they have been requested.
(iv). Authorise and record the granting of powers of attorney for
proceedings in accordance with the provisions set forth in Article 24
herein.

2. The Court Clerk shall not require the additional intervention of any
witnesses in the performance of such functions.

Article 146. Recording proceedings.97

1. Any procedural actions not consisting of written statements or documents

shall be recorded by means of certificates and records. Wherever technical

96
Article worded in accordance with Act 13/2009 of 3 November.
97
Paragraph 3 is amended by single article 14 of Law 42/2015, of 5 October.
Paragraphs 1 and 2 of this article have been worded in accordance with Act 13/2009 of 3 November
(“Official State Gazette” no. 266 of 4 November).

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means are used to record or reproduce them, the Clerk of the Court shall
ensure the authenticity of whatever may have been recorded or reproduced.

2. Where the law requires a record to be issued, such record shall include
everything that may have been performed with the necessary length and detail.

Should proceedings have to be recorded on a medium that is suitable for

recording or reproduction under this Act, and should the Clerk of the Court
be equipped with a recognised electronic signature or any other security
system which according to the law ensures the authenticity and integrity of
whatever may be recorded, the electronic document generated in this way
shall be the record for all intents and purposes.

Should it be impossible to use the guarantee mechanisms provided for in

the preceding paragraph, the Clerk of the Court shall include the following
details in the record: number and type of proceedings, place and date
held, duration, persons attending the hearing, the parties’ petitions and
requests, in the event of proposals for the taking of evidence, a statement
of relevance and order in the performance of the same, decisions issued
by the Judge or Court, along with any other circumstances or incidents
that cannot be recorded in such medium.

In such cases, or where the recording means provided for in this article
cannot be used for any reason, the records shall be digital and may not be
hand-written, except where the court in which the hearing is held should
lack computer equipment.

3. Courts may use technical documentation and archiving methods for

their proceedings and for any writs or documents they may receive, with
the guarantees referred to in paragraph 1 of Article 135 of this Act. They
may also employ technical means to monitor the status of proceedings
and their statistics.

Article 147. Recording proceedings using image and sound recording and
reproduction systems.98

Oral proceedings in hearings, cases and appearances held before judges

or magistrates or, as appropriate the Clerk of the Courts, will be recorded
on media suitable for recording and reproducing sound and image and
may not be transcribed.

98
The first paragraph is amended by single article 15 of Law 42/2015, of 5 October.

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As long as the necessary technical means are available, the Clerk of the
Court shall ensure the authenticity and integrity of whatever may have been
recorded or reproduced through the use of recognised electronic signatures
or any other security system offering such guarantees under the law. In such
a case, the holding of a hearing shall not require the Clerk of the Court’s
presence in the chamber, unless the parties have requested it at least two
days before the hearing is to be held or, exceptionally, should the Clerk of
the Court deem it necessary due to the complexity of the matter, the amount
and nature of the evidence to be taken, the number of people involved, the
possibility of any incidents that cannot be recorded coming about or the
existence of any other equally exceptional circumstances that may justify it.
In such cases, the Clerk of the Court shall issue a succinct record under the
terms contained in the preceding article.

Oral proceedings and hearings recorded and documented on digital media

may not be transcribed, except in cases where a law determines they shall.

The safekeeping of the electronic document serving as a medium for the

recording shall be the Clerk of the Court’s responsibility. The parties may
request copies of the original recordings at their own expense.

Article 148. Drawing up, safekeeping and conservation of the records.99

Court Clerks shall be held liable for the records being appropriately worded,
recording any decisions the Courts or they themselves may issue, when duly
authorised by the law. They shall likewise be held liable for the safekeeping of
such records, except for the time they may be in possession of a Judge,
Senior Reporting Judge or any other Senior Judge belonging to the Court.

CHAPTER V
ON COURT NOTICES

Article 149. Kinds of notices.100

Procedural notices shall be include:

(i). Notices, where the purpose is to inform about a decision or procedure.
(ii). Summons, so that a person may enter an appearance and act
within a certain time limit.

99
Worded in accordance with Act 13/2009 of 3 November.
100
This article has been worded in accordance with Act 13/2009 of 3 November.

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(iii). Orders to attend, where the place, date and time to appear and act
are set.
(iv). Injunctions, to order a specific kind of activity or lack thereof
pursuant to the law.
(v). Orders, to mandate the issuance of records or affidavits, or the
performance of any kind of action corresponding to Real Estate,
Company or Vessel Registrars on the hire purchase of moveable
property, Notary Publics, or civil servants at the service of the
Administration of Justice.
(vi). Formal written requests, for notices to non-judicial authorities and
civil servants other than the ones set forth in the item above.

Article 150. Notice of rulings and orders to move the proceedings forward.101

1. Notice of procedural rulings shall be given to all parties to the

proceedings.

2. By arrangement of the Court, notice of the proceedings being pending shall

also be given to the any person which, according to the records, may be
affected by the judgement bringing the proceedings to a close. Such notice
shall be served with the same requirements should the Court become aware
of evidence that the parties are using the proceedings for fraudulent purposes.

3. Notice shall also be given to third parties in any circumstances laid

down by the law.

Article 151. Time limited for notices.102

1. Notice of any decisions issued by the Courts or Clerk of the Courts shall
be given within at most three days from the date they are issued or published.

101
Paragraphs 1 and 2 of this article have been worded in accordance with Act 13/2009 of 3 November.
102
Paragraph 2 is amended by single article 16 of Law 42/2015, of 5 October.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.
See transitional provision 4 of the afore-mentioned act regarding the time limit in paragraph 2.

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2. Acts of notification to the Public Prosecution Service, the Public

Prosecutor, the Lawyers of the General Courts and Legislative Assemblies,
or the Legal Service of the Social Security Administration Legal Service,
other Public authorities in the Autonomous Communities or Local Bodies,
and those which are made using the notification services organised by the
Procurators’ Associations, will be taken to have been made on the working
day following the date of receipt shown on the act or on the slip proving
receipt where the act of notification was made using the means and
following the requirements provided for in article 162. Where the act of
notification was sent after 15:00, it will be taken to have been received on
the following working day.

3. Where the delivery of any document or despatch that should be attached

to the notice takes place subsequent to service of the notice, the notice
shall be construed to have been served upon certification of the document’s
delivery, as long as the effects arising from the notice are linked to such
document.

Article 152. Form of notices. Response.103

1. Notices shall be given under the supervision of the Clerk of the Court,
who shall be responsible for appropriate organisation of the service. Such
notices shall be served by:
(i) Civil servants belonging to the Legal Assistance Service.
(ii) The procurator for the party requesting it.

For this purpose, in all writs giving rise to initiation of legal or enforcement
proceedings or other instances, the applicant must state if they wish all
notices to be carried out by their procurator. If no statement if made to this
effect, the Clerk of the Court will process orders and such acts will be
served by civil servants from the Judicial Assistance Office. Furthermore,
they will be served by the latter if the defendants, under enforcement or

103
Amended by single article 17 of Law 42/2015, of 5 October.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.
Article worded in accordance with Act 13/2009 of 3 November.

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appeal, do not expressly request in their writ of appearance that this be

done by their procurator or if the parties are beneficiaries of the right to
free legal aid.

The applicants may, with grounds and if there exists just cause, apply for
amendment to the initial regime and the Clerk of the Court, if this is
considered to be justified, will carry out subsequent notices in accordance
with the new application.

These notices will be considered to validly served where the certification

contains sufficient records of them having been served in person, at the
address, at the E-mail address given for that purpose, over the internet or
by the computer or electronic media chosen by the consignee.

For these purposes, the procurator will prove, at their own liability, the
identity and status of the recipient of the notification, taking care that the
copy contains a written record of receipt, of the date and time and the
content of the notification.

2. Notices will be served using electronic media where the individuals

involved in a process are under the obligation to use the computer or
electronic systems existing at the Justice Administration in accordance
with article 273, or where, without being under that obligation, they choose
to use these media subject, in all cases, to the provisions contained in the
regulations governing the use of information and communications
technology at the Justice Administration.

Nevertheless, notifications will not be served by electronic means where

the act is accompanied by elements that cannot be converted into
electronic format or if provided for by law.

The consignee may identify an electronic device, simple messaging

service or an E-mail address to be used to notify them a notification is
available, but may not be used to serve notifications. In this event,
regardless of the format the notification is made in, the court office will
send the afore-mentioned alert. The absence of this alert will not prevent
the notification from being considered to be fully valid.

3. Notices shall be served in any of the following ways, as provided for in

this Act:

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 Law 1/2000, of 7 january, on civil procedure

a) Through the procurator, where notices are served to whoever may

have entered an appearance in the proceedings and represented by
the former.
b) By sending the notice by post, telegram, E-mail or any other
electronic means which allows irrefutable proof of receipt, the date and
time and the contents of notice to appear on the records.
c) Delivery to the consignee of a verbatim copy of the decision to be
notified, of the injunction sent by the Court or the Clerk of the Court, or
of the order to attend or summons.
d) In all cases where a procurator has not been appointed, by the
personnel at the service of the Justice Administration, by electronic
means, where the Public Prosecution Service, the Public Prosecutor,
the Lawyers of the General Courts and Legislative Assemblies or the
Legal Service of the Social Security Administration and other Public
authorities in the Autonomous Communities or Local Bodies are
concerned.

4. The order will clearly record the legal nature of the writ and will state the
court or Clerk of the Court passing the decision and the matter to which it
relates, the name and surnames of the person to whom the summons or
order to attend is made, and the procurator in charge of complying with it,
as appropriate, the purpose of them and the place, date and time that the
person summonsed must appear, or the time limit within which the act
referred to in the summons must be performed, along with the relevant
warnings provided for by the law in each case.

5. No responses to notices, summonses or orders to attend from the

interested party shall be given permission to proceed or be recorded,
unless provided otherwise. Responses from the party being summonsed
shall be allowed in the case of injunctions by recording such circumstance
briefly in the procedural step.

Article 153. Notice by means of court representatives.

Any notices to the parties of the proceedings shall be served through their
court representative, where they are thus represented. Court representative
shall sign any kind of notices, summonses, orders to attend and injunctions
that have to be served to his grantor of power of attorney during the course
of the case, including judgements as well as notices concerning any
procedures the grantor must perform personally.

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Article 154. Place of notices to procurators.104

1. Notices to procurators shall be served at the court’s premises or through

the common receipt service organised by the Procurators’ Association.
The Procurators’ Association shall be responsible for the internal regulation
of such service in accordance with the law.

2. Sending and receiving notices to procurators in this service will be

carried out, apart from the exceptions provided for by the law, by computer
or electronic media and with the proof of receipt referred to in article 162.

If the notice was served in hard copy, duplicate copies of the ruling or
summons shall be sent to the service, one copy of which will be kept by
the procurator and the other signed by them, which shall then be returned
by the service to the Court Office.

Article 155. Notices to parties that have not yet entered an appearance or
that are not represented by a procurator. Address.105

1. Where the parties involved are not represented by a procurator or where

the notice is an initial summons or order to attend, notices shall be sent to
the litigants’ address. The right to request free legal aid shall be stated in
the summons or order to attend, as well as the time limit for request it.

104
Paragraph 2 is amended by single article 18 of Law 42/2015, of 5 October.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.
Paragraph 2 worded in accordance with Act 41/2007 of 7 November.
105
Paragraph 2 is amended by single article 19 of Law 42/2015, of 5 October.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.

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 Law 1/2000, of 7 january, on civil procedure

2. The claimant’s address shall be the address appearing in the claim or in

the petition or application bringing the proceedings. For the purposes of
the initial summons or order to attend sent to the defendant, the claimant
shall likewise designate as the defendant’s address one or several of the
places referred to in the following paragraph of this article. Should the
claimant designate several places as addresses, the claimant shall indicate
the order in which, as they understand it, notice may be successfully
served.

Furthermore, the claimant should indicate as much information about the

defendant as they are aware of and which may be of use to locate them,
such as telephone and fax numbers, E-mail address or similar, which will
be used subject to Law 18/2011, of 5 July, regulating the use of information
and communications technologies by the Justice Administration.

The defendant may designate a different address for the purpose of

subsequent notices once an appearance has been entered.

3. For the purposes of giving notice, the address appearing on the

municipal registry of inhabitants or in any other official records for other
effects may be designated, as may an address appearing in an official
Registry or in the publications of professional associations in the respective
cases of companies and other entities and persons exercising a profession
requiring membership of a professional association. The place where
professional or work activities are carried out on a non-temporary basis
may also be designated as the address.

Where an action of those referred to in item (i), paragraph 1, Article 250 is

being exercised in the claim, it shall be construed that, if the parties have
not agreed to designate an address in the lease contract to which notice is
to be served, such address shall be the rented home or premises.

If the claim is addressed to a corporate entity, the address of any person

appearing as director, manager or attorney of the trading company, or the
president, member or manager of the Board of any association appearing
on an official register may be given.

4. Should the parties not be represented by a procurator, any notices

served to any of the places provided for in the preceding paragraph, which
have been designated as addresses, shall take full effect as soon as it can
be certified that notice of whatever may have to be communicated has
been sent, even though proof of its receipt by the addressee has not be
recorded.

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 Book one . On the general provisions concerning civil trials

Nonetheless, should notice be for the purpose of entering an appearance

in the proceedings or the personal performance of certain procedural steps
by the parties and no proof of receipt by the interested party is available,
the provisions set out in Article 158 shall apply.

5. Should the parties change their address during the time proceedings
are being conducted, they shall immediately notify the Court Office.

They shall also give notice of any changes to their telephone number, fax
number, E-mail address or similar, as long as they are being used as
means to communicate with the Court Office.

Article 156. Investigations by the court about the address.106

1. In cases where the claimant states that he is unable to designate the

defendant’s address or place of residence for the purposes of entering an
appearance, the Court Clerk shall use any suitable means to find it and may,
as appropriate, get in contact with the Registries, organisations, professional
associations, entities and companies referred to in paragraph 3, Article 155.

Upon receiving such communications, the Registries and public bodies

shall proceed pursuant to the provisions governing their activities.

2. Under no circumstances shall the designation of an address be deemed

impossible for the purposes of serving notice if such address is recorded in
public archives or registries to which access may be gained.

3. Should the investigations referred to in paragraph 1 lead to the address

or place of residence being found, notice shall be served in the second
manner set forth in paragraph 2, Article 152 and, as appropriate, the
provisions set forth in Article 158 shall apply.

4. Should these investigations turn out to be fruitless, the Court Clerk shall
issue an order stating that notice shall be served through public notices.

Article 157. Central Civil Defaulters Registry.107

1. Where the investigations referred to in the preceding article may have

turned out to be fruitless, the Court Clerk shall order the defaulter’s name
and other identification details to be reported to the Central Civil Defaulters

106
Paragraphs 1, 3 and 4 of this article have been worded in accordance with Act 13/2009 of 3 November.
107
Article worded in accordance with Act 13/2009 of 3 November.

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 Law 1/2000, of 7 january, on civil procedure

Registry, which shall be located at the Ministry of Justice, indicating the

date of the ruling on giving the defaulter notice through a public notice in
order to proceed with the defaulter’s registration.

2. Any Court Clerk who has to investigate the address of a defendant may
get in contact with the Central Civil Defaulters Registry to verify whether
the defendant appears in such Registry and if the details contained therein
coincide with those in the possession of the Court Clerk. Should this be the
case, the Court Clerk may decide to issue a public notice directly to the
defendant by means of an order to move the proceedings forward.

3. At the request of the interested party or at its own initiative, any judicial
body knowing the address of a person registered in Central Civil Defaulters
Registry shall seek the cancellation of such registration by providing
information on the address to which court notices may be sent. The
Registry shall send information on the aforementioned address for the
purposes of giving notice to any Court Offices where proceedings against
such defendant have been brought, and any notices served at such
address shall be valid as from that moment.

4. Notwithstanding the above, any Court needing to know the current

address of a proceedings’ defendant whose whereabouts is unknown
subsequent to the entry of appearance stage may contact the Central Civil
Defaulters Registry so that the relevant entry may be recorded to provide
it with the address to where court notices may be sent, should such
information come to be known at such Registry.

Article 158. Notice through personal delivery.

Where, in the cases set forth in paragraph 1, Article 155, it is impossible to

obtain proof that the addressee has been duly served with a notice aimed at
the defendant entering an appearance in the proceedings or the party
personally performing or taking part in some procedural actions, such notice
shall be served in the manner set forth in Article 161.

Article 159. Notices to witnesses, experts and other persons who are not
a party to the hearing.108

1. Any notices that have to be served on witnesses, experts and any other
persons who, without being a party to the proceedings, are nonetheless

108
Paragraph 1 is amended by single article 20 of Law 42/2015, of 5 October.
Paragraphs 2 and 3 of this article have been worded in accordance with Act 13/2009 of 3 November .

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involved in them shall be sent to their addresses in accordance with the

provisions of paragraph 1, Article 160. Such notices shall be sent to the address
designated by the party concerned and, as appropriate, the investigations
referred to in Article 156 may be conducted. These notices will be recorded by
the procurator for the party proposing them, if requested to do so.

2. Where the failure to serve such notices appears on the records or it may
be advisable, owing to the circumstances of the case, taking into account
the purpose of the notice and the nature of the proceedings that depend
on it, the Clerk of the Court shall order the proceedings to move forward in
accordance with the provisions of Article 161.

3. The persons referred to in this article shall notify the Court Office of any
change of address that may come about during the time the proceedings
are being conducted. They shall be duly informed of this obligation at the
first appearance they may make.

Article 160. Sending of notices by post, telegram or other similar methods.109

1. Where it may be appropriate to send a copy of the ruling or summons by

registered post or telegram with acknowledgement of receipt, or by any other
similar means that would allow irrefutable proof of service, the date thereof
and the notice’s contents to appear on the records, the Court Clerk shall
certify in the records that such notice has been sent and shall attach thereto,
as appropriate, the acknowledgement of receipt or the documents provided
by the court representative, should the latter have proceeded to give notice.

2. Notices may be sent simultaneously to several of the places set forth in

paragraph 3, Article 155 at the request of a party and at their cost.

3. Where the addressee’s address may be within the Court’s district and
the notices do not require entering an appearance or a personal intervention
in the proceedings, a summons may be sent by any of the means referred
to in paragraph 1 so that the addressee may appear before the court for
the purposes of being served notice, or handed a citation or document.

The summons shall clearly state the purpose for which the party’s
appearance is required by indicating the procedure or matter to which it
refers, along with a warning stating that, should the party fail to appear
without justified cause within the time limit set forth, the notice in question
shall be construed to have been served or the document delivered.

109
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.

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Article 161. Notices by way of copy of the decision or summons.110

1. Service to the consignee of notice of the copy of the decision or

summons will be made in the court or to the address of the person who
must be notified, summonsed, cited or required to appear, without prejudice
to provisions in the field of enforcement.

Service shall be recorded on a certificate signed by the civil servant or by

the procurator delivering it and by the person to whom it is served, whose
name shall be recorded.

2. Where the consignee of the notice is found to be at the address and

refuses to receive the copy of the decision or summons or to sign the
certificate of service, the civil servant or procurator in charge of serving
notice shall inform them that a copy of the ruling or summons remains at
their disposal at the Court Office and that the effects of having served
notice shall have come about, all of which shall be stated in the certificate.

3. Should the address at which an attempt is made to serve notice be the

consignee’s domicile according to the municipal registry of inhabitants, or
for tax purposes, or according to an official registry or to a professional
association publication and should the defendant not be found there,
notice may be served, in a sealed envelope, on any employee, family
member or person with whom the defendant cohabits who is older than
fourteen years of age, or to the building’s concierge, should there be one,
duly informing the recipient that they are obliged to hand over the copy of
the decision or summons to the consignee or advise them of it, if the
consignee’s whereabouts is known, advising the recipient, at any event, of
their liability in relation to protection of the consignee’s data.

Should notice be sent to the consignee’s non-temporary place of work, it

shall be served, should the consignee be absent, to a person who claims
to know them or, should there be an office in charge of receiving documents
or objects, to whoever may be in charge of it, with the same advice as in
the preceding paragraph.

The name of the person to whom the notice is addressed, the date and the
time at which they were sought and not found shall be recorded on the
certificate, as shall the name of the person who receives the copy of the
decision or summons and their relationship to the consignee. Any notices
served in this way shall take full effect.

110
Amended by single article 21 of Law 42/2015, of 5 October.

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 Book one . On the general provisions concerning civil trials

4. Should nobody be found at the address at which notice is meant to be

served, the Clerk of the Court, civil servant or procurator shall make an
effort to find out if the consignee resides there.

If they no longer live or work in the address attended and any of the persons
consulted know their current one, this will be recorded on the certificate of
non-notification and notice will then be served at the address provided.

Should it turn out to be impossible to find out the defendant’s address through
these means and should the claimant fail to designate any other possible
addresses, the Court shall proceed in accordance with provisions of Article 156.

Article 162. Notices using electronic, computer and other similar means.111

1. Where Court Offices and the parties or addressees of notices are under
the obligation to send and receive them via electronic, computer or
information and communications technology means, or similar, which
allow writs and documents to be sent and received, so that the notices’
authenticity and contents are ensured and there is a tangible record of
integral sending and receipt as well as the time when this occurred, or
where the consignees choose these media, notices may be served by
such means with the appropriate certificate proving reception.

Professionals and consignees who are under the obligation to use these
media, and those who choose to do so, must notify the court offices of the
fact that they have the afore-mentioned means available and of the E-mail
address provided for that purpose.

Similarly, an electronically accessible Registry of such means and of the

addresses of the public bodies and professionals obliged to use them shall
be set up at the Ministry of Justice.

2. In any of the cases referred to in this article, where it is recorded that

notice has been properly sent by such technical means, except for any

111
Amended by single article 22 of Law 42/2015, of 5 October.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.

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served through the notice services organised by the Procurators’

Associations, it shall be construed that notice has been served after three
days have elapsed without the consignee accessing its contents and it
shall then take full legal effect.

Any cases in which the consignee can prove the lack of access to the notices
system shall be excluded from such period. Should the lack of access be
due to technical reasons and should these persist at the moment they are
notified, notice shall be served by delivering a copy of the decision. In any
event, notice shall be construed to have been validly served the moment at
which the possibility of accessing the system is proven. Nonetheless, should
access come about once such period has elapsed but before notice through
delivery has been served, notice shall be construed to have been validly
served on the date appearing on the certificate proving its receipt.

No notices will be served on professionals by electronic means during the

days of the month of August, unless they are considered to be working
days for the relevant proceedings.

3. Where the authenticity of any rulings, documents, opinions or reports filed

or transmitted by the means referred to in the preceding paragraph may only
be recognised or verified through their direct examination or other procedures,
they may, nonetheless, be filed on electronic media by means of digitised
images of them in the manner provided for in Articles 267 and 268 of this Act.
Nonetheless, in proceedings dealing with family, incapacity or kinship matters,
such documents shall be filed in original hard copy documents within the time
limit or procedural stage set for such a purpose should any of the parties, the
court or the Public Prosecution Service so request.

Article 163. Common Procedural Notices Service.112

The Common Procedural Notices Services shall serve any notices that
should be effectuated by the Court Office wherever such service may have
been set up, apart from any notices that may have been entrusted to the
court representative due to a request filed by the party he represents.

Article 164. Notification of edicts.113

In the event of the investigations referred to in article 156 being carried out
and it is not possible to know the address of the consignee of the notice, or

112
Article worded in accordance with Act 13/2009, of 3 November.
113
The first paragraph is amended by single article 23 of Law 42/2015, of 5 October.

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when the notice with all its effects cannot be served in accordance with the
provisions of the preceding articles, or when so agreed in the case referred to
in paragraph 2 of Article 157, the Clerk of the Court, having recorded such
circumstances, shall order notice to be served by attaching the decision or the
summons to the bulletin board at the Court Office in accordance with Law
18/2011 of 5 July, regulating the use of information and communications
technologies at the Justice Administration, safeguarding the rights and
interests of minors, as well as other rights and liberties which might be affected
by publishing the notices. Such publicity may be replaced, under the regulatory
terms provided for, by the use of other computer, IT or electronic means.

Only at the request and expense of a party, shall notification be published

in the Official Gazette of the province or Autonomous Region, in the Official
State Gazette or in a national or provincial daily newspaper.

In any case, in the notice or publication referred to in the preceding

paragraphs, in the best interests of minors and in order to preserve their
privacy, personal data, names and surnames, addresses or any other data
or circumstance which could permit their identification, whether directly or
indirectly, shall be omitted.

In eviction proceedings from an urban or rural property due to non-payment

of rent or amounts due or due to legal or contractual expiry of the term and
in proceedings claiming such rents or amounts due, where the lessee
cannot be found or notice served at the addresses designated in the
second paragraph of section 3 of article 155, or the lessor has not been
notified in writing of a new address after the contract expires, which has
not been opposed by the latter, without further ado the summons or order
to appear will be fixed on the notice board at the court office.

Article 165. Notices through judicial assistance.114

Where notices must be served by a court other than the one ordering
them, the despatch will be sent over the court computer system except in

114
Amended by single article 24 of Law 42/2015, of 5 October.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.

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 Law 1/2000, of 7 january, on civil procedure

such cases where this must be done in hard copy as the notice is
accompanied by elements which cannot be converted into electronic
format, and the relevant copy or order will be attached along with whatever
is relevant in each case.

These notices will be completed within a period of not more than twenty
days from their receipt and must be returned in accordance with the
provisions of the preceding paragraph. When they are not served within
the stated time limit, the Clerk of the Court shall be requested to ensure
compliance and the reasons for the delay shall be stated, as appropriate.

These acts may be carried out, at the request of one of the parties, by a
procurator who will ensure their completion under the same terms and
time limits provided for in the preceding paragraph.

Article 166. Nullity and rectification of notices.

1. Notices which are not made in accordance with the provisions in this
chapter and may lead to the lack of proper defence shall be null and void.

2. However, when the person notified, summoned or ordered to attend is

aware of the case and fails to report the nullity of the notice procedure at
his first appearance before the court, from that time, the notice shall take
full effect, as if it had been served in keeping with the law.

Article 167. Sending judicial instructions and orders.115

1. Orders and judicial instructions shall be sent directly by the Clerk of the
Court who issues them to the authority or civil servant to whom they are
addressed, and the means provided for in Article 162 must be used.

However, if they request to do so, the parties may personally carry through
the orders and judicial instructions.

115
Paragraph 1 is amended by single article 25 of Law 42/2015, of 5 October.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.

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2. In any case, the party at whose request the judicial instructions or orders
referred to in this article are issued shall have to pay the expenses involved
in fulfilling them.

Article 168. Responsibility of civil servants and professionals intervening

in procedural notices.116

1. The Court Clerk or the civil servant of the bodies at the service of the
Justice Administration who, while carrying out their work assigned to them
by this chapter, give rise to undue hold-ups or delays, through malice or
negligence, disciplinary action shall be taken by the authority they depend
on in order to correct this and they shall incur liability for damages.

2. The court representative who incurs mens rea, negligence or delay in

the notices he has assumed or does not respect any of the legal formalities
established, leading to damage to a third party, shall be liable for the
damages caused and may be sanctioned in accordance with the provisions
in legal or statutory rules.

CHAPTER VI
ON JUDICIAL ASSISTANCE

Article 169. Cases in which judicial assistance operates.

1. The civil courts are obliged to provide assistance in procedures which

have been ordered by one court but require the cooperation of another to
carry this out.

2. Judicial assistance shall be requested for procedures which must be

carried out outside the district of the court which deals with the case,
including acts involving taking of evidence when the court does not
consider it possible or advisable to make use of the power granted to it
herein to move outside its court district in order to carry out the said
procedures.

3. Judicial assistance may also be requested for procedure to be carried

out outside the municipality where the court which orders this is located,
but within the corresponding judicial or court district.

116
Article worded in agreement with Act 13/2009, of 3 November.

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4. Questioning of the parties, declarations of witnesses and ratification by

experts shall be carried out at the court dealing with the case concerned,
although the addresses of the said parties may be outside the corresponding
court district.

Only when, due to distance, travel difficulties, personal circumstances of

the party, of the witness or the expert, or due to any similar reason it is
impossible or costly for the persons summoned to appear in court, judicial
assistance may be requested in order to carry out the examinations stated
in the preceding paragraph.

Article 170. Body which shall provide judicial assistance.117

It shall be the duty of the Office of the Court of First Instance to provide
judicial assistance in the towns or cities within its court district.
Notwithstanding the preceding, if there is a Court of Justice in the town or
city, and judicial assistance consists of notice, the Court of Justice shall
serve the notice.

Article 171. Petition.118

1. Judicial assistance shall be sought by the court which requests it through

a petition addressed to the Court Office which must provide the assistance,
and which shall contain:
(i). The appointment of the petitioning court and the court petitioned.
(ii). The subject of the case which is the reason for sending the petition.
(iii). The appointment of the persons who are parties to the case, as
well as their representatives and their defence.
(iv). A statement of the procedure involved.
(v). When the procedure involved must be carried out within a time
limit, the time limit shall be stated.
(vi). Any documents which must necessarily be enclosed with the
petition shall be expressly mentioned.

2. It shall be the duty of the Court Clerk to authorise and despatch petitions.

117
Article worded in accordance with Act 13/2009 of 3 November.
118
Paragraph 1 worded in accordance with Act 13/2009, of 3 November .

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Article 172. Sending letters rogatory.119

1. Letters rogatory will be sent directly to the body called on using the court
computer system or any other computer or electronic means, except in
cases where this must be done in hard copy as the order is accompanied
by elements which cannot be converted into electronic format.

In all cases the system used must guarantee a record of the letter rogatory
being sent and received.

2. Without prejudice to the foregoing, if the party interested in fulfilment of

the letter rogatory so requests, it will be delivered to them at their own liability
for submission to the body called on within the following five days. In this
case, the letter rogatory will state the person in charge of its processing, who
may only be the litigant themselves or the procurator appointed by them.

3. The other parties may also appoint a procurator where they wish to be
notified of the decisions passed for fulfilment of the letter rogatory. The
party interested in fulfilling the letters rogatory may do the same, providing
they have not requested that it be given to them for any of the purposes
stipulated in the preceding paragraph. Such appointments shall be
recorded in the documentation for the letter rogatory.

4. Where letters rogatory have been sent to a body other than the one
which must provide the assistance, the body that receives it shall forward
it directly to the relevant body, providing they know which body it is, and
shall inform the issuer of the letter rogatory of the despatch.

Article 173. Fulfilment of the petition.120

The person responsible for the Court Office who receives the petition shall
arrange for it to be fulfilled and whatever is necessary for the procedures
set forth in the petition to be carried out within the stated time limit.

119
Paragraphs 1 and 3 are amended by single article 26 of Law 42/2015, of 5 December.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.
120
This article is worded in accordance with Act 13/2009, of 3 November.

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When this does not happen, the Court Clerk of the petitioning body, ex officio
or at the request of the party, shall remind the petitioned body of the urgency
of its fulfilment. If the situation persists, the body for which assistance has
been requested for shall inform the Governing Body for the court petitioned.

Article 174. Intervention of the parties.

1. The parties and their attorneys and court representatives may intervene
in the procedures being carried out to fulfil the petition.

Nevertheless, notice of the decisions issued to fulfil the petition shall only
be sent to the parties which have appointed court representatives to
intervene in the formalities.

2. If the parties have not appointed court representatives, the former shall
only receive the notices required to fulfil a petition if the latter stipulates
that a procedure is to be carried out with a summons, the intervention or
appearance of the parties, and whatever is necessary to request the
parties to provide data or news which might facilitate the said fulfilment.

Article 175. Return of the letter rogatory.121

1. Once the letter rogatory is complete, the issuer of the letter rogatory will
be notified in accordance with the provisions of paragraph 1 of article 172.

2. The judicial assistance procedure carried out, if it cannot be sent

electronically, shall be sent by registered mail or delivered to the litigant or
the procurator entrusted with processing the letter rogatory, who will submit
it to the body issuing the letter rogatory within ten days.

Article 176. Lack of diligence of the parties regarding judicial assistance.

The litigants who, for no just reason, delay submittal to the party petitioned
or the return of the despatches entrusted to them to the petitioner shall be

121
Amended by single article 27 of Law 42/2015, of 5 October.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.

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corrected with a fine of € 30 for each day of delay with regard to the time
limit established, respectively, in paragraph 2 of Article 172 and in
paragraph 2 of the preceding article.

Article 177. International judicial co-operation.122

1. Despatches regarding judicial procedure abroad shall be dealt with in

accordance to the provisions of relevant Community legislation, in the
international Treaties to which Spain is a party and, in their absence, in the
relevant domestic legislation.

2. The provisions in such legislation shall also apply when foreign judicial
authorities request the co-operation of the Spanish courts.

CHAPTER VII
ON SUBSTANTIATION, HEARING AND DECISION ON THE CASES

Section 1. On ordinary dealing

Article 178. Giving account.123

1. The Court Clerks shall inform the Chamber, the Reporting Judge or the
Judge, as appropriate, of the written statements and documents submitted
on the same day or on the following working day when the latter have
pleas or claims that require a pronouncement from the former.

The same shall be done with regard to the records authorised outside the
judicial area.

2. On the following working day they shall also inform on the course of the
procedural time limits and the consequent status of the records when the due
decision must be pronounced by the Judge or by the Senior Judge on expiry
of the period, as well as any decisions issued which are not mere formalities.

3. The civil servant of the Procedural and Case Management Body shall
also inform the Court Clerk of the processing of the procedure, in particular
when this requires an interpretation of the law or of procedural rules,
notwithstanding informing the head of the judicial body when this is required.

122
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.
123
Article worded in accordance with Act 13/2009 of 3 November on the reform of procedural legis-
lation for the implementation of the new Court Office.

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Article 179. Procedural development and stay of proceedings by

agreement of the parties.124

1. Unless otherwise stipulated, the Court Clerk shall give the proceedings
the corresponding progression ex officio and shall issue the decisions
required for this purpose.

2. The course of the procedure may be stayed in accordance with

provisions set forth in section 4 of Article 19 herein, and shall resume if any
of the parties requests this. Once the time limit for the stay of proceedings
agreed on has elapsed, if no one requests the resumption of the
proceedings within the following five days, the Court Clerk shall agree to
temporarily file the proceedings and they shall remain filed until continuation
of the proceedings is requested or the case expires.

Article 180. Senior Reporting Judge.125

1. In courts with a Chamber, the Court Clerk shall decide who shall be the
Senior Reporting Judge for each case, in accordance with the rota
established for the Division or Courtroom at the beginning of each judicial
year exclusively on the basis of objective criteria.

2. The appointment shall be made in the first decision issued by the Court
Clerk in the proceedings and the parties shall be informed of the name of
the Senior Reporting Judge and of his substitute, as appropriate, in
accordance with the rota established, with a statement on the reasons for
the substitution.

3. All the Senior Judges of the court or division, including the presiding
judges, shall be appointed Reporting Judge by turn.

Article 181. Functions of the Senior Reporting Judge.126

In courts with benches, the functions of the Senior Reporting Judge shall
be to:
(i). Attend to ordinary business and to process the cases assigned to
him by rota, notwithstanding the development thereof which is the duty
of the Court Clerk.

124
Article worded in accordance with Act 13/2009, of 3 November.
125
Sections 1 and 2 of this article are worded in accordance with Act 13/2009, of 3 November.
126
Article worded in accordance with Act 13/2009, of 3 November.

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(ii). Examine proposals of evidence submitted by the parties and report

on their admissibility, relevance and usefulness.
(iii). Report appeals lodged against the decisions of the court and
appeals lodged against the decisions of the Court Clerk which must be
decided by the court.
(iv). Issue court orders and propose any other decisions which must be
issued by the court.
(v). Draft the decisions issued by the court, notwithstanding the
provisions in the second paragraph of Article 203.

Section 2. On hearings and appearances127

Article 182. Setting a date for hearings.128

1. It shall be the duty of the Presiding judges of the Chamber and divisions
of the collective bodies to determine the date and time for deliberating and
voting on the cases which must be adjudicated with no hearing.

Likewise, it corresponds to the Judge or presiding judge to set a date when

the decision to call, resume or establish new proceedings, hearings or a
similar step is adopted in the course of any procedural act which has
already commenced and which they preside, on condition that this can be
done at the same act, and taking into account the needs of the scheduled
agenda.

2. The holders of single member jurisdictional bodies and the presiding

judges of Chambers or Divisions in the bench courts shall establish the
general criteria and give specific instructions for setting the dates for
hearings and equivalent formalities.

3. These criteria and instructions shall include the following:

(i). Setting the days predetermined for this purpose, which must be
subjected to the availability of the Chamber stipulated for each judicial
body and the required co-ordination with the other judicial bodies.
(ii). Times of hearings.
(iii). Number of dates set.

127
Instruction worded in accordance with Act 13/2009, of 3 November.
128
Article worded in accordance with Act 13/2009, of 3 November.

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(iv). Approximate duration of a specific hearing, decided after the

matter or case concerned has been studied.
(v). The nature and complexity of the cases.
(vi). Any other circumstance considered to be relevant.

4. The Court Clerks shall establish the date and time of the hearings or
equivalent procedures subject to the above criteria and instructions, and
arrange a scheduled agenda taking the following circumstances into
account:
(i). The order in which the procedures reach the status for holding a
hearing or trial, except for the legally established exceptions or the
cases in which the jurisdictional body exceptionally establishes must
take preference. In such cases, they shall be placed before the others
for which no date has been set.
(ii). The availability of a courtroom planned for each judicial body.
(iii). The organisation of the human resources of the Court Office.
(iv). The time required for the summons and appearances of the
experts and witnesses.
(v). The co-ordination with the Public Prosecution Service in the
procedure in which the laws stipulate its intervention.

5. The Judge or President shall be informed as the dates and times are
included in the scheduled agenda and, in any case, before the parties are
notified. In the event that these are not in consonance with the criteria and
instructions established, the Judge or Presiding Judge shall decide on the
date and time.

Article 183. Application for setting a new date and time for a hearing.129

1. If any of those who have to attend a hearing and it is impossible for him
to attend on the day appointed, due to force majeure or another similar
reason, he shall immediately inform the court, duly accrediting the cause
or reason and requesting the scheduling of another hearing or decision on
the situation.

129
This article is worded in accordance with Act 13/2009, of 3 November.

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2. When it is the attorney of one of the parties who considers it impossible

to attend the hearing, if the situation he alleges is considered attendable
and accredited, the Court Clerk shall set a new date for the hearing.

3. When it is the party who alleges the situation of impossibility stipulated

in the first section, if the Court Clerk considers the situation alleged to be
attendable and accredited, he shall adopt one of the following decisions:
a) If the hearing involves proceedings in which the party is not assisted
by an attorney or represented by a court representative, he shall set a
new date for the hearing.
b) If the hearing involves procedures in which the party is assisted by
a attorney or court representative, and it is necessaryfor the party to
be personally present, a new date shall be set for the hearing.

In particular, if the party has been summoned to the hearing in order to

respond to questioning regulated in Articles 301 et seq., the Court Clerk
shall set a new date, with the relevant summons. The same decision shall
apply when a contrary party summoned for questioning alleges and
accredits the impossibility to attend.

4. The Court Clerk shall notify the court of the new date set for the hearing,
on the same day or on the working day following the day this is agreed on.

5. When a witness or expert who has been summoned to a hearing by the

court states and accredits he is in the same situation of impossibility stated
in the first paragraph of this precept, the Court Clerk shall provide that the
parties are heard for a common period of three days on whether the date
set for the hearing becomes ineffective and a new date shall be set or
whether the witness or expert is summoned for the pleadings apart from
the scheduled hearing. Once the time limit has elapsed, the court shall
decide what it considers to be advisable, and if it considers the excuse of
the witness or the expert attendable or accredited, the scheduling for the
hearing shall be maintained and the Court Clerk shall notify the former of
the fact, requesting them to appear, with the admonition stipulated in
paragraph two of Article 292.

6. When the Court Clerk decides on the situations referred to in paragraphs 2

and 3 above, and deems that the attorney or the litigant may have acted with
unjustified or groundless delay, he shall inform the judge or the court, which
may impose a fine on them of up to six hundred euros, notwithstanding what
the Court Clerk decides on the re-scheduling.

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The same fine may be imposed by the court in the cases stipulated in
paragraph 5 of this article, when it is deemed that the circumstances are
similar to the ones referred to in the preceding paragraph.

Article 184. Time for holding hearings.

1. As regards the holding of hearings, all the working and authorised times
of the day may be used in one or more sessions and, when necessary,
continue on the following day or days.

2. Except in the cases in which the law provides otherwise, at least two
working days must elapse between the scheduling and the holding of the
hearing.

Article 185. Holding of the hearings.130

1. Once the court is constituted as stipulated herein, the Judge or Presiding

Judge shall declare that a public hearing shall be held, except when the
act is held behind closed doors. Once the hearing commences, the records
of the case or the questions to be dealt with shall be summed up.

2. Immediately and in the following order, they shall inform the claimant,
and the defendant or appellant and the respondent, through their attorneys,
or the parties themselves, when the law permits this.

3. If evidence has been submitted for the hearing, it shall be examined in

accordance with the rules which regulate this.

4. Once the evidence has been taken or, if there is no taking of evidence,
when the first group of interventions ends, the Judge or Presiding Judge
shall again allow the parties to speak in order to correct facts or concepts
and, when appropriate, to make concise allegations based on the results
of the taking of evidence, as permitted by law.

Article 186. Direction of the debates.131

During the development of the hearings, the Judge and the Presiding
Judge, or the Court Clerk in the case of hearings held exclusively before
him, are responsible for giving direction to the debates and, in particular to:

130
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.
131
Paragraph 1 worded in accordance with Act 13/2009, of 3 November.

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(i). Maintain good order in the hearings, with all the resources at their
disposal, ensuring the respect and consideration owed to the courts
and to those who act before it, immediately correcting any mistakes
which are made as provided in the Organic Act on the Judiciary Branch.
(ii). Speed up the hearings, and, for this purpose, to admonish the
attorney or the party who fails to keep on the subject, urging them to
avoid unnecessary vagary, and if they do not obey the second warning
made in this regard, they may be forbidden to speak.

Article 187. Documentation of the hearings.132

1. The development of the hearing

This shall be recorded in a storage system which can record and reproduce
sound and image or, if this is not possible, sound only, in accordance with
the provisions in Article 147 herein.

In any case, at their own expense, the parties may request a copy of the
storage systems where the hearing has been recorded.

2. If the storage systems referred to in the preceding section cannot be

used for any reason, the hearing shall be documented through minutes
taken by the Court Clerk.

Article 188. Adjournment of hearings.133

1. The holding of the hearings on the day scheduled may only be adjourned
in the following cases:
(i). When the hearing prevents the continuation of another hearing
pending from the previous day.
(ii). The number of Senior Judges required to issue a decision is not
present or the judge or the Court Clerk are indisposed, if there is no
substitute for them.
(iii). If the parties agree to request this, alleging a just reason in the
opinion of the Court Clerk.
(iv). The absolute impossibility of any of the parties summoned to be
questioned in the proceedings or hearing, on condition that this

132
Paragraph 1 worded in accordance with Act 13/2009, of 3 November.
133
Article worded in accordance with Act 13/2009 of 3 November.

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impossibility is sufficiently justified in the opinion of the Court Clerk,

and this occurred when it was not possible to request re-scheduling in
accordance with the provisions in Article 183.
(v). Death, illness or absolute impossibility or maternity or paternity
leave of the attorney of the party which requests the suspension, and
this is sufficiently justified, in the opinion of the Court Clerk, on condition
that these events occurred when it was not possible to request
re-scheduling in accordance with the provisions in Article 183, providing
the right to effective judicial protection is guaranteed and there is no
lack of proper defence.
Moreover, other analogous situations stipulated in other social welfare
systems shall be considered equivalent to the above cases, and with
the same requirements and for the same period of time for which the
leave and the permissions set forth in Social Security legislation were
granted.
(vi). The defence attorney has two hearings on the same day and in
different courts, and it is impossible for him to attend both due to the
timing, on condition that he sufficiently accredits that, under Article
183, he unsuccessfully tried to obtain a re-scheduling in order to
prevent the coincidence.
In this case, the hearing concerning a criminal case with a prisoner
shall have priority and, if there is no criminal case, the earliest hearing
scheduled, and if the two hearings are scheduled for the same day, the
later hearing shall be adjourned.
The adjournment of the hearing shall not be agreed to if the notice of
the application of the suspension occurs with more than three days of
delay from the notice of the scheduling received in the second place.
For these purposes, a copy of the notice of this scheduling must be
attached to the application.
The provisions in the preceding paragraph shall not apply to hearings
involving criminal cases with prisoners, notwithstanding any liability
which may have been incurred.
(vii). The adjournment of the procedure was agreed to or this
adjournment was correct in accordance with the provisions herein.

2. Any suspension decided by the Court Clerk shall be made known on the
same day or on the following working day and the Court Clerk shall notify
the parties present who were judicially summoned as witnesses, experts
or in some another capacity.

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Article 189. Re-scheduling of the hearings suspended.134

1. In the event that a hearing is adjourned, the Court Clerk shall set a new
date when adjournment is decided and, if this is not possible, as soon as
the reason which led to the adjournment.

2. The re-scheduling shall be made for the earliest date possible, without
altering the order of any previously set dates.

Article 189 bis. On appearances.135

The content of Articles 188 and 189 shall apply, insofar as this is applicable,
as regards the appearances which are to take place exclusively before the
Court Clerk.

Article 190. Changes of judges after a date has been set for a hearing and
potential challenges.136

1. In the event that a court’s Judge or Senior Judge who are members of a
Chamber have been substituted after a date was set for a hearing, and in
any case before the hearing commences, the parties shall be informed
immediately of the said substitutions and the hearing shall be held, unless
the Judge or any of the Senior Judges who became a member of the
Chamber owing to the substitution is challenged, even when the said
challenge is only made verbally.

2. If the challenge referred to in the preceding section is formulated, the

hearing shall be adjourned and the incident shall be processed as provided
herein, and once the challenge is resolved, a new date for the hearing
shall be set. A verbal challenge shall succinctly state the reason or reasons
for it and must be formulated in writing before three days have elapsed. If
the challenge is not made within this time limit, it shall not be given
permission to proceed and a fine shall be imposed on the challenger for
the sum of one hundred and fifty euros or up to six hundred euros, and he
shall also be ordered to pay the costs caused by the adjournment. On the
same day that the above decision is issued, the Court Clerk shall set a
new date for the hearing for the earliest time possible.

134
Paragraph 1 worded in accordance with Act 13/2009, of 3 November.
135
Article added by Act 13/2009, of 3 November.
136
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.

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Article 191. Subsequent challenge to the hearing.

1. In the event that the Judge, Senior Judge or Senior Judges, referred to
in paragraph 1 of the preceding article, are changed, when the hearing is
held as there was no challenge, if the court has only one member, the
judge shall allow three days to elapse before issuing a decision and if the
court is formed by a Chamber, discussion and voting shall be suspended
for three days.

2. Within the period of time referred to in the preceding paragraph, the

Judge or the Senior Judges who became members of the Chamber after a
date was set may be challenged, and, if the parties do not use this right,
the period for issuing a decision shall begin to run.

3. In the case referred to in this article, only the challenges based on

reasons which could not have been known before the commencement of
the hearing shall be given permission to proceed.

Article 192. Effects of a decision to challenge lodged after a hearing.

If a court order states that a challenge lodged in accordance with the

preceding article is relevant, the hearing shall be null and void and shall be
held again on the nearest date that can be set, before a Judge or with
competent Senior Judges substituting the challenged judges.

If the challenge is overruled, the decision shall be issued by the Judge or

the Senior Judges who attended the hearing and the time limit to issue the
decision shall commence on the day following the date on which a decision
has been adopted regarding the challenge.

Article 192 bis. Change of the Court Clerk after a date has been set.
Potential challenge.137

The provisions set forth in the three preceding articles shall apply to the
Court Clerks with regard to the procedures to be carried out only before
them.

Article 193. Adjournment of hearings.138

1. Once commenced, a hearing may only be adjourned if:

137
Article added by Act 13/2009 of 3 November.
138
Paragraphs 1 and 3 of this article have been worded in accordance with Act 13/2009 of 3 November.

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(i). The Court has to resolve an incidental matter which cannot be

decided there and then.
(ii). Taking of evidence is required outside the court premises and
cannot be carried out in the interval between one session and the next.

(iii). The witnesses or experts summoned by the Court fail to appear

and the Court considers their statement or report essential.

(iv). After commencement of the hearing, one of the circumstances

that would have led to an adjournment of the hearing occurs and the
suspension is decided by the Judge of the Presiding Judge.

2. The hearing shall be resumed once the cause of its adjournment has
ceased to exist.

3. If the hearing may be resumed within twenty days following its

adjournment, and in all cases where the date for the new hearing may be
set at the same time as the decision of adjournment, this shall be done by
the Judge or the Presiding Judge, who shall take into account the
requirements of the programmed agenda of set dates and any other
circumstances set forth in Article 182.4.

If the hearing cannot be resumed within twenty days following its

adjournment and a new date cannot be set at the same time, the date shall
be set by the Court Clerk, in accordance with the provisions of Article 182,
and the said date shall be the earliest date possible.

Section 3. On the votes and rulings of the cases

Article 194. Judges and Senior Judges responsible for pronouncing

judgement in the cases.

1. In the cases that must be judged after a hearing or a trial has taken
place, the drawing up and signing of a decision in single-judge courts or
the deliberation and vote in a Chamber court shall be the responsibility of
the Judge or the Senior Judges at the hearing or trial, even if after the said
hearing or trial they have ceased to perform their functions at the court
hearing the case.

2. Excepted from the provisions set forth in the preceding paragraph are
the Judges and Senior Judges who, after the hearing or trial, have:

(i). Ceased to be a Judge or Senior Judge.

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Nonetheless, paragraph 1 of this article shall apply to the Judges and

Senior Judges who have retired by reason of age and to the substitute
Judges and acting Senior Judges who have ceased in their post by
resignation, expiry of the term for which they were appointed or for
having reached the age of seventy-two.

(ii). Been suspended from their functions.

(iii). Accepted a public post or a profession incompatible with the

jurisdictional function or have entered a situation of voluntary leave of
absence in order to present themselves as candidates for a public post.

Article 194 bis. Court Clerks responsible for taking decisions.139

The provisions set forth in the preceding article shall apply to the Court
Clerks who must issue a decision after the acts and appearances
established herein have been held.

Article 195. Information of the Senior Judges regarding the content of the
records in Chamber courts.

1. The Senior Reporting Judge shall avail of the records to issue a

judgement or a decision on incidents or appeals, whereas the remaining
members of the court shall be given permission to examine the said
records at all times.

2. Upon conclusion of the hearing in the cases where the former precedes
the decision or, otherwise, as of the day on which the Presiding Judge set
the date for the deliberation, vote and judgement, any of the Senior Judges
may request the records of the proceedings to study them.

If the records are requested by several Senior Judges, the Presiding Judge
shall set the time each of them may examine them, in order to ensure that the
judgements can be issued within the time limit established for that purpose.

Article 196. Deliberation and voting of decisions in Chamber courts.

In Chamber courts the decisions shall be discussed and voted upon

immediately after the hearing if a hearing is held and, otherwise, the

139
Article added by Act 13/2009 of 3 November .

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Presiding Judge shall establish the day on which the decisions have to be
discussed and voted upon, within the time limit established by law.

Article 197. Method of the discussion and voting of decisions in Chamber

courts.

1. In Chamber courts, the discussion and voting of the decisions shall be

directed by the Presiding Judge and shall at all times take place in closed
session.

2. The Senior Reporting Judge shall submit the facts, matters and grounds
of law to deliberation by the Chamber or Division, as well as the decision
which, in his opinion, should be adopted and, following the necessary
discussion, voting shall take place

Article 198. Voting on the decisions.

1. The Presiding Judge may decide that a separate vote shall be cast on
the various pronouncements of facts of law that need to be made or on
part of the decision that needs to be issued.

2. The Senior Reporting Judge preparing the opinion of the court shall vote
in first place, followed by the remaining Senior Judges in inverse order of
seniority. The Presiding Judge shall be the last to cast his vote.

3. The voting shall not be suspended once it has commenced, barring an

insurmountable difficulty.

Article 199. Vote of disabled Senior Judges after the hearing.

1. If, after the hearing has been held, a Senior Judge suffers a disability
that prevents him from being present during the discussion and for the
vote, he shall issue his vote in writing, properly founded and signed, which
he shall forward directly to the court’s Presiding Judge. Where he is unable
to write or to sign, he shall request the assistance of the Court Clerk.

The vote issued in this manner shall be counted with the remaining votes
and shall be recorded, initialled by the Presiding Judge, with the book of
judgements

2. If the disabled Senior Judge is unable to vote even in this manner, the
matter shall be resolved by the remaining Senior Judges who attended the
hearing, provided their number is sufficient to make up a majority. If their

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number is insufficient, a new hearing shall be held, attended by those who

were present at the previous hearing and the Judge or Judges who are
called to replace those who are disabled, in which case the provisions set
forth in Articles 190 to 192 herein shall apply.

3. The provisions set forth in the preceding paragraph shall also apply
when one of the Senior Judges who attended a hearing are unable to take
part in the deliberation and vote due to their being affected by one of the
cases set froth in paragraph 2 of Article 194.

Article 200. Impediment of the Judge or the Court Clerk who attended the
hearing or appearance.140

1. In single-judge courts, if, after the hearing, the Judge who attended the
said hearing becomes incapacitated and cannot issue a decision, not even
with the assistance of the Court Clerk, a new hearing shall be held presided
over by the Judge who substitutes the incapacitated Judge.

The same rule shall apply when a Judge who participated in the hearing is
unable to issue a decision owing to one of the cases set forth in paragraph
2 of Article 194.

2. The above shall apply to the Court Clerks who cannot issue a decision,
either because they have become incapacitated or because they incur in
one of the cases set forth in Article 194 bis, after the appearance has
taken place before them.

Article 201. Majority of votes.

In the Chamber courts, records and judgements shall be passed by

absolute majority of the votes, unless a larger majority is expressly
established by the law.

Under no circumstances may a specific number of votes in favour be

requested infringing the majority rule.

Article 202. Dissents.

1. If, when voting on a decision, no majority of votes is obtained regarding

any of the pronouncements of fact or of law required to be made, the
issues object of the dissenting vote shall be discussed and voted on again.

140
Article worded in accordance with Act 13/2009 of 3 November.

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2. If no agreement is reached, the dissent shall be resolved holding a new

hearing, attended by the Senior Judges who took part in the first hearing,
increasing their number by an additional two if the number of dissenting votes
was odd, and an additional three if the said number was even. This additional
number shall be formed, firstly, by the Presiding Judge of the Court of Division,
unless he has already assisted; secondly, by the Senior Judges of the same
Court who have not examined the case; thirdly, by the Presiding Judge of the
High Court and, finally the Senior Judges of the remaining Courts or Divisions,
giving preference to those of the same jurisdictional order, following the order
agreed upon by the Governing Body of the Court.

3. The Judge appointed to preside the Court made up as described in the

preceding paragraph shall, by procedural court order, set the dates for the
hearings of the dissenting issued and make the appropriate appointments.

4. If, in a vote on a decision by the Court as contemplated in the second

paragraph of this article, once again no majority is obtained on the issues
object of the dissent, a new vote shall take place, this time voting only on the
two opinions that obtained the largest number of votes in the previous vote.

Article 203. Drawing up the decisions in Chamber courts.

In the Chamber courts, the reporting judge shall be responsible for drawing
up the decisions object of discussion by the Chamber or Division, provided
the former is in agreement with the decision.

If the Reporting Judge disagrees with the vote of the majority, he shall
decline to draw up the decision and shall formulate his dissenting vote in a
well-founded manner. In this case, the Presiding Judge shall entrust
another Senior Judge with the drafting and shall see to the necessary
rectification during the motions session in order to restore the equality in
the said session.

Article 204. Signing of the decisions.

1. The court decisions shall be signed by the Judge or by all the Senior
Judges who are not incapacitated within the time limit established for
issuing the said decisions

2. If, after a decision has been adopted concerning the case by a Chamber
court, a Senior Judge of those who voted becomes incapacitated and is
unable to sign the decision, the judge who presided over the session shall
sign in his place, indicating the name of the Senior Judge for whom his is

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signing and specifying that the incapacitated Senior Judge did vote but
was unable to sign.

If the incapacitated judge is the Presiding Judge himself, the most senior
of the Senior Judges shall sign in his name.

3. The court decisions shall be authorised or published with the signature

of the Court Clerk, under penalty of nullity.

Article 205. Dissenting votes.

1. Anyone taking part in the vote on a judgement or an order shall sign that
agreed upon, even if he dissented from the majority; however, he shall be
entitled, in this case, announcing his intention at the time of the vote or of the
signing of the decision, to cast a dissenting vote, in the form of a judgement, in
which he may accept by remission the issues of fact and the fundamental points
of law of the judgement passed by the court with which he is in agreement.

2. The dissenting vote, signed by its author, shall be incorporated to the

book of judgements and shall be notified to the parties together with the
judgement approved by majority. If, in accordance with the law, the
publication of the judgement is mandatory, the dissenting vote, if any, shall
be published together with the judgement.

3. A dissenting vote may equally be formulated, subject to the provisions

set forth in the preceding paragraphs, to the extent applicable, in relation
to orders and decisions succinctly motivated.

CHAPTER VIII
ONTHE PROCEDURAL DECISIONS141

Section 1. On the classes, form and content of the decisions

and the manner of passing, publishing and recording them

Article 206. Classes of decisions.142

1. Judicial decisions are court rulings, orders and judgements passed by

the judges and courts.

141
Additional paragraph worded in accordance with Act 13/2009 of 3 November.
142
Rule (ii) , paragraph 1 amended by final provision 3.6 of Law 5/2012 of 6 July.
Article worded in accordance with Act 13/2009 of 3 November.

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In declaratory actions, where the law does not establish the class of judicial
decision to be used, the following rules shall be observed:
a) A procedural court order shall be issued when the decision refers to
procedural matters requiring a judicial decision by virtue of the law,
provided that, in such cases, the form of an order is not expressly
requested.
b). Orders shall be issued when decisions are adopted on appeals
against procedural court orders or decrees, or when a decision is
adopted on the admission or rejection of a claim, counterclaim, joinder
of actions, admission or rejection of evidence, judicial approval of
settlements, mediation agreements and covenants, injunctions and
nullity or validity of the procedures.
Likewise, decisions shall be in the form of an order when they concern rules
of procedure, registry annotations and inscriptions and incidental matters,
regardless of whether or not this Act establishes a special procedure for
them, provided that, in such cases, the law requires a decision of the Court,
as well as those which terminate the procedures of a petition or appeal
before the ordinary procedure is finalised, unless, in relation to the latter, it
has been ordered that they must be terminated by decree.
c). A judgement shall be passed to put an end to the proceedings, in
first or second instance, once its ordinary procedure as established in
the law has been concluded. The extraordinary appeals and the
proceedings for review of final judgements shall also be resolved by
means of a judgement.

2. The decisions of the Court Clerks shall be called proceedings and

decrees.

If the law does not establish the class of decision to be used, the following
rules shall be observed:
a) A proceedings of order shall be issued if it is the purpose of the
decision to give the procedure the course established by the law.
b) A decree shall be issued when leave is given to proceed with the
claim, when the procedure the exclusive competence of which had
been assigned to the Court Clerk is terminated an, in any class of
procedure, when it is necessary or convenient to give a reasoned
explanation of the decision adopted.
c) Proceedings of record, communication or execution shall be issued
for the purposes of recording facts or acts of a procedural significance
in the proceedings.

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3. In the executions of judgement the rules established in the preceding

paragraphs shall be observed to the extent applicable.

Article 207. Final decisions. Absolute decisions. Formal res judicatal.

1. Final decisions are those that put an end to the first instance and those
resolving the appeals filed against them.

2. Absolute decisions are those against which no remedy of appeal is

possible, either because none is foreseen by the law, or because, although
foreseen, the legally established term has expired without any of the
parties having filed such remedy of appeal.

3. Final decisions become res judicata and the court to which the
proceedings was assigned must at all events adhere to them.

4. Upon expiry of the terms established to appeal against a decision

without the latter having been challenged, the decision shall be final and
becomes res judicata and the court to which the proceedings has been
assigned must at all events adhere to it.

Article 208. Form of the decisions.143

1. The proceedings or order and court orders shall be limited to expressing

what is ordered by them and shall also include a summary motivation if
required by the law or if deemed convenient by whomever has to issue
them.

2. The decrees and orders shall always be motivated and shall contain
separate numbered paragraphs setting out the record of the facts and the
fundamental points of law on which the subsequent order or verdict of the
court is based.

3. Sentences and orders must indicate the Court pronouncing them,

specifying the Judge or Senior Judges composing the court with their
signature and the name of the reporting judge in the case of a Chamber
court. In the case of court decisions issued by Courtrooms, the signature
of the reporting judge shall be sufficient.

In the decisions issued by the Court Clerks, the name of the issuer must
always be indicated, followed by his signature.

143
Article worded in accordance with Act 13/2009 of 3 November.

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4. Every decision shall include mention of the place and date on which is
adopted and whether the latter is final or can be appealed again, specifying
in the latter case the type of appeal that can be filed, the court with which
it must be lodged and the term granted to file the appeal.

Article 209. Special rules on the form and content of the judgements.

The judgements shall be formulated in accordance with the provisions

contained in the preceding article and, in addition, subject to the following rules:
a) The heading shall contain the names of the parties and, if necessary,
the legal capacity and representation in which they intervene, as well
as the names of the attorneys and attorneys-at-law and the subject
matter of the proceedings.
b) The record of the facts shall indicate, as clearly and concisely as
possible and in separate and numbered paragraphs, the claims of the
parties involved or interested, the facts on which they are based which
have been alleged at the appropriate time and are relating to the issues
to be resolved, the evidence that has been submitted and taken and
the facts as found, in any.
c) The fundamental points of law shall express, in separate and
numbered paragraphs, the points of fact and of law established by the
parties and those contained in the issues in dispute, setting out the
legal reasons and grounds of the verdict to be passed, with a specific
mention of the legal rules applicable to the case.
d) The verdict, which shall comply with The provisions set forth in
Article 216 and following articles, shall contain, numbered one by one,
the pronouncements corresponding to the claims of the parties,
although the admission or rejection of all or some of the said claims
may be deduced from the legal grounds, as well as the pronouncement
regarding the legal costs. In addition, it shall determine, where
applicable, the amount object of the conviction, the determination
whereof cannot be reserved for the execution of the judgement,
notwithstanding the provisions set forth in Article 219 herein.

Article 210. Verbal decisions.144

1. Unless the law allow differing the pronouncement, the decisions required
to be issued at a hearing, audience or appearance before the Court of the

144
Paragraphs 1 and 2 of this article have been worded in accordance with Act 13/2009 of 3 November.

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Court Clerk shall be issued in the same act, documenting the latter setting
out the judgement and the summary motivation of the said decisions.

2. Once the decision has been issued and if all individuals party to the suit
are present in the act, either in person or duly represented, and indicate their
intention not to appeal against the decision, the latter shall be declared final.

In all other cases, the term to appeal shall commence as soon as the notice of
the duly drafted decision has been served.

3. Under no circumstances may judgements be passed verbally in civil

proceedings.

Article 211. Time limit of issuing court decisions.145

1. The decisions of Courts and Court Clerks shall be issued within the time
limit established by the law.

2. Failure to comply with the time limit shall result in a disciplinary measure,
barring a justified cause, which shall be specified in the decision.

Article 212. Publication and filing of the judgments.146

1. The judgments and other absolute decisions, once issued and signed
by those who passed them, shall be published and deposited with the
Court Office and the Clerk of the Court shall order their notification and
filing, and publish them in the manner allowed or provided for in the
Constitution and the laws.

2. Without prejudice to the provisions of the second paragraph of section 1

of article 236 (d) of the Judiciary Act 6/1985, of 1 July, any interested party
will be allowed access to the text of the judgments or to certain details of
them. This access may only be given once the personal data contained
within them are removed and with full respect for the right to privacy, the
rights of persons requiring a special duty of care, the guarantee of
anonymity of the aggrieved parties, as appropriate, and, in general, to
prevent judgments being used for purposes which are against the law.

145
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.
146
Paragraph 2 is amended by final provision 4.9 of Organic Law 7/2015, of 21 July
Article worded in accordance with Act 13/2009 of 3 November.

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3. The judgments passed in proceedings concerning the application of

Articles 81 and 82 of the Treaty of the European Community or Articles 1
and 2 of the Defence of Free Competition Act shall be notified by the Clerk
of the Court to the National Competition Commission.

4. The Clerk of the Courts shall include a literal certification of the

judgments and other absolute court decisions on the records.

Article 213. Book of judgements.

Each court shall keep, under the custody of the Court Clerk, a book of
judgements, which shall incorporate all the absolute judgements, the
orders of the same nature, and the dissenting votes that have been issued,
which shall be included in correlative order according to their date.

Article 213 bis. Book of decrees.147

Each Court shall keep, under the responsibility and custody of the Court
Clerk, a book of decrees, which shall incorporate all the signed absolute
decrees, to be included in chronological order.

Article 214. Invariability of the decisions. Clarification and rectification.148

1. The courts cannot alter the decisions issued by them once they have
been signed, although they are given permission to clarify any obscure
concept and to rectify any material error contained therein

2. The clarifications referred to in the preceding paragraph may be made

ex officio by the Court or the Court Clerk, as applicable, within two day
following that of the publication of the decision, or at the request of a party
or the Public Prosecutor made within the same time limit, in which case the
request shall be resolved by whomever issued the decision within three
days following the presentation of the written request for clarification.

3. Evident material errors and arithmetic mistakes committed in the

decisions of the Courts and Court Clerks may be rectified at all times.

4. No appeal may be lodged against the decision resolving on the

clarification or rectification, notwithstanding the appeals allowed, as the

147
Article added by Act 13/2009 of 3 November.
148
The paragraphs 2 and 3 have been worded in accordance with Act 13/2009 of 3 November, which,
in turn, introduces a new paragraph 4.

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case may be, against the decision referred to in the request of procedure
ex officio.

Article 215. Correction and complementing of defective or incomplete

judgements and orders.149

1. The omissions and defects that may be contained in judgements and

orders and need to be remedied in order for the said decisions to be fully
effective may be corrected, by means of an order, within the same terms
and following the same procedure as set forth in the preceding article.

2. In the case of judgements or orders in which pronouncements concerning

claims duly deduced and conducted during the trial have been manifestly
omitted, the Court, upon written request of a party within a time limit of five
days following notice of the decision, after referral by the Court Clerk of the
said request to the remaining parties to allow them to submit written
allegations within an additional time limit of five days, shall issue an order
by which it resolves to complete the decision with the omitted
pronouncement or indicating that there is no ground to complete the
decision.

3. If, in the judgements or orders issued by it, the Court becomes aware of
the omissions referred to in the preceding paragraph, it may, within a time
limit of five days following the date of passing of the said judgement or
order, proceed to complete its decision ex officio by means of an order,
albeit without modifying or rectifying that agreed.

4. In the same manner as established in the preceding paragraphs, the

Court Clerk may, when necessary, correct or complete the decrees issued
by the latter.

5. No appeal may be lodged against the orders or decrees completing or

rejecting to complete the decisions referred to in the preceding paragraphs
of this article, notwithstanding the appeals that may be lodged, if any,
against the judgement, order or decree referred to in the request of the
procedure carried out ex officio by the Court or the Court Clerk. The time
limits for these appeals, if proper, shall be suspended from the moment
when its clarification, rectification, correction or fulfilment is requested and
shall resume as of the day following that of the notice of the decision

149
The paragraphs 2 and 4 have been worded in accordance with Act 13/2009 of 3 November, which,
in turn, introduces a new paragraph 5.

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acknowledging of denying the omission of pronouncement and deciding or

refusing to remedy the said omission.

Section 2. On the internal requirements of the

judgement and its effects

Article 216. Principle of justice at the request of a party.

The civil court shall resolver on the matters by virtue of the submission of
facts, evidence and claims of the parties, unless the law establishes
otherwise in certain special cases.

Article 217. Burden of proof.150

1. If, at the time of passing a judgement or issuing a similar decision, the

court considers that certain facts relevant to the decision are uncertain, it
shall dismiss the claims of the plaintiff or the counter-claim defendant, or
those of the defendant or the counter-claim plaintiff, depending on the
party to whom corresponds the burden of proof of the facts that remain
uncertain and constitute the ground for the claims.

2. It corresponds to the plaintiff and the counter-claim defendant to prove

the certainty of the facts from which, according to the legal rules applicable
to them, the legal effect of the causes of action of the claim and the
counterclaim are ordinarily inferred.

3. It is up to the defendant and the counter-claim plaintiff to prove the facts

which, in accordance with the rules applicable to them, preclude, extinguish
or enervate the legal efficacy of the facts referred to in the preceding
paragraph.

4. In the proceedings concerning unfair competition and illicit publicity, it

shall be up to the defendant to prove the accuracy and veracity of the
indications and statements made and of the material information expressed
in the publicity, respectively.

5. In accordance with the procedural laws, in the procedures in which the

allegations of the plaintiff are grounded on discriminating acts on the basis
of gender, it shall be up to the defendant to prove the absence of
discrimination in the measures adopted and their proportional nature.

150
Paragraph added by the Organic Act 3/2007 of 22nd March, the former paragraphs 5 and 6 beco-
ming the current paragraphs 6 and 7.

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For the purposes of the provisions set forth in the preceding paragraph,
the judicial body may, on behalf of a party, request, if it deems appropriate,
a report or opinion of the competent public bodies.

6. The rules contained in the preceding paragraphs shall apply whenever

an express legal provision fails to distribute the burden of proof of the
relevant facts on the basis of special criteria.

7. To implement the provisions set forth in the preceding paragraphs of this

article, the court shall take into account the availability of evidence and the
ease of proving it corresponding to each of the parties to the litigation.

Article 218. Exhaustive effect and coherence of the judgements.

Motivation.

1. The judgements must be clear, precise and coherent with the claims
and with the other pleas of the parties, as deduced in due time during the
proceedings. They shall make the statements required by the latter,
convicting or acquitting the defendant and resolving on all issues in dispute
that were the object of the debate.

The court, without deviating from the cause availing of factual grounds or
fundamental points of law different from those the parties had the intention
to enforce, shall resolve in accordance with the rules applicable to the
case, even if they have not been correctly mentioned or alleged by the
litigants.

2. The judgements shall be motivated expressing the factual and legal

arguments leading to the appreciation and evaluation of the evidence, as
well as the application and the construction of the law. The motivation shall
stress the various factual and legal elements of the proceedings,
considering them individually and as a whole, al all times complying with
the rules of logic and or reason.

3. If there were various issues object of the litigation, the court shall
pronounce itself on each one of them duly separated.

Article 219. Judgements subject to settlement.

1. In the event of a trial claiming the payment of a specific amount of

money or of proceeds, rents, utilities or products of any nature whatsoever,
the claim shall not be limited to request a merely declaratory judgement
confirming the right to receive the former but shall also request the order to

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pay them, indicating their exact amount, and may not request its
determination during the execution of the judgement, or clearly establishing
the bases on which the settlement shall be carried out, in such a way that
the latter shall consist of a mere arithmetic operation.

2. In the cases referred to in the preceding paragraph, the judgement for the
plaintiff shall establish the exact amount of the respective sums, or shall
specify clearly and precisely the basis for their settlement, which shall
consist of a simple arithmetic operation to be carried out during the execution.

3. Apart from the preceding cases, the plaintiff shall not intend and the
court shall not be given permission to establish in the judgement that the
conviction shall be carried out subject to settlement during the execution.
The above notwithstanding, the plaintiff shall be given permission to
request and the court shall be authorised to pass a judgement ordering the
payment of a sum of money, proceeds, rents, utilities or product when
such is the exclusive claim submitted, leaving the problems of the specific
settlement of the amounts for subsequent proceedings.

Article 220. Deferred sentences.151

1. If payment of interest or periodic payments are claimed, the judgment

may include the order to pay the interest or make the payments accruing
at times subsequent to when the sentence is passed.

2. In the cases of claims for periodic payments of rents, when the claim is
accumulated to the action for eviction due to non-payment or legal or
contractual expiry of the term, and the plaintiff has expressly so requested
in his writ of claim, the judgment, order or decree shall include the sentence
that, in addition, rents due which become payable after the presentation of
the claim must be paid until the delivery of the effective possession of the
property, taking as basis for the settlement of the future rents the amount
of the last monthly payment claimed at the time of filing the claim.

Article 221. Judgements issued in proceedings brought by consumer or

users associations.152

1. Notwithstanding the provisions set forth the preceding articles, any

judgements issued as a result of claims brought by consumer or users

151
Paragraph 2 amended by Article 2.3 of Law 4/2013 of 4 June.
Article worded in accordance with Act 19/2009 of 23 November.
152
Paragraph 2 added by Act 39/2002 of 28 October.

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associations having the legal capacity referred to in Article 11 herein shall

be subject to the following rules:
a) Should a monetary sanction have been sought for doing or failing to
do a specific or generic thing, the judgement upholding the claim shall
individually determine the consumers and users who shall be deemed
as benefiting from the judgement in keeping with the laws protecting
them.
Where individually determining such users or consumers may not be
possible, the judgement shall set forth the necessary details,
characteristics and requirements to be in a position to require
payment or, as appropriate, apply for enforcement or be a party to it
should the association that had brought the claim do so.
b) Should a specific activity or type of behaviour be judged illicit or not
in keeping with the law as the grounds for the sanction or as the main
or single verdict, the judgement shall determine whether such verdict
shall have procedural effects beyond those who had been a party to
the corresponding proceedings.
c) Should individual consumers or users have entered an appearance,
the judgement shall expressly issue a ruling on their pleas.

2. In judgements upholding a stay to defend group interests and the diffuse

interests of consumers and users, the Court, should it so deem, may order
the judgement’s total or partial publication at the defendant’s expense or,
where the effects of the infringement may persist over time, a rectifying
statement.

Article 222. Material res judicata.

1. The res judicata of final and unassailable judgements, whether they

uphold or dismiss the claim, shall exclude pursuant to the law any
subsequent proceedings whose matter at issue is identical to the matter of
the proceedings from which it arose.

2. Res judicata shall include the both the claim’s and the counterclaim’s
pleas, as well as the points referred to in items 1 and 2, Article 408 herein.

Facts subsequent to the final deadline for of pleas in the proceedings in

which they were filed shall be construed as new and different facts as
regard the grounds for the aforementioned pleas.

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3. Res judicata shall affect the parties to the proceedings in which it is

ruled, as well as their heirs and successors and any non-litigants holding
rights upon which the parties’ capacity to act is grounded in accordance
with the provisions set forth in Article 11 herein.

In the judgements on marital status, matrimony, kinship, paternity,

maternity or incapacity and the recovery of capacity, res judicata shall take
effect from the moment such judgements are duly registered or entered in
the Civil Registry.

Any judgements issued on claims contesting corporate decisions shall

affect all partners, including those not involved in the litigation.

4. Any matter resolved through the force of a final and unassailable

judgement’s res judicata that has brought proceedings to a close shall
bind any court of subsequent proceedings where it may appear as a logical
precedent of the matter at issue, as long as the litigants of both proceedings
are the same or should res judicata cover them both according to a legal
provision.

Section 3. On orders to move the proceedings forward

Articles 223-224153

Without content.

CHAPTER IX
ON THE NULLITY OF PROCEDURES154

Article 225. Full nullity.155

Procedural actions shall be fully null and void under the following
circumstances:
(i). Where they are performed by or before a Court lacking objective or
functional jurisdiction or competence.
(ii). Where they are performed under violence or intimidation.

153
Articles lacking any content in accordance with Act 13/2009 of 3 November.
154
Header worded in accordance with Act 13/2009 of 3 November.
155
Article worded in accordance with Act 13/2009 of 3 November.

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(iii). Where the essential rules of the procedure are disregarded, as

long as a lack of proper defence may have come about as a result
thereof.
(iv). Where they are performed without the involvement of an attorney
under circumstances in which the law may require it.
(v). Where hearings are held without the compulsory involvement of
the Court Clerk.
(vi). Where matters are resolved through orders to move the
proceedings forward or decisions where, according to the law, they
should be resolved by means of procedural court orders, court orders
or judgements.
(vii). In any other cases set forth by this Act.

Article 226. Manner of proceeding in the event of intimidation or violence.

1. Any courts whose procedural actions may have come about under
violence or intimidation shall declare null and void any procedures they
have conducted as soon as they are free from such violence or intimidation
and shall encourage the bringing of proceedings against the guilty parties
by informing the Public Prosecution Service about the facts thereof.

2. They shall also declare the actions of the parties and the persons
involved in the proceedings null and void should it be proven that such
actions came about under intimidation or violence. The nullity of such
actions shall necessarily involve the nullity of any others linked to them or
any that may have been substantially conditioned by or influenced by a
null and void action.

Article 227. Declaration of nullity and pleas for the annulment of procedural
actions.

1. Full nullity and any, in any event, formal defects in procedural actions
involving the absence of the essential requirements to attain their ends or
that effectively determine a lack of proper defence shall be applied for by
means of the appeals set forth by the law against the ruling in question.

2. notwithstanding the preceding, the court may, on an ex officio basis or at

the request of a party, declare all the procedures null and void or any of
them in particular, as long as a rectification thereof does not proceed, after
holding a hearing with the parties and before a judgement bringing the
proceedings to an end is issued.

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In the event of an appeal, under no circumstances may a court declare

procedures null and void on an ex officio basis which have not been
requested in such appeal, except where it should appreciate a lack of
objective or functional jurisdiction or competence or where violence or
intimidation affecting such court may have come about.

Article 228. Exceptional incident of nullity of procedures.156

1. Incidents of the nullity of procedures on a general basis shall not be

given permission to proceed. Nonetheless, on an exceptional basis,
whoever may be a legitimate party or should have been so may seek
through a written statement the nullity of any procedures on the grounds of
the violation of any of the fundamental rights referred to in Article 53.2 of
the Constitution, as long as such violation could not have been denounced
before the ruling bringing the proceedings to an end and as long as such
ruling is not subject to either an ordinary appeal or an extraordinary appeal.

The same court that issued the final and unassailable ruling shall hold
competence for dealing with such an incident. The time limit to apply for
nullity shall be twenty days from the date notice of the ruling is served or,
in any event, from the date the defect leading to a lack of proper defence
is known. Nonetheless, in the latter case, the nullity of the procedures may
not be requested once five years have elapsed from the date notice of the
judgement has been served.

The Court shall not give any incident seeking to raise any other matters
leave to proceed by means of a procedural court order. No appeals may
be lodged against a ruling rejecting the incident leave to proceed.

2. Once the written statement requesting nullity on the grounds of the defects
referred to in the preceding paragraph of this article is given leave to
proceed, the enforcement or effects of the judgement or ruling against which
an appeal has been lodged shall not be suspended to prevent the incident
from losing sight of its purpose. The Court Clerk shall transfer such written
statement along with any documents attached thereto seeking to prove the
defect upon which the plea is grounded, if any, to the other parties, who may
file their pleas within five days by means of a written statement, to which
they may attach any documents they may deem relevant.

Should the plea for nullity be upheld, the procedures shall be reversed to
the stage immediately prior to the defect that gave rise to it and the legally

156
Article worded in accordance with Act 13/2009 of 3 November.

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established procedures shall proceed. Should the plea for nullity be

dismissed, the applicant thereof shall be sanctioned to pay all the costs
arising from the incident by means of a court order and, should the Court
deem it was recklessly filed, it shall additionally impose a fine ranging from
ninety to six hundred euros.

No appeals may be lodged against the ruling resolving the incident.

Article 229. Court procedures performed beyond the time limit set.

Any court procedures conducted beyond the time limit set may only be
annulled should the nature of the term or time limit so require.

Article 230. Keeping of actions.157

The nullity of an action shall not lead to subsequent independent actions

being null and void, nor shall any be null and void whose contents would
have remained unchanged, even if the infringement giving rise to nullity
had not been committed.

Article 231. Rectification.158

The Court and the Court Clerk shall take care to ensure any defects in the
parties’ procedural actions can be rectified.

CHAPTER X
ON THE RECONSTITUTION OF RECORDS159

Article 232. Public Prosecution Service’s competence and involvement.160

1. The Court Clerk Office where the disappearance or destruction of the

records of proceedings has taken place shall hold competence for
conducting their full or partial reconstitution.

2. The Public Prosecution Service shall always be a party to any

proceedings seeking the reconstitution of records.

157
Article worded in accordance with Act 13/2009 of 3 November.
158
Worded in accordance with Act 13/2009 of 3 November.
159
Header worded in accordance with Act 13/2009 of 3 November.
160
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.

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Article 233. Initiation of proceedings on the reconstitution of records.161

The Court or the Court Clerk, as regards procedures under his exclusive
competence, on an ex officio basis, or the parties or their successors, as
appropriate, may seek the reconstitution of records. Should the proceedings
be initiated at the request of a party, they shall commence through a written
statement containing the following details:
(i). When the disappearance or destruction took place, as accurately
as possible.
(ii). The procedural stage of the matter.
(iii). The details known and the means of investigation which may lead
to the reconstitution.

Wherever possible, authentic and private copies which may have been
conserved of the documents shall be attached to the written statement,
otherwise any files or records appearing in master documents or any
entries or registrations shall be indicated. Rulings of any kind issued in the
proceedings shall also be attached to the copies of the written statements
thus filed, along with any other documents that may be useful to reconstitute
the records.

Article 234. Summoning the parties to appear. Effects of the failure to

appear.162

1. Once the Court has agreed upon the initiation of the reconstitution of the
records through a procedural court order or, as appropriate, by the Court
Clerk through a decision, the Court Clerk shall summon the parties to
appear in a hearing before him, which shall be held within at most ten
days. The parties and their attorneys shall attend such hearing, as long as
long as the involvement of the latter may be required in the proceedings
whose records are to be reconstituted.

2. The failure of any of the parties to appear shall not prevent the hearing
from being held with those in attendance. Should no parties appear, the
hearing shall be held with the Public Prosecution Service.

161
Paragraph 1 worded in accordance with Act 13/2009, of 3 November.
162
Article worded in accordance with Act 13/2009 of 3 November.

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Article 235. Initiation of the hearing. Lack of dispute. Evidence and

decision.163

1. The hearing shall commence by requiring the parties to state either their
agreement or disagreement with the accuracy of the written statements
and documents filed by the party requesting the proceedings, as well as
with any others that may have been submitted by the other parties in the
same procedure.

2. Once the parties have been heard and the written statements and
documents thus filed have been examined, the Court Clerk shall determine,
after having considered the Prosecutor’s report, the details upon which the
litigants may have reached agreement and any others which may be in
dispute, disregarding incidental differences.

3. Should there be no dispute regarding the details affecting the

reconstitution, the Court Clerk shall issue a decision declaring the records
reconstituted and setting the procedural stage from whence the subsequent
course of the proceedings in question shall proceed.

4. Should there be either a full or partial disagreement among the parties,

the Court Clerk shall summon the parties and the Public Prosecution
Service to a hearing before the Court, which shall be held within the next
ten days and at which the necessary evidence shall be put forward and
taken and, should this not be possible, within fifteen days. The Court shall
then decide by means of a court order stating the records as reconstituted,
or alternatively the impossibility of their reconstitution. An appeal may be
lodged against such court order.

TITLE VI

ON THE CESSATION OF COURT PROCEDURES AND ON THE

EXPIRY OF THE CASE

Article 236. Moving the proceedings forward by the parties and expiry.

The parties or interested parties failing to move the proceedings forward shall
not lead to the expiry of the case or appeal.

163
This article is worded in accordance with Act 13/2009, of 3 November.

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Article 237. Expiry of the case.164

1. Cases and appeals of all kinds of proceedings shall be deemed to have

been set aside should, despite being moved forward on an ex officio basis,
no procedural activity come about within a time limit of two years where
the proceedings are in the first instance; or within a time limit of one year if
they are in the second instance or pending an extraordinary appeal against
a breach of procedure or an appeal in cassation.

These time limits shall run from the date the last notice is served to the
parties.

2. Only an appeal for judicial review may be lodged against an order

declaring expiry.

Article 238. Exclusion of expiry due to force majeure or against the shall
of the parties.

The expiry of a case or appeal shall not come about should the proceedings
be held up due to force majeure or due to any other cause contrary and
not imputable to the shall of the parties or interested parties.

Article 239. Exclusion of expiry at the instance of enforcement.

The provisions of the preceding article shall not apply to compulsory

enforcement procedures.

Such procedures shall proceed until the judgement is fulfilled, despite not
having been moved forward during the time limits set forth in this Title.

Article 240. Effects of the case’s expiry.

1. Should expiry come about in the second instance or during the

extraordinary appeals mentioned in Article 237, such appeals shall be
deemed to have been set aside and the ruling appealed against as final
and unassailable and the records shall then be returned to the court from
whence they came.

2. Should expiry come about in the first instance, it shall be construed that
abandonment has come about in such instance and a new claim may
therefore be brought notwithstanding the action’s expiry.

164
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.

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3. The declaration of expiry shall not impose any costs. Each party shall
incur their own costs and any common costs shall be shared.

TITLE VII
ON THE APPRAISAL OF COSTS

Article 241. Payment of the proceedings’ costs and expenses.165

1. With the exception of provisions of the Free Legal Aid Act, each party
shall pay for the costs and expenses of the proceedings incurred at such
party’s request as they come about.

Proceedings’ expenses shall be construed to be any payments that directly

and immediately arise from the existence of such proceedings and costs
shall be construed as the part of any payments referring to the following
items:
(i) Fees for the defence and for technical representation where they
may be compulsory.
(ii) The placement of advertisements or public notices that may have to
be published during the course of the proceedings.
(iii) Deposits required to lodge appeals.
(iv) Experts’ fees and any other payments which may have to be made
to people involved in the proceedings.
(v) Copies, certifications, notes, affidavits and similar documents that
may have to be requested in accordance with the law, except for any
the court may request from public registries and records, which shall
be free.
(vi) Duties which may have to be paid as a result of any procedures
needed to conduct the proceedings.
(vii) The fee for exercising jurisdictional authority, where mandatory.
The amount of the fee paid in repossession proceedings relating to
mortgages taken out to acquire a permanent family residence shall not
be included in the costs of the proceedings. Nor shall it be included in
other enforcement proceedings arising from such loans and mortgages

165
Point (vii) of paragraph 1 amended by article 3 of Royal Decree-Law 3/2013 of 22 February.
Point (vii) of section 1 is amended by final provision 3 of Law 10/2012 of 20 November

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where they are brought against the debtor in person or against their
guarantors.

2. The holders of any credit rights arising from procedural actions may
claim them from the party or parties owing such rights without waiting for
the proceedings to come to an end and independently of any eventual
ruling imposing costs against them.

Article 242. Application for the appraisal of costs.166

1. Should costs be imposed, they shall be retrieved through distraint

proceedings as soon as the ruling is final and unassailable, after being
appraised, should the party thus sanctioned have failed to pay them before
the other had filed an application for such appraisal.

2. The party applying for the appraisal of costs shall attach any receipts
proving the payment of the amounts whose reimbursement is being
sought.

3. Once the ruling imposing costs is final and unassailable, the court
representatives, attorneys, experts and other people who were involved in
the proceedings and holding any credit rights against the parties to be
included in the appraisal of such costs may submit a detailed invoice
before the Court Office stating their credit rights or fees, along with detailed
accounts justifying any expenses they may have paid in advance.

4. Officials, court representatives and professionals subject to fee

schedules shall be governed by them.

5. Attorneys, experts and other professionals and officials who are not
subject to fee schedules shall set their fees in accordance with any rules,
if any, governing their professions.

Article 243. Conducting the appraisal of costs.167

1. The appraisal of costs shall be carried out, in all kinds of proceedings

and cases, by the Clerk of the Court who had dealt with the proceedings or
appeal, respectively, or, as appropriate, by the Clerk of the Court in charge
of the enforcement action.

166
Paragraph 3 worded in accordance with Act 13/2009, of 3 November.
167
Paragraph 2 is amended by single article 28 of Law 42/2015, of 5 October.
Sections 1 and 2 of this article are worded in accordance with Act 13/2009, of 3 November.

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2. Any duties relating to writs and proceedings that may have turned out to
be useless, superfluous or not authorised under the law shall not be
included in the appraisal, nor shall any invoice items that have not been
duly broken down or which refer to fees which did not become due during
the proceedings.

The appraisal of costs for procurators’ fees accrued for performance of

procedural acts of notification, cooperation and assistance to the Justice
Administration will also not be included, nor will other merely facilitative
acts that may have been carried out, on the other hand, by the Court
offices.

The Clerk of the Court shall reduce the amount of the fees of lawyers and
other professionals who are not subject to fee scales or tariffs where the
fees claimed exceed the limit referred to in section 3 of Article 394 and
should the litigant sanctioned to pay costs have not been deemed to have
acted in a reckless manner.

Appraisals of costs will include Value Added Tax, in accordance with the
provisions of the law regulating it, on lawyers’ and procurators’ fees. The
amount of that tax will not be calculated for the purposes of section 3 of
article 394.

3. Neither shall the costs of any procedures or incidents be included for

which the party favoured by the ruling as to costs in the main matter at
issue has been expressly sanctioned.

Article 244. Transfer to the parties. Approval.168

1. Once the appraisal of costs has been conducted by the Court Clerk, it
shall be transferred to parties during a common time limit of ten days.

2. Once the transfer referred to in the preceding paragraph has been

agreed upon, the inclusion or addition of any other items shall not be
allowed and the interested party’s rights to claim them, as appropriate,
from whoever may correspond shall be reserved.

3. Once the time limit set forth in the preceding paragraph has elapsed
without the appraisal of costs thus conducted being contested, the Court
Clerk shall approve it through a decision. An appeal for judicial review may

168
Paragraph 3 has been added and a new wording has been given to this article’s header in accor-
dance with Act 13/2009 of 3 November.

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 Book one . On the general provisions concerning civil trials

be lodged against such decision, but no appeal may be lodged against the
court order resolving such appeal for review.

Article 245. Contesting the appraisal of costs.169

1. The appraisal of costs may be contested within the time limit referred to
in paragraph 1 of the preceding article.

2. The challenge may be grounded on the inappropriate inclusion of items,

rights or expenses in the appraisal. However, in case of the fees of
attorneys, experts or professionals not subject to a fee schedule, the
appraisal may also be contested by alleging that the amount of such fees
is excessive.

3. The party favoured by the ruling on costs may contest the appraisal
based on the failure to include therein any duly justified costs that have
been claimed. Such party may also ground the plea on a failure to include
all the fees corresponding to the party’s attorneys, experts or officials not
subject to a fee schedule who had taken part in the proceedings at the
party’s request, or on the grounds of the court representative’s fees not
having been properly included.

4. The written statement contesting the appraisal shall mention the

accounts or invoices, as well as the specific items involved in the dispute
and the reasons thereof. Should such details not be mentioned, the Court
Clerk shall not give the challenge leave to proceed by means of a decision.
Solely an appeal for reversal may be lodged against such decision.

Article 246. Conducting the challenge and decision thereof.170

1. Should the appraisal be contested due to the attorney’s legal fees being
deemed excessive, the attorney in question shall be heard within five days
and, if he does not agree to lower the fees claimed, a certified copy of the
records or, the part thereof which may be necessary, shall be passed on
Bar Association so that it may issue a report.

2. The provisions set forth in the preceding paragraph shall likewise apply
to any challenge made to experts’ fees and, in such an event, an opinion
from the professional Society, Association or Body to which the expert
belongs may be sought.

169
Paragraph worded in accordance with Act 13/2009 of 3 November.
170
Paragraphs 3 and 4 of this article have been worded in accordance with Act 13/2009 of 3 November.

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3. In view of the procedures conducted and of the opinions issued, the

Court Clerk shall issue a decision either maintaining the appraisal thus
conducted or, as appropriate, introducing any changes he may see fit.

Should the challenge be totally dismissed, costs shall be imposed on the

party contesting the appraisal. Should it be totally or partially upheld, costs
shall be imposed on the attorney or expert whose fees had been deemed
excessive.

An appeal for judicial review may be lodged against such decision.

No kind of appeal may be lodged against the court order resolving the
appeal for judicial review.

4. Where the appraisal has been contested for including inappropriate

rights or fees, or for not including duly justified costs that have been
claimed, the Court Clerk shall transfer the challenge to the other party for
three days, so that they may state their position on the inclusion or
exclusion of the items thus claimed.

The Court Clerk shall resolve the issue within the next three days by
means of a decision. A direct appeal for judicial review may be lodged
against such decision, but no appeal may be lodged against the court
order resolving such appeal for review.

5. Where it is alleged that any items for attorneys’ or experts’ fees included
in the appraisal of costs is inappropriate and, should it not be the case, for
being excessive, both challenges shall be dealt with simultaneously in
keeping with each of the paragraphs above. Nonetheless, the decision on
whether such fees are excessive shall be suspended until a decision is
taken on whether the item contested is appropriate or not.

6. Where one of the parties is entitled to free legal assistance, no matter at

issue in the cost appraisal incident concerning the public administration’s
obligation to pay for the amounts claimed shall be discussed or resolved
pursuant to the Free Legal Assistance Act.

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TITLE VIII
ON PROCEDURAL GOOD FAITH

Article 247. On the rules of procedural good faith. Fines for breaching
good faith.171

1. The parties involved in any kind of proceedings shall act in keeping with
the rules of good faith.

2. The courts shall reject any claims filed in abuse of the law or that involve
the abuse of procedural rules, stating the grounds for such decisions.

3. Should the courts deem that any of the parties has acted by breaching
the rules of procedural good faith, they shall impose on such party through
a separate file and respecting the principle of proportionality a fine that
may reach one hundred and eighty-six thousand euros. However, such
fine may under no circumstances exceed a third of the amount at issue.

In order determine the amount of the fine, the Court shall take into
consideration the circumstances surrounding the facts in question, along
with any harm that may have been caused to the proceedings or to the
other party.

In any event, the Court Clerk shall record the fact leading up to the
corrective action, the pleas filed by the party involved and the ruling issued
by the Judge or Chamber.

4. Should the courts deem that the action breaching the rules of good faith
may be imputable to any of the professionals involved in the proceedings,
they shall transfer such circumstance, notwithstanding the provisions set
forth in preceding paragraph, to the respective professional associations in
case the imposition of any kind of disciplinary penalties should proceed.

5. The sanctions imposed under this article are subject to the system of
appeals set forth in Title V, Book VII of the Organic Act on the Judicial
Branch.

171
Paragraph 3 worded in accordance with Act 3/13 of 2009 November, and paragraph 5 has been
added in keeping with such Act.

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BOOK II
ON DECLARATORY PROCEEDINGS

TITLE ONE
ON COMMON PROVISIONS REGARDING DECLARATORY
PROCEEDINGS

CHAPTER ONE
ON THE RULES TO DETERMINE THE APPROPRIATE
PROCEEDINGS

Article 248. Types of declaratory proceedings.

1. Any judicial dispute between the parties for which the law does not lay
down any other proceedings shall be dealt with and decided upon in the
corresponding declaratory proceedings.

2. The following belong to the class of declaratory proceedings:

(i). Declaratory actions.
(ii). Oral trials.

3. The rules to determine the type of trial for reasons of amount shall solely
apply should a rule for reasons of the matter at issue be lacking.

Article 249. Scope of declaratory actions.172

1. The following shall be decided upon declaratory actions, regardless of

the amount involved:
(i). Claims concerning personal honorary rights.
(ii). Claims seeking the protection of the right to honour, privacy and to
a person’s image, and any seeking civil judicial protection for any other
fundamental right, except any seeking the right of rectification. The
Public Prosecution Service shall always be a party to these proceedings
and they shall be dealt with on a preferential basis.

172
Item 1.(vi) worded in accordance with Act 19/2009 of 23 November .
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.
Item 1.(iv) worded in accordance with Act 15/2007 of 3 July.
Item worded in accordance with Act 39/2002 of 28 October.

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(iii). Claims contesting corporate decisions taken by general or special

meetings or assemblies of partners or bondholders, or by collegiate
management bodies in commercial institutions.
(iv). Claims regarding unfair competition or fair trading pursuant to
Articles 81 and 82 of the Treaty establishing the European Community
or Articles 1 and 2 of the Free Competition Act, Industrial Property,
Intellectual Property and Advertising, as long as they do not solely deal
with pleas for amounts, in which case they shall be conducted through
the corresponding proceedings on the basis of the amount claimed.
Nonetheless, the provisions set forth in item 12, paragraph 1, Article
250 herein shall be abided by where an action for cessation is
exercised to defend group interests and the diffuse interests of
consumers and users as regards advertising.
(v). Claims in which actions are exercised regarding general contracting
terms and conditions in the cases set forth by legislation on the subject,
apart from the provisions set forth in item 12, paragraph 1, Article 250.
(vi). Claims dealing with any matters concerning urban or rural property
leases, except where they deal with pleas for rent or amounts owed by
the lessee or for eviction due to the failure to pay or to the leasing
relationship’s expiry.
(vii). Claims exercising any kind of rights of pre-emption or first refusal.
(viii). Where actions are exercised to grant condominium property
owners’ meetings and property owners any rights under the
Condominium Property Act, as long as they do not deal with pleas for
amounts, in which case they shall be conducted through the
corresponding proceedings.

2. Any claims whose amount may exceed six thousand euros and any
whose economic interests cannot be calculated in even a relative fashion
shall likewise be decided upon in an declaratory action.

Article 250. Scope of oral trials.173

1. The following claims shall be decided upon through oral trials, regardless
of their amount:

173
Item (xi), paragraph 1 amended by Article 4.4 of Act 37/2011 of 10 October
Paragraph 1.(i) worded in accordance with Act 19/2009 of 23 November.
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.
Item 1.(xiii) added by Act 42/2003 of 21 November.
Item 1.(xii) added by Act 39/2002 of 28 October .

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(i). Claims for amounts owed due to the failure to pay rent or any
amounts owed, as well as claims seeking the recovery of a property by
the owner, usufructuary or any other person entitled to possess a
rented urban or rural property, be it through an ordinary, financial or
sharecropping lease, likewise due to the tenant failing to pay rent or
any amounts he may owe, or due to the expiry of a time limit set
contractually or legally.
(ii). Claims seeking the recovery of a precariously ceded rural or urban
property by the owner, usufructuary or any other person holding
entitlement of possess such property.
(iii). Claims seeking the court to grant the possession of assets to
those who have acquired them through inheritance if such assets are
not in anybody’s possession through a title of ownership or usufruct.
(iv). Claims seeking summary protection to hold or possess an asset
or right by those who have been stripped of them or whose enjoyment
of them has been disturbed.
(v). Claims seeking a summary court ruling on the suspension of new
construction works.
(vi). Claims seeking a summary court ruling on the demolition or felling
of building works, buildings, trees, pillars or any other similar object in
a ruinous state, which threaten to cause damage to whomever may
have brought the claim.
(vii). Claims brought by the holders of rights in rem which are duly
registered in the Land Registry seeking that such rights take effect
against whoever may contest them or disturb their enjoyment without
holding a duly registered title to legitimise the challenge or disturbance.
(viii). Claims seeking alimony owed through a legal provision or any
other title.
(ix). Claims in which an action is exercised to rectify inaccurate or
harmful facts.
(x). Claims seeking a summary court ruling on the breach by the buyer
of any obligations arising from agreements registered in the Moveable
Property Hire Purchase Registry, which were entered into through the
official form set forth for such purposes, in order to obtain a verdict
allowing enforcement actions to be ordered solely on the asset or
assets acquired or financed through hire purchase.
(xi). Claims seeking a summary court ruling on the breach of a financial
leasing agreement, a moveable property leasing agreement or a hire

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purchase agreement reserving ownership, provided they have been

duly registered in the Moveable Property Hire Purchase Registry and
entered into through the official form set forth for such purposes, by
exercising an action solely aimed at obtaining the immediate delivery
of the asset to the financial lessor, lessor, seller or financier at the
place indicated in the agreement after the agreement’s termination
has been declared, as appropriate.
(xii). Claims in which an action is exercised for cessation in the defence
of group interests or the diffuse interests of consumers and users.
(xiii). Claims seeking the effectiveness of the rights recognised by
Article 160 of the Civil Code. In such cases, the oral trial shall be
conducted with the peculiarities set forth in Chapter I, Title I, Book IV
herein.

2. Any claims whose amount does not exceed six thousand euros and
which do not deal with any of the matters set forth in paragraph 1 of the
preceding article shall also be decided upon in an oral trial.

Article 251. Rules for determining the amount.174

The amount shall be established in accordance with the financial interest

of the claim, whose calculation shall be based on the following rules:
a) If a specific sum of money is claimed, the amount of the claim shall
be the said sum and, failing such specification, the claim shall be
considered to be of an unspecified amount.
b) If the purpose of the proceedings is a conviction ordering the delivery
of moveable or real property, regardless of whether the claim is based
on rights in rem or personal rights, the amount shall be the value of the
said property at the time of lodging the claim, in accordance with
current prices on the market or the contracting of property of the same
kind.
For the purposes of this calculation the claimant may use any official
assessments of the assets in dispute if their value cannot be
established by other means, although the real property cannot be
assigned a value below that specified in the land registry.
c) The preceding calculation rule shall also apply:

174
Rule i worded in accordance with Act 19/2009 of 23 November.

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(i).To claims aimed at guaranteeing the enjoyment of the benefits

deriving from ownership.
(ii).To claims affecting the validity, nullity or efficacy of the title of
ownership and to the existence or the extension of ownership as
such.
(iii).To applications other than those established in the two
preceding cases, in which compliance with the plea depends on the
plaintiff proving his condition of owner.
(iv). To claims based on the right to acquire the ownership of a
property or a set of assets, either on the grounds of a right to credit
acknowledging the said right of acquisition, or by any other means
of acquisition of ownership or by exercising the right of redemption,
pre-emption or option to purchase; if the property is claimed as the
object of a transaction of purchase and sale, the prevailing
assessment criterion shall be the price agreed upon in the contract,
provided that, in the case of real properties, the said price is not
lower than its land registry value.
(v). If the proceedings deals with possession and no other rule set
forth in this article applies.
(vi). To actions of survey, marking of boundaries and division of
common property.
d) In cases where the claim refers to the usufruct or the bare legal title,
the use, habitation, exploitation by shifts or any other right in rem
restricting ownership and not subject to any special rule, the value of
the claim shall be established in accordance with the assessment base
for the tax levied on the establishment or transfer of these rights.
e) The value of a claim relating to an easement shall be the price paid
when the easement was established, if known, and if the date does not
go back more than five years. Otherwise, the price shall be estimated
pursuant to the legal rules used to set the price of the easement at the
time of the litigation, regardless of the method of acquisition, and, in
the absence of such rules, the amount shall be one twentieth of the
value of the dominant and servient tenements, taking into account the
second rule of this article concerning moveable and real property.
f) In claims relating to the existence, non-existence, validity or efficacy
of a pledge, the value shall be the sum of the amounts guaranteed on
any grounds.

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g) In trials concerning the right to claim temporary or lifelong periodic

benefits, the value shall be calculated according to the amount for one
annual payment multiplied by ten, unless the term of the benefit is less
than one year, in which case it shall be the total amount of the said
benefit.
h) In trials dealing with the existence, validity or efficacy of an
obligational title, its value shall be calculated according to the total
amount due, even if payable by instalments. This assessment criterion
shall apply to trials whose object is the creation, modification or
extinction of an obligational title or a right of a personal nature, provided
no other rule of this article applies.
i) In trials concerning the lease of property, except when referring to
claims of rents or sums due, the amount of the claim shall be the
amount of one year’s lease, regardless of the periodicity of the latter
as established in the contract
j) In cases where the claim refers to Stock Exchange securities, the
amount shall be determined by the average of their weighted average
exchange rate, determined in accordance with applicable legislation
during the calendar year prior to the lodging of the claim, or by the
average of the weighted average exchange rate of the securities for
the period during which they were being dealt in on the Stock Exchange
if the said period was less than one year.
Where securities negotiated on another secondary market are
concerned, the amount shall be determined by their average dealing
rate during the calendar year prior to the lodging of the claim on the
secondary market where they are being dealt in, or by the average
dealing rate during the time when they were being dealt in on the
secondary market if the securities were dealt in on the said market for
a period of less than one year.
The average dealing rate or the average of the weighted average
exchange rate, as applicable, shall be evidenced by a certificate issued
by the governing body of the relevant secondary market.
If the securities are not being dealt in, the amount shall be calculated
in accordance with the accounting assessment standards in force at
the time when the claim is lodged.
k) If the purpose of the claim is an affirmative obligation, the amount
claimed shall be the cost of the act whose performance is being
requested, or the amount for the damages deriving from its non-
performance; in this case, the two amounts cannot be accumulated

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unless, in addition to claiming compliance, a compensation is claimed.

The amount or calculation of the damages shall be taken into account
when the performance is of a highly personal nature or consists of a
negative obligation, even if the principal claim is one of compliance.
l) In cases concerning an inheritance or a gross estate or separate
inheritances, the preceding rules shall apply to the assets, rights or
credits included in the inheritance or the estate object of the litigation.

Article 252. Special rules for proceedings with multiple objects or parties.175

When proceedings involve multiple objects or parties, the amount of the

claim shall be calculated in accordance with the following rules:
a) When a claim concerns several principal actions not deriving from
the same title, the amount of the claim shall be determined by the
amount of the action of the highest value. An identical criterion shall be
applied in the event of a contingent joinder of actions.
b) If them accumulated actions originate from the same title or if,
accessory to the principal action, interest, yields, rents or damages are
claimed, the amount shall be determined by the total value of all the
actions joined. However, if the amount of any of the actions is not
certain and clear, only the value of the actions whose amount is certain
and clear shall be taken into account.
For the purposes of establishing the value, the future yields, interest or
rents shall not be taken into account, but only those that are due. Nor
shall the application for an order to pay court costs be taken into account.
The above notwithstanding, if the joinder of actions involves an action
for eviction for non-payment or legal or contractual expiry of the term
and a claim for rents or amounts due, the amount of the claim shall be
determined by the action of the highest value.
c) When several actions in rem are accumulated in the same claim
referring to the same moveable or real property, the amount shall
under no circumstances by higher than the value of the matter at issue.
d) When several expired periods of the same obligation are claimed,
the amount taken into account shall be the sum of the amounts
claimed, unless the claim contains a requests for an explicit statement
on the validity and efficacy of the obligation, in which case the amount
taken into consideration shall be the total value of the said obligation.

175
Rule b worded in accordance with Act 19/2009 of 23 November.

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If the value of any of the periods is not certain, the said value shall be
excluded from the calculation of the amount.
e) Neither the counterclaim nor the joinder of causes of action shall
affect the amount of the claim or the type of trial.
f) The existence of several plaintiffs or several defendants in the same
claim shall have no effect whatsoever on the determination of the
amount if the claim is the same for all of them. The same shall apply
when the plaintiffs or defendants are acting as such by virtue being
bound by several liability.
g) If the plurality of parties also determines the plurality of confirmed
actions, the amount shall be determined in accordance with the rules
set forth in this article for determining the amount.
h) In the event of an extension to the claim, the preceding rules shall
likewise apply.

Article 253. Expression of the amount of the claim.

1. In his initial claim, the plaintiff shall give a substantiated indication of the
amount of the claim. The said amount shall, in any case, be calculated in
accordance with the rules set forth in the preceding articles.

Changes in the value of the property object of the litigation occurring after
the claim has been lodged shall not imply the modification of the amount
nor of the type of trial.

2. The amount of the claim shall be expressed in a clear and precise

manner. However, the said amount may be indicated in a relative manner
if the plaintiff duly evidences that the financial interest of the litigation is at
least equal to the minimum amount corresponding to actions for a
declaratory judgement or does not exceed the maximum amount of the
oral trial. Under no circumstances may the plaintiff confine himself to
indicating the type of trail or place the burden of determining the amount
on the defendant.

3. If the plaintiff cannot determine the amount, not even in a relative

manner, because the object lacks any financial interest, because the said
interest cannot be determined in accordance with any of the legal rules for
determining the amount, or because, notwithstanding the existence of an
applicable calculation rule, the said amount cannot be determined at the
time of making the claim, the amount shall be substantiated in accordance
with the procedure for actions for a declaratory judgement.

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Article 254. Ex officio control of the type of lawsuit by reason of the

amount.176

1. Initially, the trial shall be processed following the plaintiff’s indication in

his claim.

If, however, in view of the allegations of the claim, the Court Clerk verifies
that the action chosen by the plaintiff does not correspond to the value
indicated or to the subject matter to which the claim refers, he shall issue
an order resolving the matter to be processed in the appropriate way. A
direct appeal for judicial review may be lodged against this order with the
Court, which shall have no suspensory effects.

The Court shall not be bound by the type of trial requested in the claim.

2. If, contrary to the plaintiff’s indication, the Court Clerk considers that the
amount of the claim cannot be appraised or determined, not even in a relative
manner, and that, consequently, it is not appropriate to apply the procedures
of an oral trial, he shall, by virtue of his office, issue an order to deal with the
matter in a declaratory action, provided the appointment of a court
representative and the signature of an attorney is recorded in the complaint.

3. Arithmetic errors of the plaintiff when determining the amount may be

corrected ex officio. So can those consisting of an erroneous choice of the
legal rule to calculate the amount if the claim contains sufficient factual
elements for an accurate determination by simple arithmetic operations.

Once the amount has been calculated correctly, the proceedings shall
continue as appropriate.

4. Under no circumstances may the Court reject the claim because it

considers the procedure inadequate by reason of the amount. However, if
the claim is confined to the mere indication of the corresponding action or
if, after the Clerk of the Court has determined ex officio that the amount
established is incorrect, the claim does not contain sufficient elements for
an accurate calculation, the case shall not go ahead until the plaintiff has
rectified the defect concerned.

The time limit for the correction shall be ten days, upon expiry of which the
Court shall resolve whatever is appropriate.

176
Paragraphs 1, 2 and 4 of this article have been worded in accordance with Act 13/2009 of 3 November.

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Article 255. Contesting the amount and the type of hearing by reason of
the amount.177

1. The defendant may contest the amount of the claim if they consider that,
had it had been determined accurately, the procedure to be followed would
have been different or appeal proceedings would have been in order.

2. In the declaratory action, the appropriateness of the procedure by

reason of the amount shall be contested in the answer to the claim and the
matter shall be resolved at the pre-hearing.

3. At the oral hearing, the defendant shall contest the amount or the type
of hearing by reason of the amount in the response to the claim, and the
court shall resolve the matter immediately, before examining the merits of
the case and after having heard the plaintiff.

CHAPTER II
ON PRELIMINARY PROCEEDINGS

Article 256. Types of preliminary proceedings and how to apply for them.178

1. Any hearing may be prepared by:

(i) An application for the individual against whom the claim may be
lodged to declare under oath or promise to tell the truth on a fact
concerning his capacity, representation or legal competency required
to be known for the case, or to exhibit the documents proving such
capacity, representation or legal competence.
(ii) An application for the individual who is to be claimed against to exhibit
the object in his possession that shall be referred to at the hearing.
(iii) An application filed by the individual considering themselves to be
an heir, co-heir or legatee for the exhibition of the deed of last will of
the testator of the inheritance or legacy by whoever has the such deed
in their possession.
(iv) An application made by a partner or a joint owner for the exhibition
of the documents and accounts of the company or condominium,

177
Paragraph 3 is amended by single article 29 of Law 42/2015, of 5 October.
178
Point (vii) amended and points (x) and (xi) added to section 1 by article 2.1 of Law 21/2014, of 4
November.
Point (vii) has been added by Act 19/2006 of 5 June.
Points (vii), (viii) and (v) added by Act 19/2006 of 5 June.

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directed to the latter or to the consortium or joint owner who has such
documents in his possession.
(v) An application by the individual considering themselves damaged
by an event that may be covered by civil liability insurance for the
exhibition of the insurance policy by whoever has possession of it.
(v.a). An application for medical records addressed to the health centre
or professional having custody of such records, under the terms and
with the content provided for by the law.
(vi) By an application by whoever intends to initiate legal action for the
defence of the collective interests of consumers and users with a view
to specifying the members of the group of aggrieved parties when, not
having been determined, it can easily be determined. To this end, the
court shall take the appropriate measures to verify the members of the
group, in accordance with the circumstances of the case and the
details provided by the applicant, including a request to the defendant
to cooperate in such determination.
(vii) An application, made by whoever intends to take action due to
infringement of an industrial property right or of an intellectual property
right committed by acts that cannot be considered to be carried out by
mere end consumers in good faith and without the intention of obtaining
financial or commercial benefits, or legal measures to obtain
information about a possible offender, the origin and distribution
networks for the works, goods or services infringing an intellectual
property or industrial property right and, in particular, the following:
a) The names and addresses of the producers, manufacturers,
distributors, suppliers and providers of the goods and services, as
well as of those who, for commercial purposes, have been in
possession of the goods.
b) The names and addresses of the wholesalers and retailers to
whom the goods or services have been distributed.
c) The amounts produced, manufactured, delivered, received or
ordered and the amounts paid as price for the goods or services
concerned, as well as the models and technical specifications of
the goods.
(viii) An application by the party intending to bring legal action for
infringement of an industrial or intellectual property right committed
through acts carried out at a commercial level, for the exhibition of bank,
financial, commercial or customs documents issued within a specific
period of time and assumed to be in possession of whoever may be

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sued as liable. The application shall be accompanied by prima facie

evidence of the existence of the infringement, which may consist of the
presentation of a sample of the specimens, goods or products in which
such infringement has occurred. The applicant may request that the
Clerk issue a declaration of the exhibited documents if the party served
is unwilling to hand over the document for its incorporation into the
proceedings conducted. The same application may be made in relation
to the provisions of the final sub-paragraph of the preceding number.
For the purposes of numbers (vii) and (viii) of this paragraph, acts
carried out on a commercial level shall mean acts carried out in order
to obtain direct or indirect financial or commercial benefits.
(ix) An application for the legal measures and verifications established
by the relevant special laws for the protection of certain specific rights.
(x) An application by the party intending to bring legal action for
infringement of an industrial or intellectual property right requiring
identification of an information society service provider where there
are reasonable indications that they are making available or
disseminating, directly or indirectly, content, works or services which
are subject to that right without complying with the requirements
provided for in industrial or intellectual property legislation, it being
considered that there is a substantial audience in Spain for that
provider or a volume, which is also substantial, of protected works and
services made available or disseminated without authorisation.
The application will refer to obtaining the necessary information to
carry out identification and may be addressed to information society,
electronic payment and advertising service providers that maintain, or
have maintained within the last twelve months, a relationship of
provision of a service to the information society service provider that it
is wished to identify. These providers will provide the information
requested, as long as this can be extracted from the data that they
have available or store as a result of the service relationship they
maintain or have maintained with the service provider subject to
identification, except for data which were exclusively processed by an
Internet service provider in accordance with the provisions of Law
25/2007, of 18 October, on storage of data relating to electronic
communications and the public communications networks.
(xi) An application, lodged by the holder of an intellectual property right
intending to take action due to its infringement, for an information
society service provider to provide the information needed to identify
the identity of a user of their services, with whom it maintains, or has

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maintained within the last twelve months, the relationship of service

provider, where there are reasonable indications that the user is
making available or disseminating, directly or indirectly, content, works
or services subject to that right without complying with the requirements
provided for by intellectual property legislation, and by acts which
cannot be considered to be carried out by mere end consumers in
good faith and without the intention of obtaining financial or commercial
benefits, taking into account the substantial volume of the works and
services protected made available or disseminated without authority.

2. The application for preliminary proceedings shall specify its grounds,

with a detailed reference to the matter subject to the legal action that the
applicant intends to prepare.

3. The costs incurred by the individuals who have to intervene in the

proceedings shall be for the account of the applicant for the preliminary
proceedings. When applying for the latter, the applicant shall provide a
bond to cover both such costs and any damages that may be caused to
them. The bond shall be forfeited in favour of such individuals if, one month
has passed after the conclusion of the proceedings, the claim is not lodged
as, in the opinion of the court there is insufficient cause.

The bond may be given in the form established in the second sub-
paragraph of paragraph 2 of article 64 of the Act.

Article 257. Jurisdiction.179

1. The decision on petitions and applications referred to in the preceding

article shall correspond to the judge of the Court of First Instance or the
commercial court, as applicable, of the place of residence of the individual
who may be called to declare, exhibit or otherwise intervene in such
procedures as may be agreed to prepare the trial.

In the cases of numbers 6, 7, 8 and 9 of paragraph 1 of the preceding

article, the jurisdiction shall correspond to the court with which the specific
claim shall have to be lodged. If, in these cases, new proceedings are
applied for in view of the result of those conducted so far, such proceedings
may be applied for before the same court or before the court which, on the
basis of the facts ascertained in the previous proceedings, is competent to
hear the same plea or any new pleas that may be joined to it.

179
Paragraph 1 worded in accordance with Act 9/2006 of 5 June.

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2. No declinatory plea shall be admitted during the preliminary proceedings,

but the Judge who is requested to do so shall review his competence ex
officio and, if he considers that he is not competent to hear the application,
he shall abstain from doing so and shall indicate to the applicant the Court
of First Instance which he should address. If the latter refrains from hearing
the case for lack of competence, the negative conflict shall be resolved by
the immediately higher ordinary court, in accordance with article 60 herein.

Article 258. Decision on the preliminary proceedings and appeal.180

1. If the court finds that the proceedings are in accordance with the object
pursued by the applicant and that just cause and legitimate interest exist in
the application, it shall admit the cause of action and establish the surety
to be constituted. The court shall reject the application for proceedings if it
does not consider them to be justified. The application shall be resolved
within five days following its presentation.

2. No appeal of any nature may be lodged against the order resolving the
proceedings to be held. A remedy of appeal may be lodged against the
order rejecting the proceedings.

3. If the bond ordered by the court is not constituted within three days as of the
issuance of the court order granting the proceedings, the Clerk of the Court
shall, by order issued to this end, resolve the final shelving of the procedures.

Article 259. Summons for conducting preliminary proceedings.181

1. In the order granting the application, the interested parties shall be

given notice and summoned to conduct the proceedings sought and

180
Paragraph worded in accordance with Act 13/2009 of 3 November (“Official State Gazette” no.
266 of 4 November).
181
Paragraph 2 is amended by single article 30 of Law 42/2015, of 5 October.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.
Paragraph 1, 2 worded in accordance with Act 13/2009 of 3 November.
Paragraph 3,4 added by Act 19/2006 of 5 June («Official State Gazette» number 134 of 6 June).

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granted at the seat of the Judicial Office or at the place and in the manner
considered appropriate within the following ten days.

2. The documents and instruments referred to in the proceedings shown in

paragraph 1 of article 256 may be submitted to the court for their exhibition
by computer or electronic means, in which case they will be examined at
the court office and the applicant may obtain an electronic copy of them
using media provided by them.

In all cases, the applicant may appear with an expert in the subject to
advise them, who will always act at the cost of the applicant.

3. In the case of the proceedings of article 256.1.(vii), in order to safeguard

the confidentiality of the information requested, the court may order that
the questioning shall take place behind closed doors. This decision shall
be adopted in the manner provided for article 138.3 and at the request of
any party proving a legitimate interest.

4. The information obtained by means of the proceedings in numbers (vii),

(viii), (x) and (xi) of paragraph 1 of article 256 shall be used exclusively for
the jurisdictional protection of the industrial or intellectual property rights of
the party applying for the measures and shall not be disclosed or
communicated to third parties. The court may decide to keep the
proceedings secret at the request of any party in order to ensure the
protection of confidential data and information.

Article 260. Objection to the conducting of preliminary proceedings.

Effects of the decision.182

1. Within five days following the date on which the summons was received,
the person summoned to the preliminary hearing may object to it In this
case, the objection will be communicated to the applicant who may contest
it in writing within a period of five days. The parties, in their respective writs
of objection and challenge, may request an oral hearing, following the
procedures provided for oral hearings.

2. Once the hearing has been held, the court shall resolve, by a court
order, whether it considers the objection to be justified or, on the contrary,
unjustified.

182
Paragraph 1 is amended by single article 31 of Law 42/2015, of 5 October.

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3. If the court considers that the objection is unjustified, it shall order the
served party to pay the costs incurred as a result of the incident. This
decision shall be adopted by means of a court order against which no
appeal of any kind may be lodged.

4. If the court considers that the objection is justified, it shall so declare in

a court order, against which a remedy of appeal may be lodged.

Article 261. Refusal to carry out the proceedings.183

If the party notified and summoned fails to comply with the request and
does not file any objection, the court shall, to the proportionate extent,
adopt the following measures by means of a court order, in which it shall
set forth the reasons why the said measures are required:
a) If a statement has been requested concerning facts relating to the
capacity, representation or legal competence of the summoned party, the
questions which the applicant had intended to ask him shall be considered
replied to in the affirmative and the corresponding facts shall be considered
admitted for the purposes of the subsequent trial.
b) If an application has been made for the exhibition of titles and
documents and the court finds that there are sufficient indications that
the said titles and documents may be at a specific place, it shall order
the entry to and search of the said place and, if found, shall take
possession of the documents and put them at the disposal of the
applicant at the court premises.
c) If it concerns the exhibition of an object and the place where the
latter is located is known or can be reasonably presumed, the court
shall proceed in a manner similar to that established in the preceding
number and the object shall be presented to the applicant, who may
request its deposit or the most appropriate means of guarantee for the
preservation of the said object.
d) If the exhibition of accounting documents has been requested, the
accounts and particulars submitted by the applicant may be considered
authentic for the purposes of the subsequent trial.
e) In the case of the proceedings established in Article 256.1.6, in the
event of refusal by the served party or any other individual who could
cooperate in the determination of the members of the group, the court
shall order that the necessary intervention measures be adopted,

183
Article worded in accordance with Act 19/2006 of 5 June.

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including entry and search, with a view to finding the documents or

particulars required, notwithstanding the criminal liability that may be
incurred for contempt of court. The same measures shall be ordered by
the court in the cases of numbers 5 bis, 7 and 8 of paragraph 1 of article
256, in the event of refusal by the served party to exhibit documents.

Article 262. Decision on the application of the surety.

1. If the agreed proceedings have been conducted or the court has rejected
them considering the objection to be justified, the court shall, by means of
a court order issued within a five day time limit, resolve on the application of
the surety in view of the request for compensation and the justification of
the expenses incurred presented to it, after having heard the applicant.

The decision on the application of the surety may be appealed against

without suspensory effects.

2. If, after applying the surety in accordance with the preceding paragraph,
a surplus remains, the latter shall not be returned to the applicant for the
proceedings until one month has elapsed, as established in paragraph 3 of
Article 256.

Article 263. Preliminary proceedings established in special laws.184

In the case of the proceedings referred to in Article 256.1.9, the provisions of

this chapter shall apply to the extent that they are not contrary to the provisions
contained in the special legislation on the subject matter concerned.

CHAPTER III
ON THE PRESENTATION OF DOCUMENTS, OPINIONS, REPORTS
AND OTHER MEANS AND INSTRUMENTS

Article 264. Procedural documents.185

The following must be submitted with the claim or the response:

(i) The power of attorney granted to the procurator, provided that the latter
appears in the action and representation is not granted “apud acta”.
(ii) The documents proving the representation which the litigant claims
to hold.

184
Article worded in accordance with Act 19/2006 of 5 June.
185
Amended by single article 32 of Law 42/2015, of 5 October.

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(iii) The documents or opinions proving the value of the object in

dispute, for the purposes of jurisdiction and procedure.

Article 265. Documents and other writs and objects relating to the grounds
of the case.186

1. All claims and responses shall be accompanied by:

(i) The documents on which the parties base their right to the judicial
protection they claim.
(ii) The means and instruments referred to in paragraph 2 of article 299
if they are the basis for the claims for protection formulated by the
parties.
(iii) The certifications and notes concerning any registry entries or the
contents of the register books, procedures or proceedings of any
nature whatsoever.
(iv) The expert opinions on which the parties base their claims,
notwithstanding the provisions of articles 337 and 339 of this Act. Any
party entitled to free legal aid shall not be bound to present the opinion
together with the claim or the response, but may simply announce it in
accordance with paragraph 1 of article 339.
(v) The reports, worded by legally qualified private investigation
professionals, concerning relevant facts on which the parties base
their claims. If such facts are not acknowledged as true, oral evidence
shall be taken.

2. Only where the parties, when submitting their claim or response, do not
have the documents, means and instruments referred to in the first three
points of the previous paragraph, they may designate the file, protocol or
place where they are to be found or the registry, register book, acts or
proceedings from which a certification is intended to be obtained.

If what the parties intend to present at the hearing is contained in a file,

protocol, proceedings or registry from which they may request and obtain
authentic copies, the plaintiff shall be deemed to have them at his disposal
and shall be bound to attach them to the claim and cannot confine
themselves to the designation referred to in the preceding paragraph.

186
Paragraph 3 amended and paragraph 4 deleted by single article 33 of Law 42/2015 of 5 October

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3. Notwithstanding the provisions of the preceding paragraphs, the plaintiff

may, at the pre-hearing, submit the documents, means, instruments,
opinions and reports relating to grounds for the case, whose interest or
relevance has only become evident as a result of the allegations made by
the defendant in his response to the claim.

Article 266. Documents required in special cases.187

The following must be attached to the claim:

(i) The documents which duly justify the entitlement to maintenance
payments, when this is the subject of the claim.
(ii) The documents which constitute a principle of the evidence of title on
which claims for pre-emption are based when the deposit of the price is
required by law or by contract, the document which accredits the deposit,
if known, the price of the subject of pre-emption or if a surety was
constituted to guarantee the deposit as soon as the price was known.
(iii) The document which reliably records succession mortis causa in
favour of the claimant, as well as the list of the witnesses who can
declare on the absence of a holder in the capacity of owner or in
usufruct, when it is intended that the court give possession of assets to
the claimant due to this succession.
(iv) Any other documents which this or another Act expressly requires
for the admission of the claim.

Article 267. Manner of presentation of public documents.188

When the documents which have to be provided in accordance with the

provisions in Article 265 are public and may be presented as a simple
copy, on paper, electronically through a digitalised image enclosed as a
schedule which shall have to be signed with a recognised electronic
signature and, if its authenticity is challenged, the original records, copy or
certification of the document may be consulted in order to provide evidence.

Article 268. Manner of presentation of private documents.189

1. Private documents which must be submitted shall be presented as

originals or as copies authenticated by a Notary Public and shall be

187
Amended by final provision 4.10 of Law 7/2015 of 21 July.
188
Article worded in accordance with Act 41/2007, of 7 December.
189
Article worded in accordance with Act 41/2007, of 7 December.

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attached to the court orders or testimony shall be given of these, with the
return of the irrefutable originals or copies submitted, if this is requested by
the parties concerned. These documents may be submitted through
digitalised images, incorporated to electronically signed annexes.

2. If the party has only a simple copy of the private document, he may
submit this copy, on paper or through a digitalised image as described in
the preceding paragraph, which shall give rise to the same effects as the
original, on condition that agreement with the latter is not questioned by
any of the other parties.

3. In the event that the original of the private document is in a record, protocol,
file or public register, an authentic copy shall be submitted or a file, protocol or
register shall be submitted as stipulated in section 2 of Article 265.

Article 269. Consequences of the lack of preliminary submittal. Special cases.

1. When the claim, response or, as the case may be, the pre-trial hearing, the
documents, resources, instruments decisions and reports which, in
accordance with the provisions herein should be submitted at this time or the
place where the document should be is not located, if the latter is not available,
the party may not subsequently submit the document, nor may it be submitted
in proceedings except in the cases stipulated in the following article.

2. Claims to which the documents referred to in article 266 have not been
attached shall not be admitted.

Article 270. Submittal of documents after the commencement of proceedings.

1. After the claim and the response to the pre-trial hearing, or whenever it
is appropriate, the documents, resources and instruments related to the
merits of the case presented by the claimant, or the defendant shall only
be admitted in the following cases:
(i). They are dated subsequent to the claim or the response or, possibly,
subsequent to the pre-trial hearing, on condition that it was not possible
to draft or obtain them prior to the proceedings.
(ii). They are documents, means or instruments prior to the claim or
response or, as appropriate, to the pre-trial hearing, when the party
which submits them justifies not having known of their existence before.
(iii). It was not possible to obtain the documents, means or instruments due
to reasons which are not attributable to the party, providing the designation

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referred to in section 2 of article 265 was duly made or, as appropriate, the
announcement referred to number 4. in section 1 of article 265 herein.

2. When a document, means or instrument regarding facts related to the

merits of the case, are presented once the acts referred to in the previous
section have concluded, the other parties may allege the inadmissibility of
taking these into consideration in the proceedings or hearing as they do
not come under any of the cases referred to in the previous section. The
court shall decide immediately and, if it considers that there is an intention
to delay or procedural bad faith in the presentation of the document, it may
also impose a fine of € 180 to € 1200 on the guilty party.

Article 271. Definitive conclusion of submittal and exceptions to the rule.190

1. No document, instrument, means, report or opinion which are submitted

after the hearing or proceedings shall not be accepted from the parties,
notwithstanding the provisions in the third rule of article 435, on final
proceedings in declaratory actions.

2. Judgements, rulings of a court or administrative authority that are issued

or notified on a date not prior to the time at which the conclusions are
arrived at shall be exceptions to the provisions in the preceding paragraph,
providing they are not conditional or decisive for decisions made by a
Court of First Instance or an appeal.

Such decisions may even be submitted within the time limit set for
pronouncing a judgement, and notice given to the other parties by an order
of the Court Clerk so that they may allege and request what they consider
to be advisable within a common period of five days, with suspension of
the period for pronouncing a judgement.

The court shall decide on the admission and scope of the document in the
same judgement.

Article 272. Inadmissibility of a document unjustifiably not submitted at

the commencement of the proceedings.

When a document is submitted after the procedural times established herein,

depending on the cases and circumstances, the court shall issue a procedural
court order refusing to admit it, either ex officio or at the request of a party, and
an order would be given to return it to the person who had submitted it.

190
Section 2 worded in accordance with Act 13/2009, of 3 November.

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There shall be no appeal against a decision of inadmission, notwithstanding

an appeal in the second instance.

CHAPTER IV
ON COPIES OF WRITTEN STATEMENTS AND DOCUMENTS AND
THEIR TRANSFER

Article 273. Method of submission for writs and documents.191

1. All justice professionals are under the obligation to use the computer or
electronic systems at the Justice Administration to submit writs, whether
initial or not, and other documents, in such a way that the authenticity of
the submission is guaranteed and that there is a written record of despatch
and receipt in their entirety, along with the date on which this was done.

2. Parties who are not represented by a procurator may, at all times,

choose if they act before the Justice Administration via electronic means
or not, except where they are under the obligation to deal with it by
electronic means. The means chosen may be changed at any time.

3. In all cases the following parties will be under the obligation to deal with
the Justice Administration by electronic means:
a) Corporate entities.
b) Entities with no legal personality.
c) Those practising a professional activity which requires compulsory
membership of an official association for procedures and acts carried out
with the Justice Administration in the exercise of their professional activity.
d) Notaries and registrars.
e) Those representing a party who is under the obligation to
communicate with the Justice Administration electronically.

191
Amended by single article 34 of Law 42/2015, of 5 October.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.

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f) Public Authority civil servants for the procedures and acts which they
carry out due to their post.

4. Writs and documents submitted by computer or electronically must

show the file type and number and the year they refer to and will be duly
page referenced with an electronic index which allows their due localisation
and consultation. The submission will be made using a recognised
electronic signature and will be in line with the provisions of Law 18/2011,
of 5 July, regulating the use of information and communications
technologies at the Justice Administration.

Solely for writs and documents submitted via computer or electronically

which give rise to a first subpoena, summons o injunction of the defendant
or person served, hard copies must be provided, within the following three
days, of as many verbatim copies as there are other parties.

5. Non-compliance with the duty to use the technologies provided for in

this article or the technical specifications provided for will involve the Clerk
of the Court granting a maximum of five days for this to be rectified. If this
is not rectified with the time limit, the writs and documents will be taken as
not having been submitted, for all purposes.

6. Without prejudice to the provisions of this article, hard copies of writs

and documents will be submitted where expressly provided for by law.

All writs and documents provided or submitted in hard copy and in hearings
will be accompanied by as many verbatim copies as there are other parties.

Article 274. Transfer by the court office of copies to the other interested
parties where there are no procurators intervening.192

Where the parties are not represented by a procurator, they will sign the
copies of the writs and documents which they submit, and shall be

192
Amended by single article 35 of Law 42/2015, of 5 October.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.

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responsible for their accuracy, and such copies will be delivered by the
Clerk of the Court to the counter party or parties.

If submission is made by electronic means as they are under the obligation

or have chosen to do so, as long as the premises and requirements
demanded are complied with, copies will be transferred to the other parties
by the court office by the most appropriate means.

Article 275. Effects of not submitting copies.193

In the cases referred to in the previous article, failure to submit copies of

the written statements and documents shall not be a reason for not
admitting these.

The party shall be notified of this omission by the Court Clerk and the party
shall have five days in which to rectify this. When the omission is not
rectified within the aforesaid time limit, the Court Clerk shall issue the
copies of the written statements and documents at the expense of the
party who had failed to submit these, unless they are written statements of
a claim or response, or the documents which must be attached to these, in
which case, these shall be considered not to be admitted or not provided
for all purposes.

Article 276. Transfer of copies of writs and documents when a procurator

intervenes.194

1. When the parties are represented by a procurator, copies of the writs

and documents submitted to the court must be transferred to the
procurators of the other parties.

2. Transfer of copies of writs and documents submitted electronically will

be made by electronic means simultaneously with the submission and will

193
Paragraph 2 worded in accordance with Act 13/2009, of 3 November.
194
Amended by single article 36 of Law 42/2015, of 5 October.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.
Sections 1 and 2 of this article are worded in accordance with Act 13/2009, of 3 November.

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be understood to have been made on the date and at the time recorded on
the proof of delivery of the submission. In the event that the transfer takes
place on a non-working day and a non-working time, for procedural effects
in accordance with the law the transfer shall be understood to have been
made on the first following working day and time.

3. In the event that the submission is in hard copy in accordance with

paragraph 4 of article 135, the procurator must transfer copies of the writs
and documents that will be submitted to the court to the procurators of the
other parties beforehand and by electronic means.

4. The provisions in the preceding paragraphs of this article shall not apply
when dealing with the transfer of the claim or of any other writ which might
give rise to the first appearance in the proceedings. In these cases, the
procurator must attach copies of these writs and the documents attached
and the Clerk of the Court shall transfer these in accordance with the
provisions of articles 273 and 274 of this Act. If the procurator fails to
submit these copies, the writs shall be considered as not presented and
the documents as not provided, for all purposes.

Article 277. Effects of the failure to transfer through a court representative.195

When the first two paragraphs of the preceding article apply, the Court
Clerk shall not admit the submittal of drafts and documents if the transfer
of the copies to the other parties is not recorded.

Article 278. Effects of the transfer as regards filing and the calculation of
time limits.196

When the transfer in the manner set out in article 276 determines the
opening of a time limit to carry out a procedural step, according to law, the
period shall commence without the intervention of the court and must be

195
Article worded in accordance with Act 13/2009 of 3 November.
196
Amended by single article 37 of Law 42/2015, of 5 October.
Please note that the provisions relating to the obligation on all court professionals and court and tax
offices and bodies who are not yet doing so to use the Justice Administration’s existing computer
systems for submission of writs and documents and carrying out acts of procedural communication
under the terms of procedural law and Law 18/2011 of 5 July, will come into force on 1 January 2016
with respect to proceedings commenced from that date. The provisions relating to the electronic
“apud acta” powers of attorney file and the use by interested parties who are not legal professionals
of the Justice Administration’s existing computer systems for submission of writs and documents and
acts of procedural communication under the afore-mentioned terms will come into force on 1 January
2017, as provided for in final provision 12.2 of the afore-mentioned Law 42/2015.
Article worded in accordance with Act 41/2007 of 7 November.

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calculated from the day following the date which is recorded on the copies
handed over or the day following the date on which the transfer is
understood to have been made when the technical means referred to in
article 135 are used.

Article 279. Function of the copies.197

1. The pleas of the parties shall be deduced in the light of the copies of the
drafts, of the documents and of the decisions of the court or the Court
Clerk, which each litigant must keep in his possession.

2. The original records shall not be handed over to the parties,

notwithstanding the fact that they may obtain copies of a draft or document
at their own expense.

Article 280. Denouncement of inaccuracy in a copy and the effects thereof.

If a denouncement is made that the copy handed over to a litigant does not
correspond to the original, once the court hears the other parties, it shall
declare the nullity of what has been done since the hand-over of the copy
if its imprecision might have affected the defence of the party,
notwithstanding the liability incurred by the person who presented the
inaccurate copy.

On declaring nullity the court shall order the delivery of the copy in
accordance with its original, with the appropriate effects in each case.

CHAPTER V
ON EVIDENCE: GENERAL PROVISIONS

Section 1. On the purpose, need for and initiation of

evidence

Article 281. Purpose and need for evidence.

1. The purpose of the evidence shall be the facts which are related to the
judicial protection it is intended to obtain from the proceedings.

2. The subject of the evidence shall also include custom and foreign law.
The evidence of custom shall not be necessary if the parties are in

197
Section 1 worded in accordance with Act 13/2009, of 3 November.

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agreement concerning its existence and content and its rules do not affect
public order. Foreign law must be proved as regards its content and
validity, and the court may use any means of verification it considers to be
necessary for its implementation.

3. Facts which the parties fully agree to are exempt from evidence, except
in the cases in which the subject of the proceedings is outside the power of
the litigants to decide.

4. It shall not be necessary to prove the facts which absolutely public

knowledge.

Article 282. Initiative of evidence activity.

The evidence shall be examined at the request of the party. However, the
court may agree ex officio that certain evidence be examined or that
documents, opinions or other means of evidence and instruments be
provided when this is stipulated by law.

Article 283. Irrelevance or useless nature of evidence activity.

1. No evidence must be admitted which is considered to be irrelevant as it

has no relation to the subject of the proceedings.

2. The evidence which, according to reasonable and secure rules and

criteria, in no case can contribute to clarifying controversial facts must not
be admitted owing to their useless nature.

3. Any activity forbidden by law can never be admitted as evidence.

Section 2. On proposal and admission

Article 284. Manner of the proposal of evidence.

The proposal of several different means of evidence shall be done by

stating them separately. The address or place of residence of the persons
who may have to be summoned in order to examine the evidence shall
also be stated.

In a declaratory action, when the parties do not have data related to the
said persons upon proposing the evidence, they may provide the court
with this data within the following five days.

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Article 285. Decision on the admissibility of the evidence put forward.198

1. The court shall decide on the admission of each piece of evidence

which has been put forward.

2. Only an appeal for reversal may be lodged against the decision to admit
or reject each piece of evidence, which must be substantiated and decided
immediately, and, if it is dismissed, the party may formally protest in order
to uphold their rights in the second instance.

Article 286. New facts or new information. Evidence.199

1. If the final date for the pleas stipulated herein has ended before the time
limit for pronouncing a judgement has commenced, and a fact occurs or is
known that is relevant for the decision regarding the proceedings, the
parties may use this fact, alleging this immediately via a draft, which shall
be called extension of facts, unless the allegation can be made at the trial
or during the hearing. In this case, at these acts all that is stipulated in the
following sections shall be carried out.

2. The Court Clerk shall notify the counter-party of the extension of the
facts so that, within five days, he may recognise the fact alleged as true or
deny it. In this case, he may submit anything that clarifies or detracts from
the fact stated in the extension.

3. If the new fact or news is not recognised as true, the appropriate and
useful evidence stipulated herein shall be examined in accordance with
the type of procedure when this is possible at that stage of the procedure.
Otherwise, in declaratory actions, the final proceedings shall apply.

4. Through a procedural court order, the court shall dismiss the allegation
of a fact occurring after the acts intended to hear the allegations if this
circumstance is not duly accredited when the allegation is filed. And when
a fact is alleged after the acts intended to hear the fact have concluded,
the court may decide, through a court order, that the fact cannot be taken
into consideration if, in view of the circumstances and the allegations of
the other parties, there seems to be no justification for not alleging the fact
during the time ordinarily stipulated for allegations during procedures.

In this latter case, the court shall appreciate an intention to cause delay or
procedural bad faith in the allegation, and may impose a fine of €120 to €600.

198
Paragraph 2 is amended by single article 38 of Law 42/2015, of 5 October.
199
Paragraph 2 worded pursuant to Act 13/2009, of 3 November.

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Article 287. Illegality of evidence.

1. When one of the parties deems that fundamental rights have been
infringed upon when obtaining evidence or in the origin of evidence, the
party shall allege this immediately, and the other parties shall be notified of
the fact, as the case may be.

As regards this matter, which can also be requested ex officio by the court,
it shall be resolved in the judgement, or, if the proceedings are oral, at the
beginning of the hearing, before the taking of evidence. For this purpose,
the parties shall be heard and, as appropriate, the pertinent and useful
evidence proposed in the act on the specific point of the aforementioned
illicitness shall be taken.

2. Against the resolution referred to in the preceding paragraph there is only

an appeal for reversal, which shall be lodged, substantiated and decided in
the trial or hearing, and the right of the parties to reproduce the challenge of
the illicit evidence against the final judgement shall remain safeguarded.

Article 288. Sanctions for not having examined the evidence within the
time limit.

1. The litigant due to whom evidence was not examined in time shall be
sanctioned by the court with a fine which shall not be lower than € 60 or
higher than € 600, unless accreditation is given of a lack of mens rea or
the litigant abandons the taking of this evidence.

2. The fine stipulated in the preceding paragraph shall be imposed on

during the trial or at the hearing after hearing the parties.

Section 3. On other general provisions

on the taking of evidence

Article 289. Manner of taking evidence.200

1. The evidence shall be taken by cross-examination and in a public

hearing, or with similar publicity and documentation if this is not carried out
in the court premises.

2. The presence of a judge shall be mandatory during the questioning of

the parties and witnesses, the examination of places, objects and persons,

200
Paragraph 3 worded in accordance with Act 13/2009, of 3 November.

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in the reproduction of words, sounds, images and, as the case may be,
sounds, images, figures and data, as well as during the explanations,
challenges, rectification’s or extensions of the expert opinions.

3. The presentation of original documents or true copies, the presentation of

other methods of evidence or instruments, the examination of the authenticity
of private documents, the collection of documents with which to compare
writing and the mere ratification of the authorship of an expert opinion shall
be made before the Court Clerk, on condition that this takes place outside
the public hearing or the Court Clerk is present at the act. However, it shall
be the duty of the court to examine documentary evidence, written reports
and opinions, and any other methods or instruments which are provided.

Article 290. Setting a date for the taking of evidence to be done separately.201

All evidence shall be taken at the same time and in the same place.
Exceptionally, the court may agree, through a procedural court order, that
certain evidence be presented outside the trial or hearing; in such cases,
the Court Clerk shall state the day and the time for any taking of evidence
which cannot be performed during the trial or a hearing. Exceptionally, if
the evidence is not taken in the court premises, the court shall establish a
place and give notice thereof.

In any case, such evidence shall be taken before the trial or hearing.

Article 291. Summons and the possible intervention of the parties in the
taking of evidence outside of the trial.

Although they are not the subjects or objects of evidence, the parties shall be
summoned sufficiently in advance, which shall be, at least, forty-eight hours,
for the taking of evidence which must be done outside the trial or hearing.

In the evidence procedure, the parties and their attorneys shall have the
interventions authorised by law in accordance with the means of evidence
involved.

Article 292. The obligation to appear at the hearing. Fines.202

1. The witnesses and the experts summoned shall have the duty to appear
in the trial or hearing which is finally arranged. Failure to carry out this duty

201
Article worded in accordance with Act 13/2009, of 3 November.
202
Sections 1 and 2 of this article are worded in accordance with Act 13/2009, of 3 November.

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shall be sanctioned by the court with a fine of one hundred and eighty to
six hundred euros, with a previous hearing for five days.

2. On imposing the fine referred to in the preceding paragraph, the court

shall request the fined party to appear when he is again summoned by the
Court Clerk, through a procedural court order, with a warning that action
might be taken against him for contempt of court.

3. When there is no previous excuse, and a witness or expert fails to

appear at the trial or hearing, the court shall hear the parties who have
appeared and shall decide through a procedural court order whether the
hearing must be suspended or must continue.

4. When there is no previous excuse and a litigant who has been

summoned to respond to questioning fails to appear, the provisions in
article 304 shall apply and the litigant shall be fined as stipulated in section
1 of this article.

Section 4. On advance examination and seizure of evidence

Article 293. Cases and reasons for examining evidence in advance.

Competence.

1. Prior to the commencement of any proceedings, the party which intends

to initiate this, or any of the parties during the course of the proceedings,
may request the court to examine evidence in advance, when there is
grounded fear that, due to the persons or due to the state of things, these
acts cannot take place at the generally stipulated procedural time.

2. The request for advance procedure regarding evidence shall be

addressed to the court which is considered to be competent for the main
case. This court shall take care ex officio that its jurisdiction and objective
jurisdiction, as well as territorial jurisdiction founded on imperative rules,
and a declinatory plea is not admissible.

Once the proceedings commence, the request for advance taking of

evidence shall be addressed to the court which is dealing with the case.

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Article 294. Proposal for the advance taking of evidence, admission, time
and appeals.203

1. The proposal for the advance taking of evidence shall be processed in

accordance with the provisions herein for each piece of evidence, putting
forward the reasons for the request.

2. If the court upholds the request, it shall agree to it, and, through a
procedural court order, it shall provide that the procedure be carried out
when it is considered to be necessary previous to the proceedings or the
hearing, and an appropriate date shall be set by the Court Clerk.

Article 295. Cross-examination taking of evidence in advance.

1. When taking of evidence in advance is sought and an agreement is

made to carry out the examination before the commencement of
proceedings, the party who requested this shall appoint the person or
persons he proposes to make a claim against and they shall be summoned,
at least five days in advance, so that they may intervene in the procedure
for the taking of evidence as authorised by law, depending on the evidence
in question.

2. If the proceedings are pending when evidence is taken in advance, the

parties may intervene in the taking of evidence as set forth herein for each
means of evidence.

3. In the cases in which evidence is taken pursuant to section 1 of this

article, evidence value shall not be granted to the procedure if the claim
was not lodged within the time limit of two months from the time evidence
was taken in advance, unless it is accredited that, due to force majeure or
a similar reason, the proceedings could not commence within this time
limit.

4. Advance taking of evidence may be carried out again if, at the time the
evidence was proposed, it was possible to do this and any of the parties
requested this. In this case, the court shall admit the taking of the evidence
concerned and shall evaluate what was carried out in advance and what
was subsequently carried out in accordance with the rules of sound
critique.

203
Section 2 worded in accordance with Act 13/2009, of 3 November.

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Article 296. Custody of the material of the procedure for the taking of
evidence in advance.

1. The documents and the other conviction material of the advance taking
of evidence or which is obtained as a consequence of the taking of
evidence, as well as the materials which might truly reflect the evidence
procedure carried out and its results, shall remain in the custody of the
Court Clerk of the court which had agreed to the taking of evidence until
the claim is lodged, and they shall be attached to this, or until the procedural
time comes to know these and evaluate them.

2. If the claim has to be dealt with definitively by a court other than the
court which agreed to or taken the evidence in advance, the former shall
request the minutes, documents and other material from the procedure to
be forwarded, through an official channel.

Article 297. Measures for the seizure of evidence.204

1. Before the commencement of any proceedings, the party which intends

to initiate these or any of the litigants during the course of the proceedings,
may request that the court adopt useful measures to ensure that through
human conduct or natural events which might destroy or alter physical
objects or states of things, with a procedural court order, in order to prevent
it becoming impossible to carry out a relevant taking of evidence or that it
is meaningless to propose this .

2. The measures shall consist of the arrangements which, in the opinion of

the court, make it possible to conserve things or situations or reliably put
on record their actual existence and characteristics. In order to seize
evidence, mandates may be sent in order to carry out action or to refrain
from action, with a warning that action shall be taken due to contempt of
court if the mandates are infringed.

In the cases of infringement of industrial and intellectual property rights,

once the applicant for measures has submitted the reasonably available
evidence of infringement, these measures may consist especially of a
detailed description, with or without samples, of the effective seizure of the
goods and the matter in dispute, as well as the materials and instruments
used in the production and distribution of these goods and the documents
related to these.

204
Section 2 worded in accordance with Act 19/2006, of 5 June. Paragraph 4 added by Act 19/2006
of 5 June.

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3. As regards jurisdiction and competence for seizing the evidence, the

provisions on the taking of evidence in advance shall apply.

4. When the measures for seizing the evidence were agreed to before the
commencement of the proceedings, these shall have no effect if the
applicant does not submit his claim within the period of twenty days
following the date of the effective adoption of the measures for seizing the
evidence agreed to. The court shall agree, ex officio through a court order,
that the acts of compliance which might have been carried out be filed or
revoked. The court shall order the applicant to pay the costs and shall
declare that he is liable for the damages which might have been caused to
the party regarding whom the measures were adopted.

Article 298. Requirements. Procedure to adopt measures to seize

evidence Surety.205

1. The court shall agree to adopt the appropriate measures in each case
through a procedural court order if the following requirements are met:
(i). That the evidence to be seized is possible, relevant and useful at
the time its seizure is sought.
(ii). That reasons exist to fear it would be impossible to take such
evidence in the future if the measures to seize it are not adopted.
(iii). That the seizure measures sought, or any other measures leading
to the same end which the court may deem preferable, may be
considered appropriate and may be performed within a short space of
time without causing serious disproportionate harm to the parties or
third parties involved.

2. In order to decide upon the adoption of measures to seize evidence, the

court shall take into consideration and may accept any offer the party
seeking the measure may make to provide surety to cover any damages
such measures may cause.

3. Instead of the seizure measure, the court may also agree by means of a
procedural court order to accept any offer made by the party meant to
undergo such measure to post sufficient surety pursuant to item 2,
paragraph 2, Article 64 to ensure the evidence whose seizure is sought

205
Header worded in accordance with Act 19/2006 of 5 June.

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4. Measures to seize evidence shall be adopted after a hearing of the

person who is meant to undergo them has been held. Should they be
sought once the proceedings are underway, the defendant shall also be
heard. Solely the defendant or whoever may have already been a
defendant may allege the impossibility, irrelevance or uselessness of the
evidence when contesting the adoption of such measures.

5. Notwithstanding the provisions set forth in the preceding paragraph, the

court may agree upon the measures without any further ado through a
procedural court order where it is likely that a delay arising from such prior
hearing may cause irreparable harm to the rights of the party seeking them
or where a demonstrable risk should exist of the evidence being destroyed
or the taking thereof in another manner made impossible. Such procedural
court order shall state the requirements that made it necessary and the
reasons that have lead to its approval without a hearing of the defendant
or whoever may become the defendant. No appeals may be lodged against
such procedural court orders and notice thereof shall immediately be given
to the parties and to whoever may have to undergo the measures. Should
giving such notice be impossible before the execution of the measures, it
shall be given immediately afterwards.

6. Should the seizure measures have been adopted without a prior hearing,
whoever shall be the defendant or whoever may already be the defendant
or whoever may have to undergo the measures may contest them within
twenty days from the date notice of the procedural court order agreeing
upon the measures is served.

7. Challenges to such measures may be grounded on the inexistence of

any irreparable harm to the right of taking the evidence at a future date, as
well as on the possibility of agreeing upon other equally appropriate
measures that may turn out to be less harmful. They may also be replaced
for the surety set forth in paragraph 3. Solely the defendant or whoever
may have already been a defendant may allege the impossibility,
irrelevance or uselessness of the evidence when contesting the adoption
of such measures.

8. The written statement contesting the measures shall be transferred to

the applicant and, as appropriate, to the defendant or whoever may have
to undergo the measures. All of them shall be summoned to a hearing
within five days. After such hearing is held, a decision shall be taken on the
challenge within three days by means of a unappealable court order.

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CHAPTER VI
ON THE TAKING OF EVIDENCE AND PRESUMPTIONS

Article 299. Taking of evidence.

1. The taking of evidence in trials shall include:

(i). Questioning the parties.
(ii). Public documents.
(iii). Private documents.
(iv). Experts’ opinions.
(v). Taking of evidence by the court.
(vi). Questioning witnesses.

2. Pursuant to the provisions set forth herein, any means to record words,
sounds and images shall also be admitted, as shall any instruments that
allow words, data and mathematical operations carried out for accounting
purposes or any other purposes, which are relevant to the proceedings, to
be saved, known or reproduced.

3. Where certainty about relevant facts may be attained by any other means
not expressly set forth in the preceding paragraphs of this Article, the court
may, at the request of a party, admit such means as evidence and shall
adopt any measures which may turn out to be necessary in each case.

Article 300. Order of the taking of evidence.

1. Unless the court should agree upon otherwise on an ex officio basis or at

the request of a party, evidence shall be taken in trials in the following order:
(i). Questioning the parties.
(ii). Questioning witnesses.
(iii). Experts’ statements about their opinions or submission thereof,
where they exceptionally have to be admitted at that moment.
(iv). Taking of evidence by the court, where it does not have to be
conducted outside the court’s premises.
(v). Reproduction before the court of any words, images and sounds
captured through filming, recording and other similar instruments.

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2. Where any of the evidence admitted cannot be taken at the hearing, the
hearing shall continue so that the rest of the evidence may be taken in the
appropriate order.

Section 1. On questioning the parties

Article 301. Questioning the parties: Notion and subjects.

1. Any party may request the court to question the other parties about any
facts and circumstances they may be aware of that have some bearing on
the matter at issue in the trial. A joint litigant may request another joint
litigant to be questioned, providing a dispute or conflict of interests exists
between them in the proceedings.

2. Where the party holding legal capacity to act in the trial is neither the
subject of the legal relationship at issue nor entitled to the right by virtue of
which action has been brought, the questioning of such subject or holder
may be sought.

Article 302. Contents of the questioning and admission of questions.

1. Questions shall be asked orally, using affirmative sentences and with all
due clarity and accuracy. They may not include judgements or qualifications
and, should they do so, the questions shall be deemed as not having been
asked.

2. The court shall ensure that the questions have some bearing on the
facts about which the questioning has been admitted and shall decide on
the questions’ admissibility at the same hearing in which the questioning is
conducted.

Article 303. Objecting to questions.

The party submitted to questioning or, as appropriate, his attorney may

object to the admissibility of the questions and note any judgements and
qualifications contained in them which, to their mind, are inappropriate and
should be deemed as not having been asked.

Article 304. Failure to appear and implicit admission of the facts.

Should a party summoned to questioning not appear at the trial, the court
may ascertain the facts in which such person may have been personally
involved as recognised and whose ascertainment as being true is entirely

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harmful to him, in addition of imposing on such party the fine referred to in

paragraph 4, Article 292 herein.

The party in question shall be warned in the summons that the effects set
forth in the preceding paragraph shall come about should he fail to appear
without justification.

Article 305. Manner of responding to questioning.

1. The party submitted to questioning shall respond on his own behalf

without using draft responses. Nonetheless, such party shall be allowed to
consult documents and notes wherever the court may deem they are
convenient to jog his memory.

2. The responses shall be either affirmative or negative and, should this be

impossible due to the questions asked, they shall be precise and to the
point. The party summoned to testify may, in any event, add any
explanations he may deem relevant which have some bearing on the
questions raised.

Article 306. Powers of the court and involvement of attorneys. Cross-

examination.

1. Once the questions raised by the attorney who sought the taking of
evidence have been answered, the attorneys of the other parties and of
the party called to testify may, in that order, ask the party called to testify
new questions which they deem may lead to ascertaining the facts. The
court shall reject any irrelevant or useless questions.

In order to obtain clarifications and additional information, the court may

question the party summoned to testify.

2. Where the involvement of an attorney is not compulsory, the parties

may mutually question each other and make any observations which are
appropriate to ascertain the relevant facts in the trial, ensuring that they do
not cross words or interrupt each other. The court may reject any irrelevant
or useless interventions and may question the party summoned to testify.

3. The party called to testify or his attorney may object to the questions
referred to in the preceding paragraphs contained in this provision. They
may likewise make the observations set forth in Article 303. The court shall
decide, as appropriate, before giving the floor to respond.

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Article 307. Refusal to testify, evasive or inconclusive responses and

admission of personal facts.

1. Should a party summoned to testify refuse to do so, the court shall warn
him at the hearing that the facts referred to in the questions may be
ascertained as being true unless a legal obligation to keep a secret should
exist, as long as the person called to testify has been personally involved
in them and their ascertainment as being true may turn out to be fully or
partially harmful to him.

2. Where the responses given by the party called to testify are evasive or
inconclusive, the court shall warn him as set forth in the preceding
paragraph on an ex officio basis or at the request of a party.

Article 308. Testimony about non-personal facts by the party submitted to

questioning.

Where any question should refer to non-personal facts with regard to the
party submitted to questioning, such party shall respond on the basis of his
knowledge and account for such knowledge. He may nonetheless propose
that a third party having personal knowledge about the facts due to his
involvement in the matter should also testify, accepting the consequences
of such testimony.

The party who has sought the taking of evidence shall have to accept such
substitution for it to be admitted. Should such acceptance not come about,
the deponent may seek to have the said person questioned as a witness
and the court shall decide thereon as appropriate.

Article 309. Questioning of legal persons or entities lacking legal personality.

1. Where the party called to testify is a legal person or an entity lacking

legal personality and their representative in the trail has not been involved
in the matter at issue in the trial, such circumstance shall be alleged at the
pre-trial hearing and the identity of the person involved on behalf of the
legal person or entity questioned shall be provided, so that such person
may be summoned to attend the trial.

The representative may seek that the person thus identified be summoned
as a witness if he should no longer form part of the legal person or identity
lacking legal personality.

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2. Where any question should refer to facts in which the representative of

the legal person or entity lacking legal personality may not have been
involved, he shall nonetheless have to respond on the basis of his
knowledge and account for such knowledge. He shall likewise have to
identify the person who had been involved in those facts on behalf of the
party. The court shall then summon such person for questioning outside
the trial as a final procedure pursuant to the provision set forth in rule 2,
paragraph 1, Article 435.

3. Should, in the circumstances set forth in the preceding paragraphs, the

representative of the legal person or entity lacking legal personality state
that he does not know the person involved in the facts, the court shall
deem such a statement as an evasive response or a refusal to testify
giving rise to the effects set forth in paragraphs 1 and 2, Article 307.

Article 310. No communication between those called to testify.

Where two or more parties or persons related to them are summoned to

testify on the same facts in dispute in which they have been involved in
accordance with paragraph 2, Article 301, the necessary measures shall
be adopted to ensure they cannot communicate amongst themselves and
know the contents of the questions and responses beforehand.

A similar safeguard shall be taken where several joint litigants are to be

questioned.

Article 311. Questioning in the home.

1. Should the person summoned to testify be unable to appear at the court’s

premises due to illness or any other special circumstances, the questioning
may be performed at the request of a party or on an ex officio basis at such
person’s home or residence before the Judge or member of the corresponding
court in the presence of the Court Clerk.

2. The other parties and their attorneys may attend the home questioning
should the circumstances not make this impossible or highly inconvenient.
Nonetheless, should the court deem their presence inappropriate in light
of the circumstances of the person and of the place, the questioning shall
take place before the presence of the court and the Court Clerk, and the
party that has sought the taking of such evidence may submit a list of
questions to be asked by the court should they be deemed relevant.

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Article 312. Recording the questioning in the home for the records.

In the cases set forth in the preceding Article, the Court Clerk shall draw up
a sufficiently detailed record containing the questions and the responses,
which the person questioned may read. Should he be unable to do so, it
shall be read out to him by the Court Clerk and the court shall ask him if he
has anything to add or change, recording whatever he may state. The
person who has testified and others attending shall then sign the certificate
in the Court Clerk’s presence.

Article 313. Questioning in the home by means of legal assistance.

Where the party summoned to questioning resides outside the court’s

court district and any of the circumstances referred to in the second
sentence in paragraph 4 of Article 169 should arise, such party may be
questioned through legal assistance.

In such cases, a list of questions raised by the party that has sought the
taking such evidence shall be attached to the formal request, should it
have been requested, due to such party being unable to attend the
questioning. The questions shall have to be deemed relevant by the court
dealing with the matter at issue.

Article 314. Prohibition of repeating the questioning of parties.

The parties or persons referred to in paragraph 2, Article 301 may not be

questioned again on the same facts on which they were questioned previously.

Article 315. Questioning in special cases.

1. Where the State, an autonomous region, a local authority or any other kind
of public body should be a party to the proceedings and the court should
accept their testimony, they shall be sent a list containing the questions put
forward by the party seeking the taking of evidence and which the court may
deem relevant once the taking of such evidence is admitted without waiting for
the trial or hearing, so that they may be answered in writing and the responses
filed before the court before the date set for such hearing or trial.

2. Once the written answers are read at the trial or hearing, any additional
questions which the court may deem relevant and useful shall be answered
by the court representative of the party that had sent such questions. Should
such court representative justify that he is unable to answer the questions, a
new set of written questions shall once again be sent as a final procedure.

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3. The provisions set forth in Article 307 shall apply to the testimonies
described in this Article.

Article 316. Assessment of the questioning of parties.

1. Should they not contradict the other evidence, the facts that a party may
have recognised as being true shall be construed as such in the judgement
if such party had been personally involved in them and their ascertainment
as being true is entirely harmful to such party.

2. In all other cases, the courts shall assess the testimonies of the parties
and persons referred to in paragraph 2, Article 301 according to the rules
of fair criticism notwithstanding the provisions set forth in Articles 304 and
307.

Section 2. On public documents

Article 317. Classes of public documents.

For the purposes of evidence in proceedings, the following shall be

deemed as public documents:
(i). Court rulings and procedures of all kinds and any attestations
thereof Court Clerks may issue.
(ii). Documents duly authorised by notaries public under the law.
(iii). Documents executed with the involvement of Registered
Commercial Notaries and any certifications of transactions in which
they may have intervened which have been issued by them with
reference to the Registry Book they keep in accordance with the
law.
(iv). Certifications of registry entries issued by Property and Company
Registrars.
(v). Documents issued by civil servants legally empowered to certify
matters lying within the scope of their functions.
(vi). Documents referring to archives and records belonging to the
bodies of the State, the public administrations or any another public
law entities issued by civil servants duly empowered to certify the
provisions and actions of such bodies, administrations or entities.

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Article 318. Manner of taking evidence from public documents.206

Public documents shall have the probative force set forth in Article 319
should the original, a certified copy or an irrefutable certification thereof be
submitted on hard copy or on electronic media, or if a non-certified copy on
hard copy or a digitised image thereof is submitted pursuant to Article 267
without its authenticity being contested.

Article 319. Probative force of public documents.

1. The public documents included under items (i) to (vi) of Article 317 shall
provide full proof of the fact, action or state of affairs documented by them, as
well as of the date in which such documents were produced, of the identity of
those certifying them and of any other persons, if any, intervening in them with
the requirements and in the cases set forth in the following articles.

2. The probative force of administrative documents not included under items

5 and 6 of Article 317 to which the laws grant the nature of public documents
shall be as laid down by the laws granting them such nature. Failing an
express provision in such laws, the facts, actions and state of affairs recorded
in the aforementioned documents shall be construed as true for the purposes
of the judgement to be issued, except where other means of proof should
diminish the certainty of what is documented by them.

3. With regard to usury, the courts shall in each case decide freely without
taking into consideration the provisions set forth in paragraph 1 of this Article.

Article 320. Contesting the probative value of public documents.

Authentication or verification.207

1. Should the authenticity of a public document as evidence be contested,

the following formalities shall be observed:
(i) Copies, certificates or written evidence will be authenticated or
verified against the originals, wherever they may be and whether they
were submitted in hard copy or in electronic, computer or digital format.
(ii) Any policies in which a registered broker has intervened shall be
verified against the entries of their Registry Book.

206
Article worded in accordance with Act 41/2007 of 7 November.
207
Paragraphs 1 and 2 are amended by single article 39 of Law 42/2015, of 5 December.

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2. The authentication or verification of public documents against their

originals shall be performed by the Clerk of the Court by going to the
archive or premises in which the original or master document is kept in the
presence, should they attend, of the parties or their attorneys, who shall be
summoned for such a purpose.

If public documents are on electronic media, authentication of the originals

will be carried out by the Clerk of the Court at the court office in the
presence, should they attend, of the parties and their attorneys, who shall
be summoned for that purpose.

3. Where the authenticity or accuracy of the copy or evidence challenged

is proven through authentication or verification, any costs, expenses and
fees that such authentication or verification may give rise to shall be
incurred by whoever may have lodged the challenge. Should the court
deem that such challenge was lodged recklessly, it may additionally
impose a fine ranging from €120 to €600.

Article 321. Incomplete attestations or certifications.

Any attestation or certification of only a part of a document shall not

constitute full evidence, as long as it is not completed with the additions
the litigant who may be harmed by it may seek.

Article 322. Public documents not susceptible to authentication or verification.

1. Such documents shall constitute full evidence without the need for
verification or authentication unless evidence to the contrary and the
possibility of seeking an authentication of handwriting should exist:
(i). Old deeds lacking protocol files and any others whose protocol files
or original deeds have disappeared.
(ii). Any another public document which by its very nature lacks an
original or record against which it can be authenticated or verified.

2. The provisions set forth in Article 1,221 of the Civil Code shall apply in
cases where the protocol files, the master document or the original
proceedings have disappeared.

Article 323. Foreign public documents.

1. For procedural purposes, any foreign documents which have to be

attributed with the probative force set forth in Article 319 herein by virtue of

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international treaties of conventions herein shall be deemed as public

documents.

2. Where no international treaty, convention or law should apply, the following

documents shall be construed as public documents, providing that:
(i). All the requirements laid down by the country in which the document
was executed have been met in its execution or drafting for it to have
full probative force in a trial.
(ii). The document contains the legalisation or apostille and any other
necessary requirements for its authenticity in Spain.

3. Where the foreign documents referred to in the preceding paragraphs of

this Article include declarations of will, the existence of such declarations
shall have to be proven. Nonetheless, their effects shall be determined by
the Spanish and foreign laws that may apply concerning the legal capacity,
purpose and form of the legal dealings.

Section 3. On private documents

Article 324. Classes of private documents.

For the purposes of evidence in proceedings, any documents not included

under the cases set forth in Article 317 shall be construed as private documents.

Article 325. Manner of producing evidence.

Private documents shall be submitted as set forth in the Article 268 herein.

Article 326. Probative force of private documents.208

1. Private documents shall provide full evidence in proceedings under the

terms set forth in Article 319, where their authenticity is not contested by
the party which they may harm.

2. Where the authenticity of a private document is contested, whoever

may have filed such document may seek an expert’s authentication of
handwriting or any other means of proof that may turn out to be useful and
relevant for such a purpose.

208
Paragraph 3 added by Act 59/2003 of 19 December .

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Should the document’s authenticity be verified by authentication or any

other means of proof, the provisions set forth in paragraph 3, Article 320
shall be followed. Where the authenticity of such document cannot be
deduced or should there be no proof thereof, the court shall assess it in
accordance with the rules of fair criticism.

3. Where the party having an interest in an electronic document’s effects

should seek them or where such document’s authenticity is challenged, the
provisions set forth in Article 3 of the Electronic Signature Act shall apply.

Article 327. Traders’ books.

Where traders’ books are used as evidence, the provisions set forth by
commercial laws shall apply. The court may exceptionally request, stating
its grounds, that such books or their computer media be filed before it, a
long as the items to be examined are specified.

Section 4. On provisions common to the two

preceding sections

Article 328. Duty of exhibiting documents amongst the parties.209

1. Each party may seek that the other parties exhibit any documents that
are not in his possession and which refer to the matter at issue in the
proceedings or the value of the evidence.

2. A non-certified copy of the document shall be attached to such

application and, should it not exist or be unavailable, the document’s
contents shall be indicated as accurately as possible.

3. In proceedings dealing with an infringement of industrial or intellectual

property rights committed on a commercial scale, the plea for exhibition
may particularly extend to any bank, financial, commercial and customs
documents produced during a specific period of time and which are
assumed to be in the defendant’s possession. Preliminary evidence shall
be attached to such plea, which may consist of the submission of a sample
of the copies, goods or products through which the infringement may have
come about. The court may decide to keep the proceedings secret at the
request of any party in order to ensure the protection of confidential data
and information.

209
Paragraph 3 added by Act 19/2006 of 5 June

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Article 329. Effects of a refusal to exhibit.

1. Should an unjustified refusal to exhibit pursuant to the preceding

Article come about, the court may, taking into consideration the other
evidence, attribute probative value to the non-certified copy filed by the
applicant of the exhibition or the version such document’s contents may
have given.

2. In the case of the unjustified refusal referred to in the preceding

paragraph, the court may issue a requirement by means of a procedural
court order instead of the provisions set forth in such paragraph, so that
the contents whose exhibition has been sought are filed in the proceedings,
where the characteristics of such documents, the other evidence provided,
the contents of the pleas sought by the applicant and the allegations to
ground them should so suggest.

Article 330. Exhibition of documents by third parties.210

1. Unless set forth otherwise with regard to preliminary proceedings, non-

litigant third parties shall solely be required to exhibit documents owned by
them and sought by one of the parties where the court should deem that
knowledge of such documents is transcendental for the purposes of
issuing judgement.

In such cases, the court shall order the personal appearance of whomever
may have such documents in their possession through a procedural court
order and, after hearing them, shall rule as appropriate. Such rulings shall
not be subject to any kind of appeal. Nonetheless, the party holding an
interest in the matter may reiterate his plea in the second instance.

Should they be prepared to show the documents voluntarily, they shall not
be obliged to appear at the Judicial Office and, should they so wish, the
Court Clerk shall go to their address to draw up an attestation of the
documents.

2. For the purposes of the preceding paragraph, any parties involved in the
legal relationship at issue or that may have been the cause of such
relationship though they do not appear as parties to the trial shall not be
construed as third parties.

210
Paragraph 3 (1) worded in accordance with Act 13/2009 of 3 November.

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Article 331. Attestation of documents exhibited.

Should a person required to exhibit a document pursuant to the provisions

set forth in the preceding articles not be willing to let go of the document
for its inclusion in the records, an attestation thereof shall be drawn up by
the Court Clerk at the court’s premises should the exhibitor so wish.

Article 332. Public bodies’ duty to exhibit.

1. Agencies dependent on the State, autonomous regions, provinces, local

authorities and any other public law bodies may not refuse to issue any
certifications and attestations that they may be required to submit by the
courts or refuse to exhibit any documents kept in their premises and
archives, unless the document is legally declared or classified as reserved
or secret. In such a case, a grounded exposition of such reserved or secret
nature shall be sent to the court.

2. Unless a special legal duty to secrecy or reservation should exist, any

entities and companies that perform public services or that are in charge of
activities of the State, autonomous regions, provinces, local authorities
and any other local entities shall also be subject to the obligation of
exhibiting documents and issuing certifications and attestations under the
terms set forth in the preceding paragraph.

Article 333. Obtaining copies of documents which are not written texts.211

In the case of drawings, photographs, sketches, plans, maps and others

documents which are not mainly comprised of written texts, if only the
original exists, a party may request that a copy be obtained when they are
exhibited in the presence of the Clerk of the Court, who shall certify that it
is a true and faithful reproduction of the original.

If these documents are provided in electronic format, the copies made by

electronic means by the court office will be considered to be true copies.

Article 334. Probative value of reprographic copies and authentication.

1. Should a party harmed by a document filed through a reprographic copy

thereof contest the faithfulness of the reproduction, such copy shall, if
possible, be authenticated against the original and, should this not be the

211
Amended by single article 40 of Law 42/2015, of 5 October.

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case, its probative value shall be determined according to the rules of fair
criticism, taking into consideration the results of the other evidence.

2. The provisions set forth in the preceding paragraph shall also apply to
drawings, photographs, paintings, sketches, plans, maps and other similar
documents.

3. The authentication referred to in this article shall be verified by the Court

Clerk, except where the parties are entitled to seek an expert’s opinion.

Section 5. On experts’ opinions

Article 335. Aim and purpose of experts’ opinions. Swearing or promising

to act objectively.212

1. Where scientific, artistic, technical or practical knowledge may be necessary

to ascertain any facts or circumstances that are relevant to the matter or to
acquire certainty about them, the parties may bring to the proceedings the
opinions of experts having the relevant knowledge or seek that court-appointed
expert should issue an opinion in the cases set forth herein.

2. Upon issuing an opinion, all experts shall state under oath or promise to
say the truth and that they have acted or, as appropriate, shall act as
objectively as possible, taking into consideration both what may favour as
well as whatever may harm any of the parties, and that such expert is
aware of the penalties that may be imposed on him should he fail to fulfil
his duty as an expert.

3. Unless an agreement otherwise has been reached by the parties, an

opinion may not be sought from an expert who has been involved in
mediation or arbitration proceedings concerning the matter at issue.

Article 336. Submission with the claim and the response to the claim of
opinions drawn up by experts appointed by the parties.213

1. The opinions that the litigants have available, prepared by experts

appointed by them and which they consider necessary or appropriate for
the defence of their rights, must be provided with the claim or the response
to the claim, without prejudice to the provisions of article 337.

212
Paragraph 3 added by final provision 3.7 of Law 5/2012 of 6 July.
213
Paragraphs 1 and 4 are amended and article 5 added by single article 41 of Law 42/2015, of 5
October.

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2. The opinions shall be formulated in writing, accompanied, as appropriate,

by the other documents, instruments or materials suitable to put forward
the opinion of the expert regarding the subject matter of the expert
examination. If it is impossible to present such materials and instruments,
the written opinion shall contain sufficient indications regarding them. The
opinion may also be accompanied by the documents deemed suitable for
a more accurate assessment of it.

3. The claimant shall be deemed to be in a position to submit written

opinions drawn up by an expert appointed by them together with the claim
if they fail to duly justify that the defence of their right did not allow them to
delay lodging the claim until such opinion was obtained.

4. A defendant who is not able to provide written opinions with the response
to the claim must justify the impossibility of requesting them and receiving
them within the time limit for response.

5. At the request of one of the parties, the court or tribunal may agree to
allow the defendant, using a lawyer or expert, to examine the objects and
places the state and circumstances of which are relevant to their defence
or for the preparation of the expert reports that they intend to submit.
Furthermore, in claims for personal injury, they may demand that the
claimant allows their examination by a physician in order to prepare an
expert report.

Article. 337. Announcement of opinions when the latter cannot be attached

to the claim or the statement of defence. Submission at a later stage.214

1. If the parties are unable to submit the opinions drawn up by experts

appointed by them together with the claim or the statement of defence,
they shall indicate in one or the other the opinions that, as appropriate,
they intend to use, which they shall submit for their transfer to the counter-
party as soon as they have them at their disposal and in any event five
days before commencement of the hearing prior to the declaratory action
or the hearing in the oral trial.

2. Once the opinions have been submitted in accordance with the

preceding paragraph, the parties shall indicate whether they wish the
experts who issued the opinions to appear at the trial regulated in Article
431 and subsequent articles herein or, as the case may be, at the hearing
of the trial, specifying whether they shall put forward or explain the opinion

214
Section 1 worded in accordance with Act 13/2009, of 3 November.

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or reply to questions, objections or proposals of rectification or intervene in

any other manner useful to understand and assess the opinion in
connection with the subject matter of the case.

Article 338. Submission of opinions depending on the procedures

subsequent to the claim. Application for the intervention of the experts at
the hearing or oral hearing.215

1. The provisions of the preceding article shall not apply to opinions whose
necessity or usefulness becomes evident as a result of the allegations of
the defendant in the response to the claim or the supplementary allegations
or claims admitted at the hearing pursuant to Article 426 of this Act.

2. The opinions whose necessity or usefulness results from the statement

of defence or the allegations and pleas set forth at the pre-hearing shall be
submitted by the parties for their transfer to the counterparties at least five
days prior to the holding of the hearing or oral hearing, with the parties
indicating to the Court whether they consider it necessary for the authors
of the opinions to appear at the hearing or oral hearing, expressed as
provided for in paragraph 2 of Article 337.

In this case, the Court may also decide on the presence of the experts at
the hearing or oral hearing in accordance with the terms set out in
paragraph 2 of the preceding article.

Article 339. Application for the appointment of experts by the court and
the court decision on such application. Appointment of experts by the
court, without a request by any party.216

1. If either of the parties is entitled to free legal aid, such party shall not be
bound to submit the expert opinion attached to the claim or the response
to the claim, but shall merely announce such opinion, for the purpose of
proceeding to the appointment of an expert by the court, in accordance
with the provisions of the Free Legal Aid Act.

2. The plaintiff or defendant, even if they are not included under the
preceding paragraph, may also request, in their respective preliminary
writs, that the court appoints an expert if they deem that the issue of an
expert’s report is appropriate or necessary for their interests. In this case,
the court will proceed with the appointment. Such an opinion shall be at

215
Paragraph 2 is amended by single article 42 of Law 42/2015, of 5 October.
216
Paragraphs 1 and 3 are amended by single article 43 of Law 42/2015, of 5 October.

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the expense of the applicant, without prejudice to whatever may be decided

as to the legal costs.

Unless it refers to allegations or claims which are not contained in the

claim, an expert’s report drawn up by a court appointed expert may not be
requested after the claim or the response to the claim is made.

Court appointment of an expert must be made within five days of submission

of the response to the claim, regardless of who may have requested such
appointment. If both parties initially applied for one, the Court may, if the
parties agree, appoint one single expert to issue the requested report. In this
case, the fees of the expert shall be paid by both litigants in equal shares,
without prejudice to whatever may be decided as to legal costs.

3. In an ordinary hearing, if, as a result of the supplementary allegations or

claims allowed at the hearing, the parties request, in accordance with the
provisions of paragraph 4 of article 427, appointment by the court of an
expert to issue an opinion, this will be agreed, as long as the opinion is
considered to be pertinent and useful.

The court may do the same in an oral hearing where the parties request
the appointment of an expert at the hearing, in which case it will be
suspended until the opinion is issued.

4. In the cases indicated in the two preceding paragraphs, if the parties

seeking the appointment of an expert by the court also agree that the
opinion shall be issued by a specific individual or entity, the Court shall
resolve to do so. Failing such agreement between the parties, the expert
shall be appointed by the procedure provided for in Article 341.

5. The Court can appoint an expert ex officio if expert examination is relevant

in proceedings concerning a declaration or contest of kinship, paternity or
maternity, on the capacity of the individuals or in matrimonial proceedings.

6. The court will not appoint more than one incumbent expert for each
matter or set of matters which are to be the subject of expert examination
and do not require, due to the diversity of their subject matter, various
experts to appear.

Article 340. Conditions of the experts.

1. The experts shall hold the official title corresponding to the subject
matter and the nature of the opinion. In the case of matters not included in

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official professional titles, the experts shall be appointed among individuals

well acquainted with the subjects concerned.

2. The opinion may also be sought of Academies and cultural and scientific
institutions dedicated to the study of the subjects corresponding to the
expert examination. An opinion may also be issued on specific matters by
legal persons legally qualified for these purposes.

3. In the cases of the preceding paragraph, the institution commissioned

with the opinion shall specify within the shortest possible delay the name
of the person or persons who shall be directly in charge of issuing the
opinion, who shall be required to make the oath or promise referred to in
the second paragraph of Article 335.

Article 341. Procedure for the court appointment of an expert.

1. In the month of January of each year, the various professional

associations or, failing them, similar entities, as well as the cultural and
scientific Academies and institutions referred to in the second paragraph
of the preceding article shall be requested to forward a list of members or
associates willing to act as experts. The first appointment of each list shall
be made by drawing lots in the presence of the Court Clerk and, after that,
the next appointments shall be made in correlative order.

2. If a person without official title, experienced or knowledgeable in the

subject has to be appointed as an expert, after summoning the parties, the
appointment shall be made by the procedure established in the preceding
paragraph, using to this end a list of individuals that shall be requested
each year from the appropriate syndicates, associations and entities and
shall be composed of a minimum of five of such individuals. If, due to the
singular nature of the subject matter of the opinion, the name of only one
single knowledgeable or experience person is available, the consent of the
parties shall be requested and the said individual shall be appointed as
expert only if the parties grant their consent.

Article 342. Citation of the appointed expert, acceptance and appointment.

Provision of funds.217

1. On the same day of the appointment or on the following working day, the
Court Clerk shall notify the said appointment to the expert concerned,
requesting him to indicate whether he accepts the post within a time limit

217
Article worded in accordance with Act 13/2009 of 3 November.

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of two days. If he does accept, the appointment shall be made and the
expert shall, in the manner decided, make the statement under oath or
promise established in paragraph 2 of Article 335.

2. If the expert alleges a just cause preventing him from accepting and the
Court Clerk deems it sufficient, he shall be replaced by the next person on
the list, and so on successively, until the appointment can be made.

3. The appointed expert may request, within the three days following that
of his appointment, the provision of funds he considers necessary, which
shall be provided on account of the final settlement. The Court Clerk shall
resolve by order on the requested provision and shall order the party or
parties who proposed the expert evidence and are not entitled to free legal
assistance to pay the amount established in the deposit and consignments
account of the Court within a time limit of five days.

If, upon expiry of the said time limit, the established amount has not been
deposited, the expert shall be released from his obligation to issue the
opinion and no new appointment can be made.

If the expert has been appointed by mutual agreement and one of the
litigants fails to pay his share of the deposit, the Court Clerk shall offer the
other litigant the possibility to complete the amount lacking, indicating the
points on which the opinion shall be issued, or, alternatively, to recover the
amount deposited, in which case the provisions of the preceding
subparagraph shall apply.

Article 343. Challenging of the experts. Time and form of the challenges.

1. Only the experts appointed by the Court can be disqualified.

On the other hand, experts who cannot be disqualified can be subject to

challenge if they incur in any of the following circumstances:
(i). Being the spouse or a relation by consanguinity or affinity up to the
fourth degree of one of the parties or their attorneys or court
representatives.
(ii). Having a direct or indirect interest in the matter or in another similar
matter.
(iii). Being or having been in a situation of dependency or community
or conflict of interests in relation to either of the parties or their attorneys
or court representatives.

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(iv). Close friendship with or hostility to either of the parties or their

attorneys or court representatives.
(v). Any other duly evidenced circumstance making them unsuitable
from a professional point of view.

2. Challenges cannot be formulated after the trial or the hearing in oral

trials. In the case of declaratory actions, challenges to experts who issued
the opinions submitted with the claim or statement of defence shall be
proposed at the pre-trial hearing.

When formulating challenges of experts, the evidence aimed at justifying

them may be presented, except evidence of witnesses.

Article 344. Contradiction and evaluation of the challenge. Penalty in case

of groundless or unfair challenge.

1. Any of the interested parties may address the Court in order to deny or
contradict the challenge, submitting the documents they consider relevant
to the effect. If the challenge damages the professional or personal
reputation of the expert, the latter may request the Court to declare at the
termination of the proceedings by means of a procedural court order that
the challenge is groundless.

2. Without further ado, the Court shall take into consideration the challenge
and, as appropriate, its denial or contradiction, at the time of assessing the
evidence, formulating, as appropriate, a procedural court order declaring
the lack of grounds of the challenge referred to in the preceding paragraph.
If it finds recklessness of procedural unfairness in the challenge, in view of
its motivation or the time when it was submitted, it may sentence the party
responsible, after hearing the latter, to a penalty of between €60 to €600.

Article 345. Expert operations and possible interventions of the parties in

the said operations.

1. If the issuance of the opinion requires the examination of certain places,

objects or individuals or the performance of analogue operations, the
parties and their counsel shall be allowed to be present at any of them,
provided such presence does not prevent or impair the work of the expert
and the accuracy and impartiality of the opinion can be guaranteed.

2. If any of the parties requests to be present at the expert operations

referred to in the preceding paragraph, the Court shall decide whatever is

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appropriate and, if the said presence is admitted, shall order the expert to
notify the parties directly, at least forty/eight days in advance, of the day, time
and place for the said operations to be carried out.

Article 346. Issue and ratification of the opinion by the expert assigned by
the Court.218

The expert assigned by the Court shall issue his opinion in writing and
remit it to the Court using electronic means within the time limit notified to
him. The opinion shall be transferred to the parties by the Clerk of the
Court to allow them to decide whether it is necessary for the expert to be
present at the hearing or oral hearing for the purposes of giving the
appropriate clarifications or explanations. The Court may at all events, by
means of a procedural court order, declare that it considers it necessary
for the expert to be present at the hearing or oral hearing with a view to a
better understanding and evaluation of the opinion issued.

Article 347. Possible intervention of the experts at the trial or hearing.219

1. The experts shall intervene at the trial or hearing as requested by the

parties, to the extent allowed by the Court.

The court may only reject applications for intervention which have to been
deemed improper or useless due to their purpose and contents, or where
a duty of confidentiality exists arising from the expert’s intervention in a
prior mediation procedure involving the parties.

More specifically, the parties and their counsel may request:

(i). The complete explanation of the opinion if the said explanation
requires the performance of other operations, complementary to the
writ submitted, by means of the use of documents, materials and other
elements referred to in paragraph 2 of Article 336.
(ii). An explanation of the opinion or one or more of its points, the
significance whereof is not considered to be sufficiently eloquent for
the purposes of the evidence.
(iii). Replies to questions and objections as regards the method, premises,
conclusions and other aspects of the opinion.

218
Amended by single article 44 of Law 42/2015, of 5 October.
Article worded in accordance with Act 13/2009 of 3 November.
219
Paragraph 1 (2) amended by final provision 3.8 of Law 5/2012 of 6 July.

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(iv). Replies to applications for an extension of the opinion to other

connected issues, in case this may be carried out in the same act and
for the purposes, at all events, of knowing the opinion of the expert on
the possibility and usefulness of the extension, as well as the time
required to carry out such extension.
(v). Critical evaluation of the opinion concerned by the expert of the
counter-party.
(vi). Formulation of the challenges that may affect the expert.

2. The Court may also pose questions to the experts and request
explanations from them regarding the subject matter of the submitted
opinion, although it cannot resolve its extension ex officio, except in the
case of experts appointed ex officio in accordance with paragraph 5 of
Article 339.

Article 348. Evaluation of the expert opinion.

The Court shall evaluate the expert opinions in accordance with the rules
of sound criticism.

Article 349. Comparison of handwriting.

1. The expert shall carry out a comparison of handwriting when the

authenticity of a private document is denied or put into question by the
party damaged by it.

2. A comparison of handwriting may also be carried out when the

authenticity is denied or put into question of any public document lacking
the original and irrefutable copies in accordance with Article 1.221 of the
Civil Code, provided that the said document cannot be recognised by the
civil servant who issued it or by the individual mentioned as the intervening
Notary Public.

3. The comparison of handwriting shall be carried out by the expert

appointed by the Court in accordance with Articles 341 and 342 herein.

Article 350. Unquestioned documents or original deed for comparison.

1. The party requesting the comparison of handwriting shall indicate the

unquestioned document or documents with which such comparison shall
be carried out.

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2. The following shall be considered unquestioned documents for the

purposes of comparison of handwriting:
(i). The documents acknowledged as such by the parties to whom this
expert testimony may affect.
(ii). The public deeds and those filed in the public records relating to
the National Identity Document.
(iii). The private documents whose handwriting or signature has been
acknowledged at the trial by the individual to whom the questionable
handwriting or signature is being attributed.
(iv). The challenged written document, concerning the part of which the
handwriting is acknowledged as his own by the party prejudiced by it.

3. Failing the documents enumerated in the preceding paragraph, the party to

whom the challenged document or the signature. Authorising it may be
required, at the request of the counter-party, to draw up an original deed which
shall be dictated to the said party by the Court or the Court Clerk.

If the summoned party refuses to do so, the challenged document shall be

deemed acknowledged.

4. If there are no unquestioned documents and it is impossible to compare

the handwriting with an original deed due to the death or absence of the
individual who must formulate it, the Court shall assess the value of the
challenged document in accordance with the rules of sound criticism.

Article 351. Presentation and evaluation of the opinion concerning the

comparison of handwriting.

1. The expert carrying out the comparison of handwriting shall explain in

writing the operations of comparison and their results.

2. The provisions of Articles 346, 347 and 348 herein shall apply to the
expert opinion of comparison of handwriting.

Article 352. Other instrumental expert opinions on different means of

evidence.

If required or convenient in order to know the contents or the meaning of

evidence or to proceed to its most accurate evaluation, the parties may
submit or propose expert opinions regarding other means of evidence
admitted by the Court pursuant to paragraphs 2 and 3 of Article 299.

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Section 6. On the examination of evidence

Article 353. Object and objective of the examination of evidence and

initiative to resolve such examination.220

1. The examination of evidence shall be resolved when, for the purposes

of clarification and evaluation of the facts, it is necessary for the Court to
examine a certain place, object or individual in person.

2. notwithstanding the extension of the examination of evidence required

in the opinion of the Court, the party seeking such examination shall
specify the main points to which he wishes it to refer and shall indicate
whether he wishes to attend the act with a person with technical knowledge
or experience in the subject matter.

The other party may, prior to the examination of evidence, propose other
issues of interest to him and may also indicate whether he shall attend
accompanied by an individual of those indicated in the preceding
paragraph.

3. Once the Court has decided to carry out the examination of evidence,
the Court Clerk shall notify at least five days in advance the day and time
when the said examination shall take place.

Article 354. Performance of the examination of evidence and intervention

of the parties and knowledgeable individuals.

1. The Court may establish any measures that are necessary to achieve
the effectiveness of the examination, including that of ordering the entry to
the place to be examined or where the object or the individual to be
examined is present.

2. The parties, their court representatives and attorneys may attend the
examination of evidence and make the verbal observations they deem
appropriate to the Court.

3. If, ex officio or at the request of a party, the Court considers it convenient

to hear the observations or statements of the individuals referred to in
paragraph 2 of the preceding article, it shall previously request them to
take the oath or promise to tell the truth.

220
Section 3 worded in accordance with Act 13/2009, of 3 November.

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Article 355. Examination of individuals.

1. The examination of an individual shall be carried out by means of an

interrogatory performed by the Court, which shall be adjusted to the
requirements of each specific case. At the said interrogatory, which, if advisable
in view of the circumstances, may be held with closed doors or outside the
court premises, the parties shall be allowed to be present, provided the Court
does not consider such presence to be a disturbance for the proper execution
of the proceedings.

2. At all events, the performance of the examination of evidence shall

guarantee the respect for the dignity and privacy of the individual.

Article 356. Simultaneous performance of the examination of evidence

and the expert examination.

1. If considered convenient, the Court may resolve, by means of a

procedural court order, that the examination of evidence and the expert
examination shall take place in one single act in relation to the same place,
object or individual, following the procedure set forth in this Section.

2. The parties may also request the simultaneous performance of both

examinations and the Court shall so order if it deems it appropriate.

Article 357. Simultaneous performance of the examination of evidence

and the evidence of witnesses.

1. At the request of a party and at the expense of the latter, the Court may
by procedural court order resolve that the witnesses shall be heard
immediately after the examination of evidence if the examination of the
objects or individuals may contribute to the clarity of their testimony.

2. At the request of a party, the interrogatory of the counter-party may also

be carried out under the same circumstances as those set forth in the
preceding paragraph.

Article 358. Records of the examination of evidence.

1. The Court Clerk shall draw up a detailed record of the examination of

evidence, clearly specifying therein the perceptions and appreciations of
the Court, as well as the observations made by the parties as referred to in
Article 354.

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2. The record shall also contain the result of all other procedures of taking
evidence that may have been carried out at the same time of the
examination of evidence by the court, in accordance with Article 356 y 357.

Article 359. Use of technical means to record the examination of

evidence.221

Means of recording of images and sound or other similar instruments to

demonstrate the object of the examination of evidence shall be used, but
the drawing up of the record shall not be omitted and the latter shall include
all indications required to identify the recordings, reproductions or
examinations carried out, which shall be kept by the Clerk Court in a
manner ensuring that they are not altered in any way.

If it is possible to copy the recordings or reproductions by the means or

instruments mentioned above guaranteeing their authenticity, the party
concerned may, at its expense, request and obtain such a copy from the Court.

Section 7. On the questioning of witnesses

Article 360. Contents of the evidence.

The parties may request the declaration as witnesses of the individuals

acquainted with the facts at issue relating to the subject matter of the trial.

Article 361. Suitability to be witnesses.

All individuals may act as witnesses, except those who are of permanent
unsound mind or unable to use their senses in relation to the facts they
can only be acquainted with using the said senses.

Those under fourteen years of age may declare as witnesses if, in the
opinion of the Court, they possess the necessary capacity of judgement to
know and to declare truthfully.

Article 362. Designation of the witnesses.

When proposing the evidence of witnesses, their identity shall be specified

indicating, to the extent possible, the given name and family names of
each of them, their profession and their address or place of residence.

221
Subparagraph 1 worded in accordance with Act 13/2009 of 3 November.

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The designation of witnesses may also be made expressing the post held
by the latter or any other circumstances of identification, as well as the
place where they can be summoned.

Article 363. Limitation of the number of witnesses.

The parties may propose as many witnesses as they deem appropriate,

but the costs of those exceeding three for each fact at issue shall at all
events be for the account of the party presenting them.

When the Court has heard the testimony of at least three witnesses in
relation to a fact at issue, it may omit the remaining testimonies concerning
the same fact if it considers that the fact has been illustrated sufficiently by
those already given.

Article 364. Domiciliary testimony of the witness.

1. If, due to illness or any other reason referred to in the second

subparagraph of paragraph 4 of Article 169, the Court considers that a
witness is unable to appear at the court premises, it may take his statement
at his place of residence, either directly or through judicial assistance,
depending on whether or not the said place of residence is located within
the jurisdiction of the court.

The statement may be attended by the parties and their attorneys and, if
the latter are unable to assist, they shall be authorised to submit a prior
written interrogatory containing the questions they wish to put to the
examined witness.

2. If, considering the circumstances, the Court considers it advisable not to

allow the presence of the parties and their attorneys at the domiciliary
testimony, the parties shall be allowed to examine the replies obtained in
order to allow them to request, within the next three days, that new
complementary questions be put to the witness or the appropriate
clarifications be asked from the said witness, in accordance with Article
372.

Article 365. Oath or promise of the witnesses.

1. Before making his statement, each witness shall make an oath or

promise to tell the truth, cautioning him on the penalties established for the
offence of false testimony in civil cases, which the Court shall explain to
him should he declare that he ignores them.

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2. In the case of witnesses under the legal age of criminal responsibility,

they shall not be required to make an oath or promise to tell the truth.

Article 366. Manner of statement of the witnesses.

1. The witnesses shall declare separately and successively, in the order in

which they have been specified in the proposals, unless the Court
considers there exists a reason to alter the said order.

2. The witnesses shall not be allowed to communicate among themselves

and no witness shall be allowed to be present at the statements made by
other witnesses.

To this end, all necessary steps shall be taken.

Article 367. General questions to the witness.

1. The Court shall start by asking each witness, in any case:

(i). His given name, family names, age, civil status, profession and
address.
(ii). Whether or not he is the spouse or a relation by consanguinity or
affinity and, if so, in what degree, of any of the litigants, their attorneys
or court representatives, or if they are related to them through adoption,
guardianship or other similar links.
(iii). Whether or not he is or has been dependant or is or has been at
the service of the party that proposed him or the court representative
or attorney of the latter or has had or continues to have any relation
that may give rise to common or conflicting interests.
(iv). If he has a direct or indirect interest in the matter or in any other
similar matter.
(v). Whether he is a close friend or enemy of any of the litigants or their
court representatives or attorneys.
(vi). If he has been convicted at any time for giving false testimony.

2. In view of the replies given by the witness to the questions of the

preceding paragraph, the parties may indicate to the Court the existence
of circumstances relating to their impartiality.

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The Court may interrogate the witness on the said circumstances and
shall order that the questions and replies be placed on the record to allow
the due evaluation of the statements at the time of passing judgement.

Article 368. Contents and admissibility of the questions formulated.222

1. The questions put to the witness shall be formulated verbally and with
due clarity and precision. No valuations nor qualifications shall be included
and, if they are included, they shall be deemed not made.

2. The Court shall decide on the questions raised in the same act as
the questioning, admitting those that may prove appropriate to ascertain
the facts and circumstances at issue, which are related to the subject
matter of the trial.

The questions not referring to the personal knowledge of the witness shall
not be admitted, in accordance with Article 360.

3. If a question is replied to in spite of not having been admitted, the said

reply shall not be placed on the record.

Article 369. Contesting of the admission of questions and objection to

their inadmission.

1. In the same act as the questioning, the parties other than those who
formulated the question may contest its admission and put forward the
valuations and qualifications they deem inappropriate and which, in their
opinion, should not have been made.

2. The party that indicates his disconformity with the inadmission of

questions may so indicate and may request that his objection be placed on
the record.

Article 370. Examination of the witness with the questions admitted.

Expert witness.

1. Once the general questions are answered, the witness shall be

examined by the party which proposed him, and if he has been proposed
by both parties, the questions formulated by the claimant shall be asked
first.

222
Section 1 worded in accordance with Act 13/2009, of 3 November.

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2. The witness shall respond by himself, verbally, and shall not use a draft
of responses. When the question refers to accounts, books or documents,
he shall be allowed to examine these before answering.

3. In each of his responses, the witness shall express the reason for his
statements.

4. When the witness has scientific, technical, artistic or practical knowledge of

the matters referred to in the facts of the questioning, the court shall admit the
statements added by the witness to his answers on the facts due to this
knowledge.

As regards these statement, the parties may inform the court of the
occurrence of any of the circumstances of objection related to Article 343
herein.

Article 371. Witnesses with the duty to maintain silence.

1. When the witness has the duty to maintain silence as regards facts he is
questioned on due to his state or profession, he shall state his reasons for
this and the court shall consider the grounds for the refusal to declared
and shall decide what is right in law through a procedural court order. If the
witness is released from responding, this shall be recorded in the minutes.

2. If the witness alleges that the facts he is asked about belong to matters
which are legally declared to be classified as reserved or secret, in the
cases in which the court considers it necessary in order to satisfy the
interests of the administration of justice, it shall ex officio request the
competent organism for the official document which accredits this fact,
through a procedural court order.

Once it has verified the grounds of the plea of a reserved or secret nature,
the court shall order the document to be attached to the records, with a
record of the questions affected by official secrets.

Article 372. Intervention of the parties in the questioning extension of this.

1. Once the questions formulated by the attorney of the party which

proposed the oral evidence, the attorneys of any of the other parties may
ask the witness questions which they consider may lead to determining
the facts. The court shall reject any irrelevant or useless questions.

In the event of the inadmission of these questions, the provisions in

paragraph 2 of Article 369 on unconformity with the inadmission.

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2. in order to obtain clarifications and additions, the court may also question
the witness.

Article. 373. Confrontation of witnesses and between these and the

parties.

1. When the witnesses incur serious contradictions, the court may ex

officio or at the request of a party, agree that they submit to a confrontation.

2. It may also be agreed that, due to the respective declarations, a

confrontation is held between the parties and one or some of the witnesses.

3. The procedure referred to in this article shall have to be requested at the

end of the questioning and, in this case, the witness shall be advised not to
leave so that this procedure may take place next.

Article 374. The manner for consigning oral declarations.

The oral declarations made at hearings or trials shall be documented in

accordance with the provisions in paragraph 2 of Article 146.

Article. 375. Witness Compensation.223

1. The witnesses who, complying with the summons, appear before the court,
shall have the right to obtain compensation for the expenses and damages
due to their appearance from the party which proposed them, notwithstanding
what might be agreed as regards costs. If several parties propose the same
witness, the compensation shall be paid proportionally by them.

2. The cost of the compensation shall be established by the court Clerk by an

order, which shall take into account the data and circumstances which have
been contributed. This order shall be dictated once the trial or hearing has
finalised.

If the party or parties who have to pay compensation fail to do so within a

time limit of ten days from the final decision mentioned in the preceding
paragraph, the witness may directly have recourse to distraint proceedings.

Article 376. Evaluation of the declarations of witnesses.

The courts shall evaluate the strength of the declarations of the witnesses
as evidence in accordance with the rules of sound criticism, taking into

223
Article worded in accordance with Act 13/2009, of 3 November.

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consideration the reason which they have given, the circumstances

involved and, as appropriate, the objections formulated and the results of
the evidence examined on these.

Article 377. Objections to the witnesses.

1. Regardless of the provisions in paragraph 2 of Article 367, each party

may reject the witnesses proposed by the counter party for any of the
following reasons regarding these witnesses:

(i). Being or having been a spouse or blood relative or having kinship

within the fourth grade with the party who has presented the witness or
with his attorney or court representative, or is related to these through
adoption, protection, or a similar tie.

(ii). On declaring, the witness is dependent on the party which proposed

him or on his court representative or attorney or is at their service or has
ties with any of these through any society relationship or a relationship of
interest.

(iii). The witness has a direct or indirect interest in the case being dealt
with.

(iv). The witness is a close friend or an enemy of one of the parties or

of his lawyer or court representative.

(v). The witness had been convicted for false testimony.

2. The party proposing the witness may also reject the witness if,
subsequent to the proposal, he knows of the existence of any of the
reasons for rejection set forth in the previous paragraph.

Article 378. Time for rejections.

The rejections shall have to be formulated from the time that the oral
evidence is admitted until the trial or hearing begins, notwithstanding the
obligation which the witnesses have to recognise any reason for rejection
on being questioned in accordance with the provisions in Article 367
herein, in which case, it shall be possible to act in accordance with what is
stipulated in paragraph 2 of this article.

Article 379. Evidence and opposition to rejections.

1. With the allegation for the rejection, it is possible to propose the evidence
leading to the justification of this, except oral evidence.

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2. If the rejection of a witness is formulated and the other parties do not

oppose this by the third day following its formulation, it shall be understood
that they recognise the grounds for the rejection. If they oppose the
rejection, they shall allege what they consider to be advisable, and may
provide documents.

3. In order to judge the rejection and the evaluation of the declarations of

witnesses, the provisions in paragraph 2 of Article 344 and Article 376
shall apply.

Article 380. Questioning about the facts which are recorded in written
reports.

1. Pursuant to number 4 of paragraph 1 of Article 265, or at a later time,

pursuant to paragraph three of the same precept, if reports on facts had
been provided for the records which had not been recognised as certain
by all the parties who might be damaged, the writers of the reports shall be
questioned as witnesses in the manner stipulated herein, with the following
special rules:
a) The rejection of a witness due to interest in a case is not considered
to be right when the report has been drafted on order from one of the
parties.
b) Once the professional authorisation of the author of the report has
been accredited, the report shall have to be recognised and its content
ratified before the relevant questions are asked.
c) The questioning shall be restricted to the facts consigned in the
reports.

2. If the reports also contain evaluations grounded on scientific, artistic,

technical or practical knowledge of their authors, the provisions in
paragraph 4 of Article 370, on the witness/expert shall apply.

Article 381. Written responses from legal persons and public entities.224

1. When it is pertinent for legal persons and public entities, as such, to

inform on facts which are relevant for the proceedings, as these facts refer
to their activities, and it is not applicable or necessary to individualise the
knowledge of interest for the proceedings in determined natural persons,
the party this evidence is of use to can propose that a legal person or

224
Subparagraph (2.3) worded in accordance with Act 13/2009 of 3 November.

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entity respond in writing about the facts within the ten days previous to the
trial or hearing, at the request of the court.

2. In the proposal of evidence referred to in the previous paragraph, the

points which the declaration or written report must deal with shall be stated
precisely. The other parties may allege what they consider to be advisable
and, specifically, if they wish other points to be added to the request for a
written declaration or that that the points stated by the proposer of the
evidence be rectified or added to.

Once the parties have been heard, as appropriate, the court shall decide
on the relevance and usefulness of the proposal, and shall precisely
determine, as appropriate, the terms of the question or questions which
must be the subject of the declaration of the legal person or entity and
shall request it to provide the declaration and forward it to the court within
the established time limit, with the caution of a fine of €150 to €600 and
shall take action against the person personally responsible for the
omission, for disobeying the authority. The examination of this evidence
shall not suspend the course of the procedure unless the judge considers
this necessary to prevent the lack of proper defence of one or both parties.

Once the written responses have been received, the Court Clerk shall
transfer these to the parties for the effects stipulated in the following
paragraph.

3. In the light of the written responses, or the refusal or omission of these,

the court may provide, ex officio or at the request of any o the parties,
through a procedural court order, that the natural person or persons whose
testimony may be relevant and useful in order to clarify or complete the
declaration of the legal person if this were obscure or incomplete, be
summoned to the trial or hearing. At the request of a party, any evidence
which is relevant and useful in order to contradict this declaration may also
be admitted.

4. The provisions in the previous paragraphs shall not apply to public

entities when, in an attempt to know of facts with the characteristics set
forth in paragraph 1, these can be obtained from those certifications or
testimony subject to being provided as documentary evidence.

5. The other rules of this section shall be applied to the declarations

regulated in previous paragraphs, insofar as this is possible.

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Section 8. On the reproduction of speech, sound and

image and the instruments which make it possible to
file and know data relevant to the proceedings

Article 382. Instruments for filming, recording and similar instruments.

Value as evidence.225

1. In court, the parties may propose the reproduction of speech, images

and sounds recorded through instruments for filming, recording and other
similar instruments as means of evidence. On proposing this evidence, the
party may, as appropriate, attach a written transcription of the words
contained in the media in question which are relevant to the case.

2. The party which proposes this means of evidence may provide the
opinions and instrumental means of evidence it considers to be advisable.
The other parties may also provide opinions and means of evidence when
they question the authenticity and precision of what has been reproduced.

3. The court shall evaluate the reproductions referred to in paragraph 1 of

this article in accordance with the rules of fair criticism.

Article 383. Certificate of the reproduction and custody of the relevant

materials.226

1. An appropriate certificate shall be drafted of the acts carried out in

application of the previous article, and this shall contain all that is necessary
for the identification of the filming, recording and reproductions made, and,
as appropriate, the justifications and opinions provided or the evidence
examined.

2. The material which contains the speech, image or sound reproduced

related to the court records must be kept by the Clerk of the Court so that
it does not undergo any alterations.

Article 384. On the instruments which make it possible to file, know or

reproduce data relevant to the proceedings.

1. The instruments which make it possible to file, know or reproduce

speech, data, figures and mathematical operations carried out for

225
Paragraph 1 is amended by single article 45 of Law 42/2015, of 5 October.
226
Paragraph 1 is amended by single article 46 of Law 42/2015, of 5 October.
Paragraph 2 worded in accordance with Act 13/2009, of 3 November.

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accounting purposes or for other purposes, which, as they are relevant to

the proceedings, must be admitted as evidence, shall be examined by the
court through the means which the party proposing provides or which the
court decides shall be in such a way that the other parties to the proceedings
can allege and propose what is convenient for their rights with identical
knowledge to the court.

2. The provisions in paragraph 2 of Article 382 shall apply to the instruments

stipulated in the previous paragraph. The documentation in the records
shall be kept in the manner most appropriate to the nature of the instrument,
in the trust of the Court Clerk, who, as appropriate, shall also adopt the
measures required for their custody.

3. The court shall evaluate the instruments referred to in the first paragraph
of this article in accordance with the rules of sound criticism applicable to
these depending on their nature.

Section 9. On presumption

Article 385. Legal presumption.

1. The presumption which the law establishes shall be dispensed to the

presumed evidence of fact for the party which this evidence favours.

Such presumption shall only be admissible when the certainty of the fact
indicates which party has the presumption through admission or evidence.

2. When the law establishes presumption, except if there is counter evidence,

this can be used to prove the non-existence of the presumed fact and, in the
case in question, to demonstrate that the link which there must be between
the fact presumed and the fact proven or admitted which constitutes the
grounds for the presumption does not exist.

3. The presumption established by law shall admit counter evidence

except in the cases in which this is expressly forbidden by law.

Article 386. Judicial presumption.

1. based on an admitted or proven fact, the court may presume certainty,

for the purposes of the proceedings, of another fact, if there is a precise
and direct link between what is admitted or demonstrated and the
presumption in accordance with the rules of human criteria.

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The judgement to which the preceding paragraph is applied must include

the reasoning whereby the court established the presumption.

2. In opposition to the possible formulation of judicial presumption, the

litigant damaged by this can always have the counter evidence referred to
in paragraph 2 of Article 2 above examined.

CHAPTER VII
ON INCIDENTAL MATTERS

Article 387. The concept of incidental matters.

Incidental matters are those which are different from those which constitute
the main subject of the case, but have an immediate relationship thereto,
as well as those which might arise concerning procedural presuppositions
and requirements which might have a bearing on the proceedings.

Article 388. The general rule on procedure.

Incidental matters for no other formalities are provided herein shall be dealt
with in the manner set forth in this chapter.

Article 389. Incidental matters with special pronouncements.

Incidental matters shall have special pronouncements if they require that

the court decide on these separately in the judgement before deciding the
main purpose of the case.

Such matters shall not suspend the ordinary course of the proceedings.

Article 390. Incidental issues to be decided beforehand.

Suspension of the course of the claim. When the nature of issues entail an
obstacle to the continuation of the trial through its ordinary steps, the
course of the procedure shall be suspended until such issues are resolved.

Article 391. Issues to be decided beforehand. Cases.

Besides those expressly determined in law, incidental issues which refer to

the following shall be given the same consideration as in the preceding case:
(i). To the capacity and representation of any of the litigants regulated
in Articles 414 et seq.

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(ii). To the defect in another procedural presupposition or the event of

an obstacle of the same nature, on condition that these arose after the
hearing stipulated in the articles cited in the preceding number.
(iii). To any other incident which might arise during the trial, on which
decision is absolutely necessary, de facto or de iure, in order to decide
on the continuance of the trial through its ordinary steps or its
termination.

Article 392. Putting forward incidental issues. Inadmission of issues which

are not incidental.

1. Incidental issues shall be put forward in writing, with the relevant

documents attached and the proposal of evidence which might be
necessary, and it shall be stated whether, in the opinion of the party
proposing the issue, the normal course of the procedure must be
suspended until the issue has been decided.

2. The court shall reject the presentation of any issues which are not in any
of the preceding cases by means of a court order.

Article 393. Admission, performance and decision on incidental issues.227

1. In ordinary procedure, once the trial begins, the presentation of incidental

issues shall not be admitted, and in verbal procedure, once the evidence
proposed is admitted.

2. In the procedural court order, which shall give the succinct reasons for
admitting the posing of the issue, it shall be decided whether the issue
must be considered beforehand or by special pronouncement, and, in the
former case, the ordinary course of procedure shall be suspended.

3. The Court Clerk shall transfer the draft with the issue to the other parties,
who may respond as they deem appropriate within a time limit of five days
and, once this time limit has elapsed, the Court Clerk shall summon the
parties to appear before the court, stating the day and time for the hearing
which shall be held in accordance with the provisions for hearings in oral
trials.

4. Once the allegations have been formulated and, as appropriate, the

evidence which is admitted at the same hearing has been examined, if the

227
Paragraph 3 worded in accordance with Act 13/2009, of 3 November.

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question involves a previous pronouncement, within a time limit of ten

days, a court order shall be issued with a decision on the issue and
providing what is appropriate as regards the continuation of the
proceedings.

If the question involves a special pronouncement, it shall be decided, duly

separated, in the final judgement.

5. When the issue is decided through a court order, and the decision is to
terminate the proceedings, an appeal may be lodged, and, if the decision
is that the proceedings shall continue, there shall be no appeal,
notwithstanding the fact that the party damaged may challenge the
decision and appeal the final judgement.

CHAPTER VIII
ON ORDERS TO PAY COSTS

Article 394. Orders to pay costs in the first instance.

1. In declaratory proceedings, the costs in the first instance shall be

imposed on the party who has had his pleas rejected unless the court
considers and reasons that the case may pose serious de facto or de iure
doubts.

For the purposes of ordering a party to pay costs, in order to verify that the
case is legally doubtful, the jurisprudence of similar cases shall be taken
into account.

2. If the upholding or dismissal of the pleas is partial, each party shall pay the
costs involved in his proceedings and the common costs shall be shared equally,
unless there are reasons to impose the costs on one of these as he litigated
recklessly.

3. In application of the provisions in paragraph 1 of this article, when the

costs are imposed on the litigant who has lost the case, only he shall be
obliged to pay the full amount of the part which corresponds to the
attorneys and other professionals who are not subjects to rates or dues,
which shall not exceed one third of the cost of the proceedings, for each of
the litigants in this situation. Solely for such effects, the pleas which cannot
be estimated shall be valued at €18000, unless, due to the complexity of
the case, the court decides otherwise.

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The provisions in the preceding paragraph shall not apply when the court
declares the recklessness of the litigant ordered to pay costs.

When the party ordered to pay costs is the holder of the right to free legal
assistance, he shall only be obliged to pay the costs arising in defence of the
counter-party in the cases expressly stated in the Free Legal Assistance Act.

4. In no case shall the costs of the Public Prosecution Service be imposed

in the proceedings where this Service intervenes as a party.

Article 395. Orders to pay costs in cases of acceptance of a claim.228

1. If the defendant accepts the claim before responding, there shall be no

imposition of costs unless the court duly reasons the matter and observes
bad faith in the defendant.

In any case, it shall be understood that there is bad faith if, before the
claim is filed, an irrefutable and justifiable requirement for payment is
served on the defendant, or if mediation proceedings have been initiated
or a request for reconciliation has been brought against them.

2. If the acceptance of claim occurs after the response to the claim,

paragraph 1 of the preceding article shall apply.

Article 396. Orders to pay costs when the proceedings terminate in

abandonment.

1. If the proceedings terminate due to abandonment by the claimant, and

the defendant does not consent, the claimant shall be ordered to pay all
the costs.

2. If the abandonment which terminated the proceedings is consented by

the defendant or the defendants, none of the litigants shall be ordered to
pay costs.

Article 397. Appeals concerning costs.

The provisions in Article 394 shall apply in order to decide remedies to

appeal in the second instance, which shall challenge the order or the
absence of an order to pay the costs of the first instance.

228
Paragraph 1 is amended by final provision 3.2 of Law 15/2015, of 2 July.
Paragraph 1(2) amended by final provision 3.9 of Law 5/2012 of 6 July.

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Article 398. Costs in appeal, extraordinary appeal for breach of procedure

and cassation.

1. When all the pleas for a remedy of appeal, extraordinary appeal for
breach of procedure or cassation are dismissed, Article 394 shall apply
with regard to the costs of the appeal.

2. In the event that a remedy of appeal, recourse to appeal for breach of

procedure or cassation is upheld either in full or in part, none of the litigants
shall be ordered to pay the costs of such appeals.

TITLE II
ON DECLARATORY ACTIONS

CHAPTER ONE
ON THE INITIAL ALLEGATIONS

Section 1. On the claim and its purpose

Article 399. The claim and its content.

1. The proceedings shall begin with a claim in which, once the identification
data and circumstances of the claimant and the defendant and the address
or place of residence where they can be ordered to attend are consigned
pursuant to Article 155, the facts and the grounds in law shall be put
forward numbered and separately, and what is requested shall be
established clearly and with precision.

2. Together with the designation of the claimant, mention shall be made of

the names and surnames of the court representative and the attorney,
when these intervene.

3. The facts shall be narrated in an orderly and clear manner in order to

facilitate their admission or rejection by the defendant when he replies.
The documents, means and instruments which are provided in relation to
the facts on which the pleas are based shall be stated with the same order
and clarity and, finally, evaluations or reasoning shall be formulated
regarding these if this appears to be advisable for the rights of the litigant.

4. In fundamental points of law, besides those which refer to the grounds

of the case in question, the proper allegations on the capacity of the

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parties, their representation or that of the court representative, jurisdiction,

competence and type of proceedings in which the claim must be
substantiated shall be included, with the proper separation, as well as any
other facts on which the validity of the proceedings and the correctness of
the judgement on the grounds of the case might depend.

5. In the petition, when several judicial rulings are sought, these shall be
stated duly separated. Petitions formulated subsidiarily in case the main
petitions are dismissed, shall be recorded in order and separately.

Article 400. Final deadline for the allegation of facts and legal grounds.

1. When what is requested in the claim may be based on several facts or

on different legal grounds or entitlements, the claim must include all those
which are known or may be invoked when the claim is lodged, and it is not
admissible to reserve an allegation for subsequent proceedings.

The burden of the allegation referred to in the preceding paragraph shall

be understood notwithstanding any additional allegations or new facts or
news permitted under this Act at times subsequent to the claim and the
defence.

2. In accordance with the provisions in the preceding paragraph, for the

purposes of lis pendens and res judicata, the legal facts and the grounds
put forward in a lawsuit shall be considered to be the same as those
alleged in previous proceedings, if this was possible.

Article 401. The precluding time for the joinder of actions. Objective and
subjective extension of the claim.

1. A joinder of actions shall not be permitted after the claim has been
answered.

2. Before the answer, the claim may be extended in order to accrue actions
other than those lodged or these may be directed against other defendants.
In this case, the time limit for answering the claim shall count from the time
notice was served of the extension of the claim.

Article 402. Opposition to the joinder of actions.

The defendant may oppose the intended joinder of actions in the statement
of defence when this is not in consonance with the provisions in Articles 71
et seq. herein. This opposition shall be resolved in a pre-trial hearing.

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Article 403. Admission and exceptional cases of non-admission of the

claim229

1. Claims shall not be admitted only in the cases and for the reasons
expressly stipulated herein.

2. Claims shall not be admitted when the documents which the law
expressly requires for their admission are not attached or attempts at
reconciliation have not been made or the demands, claims or deposits
required in special cases have not been made.

Article 404. Admission of the claim, order to the defendant to attend and
time limit for the defence.230

1. Having examined the claim, the Court Clerk shall issue an order
admitting the claim and shall give notice of this to the defendant so that he
might respond within a time limit of twenty days.

2. However, the Court Clerk shall notify the court so that it might decide on
the admission in the following cases:
1. when it considers that there is a lack of jurisdiction or competence of
the court or
2. when the claim has formal defects and these have not been rectified
by the claimant within the time limit granted for this by the Court Clerk.

3. In proceedings in which Articles 81 and 82 of the European Community

Treaty apply or Articles 1 and 2 of the Defence of Free Competition Act
apply, the Court Clerk shall give notice of the decision to admit the claim to
the National Free Competition Commission within the time limit stipulated
in the first paragraph.

Section 2. On the statement of defence and the counterclaim

Article 405. Statement of defence and the manner of the statement of

defence.231

1. In the statement of defence, which shall be drafted in the manner set

forth in Article 399, the defendant shall put forward the grounds for his

229
Amended by final provision 4.11 of Law 7/2015 of 21 July.
230
Article worded in accordance with Act 13/2009 of 3 November.
231
Paragraph 4 added by Act 13/2009, of 3 November.

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opposition to the claimant’s pleas, alleging the material exceptions which

he considers convenient. If the joinder of actions is considered to be
inadmissible, he shall state this, expressing the reasons for this
inadmissibility. He may also state in his statement of defence his
acceptance of the claim as regards one or some of the pleas of the
claimant, as well as his acceptance of part of a single plea put forward.

2. In the statement of defence, the facts put forward by the claimant shall
have to be denied or admitted. The court may consider silence or the
evasive responses of the defendant as tacit admission of the facts which
might be damaging to him.

3. In the statement of defence, the defendant shall also have to put forward
the procedural exceptions and the other allegations which show the
obstacles to the valid processing and termination of the proceedings
through a judgement on the grounds of the case.

4. As regards the rectification of possible defects in the drafting of the

statement of defence, the provisions in sub-paragraph 2 of paragraph 2 of
the preceding article shall apply.

Article 406. Content and manner of the counterclaim. Inadmissibility of

the counterclaim not connected to the claim and the implicit counterclaim.

1. On responding to the claim through a counterclaim, the defendant may

formulate the plea or pleas which he believes are within his competence in
relation to the claimant. A counterclaim shall only be admitted if there is a
connection between his pleas and those which are the subject of the main
claim.

2. A counterclaim shall not be admitted when the court lacks objective

jurisdiction due to the matter or the amount or when the action which is
brought must be dealt with in proceedings of a different type or nature.

However, a connected action may be brought through a counterclaim

when, due to the amount, it must be dealt with in an oral trial.

3. A counterclaim shall be proposed after the defence and shall be in

consonance with what is established for the claim in Article 399. A
counterclaim must clearly state the specific judicial protection it is intended
to obtain with regard to the claimant and, as appropriate, with regard to
other parties. In no case shall a counterclaim be considered as formulated

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in the draft of the defendant which finalises by seeking his acquittal as

regards the plea or pleas of the main claim.

4. The provisions for the claim set forth in Article 400 shall apply to the
counterclaim.

Article 407. Recipients of the counterclaim. Answer to the counterclaim.

1. The counterclaim may also be brought against non-claimants, as long

they can be considered as the voluntary or necessary joint litigants of the
claimant against whom the counterclaim was filed due to their relationship
with the counterclaim’s matter at issue.

2. The claimant against whom the counterclaim is filed and the individuals
set forth in the preceding paragraph may file an answer to the counterclaim
within twenty days from the date on which notice of the counterclaim is
served. Such defence shall be in accordance with the provisions set forth
in Article 405.

Article 408. Procedural treatment of pleas for compensation and for the
nullity of the legal dealings upon which the claim is grounded. Res
judicata.232

1. Should the defendant allege the existence of credit that may be offset
against the claimant’s plea for an order involving the payment of an amount
of money, such plea may be contested by the claimant in the manner set
forth for filing a defence to the counterclaim, even where the defendant
should solely seek his absolution and not an order for the balance that
may turn out to be in his favour.

2. Should the defendant allege in his defence facts that would lead to the
total nullity of the dealings upon which the claimant’s plea or pleas are
grounded and should the claim have taken the validity of such dealings for
granted, the claimant may request the Court Clerk to respond to the
aforementioned plea for nullity within the same time limit for filing an
answer to the counterclaim, and the Court Clerk shall do so by means of a
decision.

3. The judgement that may definitively be issued shall rule on the points
referred to in the preceding paragraphs of this Article and the decisions the
judgement may contain on such points shall have the force of res judicata.

232
Section 2 worded in accordance with Act 13/2009, of 3 November.

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Article 409. Conducting and deciding on the pleas contained in the

defence and the counterclaim.

Any pleas the defendant may set forth in the defence and, as appropriate,
in the counterclaim shall be conducted and decided upon at the same time
and in the same manner as the pleas contained in the main claim.

Section 3. On the effects of lis pendens

Article 410. Commencement of lis pendens.

Lis pendens along with all its procedural effects shall come about from the
moment the claim is brought, should it then be given leave to proceed.

Article 411. Perpetuation of jurisdiction.

Any changes that may come about to the parties’ domiciles, the situation
of the matter at issue and the purpose of the trial once the proceedings
have been initiated shall not lead to a change in jurisdiction or competence,
which shall be determined according to whatever may have been
established at the initial moment of lis pendens.

Article 412. Prohibition of changes in the claim and admissible

amendments.

1. Once the matter at issue of the proceedings has been established in the
claim, in the defence of claim or, as appropriate, in the counterclaim, the
parties may not subsequently change it.

2. The provision set forth in the preceding paragraph shall be construed to

be notwithstanding the entitlement to enter additional pleas under the
terms set forth herein.

Article 413. Influence of a change of circumstances in the judgement on

the grounds. Out-of-court satisfaction. Loss of legitimate interest.

1. Any changes the parties or third parties may introduce to the state of
affairs or to the persons that gave rise to the claim and, as appropriate, the
counterclaim once the trail has commenced shall not be taken into account
in the judgement, except where such changes should definitively lead to a
loss of legitimate interest of the pleas contained in the claim or in the
counterclaim as a result of such pleas having been satisfied outside the
court or due to any other reason whatsoever.

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2. Where pleas have been left without a legitimate interest in accordance

with the provisions set forth in the preceding paragraph, those set forth in
Article 22 shall apply.

CHAPTER II
ON THE PRELIMINARY HEARING BEFORE THE TRIAL

Article 414. Purpose, procedural stage and individuals involved at the

hearing.233

1. Once the defence to the claim or, as appropriate, the counterclaim has
been filed or the corresponding time limits have elapsed, the Court Clerk
shall summon the parties within three days to a hearing, which shall be
held within twenty days from the date it is called.

If they had not been informed beforehand, the parties shall be informed in
the summons of the possibility of recurring to negotiations in an effort to
resolve the dispute, including the recourse to mediation, in which case the
parties shall inform about their decision in this regard and the reasons
thereof at the hearing.

The hearing shall be conducted in accordance with the provisions set forth
in the following articles in order to attempt to reach an agreement or
settlement between the parties which brings the proceedings to an end, to
examine any procedural issues that may hinder the course of the
proceedings and their termination through a judgment on the matter at
issue, to establish such matter accurately along with any facts and legal
details in dispute among the parties and, as appropriate, to propose and
admit evidence.

Depending on the matter at issue in the proceedings, the court may invite
the parties to attempt to reach an agreement which brings the proceedings
to an end through a mediation procedure, urging them to attend an
informative session.

2. The parties shall appear at the hearing with the assistance of their
attorneys.

Where the parties do not attend in person but do so through their court
representative, they shall grant powers of attorney to the latter to waive,

233
Paragraph 1 amended by final provision 3.10 of Law 5/2012 of 6 July.

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acquiesce or reach a settlement for the purposes of attempting to reach an

agreement or settlement. Should they neither appear in person nor grant
such power of attorney, they shall be construed to have failed to appear at
the hearing.

3. Should neither party appear at the hearing, a certificate recording such

fact shall be drawn up and the court shall issue a court order without
further ado dismissing the proceedings, ordering the case to be shelved.

The proceedings shall also be dismissed should only the defendant appear
at the hearing and fail to enter a plea of legitimate interest in continuing
with the proceedings so that a judgement on their grounds may be issued.
Should it be the defendant who fails to appear, the hearing shall be held
with the claimant to deal with any matters that may turn out to be
appropriate.

4. Should the claimant’s attorney fail to appear at the hearing, the

proceedings shall be dismissed, except where the defendant should enter
a plea of legitimate interest in continuing with the proceedings so that a
judgement on their grounds may be issued. Should the defendant’s
attorney fail to appear, the hearing shall be held with the claimant to deal
with any matters that may turn out to be appropriate.

Article 415. Attempt at conciliation or settlement. Dismissal due to

abandonment by the parties. Validation and effectiveness of the
agreement.234

1. Once the parties have appeared, the court shall declare the hearing
open and verify if the dispute between them persists.

Should the parties state they have reached an agreement, or show they
are ready to do so immediately, they may abandon the proceedings and
seek the court’s validation of the matters agreed upon.

The parties may also jointly request a stay of the proceedings in accordance
with the provisions of paragraph 4 of article 19 in order to submit to
mediation.

In this case, the court shall previously verify that the requirements have
been met regarding the legal capacity and power of disposition of the

234
Paragraph 1 is amended by single article 47 of Law 42/2015, of 5 October.
Paragraphs 1 and 3 amended by final provision 3.11 of Law 5/2012 of 6 July.

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parties, or their duly accredited legal representatives, attending the

hearing.

2. The agreement validated by the court shall have the effects granted by
the law to court settlements and may be put into effect through the
procedures laid down to execute judgments and court-approved
agreements. Such agreement may be contested on the basis of the causes
and in the manner laid down for court settlements.

3. Should the parties fail to reach agreement, or show they are unwilling to
do so immediately, the hearing shall proceed in accordance with the
articles below.

Where the proceedings have been stayed in order to resort to mediation,

either of the parties may request the stay to be lifted and a date to be set
for the hearing to continue once the mediation procedure has come to an
end.

Article 416. Examination of and decision on procedural issues, exclusion

of issues concerning jurisdiction and competence.

1. Once an agreement between the parties has been discarded, the court
shall issue a decision on any circumstances which may impede the
proceedings from being validly conducted and brought to an end through a
judgement on their grounds and, in particular, on the following:
a) The litigants’ lack of capacity or representation of several kinds;
b) Res judicata or lis pendens;
c) Lack of due joint litigation;
d) Inappropriateness of the proceedings;
e) Legal defect in the way the claim or, as appropriate, the counterclaim
has been filed due to a lack of clarity or accuracy with regard to
determining the parties or the plea to be deduced.

2. The defendant may not plead the court’s lack of jurisdiction or

competence at the hearing, which shall be done by means of a declinatory
plea in accordance with Articles 63 and the following herein.

The provision set forth in the preceding paragraph shall be construed to be

notwithstanding the court appreciating its lack of jurisdiction or competence
on an ex officio basis in accordance with the provisions laid down by the law.

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Article 417. Order to examine procedural issues and decision on them.

1. Where the hearing should deal with several of the circumstances

referred to in the preceding article, they shall be decided in the order in
which they appear in the following articles.

2. Where the hearing should deal with one or more of the issues and
circumstances set forth in the preceding article, the court shall decide in
the same court order on all of them which may have been raised and have
not been resolved orally at such hearing in accordance with the following
article within five days.

Article 418. Defects of capacity or representation. Effects of not rectifying

or correcting such defects. Declaring default.

1. Where the defendant has alleged in the defence of claim defects of

capacity or representation which are rectifiable or susceptible to correction
or the claimant should do the same at the hearing, such defects may be
rectified or corrected at the hearing and, should it not be possible at that
moment, a time limit not exceeding ten days to do so shall be granted. In
the meantime, the hearing shall be adjourned.

2. Where the defect or fault is neither rectifiable nor may be corrected, or

should they fail to be corrected within the time limit granted, the hearing
shall be construed to have come to an end and a decision bringing the
proceedings to an end shall be issued, except for the provisions set forth
in the following paragraph of this article.

3. Should an uncorrected defect prevent the defendant from properly

making an appearance, he shall be declared to be in default without any of
the procedures that have been conducted being entered in the records.

Article 419. Admission of a joinder of actions.

Once the issues of capacity and representation have been raised and
resolved as appropriate, the court shall orally take a decision on the
appropriateness and admissibility of joinder should the claim have joined
several actions and the defendant has contested such joinder in his
defence of claim stating his grounds after first hearing the claimant at the
same hearing. The hearing and the proceedings shall then follow their
course with regard to the action or actions that may constitute the
proceedings’ matter at issue according to the court’s decision.

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Article 420. Potential voluntary integration of legal action. Decision in

cases of necessary joint litigation in dispute.235

1. Where the defendant may have entered a plea alleging a lack of due
joint litigation in the defence of claim, the claimant may file a written
statement and its corresponding copies at the hearing bringing the claim
against the subjects the defendant considers should have been his joint
litigants. Should the court deem such joint litigation appropriate, it shall so
declare and order the new defendants to be summoned so that they may
defend the claim and the hearing shall be adjourned.

Upon bringing the claim against the joint litigants, the claimant may only
add pleas to those contained in the initial claim which are essential to
justify the pleas made against the new defendants without substantially
altering the basis of the claim.

2. Should the claimant contest the lack of joint litigation raised by the
defendant, the court shall hear the parties on this point and, where the
difficulty or complexity of the issue may so suggest, it may issue a decision
through a court order, which shall be issued within five days from the date
the hearing is held. In any event, the hearing shall continue dealing with its
other aims.

3. Should the court deem joint litigation appropriate, it shall grant the
claimant the time limit it may consider appropriate to constitute it, which
may not be less than ten days. The new defendants may file an answer to
the claim within the time limit set forth in Article 404, and in the meantime
the course of the proceedings shall be stayed for both the claimant and the
defendant.

4. Once the time limit granted to the claimant to constitute joint litigation
has elapsed without the claimant having provided copies of the claim and
attached documents to the new defendants, the proceedings shall be
brought to an end by means of a court order and the procedures shall be
definitively shelved.

Article 421. Decision in cases of lis pendens or res judicata.

1. Should the court find that another trial is pending or the existence of a
final and unassailable judgement on an identical matter at issue pursuant

235
Paragraph 4 worded in accordance with Act 13/2009 of 3 November.

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to the provisions set forth in paragraphs 2 and 3, Article 222, it shall bring
the hearing to an end and issue a court order for dismissal within five days.

Nonetheless, the proceedings shall not be dismissed should the effect of a

prior final and unassailable judgement have to be binding for the court
dealing with the subsequent trial, pursuant to paragraph 4, Article 222.

2. Should the court deem lis pendens or res judicata to be non-existent, it

shall so declare, stating its grounds, at the hearing and decide that it shall
continue to deal with its other aims.

3. Notwithstanding the provisions set forth in the preceding paragraphs,

where the difficulty or complexity of the issues raised on lis pendens or res
judicata should so suggest, the court may also take a decision on such
issues by means of a court order within five days from the date of the
hearing, which shall in any event continue to deal with its other aims.
Should it be necessary to issue a decision on any matters of fact, the
relevant procedures ordered by the court shall be conducted within the
aforementioned time limit.

Article 422. Decision in cases of the proceedings’ inappropriateness due

to reasons of amount.236

1. Should a plea on the inappropriateness of the proceedings set forth in the

defence to the claim be grounded on a dispute concerning the amount of the
matter at issue or manner of calculating the claim’s amount according to legal
rules, the court shall hear the parties at the hearing and decide in such
hearing on whatever may be appropriate, taking into consideration in such a
case any agreement the parties may have reached regarding the value of the
matter at issue.

2. Should no agreement be reached regarding the matter at issue, the

court shall decide orally on whatever may be appropriate at the same
hearing, stating its grounds and taking into consideration any documents,
reports and any other useful elements which the parties may have
submitted to calculate such value.

Should following the procedures of an oral trial be appropriate, the Judge

shall bring the hearing to an end and proceed to set a date to hold such
trial, except where the claim may have been brought after the expiry

236
Section 2 worded in accordance with Act 13/2009, of 3 November.

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deadline for the matter at issue as laid down by the law. In such a case, the
Judge shall declare proceedings’ dismissal.

Wherever setting a date for the trial may be done at the same hearing, it
shall be done by the Judge, taking into account the needs of the schedule
of dates set and the other circumstances set forth in Article 182.4.

In all other cases, it shall be set by the Court Clerk pursuant to the
provisions set forth in Article 182.

Article 423. Decision in cases of the proceedings’ inappropriateness due

to the matter at issue.237

1. Should a plea on the inappropriateness of the proceedings be grounded

on the proceedings corresponding to the matter at issue not being followed,
the court shall issue a decision at the hearing on whatever it may deem
appropriate after hearing the parties. Should it deem the plea groundless,
the hearing shall proceed to deal with its other aims.

2. Should the complexity of the matter so suggest, the court may also
issue a decision on whatever may be appropriate within five days of the
hearing, which shall in any event proceed to deal with its other aims.

3. Should the appropriate proceedings be an oral trial, the court shall order
the Court Clerk to summon the parties for the hearing, except where the
claim may have been brought after the expiry deadline for reasons of the
matter at issue as laid down by the law. In such a case, the proceedings’
dismissal shall be declared.

The Court shall also order the proceedings’ dismissal should the special
requirements to give the claim leave to proceed laid down by the laws due
to reasons of the matter at issue not have been met.

Article 424. Procedures and decision in the event of a defective claim.

1. Should the defendant allege in the defence to the claim a lack of clarity
or accuracy in the claim to determine the parties or the pleas deduced
thereof, or should the claimant allege at the hearing the same defects in
the defence to the claim or in the counterclaim, or should the court
appreciate one or other on an ex officio basis, the court shall allow the
relevant clarifications and explanations to be made at the hearing.

237
Paragraph 3 worded in accordance with Act 13/2009 of 3 November.

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2. Should such clarifications and explanations not be put forward, the court
shall solely decide on the case’s dismissal if it is totally impossible to
determine what the claimant’s pleas consist of or, as appropriate, what the
defendant’s pleas in the counterclaim are, or against which legal persons
the pleas are being brought.

Article 425. Court’s decision in the event of procedural circumstances

analogous to the ones expressly set forth.

Any decisions on circumstances alleged or revealed on an ex officio basis,

which are not included under Article 416, shall be in keeping with the rules
set forth in these provisions for analogous circumstances.

Article 426. Additional and clarifying pleas. Additional pleas. Facts

occurring or known subsequent to the claim and the defence of claim.
Filing of documents on such matters.

1. The litigants may make additional pleas at the hearing with regard to
whatever may have been stated by the other party without substantially
changing their pleas or the grounds thereof as set forth in their written
statements.

2. The parties may also clarify any pleas they have filed and rectify
secondary details thereof, as long as such pleas or their grounds are not
changed.

3. Should a party wish to add an additional or complementary plea to the

pleas set forth in their written statement, such addition shall be given leave
to proceed if the other party is in agreement. Should the other party contest
it, the court shall decide on the addition’s admissibility, which shall only be
granted should the court deem that it being raised at the hearing does not
harm the other party’s right to exercise its defence under equal conditions.

4. Should a relevant fact to ground the parties’ pleas come about after the
claim or the counterclaim or should the parties become aware of a prior
fact of such nature, they may allege such fact at the hearing.

The provisions set forth in paragraph 4, Article 286 shall apply to any
allegations concerning a new fact or new knowledge thereof.

5. The parties may submit documents and opinions at the hearing that can be
justified on the basis of the additional pleas, rectifications, petitions, additions
and new facts referred to in the preceding paragraphs of this article.

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The provisions set forth in Articles 267 and 268 herein shall apply to the
submission of such documents on the basis of their classes.

6. The court may also require the parties to make clarifications or provide
necessary details on the facts and arguments contained in their written
statements of claim or defence. Should they fail to make such clarifications
or provide such details, the court shall warn them that it may deem them to
be in agreement with the facts and arguments put forward by the other party.

Article 427. Stance of the parties with regard to documents and opinions
submitted.

1. At the hearing, each party shall set forth its stance with regard to the
documents submitted by the other party up to that moment, stating whether
they admit or recognise them or whether, as appropriate, they propose the
taking of evidence on their authenticity.

2. Should it be the case, the parties shall state whatever may be conducive to
their rights with regard to the experts’ opinions submitted up to that point,
admitting them, contradicting them or proposing they be extended to cover
any points they may deem necessary. They shall also set forth their stance on
whatever may have been submitted under item 5, paragraph 1, Article 265.

3. Should the allegations or pleas referred to in the first three paragraphs

of Article 426 give rise to all or any of the parties needing to file any expert’s
opinion in the proceedings, they may do so within the time limit set forth in
paragraph 2, Article 338.

4. In the same case as set forth in the preceding paragraph, the parties
attending the hearing may seek at such hearing the appointment by the
court of an expert to issue an opinion instead of submitting the opinion of
an expert they have freely chosen. Such application shall be decided upon
in accordance with the provisions set forth in the Section 5, Chapter VI,
Title I of Book II herein.

Article 428. Establishing the facts at issue and possible immediate

judgement.

1. The hearing shall continue, so that the parties or their attorneys may
establish along with the court the facts about which the litigants may be in
agreement or disagreement.

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2. In view of the matter at issue, the court may urge the parties or their
representatives and attorneys to come to an agreement to bring the
dispute to an end. Should it be the case, the agreement set forth in Article
415 herein shall apply.

3. Should the parties fail to bring the dispute to an end through an

agreement pursuant to the preceding paragraph whilst being in agreement
with regard to all the facts and the dispute is reduced to a legal issue or
issues, the court shall issue a judgement within twenty days counting from
the date following the end of the hearing.

Article 429. Proposing and admitting evidence. Setting a hearing date.238

1. Should there neither be agreement between the parties to bring the

dispute to an end nor an agreement on the facts, the hearing shall continue
in order to propose and admit evidence.

Evidence will be proposed orally, without prejudice to the obligation on the

parties to provide details of it in a written act, which may be completed
during the hearing. Failure to submit this writ will not give rise to non-
admission of the evidence, but will be conditional on its submission within
the following ten days.

Where the court deems that the evidence put forward by the parties could
turn out to be insufficient to clarify the facts at issue, it shall inform the
parties thereof, stating the fact or facts at issue which, in the court’s
opinion, could be affected by insufficient evidence. Upon making such
statement, the court may also point out the evidence which it may deem
appropriate, taking into consideration the probative elements whose
existence is reflected in the records.

In the case referred to in the preceding paragraph, the parties may

complete or amend their proposals of evidence in the light of the court’s
statement.

2. Once relevant and useful evidence has been admitted, the date of the
hearing shall be set, which must be held within one month of the end of the
hearing.

238
Paragraph 1 is amended by single article 48 of Law 42/2015, of 5 October.
Paragraphs 2, 3 and 7 of this article have been worded in accordance with Act 13/ 2009 of 3 November .

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Wherever such date may be set at the same hearing it shall be set by the
Judge, taking into account the needs of the schedule of dates set and the
other circumstances set out in Article 182.4.

In all other cases, it shall be set by the Clerk of the Court in accordance
with the provisions of Article 182.

3. Where all the evidence, or a large part of it, has been taken outside the
premises of the Court dealing with the proceedings, the Court may, at the
request of a party, agree that the Clerk of the Court set the date for the
hearing within a period of two months.

4. Any evidence which is not taken at the hearing shall be taken prior to it.

5. The parties shall indicate which witnesses and experts they undertake
to bring to the hearing and which witnesses and experts the court shall
have to summon. The summons to attend shall be agreed upon at the
hearing and shall be served sufficiently in advance.

The parties shall also indicate which statements and questioning they
consider should be performed using judicial assistance. The court shall
decide on whatever may be appropriate in this regard and, should it deem
judicial assistance necessary, the court shall agree to send the necessary
letters rogatory, granting the parties a time limit of three days to submit a
list of questions, should this be necessary. In any event, the hearing shall
not be suspended should such letters rogatory not be answered.

6. It shall not be necessary to summon any parties that may have appeared
at the preliminary hearing personally or through their procurator.

7. Exceptionally, where it can be foreseen that the hearing cannot end in

single session on the date set due to the evidence admitted, the summons
shall indicate such fact, state its grounds and indicate whether the
subsequent session or sessions shall take place on the immediately
following day or days or on other dates, which shall be set by the Clerk of
the Court. In any event, the time at which the hearing’s sessions shall
begin shall always be indicated.

8. Where the only evidence that has been admitted consists of documents
and these have already been filed in the proceedings without being
contested, or where experts’ reports have been filed and neither the parties
nor the court have requested the experts’ presence at the hearing to ratify
their reports, the court shall proceed to issue a judgment within twenty

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days after the hearing is brought to an end without holding a hearing

beforehand.

Article 430. Application to set a new date for the trial.

Should anybody who has to attend the trial be unable to do so due to

causes of force majeure or other similar reasons, they may seek a new
trial date to be set. Such application shall be conducted and resolved in
accordance with the provisions set forth in Article 183.

CHAPTER III
ON THE TRIAL

Article 431. Purpose of the trial.

The purpose of the trial shall be to examine the evidence given by the
parties’ testimony, the evidence given by the witnesses, contradictory oral
experts’ reports, examination of evidence by the court and, as appropriate,
to reproduce words, images and sounds. Likewise, once the evidence has
been taken at the trial, conclusions shall be drawn from it.

Article 432. Appearance and failure to appear by the parties.

1. Notwithstanding the personal interventions in any questioning that may

have been admitted, the parties shall appear at the trial represented by
their court representative and with the assistance of their attorney.

2. Should none of the parties appear, a certificate shall be drawn recording

such fact and the court shall without further ado declare the case ready for
judgement. Should only one of the parties appear, the trial shall be held.

Article 433. Conducting the trial.

1. The trial shall commence by taking the evidence admitted in accordance

with the provisions set forth in Article 299 and the following. Nonetheless,
should a violation of fundamental rights be or have been raised in the
taking of any of the evidence, a decision on such matter shall first be
issued.

Likewise, should any facts have occurred or have been known after the
preliminary hearing, the parties shall be heard and the proposal and
admission of evidence set forth in Article 286 shall be conducted before
the evidence is taken.

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2. Once the evidence has been taken, the parties shall orally state their
conclusions on the facts at issue, setting them out in an orderly, clear and
concise fashion as to whether, in their mind, the relevant facts have been
or should be admitted and, as appropriate, proven or uncertain.

To such a purpose, they shall give a brief summary of the evidence taken
with regard to such facts, referring in detail, as appropriate, to the trial’s
records. Should they construe that some fact should be taken as certain
by virtue of an assumption, they shall state such assumption and ground
their criteria. They may likewise allege whatever may result from the
burden of proof of any facts they may consider doubtful.

Concerning the outcome of the evidence and the application of the rules
on assumptions and on the burden of proof, each party shall commence
by referring to the facts put forward to support their pleas and shall continue
with the facts raised by the other party.

3. Once their conclusions on the facts at issue have been set forth, each
party may inform about the legal arguments grounding their pleas, which
may not be changed at that moment.

4. Should the court deem it has not been sufficiently informed about the
case through the conclusions and reports set forth in the preceding
paragraphs, it may give the floor to the parties as many times as it may
deem suitable to be informed about any issues it may indicate.

CHAPTER IV
ON THE JUDGEMENT

Article 434. Judgement.239

1. The judgement shall be issued within twenty days following the end of
the trial.

2. Should any final proceedings be agreed upon in accordance with the

provisions set forth in the following articles within the time limit to issue a
judgement, such time limit to issue judgement shall be suspended.

3. The time limit to issue judgement may be suspended in proceedings

dealing with the application of Articles 81 and 82 of the Treaty establishing

239
Number 3 added by Act 15/2007 of 3 July.

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the European Community or Articles 1 and 2 of the Defence of Free

Competition Act where the court is aware of the existence of administrative
proceedings being conducted before the European Commission, the
National Free Competition Commission or the competent bodies of the
autonomous regions and knowing the decision issued by the administrative
body is essential. Such suspension shall be adopted stating its grounds
after hearing the parties, and notice thereof shall be given to the administrative
body. Such administrative body shall in turn transfer its decision to the court.

Only an appeal for reversal may be lodged against such order for suspension.

Article 435. Final proceedings. Appropriateness.

1. The court may solely agree to the taking of evidence as final proceedings
at the request of a party in accordance with the following rules:
a) The taking of evidence shall not be conducted as final proceedings if
it could have been conducted in time and in the appropriate manner by
the parties, including any evidence which may have been put forward
after the court statement referred to in paragraph 1, Article 429.
b) Where any of the evidence admitted has not been taken for reasons
not imputable to the party that may have proposed it.
c) The taking of new or newly known evidence that is useful and
relevant, as referred to in Article 286, shall be admitted and taken.

2. Exceptionally, the court may, on an ex officio basis or at the request of a

party, agree upon the taking of new evidence concerning relevant facts
that have been alleged in a timely fashion if the evidence taken beforehand
has not been conducive as a result of no longer existing circumstances
which were independent of the will and diligence of the parties, as long as
there are solid reasons to believe that the new procedures shall provide
certainty regarding such facts.

In such a case, those circumstances and reasons and shall be set forth in
detail in the court order agreeing to such final proceedings being conducted.

Article 436. Time limit for the final proceedings. Subsequent judgement.240

1. The proceedings agreed in accordance with the preceding articles shall

be carried out within a time limit of twenty days and on the date indicated

240
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.

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to this end, if necessary, by the Court Clerk, in the manner established in

the law for the evidence of their kind. Once performed, the parties shall
have five days in which to submit a brief summary and assessment of the
result.

2. The time limit for the passing of judgement shall start to count again
upon expiry of the time limit granted to the parties to submit the brief
referred to in the preceding paragraph.

TITLE III
ON THE ORAL TRIAL

Article 437. Method for claims. Joinder of claims and parties to actions.241

1. The oral hearing will begin with the claim, with the content and form
appropriate to an ordinary hearing, with provisions for such hearing in
relation to dismissal of allegations and lis pendens also being applicable.

2. Nevertheless, in oral hearings where a procurator or lawyer does not

appear, the claimant may make a concise claim, including the data and
identification details of the claimant and defendant and the address or
addresses where they may be summoned, and the claim will be made
clearly and precisely detailing the fundamental facts on which the
application is made.

For this purpose, standard forms may be completed which are available at
the relevant judicial body.

3. If the claim seeks eviction from an urban property on the grounds of

non-payment of the rents or amounts due to the lessor or the legal or
contractual expiry of the term, the claimant may announce in the claim that
he undertakes to condone all or part of the debt of the lessee and the
costs, indicating the exact amount, conditional upon the voluntary
abandonment of the property within the time limit specified by the lessor,
which shall not be less than fifteen days from the day on which notice of
the claim was served. Likewise, the claim may include a request to admit
the application for enforcement of the eviction on the date and at the time
to be specified by the Court for the purposes set out in paragraph 3 of
Article 549.

241
Amended by single article 49 of Law 42/2015, of 5 October.

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4. The joinder of claims in actions shall not be admitted at oral hearings,

with the following exceptions:
(A) The joinder of actions based on the same facts, provided that the
oral hearing is the proper procedure.
(B) The joinder of the action for compensation of damages with another
action which may be prejudicial to the former.
(C) The joinder of actions claiming rents or similar amounts due and
not paid when dealing with hearings for the eviction from a property on
the grounds of non-payment or legal or contractual expiry of the term,
regardless of the amount claimed. Likewise, actions may be joined if
brought against the joint and several guarantor or bondsman after a
prior request for payment which was not complied with.
(D) In separation, divorce or nullity proceedings and in those which
have the purpose of bringing civil effect to ecclesiastical resolutions or
decisions, either of the spouses may, simultaneously, take action to
divide the communal object with regard to the goods that they have
under ordinary communal undivided property. If there are various
goods covered by the ordinary communal undivided property regime
and one of the spouses requests it, the court may consider them as a
whole for the purposes of forming lots or awarding them.

5. Actions may be joined that are brought by one individual against several
others or by several individuals against one other, as long as they comply with
the requirements provided for in Article 72 and paragraph 1 of Article 73.

Article 438. Admission of the claim and response. Counterclaim.242

1. After examining the claim the Clerk of the Court shall admit it, by order,
or notify it to the Court for the latter to decide as appropriate in the cases
provided for in Article 404. Once the claim is admitted, this will be sent to
the defendant so that they respond to it in writing within a period of ten
days in accordance with the provisions for an ordinary hearing. If the
defendant does not appear within the time limit granted they will be
declared to be in default in accordance with article 496.

In cases where it is possible to act without a lawyer or procurator, this will

be shown in the admission order and the defendant will be notified that
there are standard forms available at the court which can be used to
respond to the claim.

242
Amended by single article 50 of Law 42/2015, of 5 October.

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2. Under no circumstances shall a counterclaim be admitted in oral

hearings which, under the law, must end with a judgment without the
effects of res judicata.

In other oral hearings a counterclaim will be admitted as long as it does not

make the oral hearing inadmissible and there exists a connection between
the counterclaims and the claims which are the subject of the main claim.
Once the counterclaim is admitted it will be governed by the rules provided
for ordinary hearings, except for the time limit for the response which will
be ten days.

3. In the response to the claim the defendant may put in for compensation
and the provisions of article 408 shall apply. If the amount of such
compensation is higher than the amount determining the decision to hold
an oral hearing, the Court shall consider the allegation not to have been
made and shall inform the defendant accordingly, so that they may avail
themselves of their right before the court and in accordance with the
appropriate procedures.

4. The defendant, in their response to the claim, must, of necessity,

pronounce on the relevance of the hearing. The claimant will also pronounce
on it, within a period of three days of the response to claim being sent. If
neither of the parties request it and the court does not consider it appropriate
to hold it, judgment will be passed with no further proceedings.

At any event, it will be sufficient that one of the parties requests it for the
Clerk of the Court to set a date and time for it to be held within the following
five days. Nevertheless, at any later time, prior to the hearing being held,
any of the parties may retract their request in consideration that the dispute
affects a matter or matters that are purely judicial. In this case, the other
party will be notified and if, after a period of three days, no allegations are
made or objection declared, the files will be conclusive to pass judgment if
the court deems them to be such.

Article 439. Dismissal of the claim as inadmissible in special cases.243

1. No claims intended to retain or recover possession shall be admitted if

they are lodged more than one year after the act of disturbance or
dispossession.

243
Paragraph 4 amended by Article 4.5 of Act 37/2011 of 10 October

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2. In the cases referred to in number 7 of paragraph 1 of Article 250, the

claims shall not be admitted in the following cases:
(i). If they fail to specify the measures deemed necessary to guarantee
the efficacy of the judgement to be passed.
(ii). If, barring a waiver by the claimant, which he shall specify in the
claim, the latter fails to indicate the security to be put up by the
defendant in accordance with the second subparagraph of paragraph
2 of Article 64, if the said defendant appears and replies to answer for
the proceeds received inappropriately by him, the damages he may
have caused, and the costs of the trial.
(iii). If the claim is not accompanied by a literal certification of the
Property Registry explicitly evidencing the validity, without any
contradiction whatsoever, of the annotation legitimating the claimant.

3. No claims for eviction from an urban property on the grounds of failure

to pay the rents or amounts due by the lessee shall be admitted unless the
lessor indicates the existing circumstances that may, or may not, in the
case at hand, allow the impairment of the eviction.

4. In the cases set forth in items (x) and (xi), paragraph 1 of Article 250,
when the action brought is based on the breach of a moveable property
hire purchase agreement, no claims shall be given leave to proceed if they
are not accompanied by proof of the requirement for payment to the debtor,
with a certification expressing the failure to pay and to deliver the asset, in
accordance with the terms set forth in paragraph 2, Article 16 of the
Moveable Property Hire Purchase Act, as well as a certificate of the
inscription of the assets in the Moveable Property Higher Purchase
Registry in the case of assets required to be entered in the said Registry.
Where actions are exercised grounded on a breach of financial or
moveable property leasing agreements, claims shall be dismissed which
to do not include proof of a requirement for payment served on the debtor,
along with a certification of the failure to pay or deliver the assets, under
the terms laid down by paragraph 3 of the first additional provision of the
Moveable Property Hire Purchase Act.

5. Nor shall the claims of oral trial be admitted if they fail to comply with
any requirements of admissibility that the law may be established for
special cases.

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Article 440. Summons to the hearing.244

1. Once the claim and, as appropriate the counterclaim or claim for

compensation, have been responded to, or once the relevant time limits
have expired, the Clerk of the Court, where a hearing is to be held in
accordance with the provisions of article 438, will summons the parties for
that purpose within the following five days. The hearing must take place
within a maximum of one month.

The summons will set the date and time when the hearing will be held and
the parties shall be informed in the summons of the possibility of recurring
to negotiations in an effort to resolve the dispute, including the recourse to
mediation, in which case the parties shall notify their decision in this regard
and the reasons for it at the hearing.

The summons shall specify that the hearing shall not be suspended if the
defendant fails to attend and the litigants shall be advised that they must
appear with the means of evidence they intend to use, cautioning them
that, should they not attend and their statement is submitted and admitted,
the facts of the examination shall be considered admitted in accordance
with Article 304. Furthermore, both the claimant and the defendant shall be
informed of the provisions of Article 442 in case they fail to appear at the
hearing.

The summons shall also advise the parties that, within a time limit of five
days following receipt of the summons, they shall specify the persons to
be summoned to the hearing by the Clerk of the Court, as the parties
cannot present them themselves, to declare as parties, witnesses or
experts. To this end, they shall provide the particulars and circumstances
required to carry out the summons. Within the same time limit of five days,
the parties may request written replies drawn up by legal persons or public
entities by means of the procedures established in Article 381.

2. In the cases of number (vii) of paragraph 1 of Article 250, in the summons

for the hearing the defendant shall be cautioned that, should he fail to
appear, judgment shall be passed ordering the procedures sought by the
claimant for the effectiveness of the right on record. The defendant shall
also be cautioned, as appropriate, that the same judgment shall be passed
if they do appear at the hearing but fail to post a security in the amount to
be decided by the Court having heard them, within the amount sought by
the claimant.

244
Amended by single article 51 of Law 42/2015, of 5 October.

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 Law 1/2000, of 7 january, on civil procedure

3. In the case of claims in which a plea for eviction is exercised due to a

failure to pay rent or any amounts owed, whether or not they include a plea
for their payment, the Clerk of the Court shall, once the claim has been
given leave to proceed and prior to the hearing which has been set, require
the defendant to vacate the property within ten days, pay the claimant or,
should a plea to render the eviction ineffective be tendered, pay the entire
amount owed or place the amount claimed at the claimant’s disposal at the
court or before a notary public, along with any other amounts they may
owe at the moment such payment to render the eviction ineffective is
made; or otherwise to appear before the Clerk of the Court, set out the
defence to the claim and succinctly set out the reasons why, to their mind,
they do not owe the amount claimed, wholly or in part, or the circumstances
concerning the appropriateness of rendering the eviction ineffective.

If the claimant has stated acceptance of the undertaking referred to in

paragraph 3 of Article 437 in his claim, it shall be set out in the notice and
the acceptance of such undertaking shall be equivalent to an acceptance
of claim for the purposes of Article 21.

Furthermore, the notice will set out the date and time set for the eventual
hearing to take place in the event that the defendant opposes it, so that it
serves as a summons and an eviction order in the event that there is no
opposition. In addition, it will be stated that in the event that the defendant
applies for free legal aid, they must do so within three days of the notice
being presented, and lack of opposition to the injunction will presuppose
that consent is given to termination of the lease contract that binds them to
the lessor.

The notice will be served in the manner provided for in article 161 of this
Act, taking in account the provisions of paragraph 3 of article 155 and the
last paragraph of article 164, warning the defendant that, if none of the
actions mentioned are carried out, immediate eviction will proceed, without
the need for subsequent notification, along with the other matters included
in the following paragraph of this article.

If the defendant does not comply with the payment order or does not
appear to object or acquiesce, the Clerk of the Court will pass an order
closing the eviction hearing and eviction will take place on the date fixed.

If the defendant complies with the order to leave the property without
objection and without payment the amount claimed, the Clerk of the Court
will record this and will pass an order terminating the proceedings, without
the eviction order having effect, unless the it is in the interests of the

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claimant to retain is so that a certificate may be issued regarding the state

in which the property is to be found and sent to the claimant so that they
may request an enforcement notice for the amount claimed and a mere
request will be sufficient for this.

In the two preceding cases, the order terminating the eviction hearing will
impose costs on the defendant and will include rent due which accrues
after serving the claim up until the effective repossession of the property,
taking the amount of the last monthly payment claimed on lodging the
claim as the basis for calculating future rents. If the defendant files an
opposition the hearing will be held on the date set.

4. In all cases of eviction, the defendant shall also be warned in the

payment order served on them that, if they fail to appear at the hearing,
the Court shall order the eviction without further ado and summons the
defendant to receive the notice of the judgment on the sixth day after the
date set for the hearing. Likewise, the decision passed given the opposition
of the defendant shall set the date and time when the eviction shall, if
appropriate, be carried out, which shall take place before thirty days have
elapsed from the date of the hearing, with a warning to the defendant that,
if judgment is against them and no appeal has been lodged, the eviction
shall take place on the date set without the need for any subsequent
notification.

Article 441. Special cases in procedures prior to the oral hearing.245

1. When a claim is lodged in the case of number (iii) or paragraph 1 of

Article 250, the Clerk of the Court shall summon the witnesses proposed
by the claimant and, in accordance with their statements, the Court shall
issue a court order rejecting or granting the possession sought,
notwithstanding a better right, and carry out the procedures it deems
appropriate to this effect. The court order shall be published by means of
public notices, which shall be put up in a visible place at the Court premises,
in the “Official Bulletin” of the province and in one of the newspapers most
widely distributed in the said province, at the expense of the claimant,
requesting the interested parties to appear and to file a claim via a
response to the claim, within a time limit of forty days, if they consider they
have a better right than the claimant.

If none of the parties appear, possession will be granted to the claimant;

however, in the event that claimants appear, having sent their writs to the

245
Amended by single article 52 of Law 42/2015, of 5 October.

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claimant, the Clerk of the Court will summons the latter, together with all
the appearing parties, to a hearing and proceedings will follow in the
manner provided for in the following articles.

2. If it is the intention of the claim to obtain a court order in summary

proceedings for the suspension of a new construction work, the Court
shall, even before sending it for a response to the claim, remit an immediate
suspension order to the owner or the person in charge of the works, who
shall be allowed to post a security to continue the works and to perform
such works as are absolutely necessary to preserve that already built. The
Court may issue an order for a judicial, expert or joint examination prior to
the hearing.

The bond may be given in the form established in the second sub-
paragraph of paragraph 2 of article 64.

3. In the cases of number (vii) of paragraph 1 of Article 250, as soon as the

claim has been admitted, the Court shall adopt the measures requested
that, in view of the circumstances, are required to guarantee at all events
the compliance with the judgment to be passed in due time.

4. In the case of item (x), paragraph 1, Article 250, once the claim has
been given leave to proceed, the court shall order the assets to be exhibited
to their owner, with the warning of incurring in contempt of court and their
immediate attachment, which shall be ensured by means of impoundment,
pursuant to this Act. If legal actions are filed based on the breach of a
financial leasing agreement, a moveable property leasing agreement or a
hire purchase agreement with reservation of ownership pursuant to item
(xi), paragraph 1 of Article 250, the court shall order the impounding of the
assets whose delivery is claimed once the claim has been given leave to
proceed. No security shall be requested from the claimant to adopt these
precautionary measures nor shall any objection to the latter by the
defendant be admitted. Nor shall applications for the modification or
replacement of the measures by security be admitted.

In addition to the provisions of the preceding paragraph, the Clerk of the

Court shall summon the defendant to appear at the procedure within a
time limit of five days, represented by a procurator, in order to announce
his response to the claim on any of the grounds provided for in paragraph
3 of Article 444. If the defendant allows the time limit to expire without
responding to the claim or bases the latter on a ground not contemplated
in paragraph 3 of Article 444, a judgment in favour of the claims of the
claimant shall be passed without further ado.

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If the defendant responds to the claim in accordance with the provisions of

the preceding subparagraph, the Clerk of the Court shall summon the
parties to appear at the hearing and if the defendant fails to appear without
indicating a justified reason or appears but does not persist in their
objection or bases the latter on grounds not contemplated in paragraph 3
of Article 444, a judgment in favour of the claims of the claimant shall be
passed without further ado. In addition, in these cases a fine of up to one
fifth of the value of the claim shall be imposed on the defendant, with a
minimum of €180.

No appeal of any nature can be lodged against the judgment passed in the
events of absence of objection referred to in the two preceding
subparagraphs.

Article 442. Non-attendance of the parties at the hearing.246

1. If the claimant fails to attend the hearing and the defendant does not
allege any legitimate interest in continuing the proceedings in order to
pass judgment on the merits of the case, the former shall be deemed to
have abandoned the claim then and there and shall be ordered to pay the
costs incurred and to compensate the defendant present at the hearing,
provided the latter so requests and justifies the damages incurred.

2. If the defendant does not appear, the hearing will be held.

Article 443. Conduct of the hearing.247

1. Once the parties have appeared, the court shall declare the hearing
open and verify if the dispute between them persists.

Should the parties state they have reached an agreement, or show they
are ready to do so immediately, they may abandon the proceedings and
seek the court’s validation of the matters agreed upon. The agreement
validated by the court shall have the effects granted by the law to court
settlements and may be put into effect through the procedures laid down
to execute judgments and court-approved agreements. Such agreement
may be contested on the basis of the causes and in the manner laid down
for court settlements.

246
Amended by single article 53 of Law 42/2015, of 5 October.
247
Amended by single article 54 of Law 42/2015, of 5 October.

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 Law 1/2000, of 7 january, on civil procedure

The parties may also jointly request a stay of the proceedings in accordance
with the provisions of paragraph 4 of article 19 in order to submit to
mediation. In this case, the court shall previously verify that the
requirements have been met regarding the legal capacity and power of
disposition of the parties, or of their duly accredited representatives,
attending the hearing.

Where the proceedings have been stayed in order to resort to mediation,

either of the parties may request the stay to be lifted and a date to be set
for the hearing to continue once the mediation procedure has come to an
end without reaching agreement. If agreement was reached between the
parties in the mediation, they must notify the court so that it may order the
proceedings to be filed, without prejudice to prior request for court
validation.

2. If the parties did not reach agreement or were not disposed to reach it
immediately, the court will decide on the circumstances that may prevent
valid prosecution and termination of the process with a judgment on the
grounds in accordance with articles 416 et seq.

3. If the procedural issues referred to in the preceding paragraphs did not

arise or if, having been raised, the Court decides to continue the hearing,
the parties shall be asked to address the Court to clarify and set out the
facts where there is contradiction. If there is no agreement on all of them,
evidence will be put forward and that which is admitted will be taken
immediately.

The proposal of the evidence of the parties may be completed in

accordance with the provisions of paragraph 1 of Article 429.

Article 444. Special rules concerning the content of the hearing.

1. When, in an oral trial, the recovery is claimed of a leased rural or urban

property on the grounds of non-payment of the rent or an assimilated
amount, the defendant shall only be allowed to allege and to prove the
payment or the circumstances relating to the appropriateness of the
impairment.

2. In the cases of number 7.º of paragraph 1 of Article 250, the defendant

may only object to the claim if, where appropriate, he posts the security
determined by the Court in any of the forms established in the second
subparagraph of paragraph 2 of Article 64 herein.

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The objection of the defendant may only be based on one of the following
grounds:
(i). Misrepresentation in the certification of the Registry or omission
therefrom of inscribed rights or conditions invalidating the action
brought.
(ii). The possession of the property by the defendant or the enjoyment
of a right negotiated by contract or any other direct legal relation with
the last holder or with previous holders or by virtue of prescription,
provided that the latter is to the detriment of the registered holder.
(iii). That the property or the right has been registered in favour of the
defendant and the latter evidences the said registry by submitting a
certification of the Property Registry proving the validity of the
registration.
(iv). That the registered property is not the one actually in the
possession of the defendant.

3. In cases numbers 10.º and 11.º of paragraph 1 of Article 250, the

objection of the defendant may only be based on one of the following
grounds:
a) Lack of jurisdiction or competence of the court.
b) Payments certified by documents.
c) non-existence or invalidity of his consent, including the forgery of
the signature.
d) Misrepresentation of the document in which the contract has been
executed.

Article 445. Evidence and presumptions at oral trials.

In relation to evidence and presumptions, oral trials shall be governed by

the provisions of chapters V and VI of title I of this Book.

Article 446. Decisions on evidence and appeals.248

Only an appeal for reversal may be lodged against the court decisions on
whether to admit or reject evidence, which must be substantiated and
decided immediately, and, if it is dismissed, the party may formally protest
in order to uphold their rights in the second instance.

248
Amended by single article 55 of Law 42/2015, of 5 October.

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Article 447. Judgment. Absence of res judicata in special cases.249

1. Once evidence has been taken, the court will give each party a turn to
speak to make oral findings. The hearing will then terminate and the court
will pass judgment within the following ten days. An exception are oral
hearings requesting eviction from an urban property, in which case
judgment shall be passed within the next five days and the parties shall be
summoned at the hearing to appear at the Court premises in order to
receive the notice, if they are not represented by a procurator or cannot do
this by electronic means, which appearance shall take place on the nearest
possible day within the five days following that of the judgment.

Notwithstanding the foregoing, in judgments based on the acceptance of

the claim as referred to in paragraphs 3 of Articles 437 and 440, as a
precaution against the lessee failing to vacate the property voluntarily
within the established time limit, as a subsidiary measure a date and time
shall be established on which, as appropriate, the direct eviction of the
defendant shall take place, which shall be carried out, without further ado,
within a time limit not exceeding 15 days from expiry of such voluntary
period. Likewise, in judgments based on the defendant’s failure to appear,
the eviction shall be carried out on the established date without further
ado.

2. Neither the judgments putting an end to oral hearings concerning the

summary protection of the possession nor those deciding on the claim for
eviction from or recovery of a rural or urban property granted on lease on
the grounds of non-payment of the rent or lease or legal or contractual
expiry of the term and other pleas for protection qualified as summary
under this Act shall produce effects of res judicata.

3. The judgments passed in oral hearings claiming the effectiveness of

registered rights in rem as against those objecting to them or impairing
their exercise without availing of a registered title shall also lack the effects
of res judicata.

4. Likewise, no effects of res judicata shall be produced by court decision

which, pursuant to the laws, in certain specific cases, cannot have such
effects.

249
Amended by single article 56 of Law 42/2015, of 5 October.

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TITLE IV

ON APPEALS

CHAPTER ONE
ON APPEALS: GENERAL PROVISIONS

Article 448. The right to appeal.250

1. The parties may lodge the appeals established by the law against the
decisions of the Courts and Court Clerks adversely affecting them.

2. The time limits to appeal shall start to count as of the day following that
of the notice of the decision subject of the appeal or, as appropriate, the
notice of clarification or dismissal of the latter.

Article 449. Right to appeal in special cases251.

1. In proceedings involving eviction, the defendant shall not be allowed to

lodge any remedy of appeal, whether extraordinary on the grounds of
infringement of procedure or of cassation, should he fail to state and to
produce written evidence that he has paid the rent due and that which he
is bound to pay in advance under the contract upon lodging such appeals.

2. The remedies of appeal, both extraordinary on the grounds of infringement

of procedure and of cassation, referred to in the preceding paragraph, shall
be declared in default, regardless of their stage, if, during their performance,
the appellant defendant fails to pay on the due date or on the dates he is
bound to pay in advance. The tenant may pay in advance or deposit several
periods not yet due, which shall be included in the settlement once the
judgment has been declared final. In any event, the payment of the said
amount shall not be construed as a novation of the contract.

3. In proceedings pleading a conviction to indemnify the damages caused

by moving motor vehicles, the party ordered to pay compensation shall not
be allowed to lodge any remedies of appeal, whether extraordinary on the
basis of infringement of procedure or of cassation, if he fails to prove that
he has posted a deposit covering the amount of the conviction increased
by the interest and surcharges payable at the institution stated for that

250
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.
251
Amended by Article 4.8 of Act 37/2011 of 10 October.

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 Law 1/2000, of 7 january, on civil procedure

purpose upon lodging the appeal. The said deposit shall not prevent,
where appropriate, the provisional enforcement of the decision passed.

4. In proceedings claiming an order to pay the amounts owed by a

homeowner to the community of residents, the convicted party shall not be
allowed to lodge any remedies of appeal, whether extraordinary on the
basis of infringement of procedure or of cassation, if he fails to prove that
he has paid or deposited the net amount established in the verdict of guilty
upon lodging the appeal. The deposit of the amount shall not prevent,
where appropriate, the provisional enforcement of the decision passed.

5. The deposit or posting of funds laid down in the preceding paragraphs

may also be made through a joint and several guarantee of indefinite
duration payable on first request issued by a credit institution or a reciprocal
guarantee company or by any other means which, in the opinion of the
court, guarantees the immediate availability, as appropriate, of the amount
thus posted or deposited.

6. In the cases stated in the preceding paragraphs, the provisions set forth
in Article 231 shall apply with regard to proving compliance with
requirements through documents before the appeals are dismissed or
declared inconclusive.

Article 450. On the abandonment of the appeals.

1. Any appellant can abandon the appeal before the corresponding

decision is issued.

2. If, in case there are several appellants, only one or some of them abandon
the appeal, the decision appealed against shall not be declared final by
virtue of the abandonment, but the pleas of contest corresponding exclusively
to the parties who abandoned the appeals shall be deemed abandoned.

CHAPTER II
ON THE APPEALS FOR REVERSAL AND REVIEW252

Article 451. Decisions subject to appeal for reversal. Non-existence of

suspensory effects.253

1. An appeal for reversal against the orders of the Court Clerk to move the
proceedings forward and orders may be lodged with the Court Clerk who

252
Section worded in accordance with Act 13/2009 of 3 November.
253
Article worded in accordance with Act 13/2009 of 3 November.

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issued the decision appealed against, except in the cases where the law
establishes a direct appeal for judicial review.

2. An appeal for reversal may be lodged against all non-final court

decisions and orders with the same Court that passed the decision
appealed against.

3. The lodging of the appeal for reversal shall have no suspensive effects
on the decision appealed against.

Article 452. Time limit, form and inadmission of the appeal for reversal.254

1. The appeal for reversal shall be lodged within a time limit of five days,
indicating the infringement committed in the decision in the opinion of the
appellant.

2. If the requirements established in the preceding paragraph are not

complied with, the appeal for reversal against non-final procedural and
other court orders shall be rejected by means of an order not subject to
appeal, and the appeal for reversal lodged against the orders of the Court
Clerk to move the proceedings forward and non-final court orders shall be
rejected by an order subject to a direct appeal for review.

Article 453. On the hearing of the apellees and the decision.255

1. The Court Clerk having given leave to proceed with the appeal for
reversal, the other parties of the proceedings shall be granted a common
time limit of five days to contest the said appeal if they deem it convenient
to do so.

2. Upon expiry of the time limit to contest and regardless of whether or not
briefs have been submitted, the Court, in the case of an appeal for reversal
lodged against court decisions or orders, or the Court Clerk if the contest
has been lodged against orders of the Court Clerk to move the proceedings
forward or orders, shall resolve without further proceedings by court order
or order, respectively, within a time limit of five days.

Article 454. Unappealable nature of the order resolving on the appeal for
reversal against court rulings.256

254
Article worded in accordance with Act 13/2009 of 3 November.
255
Article worded in accordance with Act 13/2009 of 3 November.
256
Section worded in accordance with Act 13/2009 of 3 November.

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Except in the cases where the appeal of complaint is in order, no appeal of

any nature shall be possible against the order resolving on the appeal for
reversal, notwithstanding the possibility to reproduce the issue object of
the appeal for reversal, as appropriate, in the final decision.

Article 454 bis. Appeal for review.257

1. No appeals whatsoever may be lodged against a ruling on appeals for

judicial review, without prejudice to the issue necessarily arising again at
the first hearing held before the court after the decision is taken and,
should this not be possible due to the state of the proceedings, it may be
sought by means of a written statement before the definitive decision is
issued so that it may be resolved in such decision.

A direct appeal for judicial review may be lodged against the decisions
putting an end to the procedure or preventing its continuation. The said
appeal shall have no suspensory effects although it shall not be possible
under any circumstances to act contrary to the decision adopted.

A direct appeal for judicial review may also be lodged against the orders in
the cases where this possibility is explicitly established.

2. The appeal for judicial review shall be lodged within a time limit of five
days by means of a bill of appeal which shall indicate the infringement
committed in the decision. The above requirements having been complied
with, the Court Clerk shall admit the appeal by means of an order to move
the proceedings forward, granting the other parties of the proceedings a
common time limit of five days to contest the appeal if they consider it
convenient to do so.

If the requirements for the admissibility of the appeal are not met, the
Court shall dismiss the appeal by procedural court order.

Upon expiry of the time limit to contest and regardless or whether or not
briefs have been submitted, the Court shall have five days in which to
reach a decision and issue a court order without further ado.

No appeal of any nature may be lodged against the decisions concerning

the admission or dismissal.

257
Paragraph 1 amended by Article 4.9 of Act 37/2011 of 10 October.
Article added by Act 13/2009 of 3 November.

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3. A remedy of appeal against the order deciding on the appeal for review
may only be lodged if the decision puts an end to the procedure or prevents
its continuation.

CHAPTER III
ON THE REMEDY OF APPEAL AND THE SECOND INSTANCE

Section 1. On the remedy of appeal and the second

instance: General provisions

Article 455. Decisions subject to appeal by a remedy of appeal.

Competence and fast-track procedure.258

1. Appeals may be lodged against the judgments issued in all kinds of

trials, definitive court orders and any others which the Law may set forth,
apart from the judgments issued in oral trials for amounts below 3,000
euros.

2. The remedies of appeal shall be heard by:

(i). The Courts of First Instance, when the decisions subject to appeal
have been issued by the Magistrates’ Courts of their judicial district.
(ii). The Provincial Courts, when the decisions subject to appeal have
been issued by the Courts of First Instance of their judicial district.

3. Preference shall be given to the remedies of appeal legally established

against orders rejecting claims based on the failure to meet the
requirements laid down by the law for special cases.

Article 456. Scope and effects of the remedy of appeal.

1. The reversal of a court order or judgement and the issuance of another

in favour of the appellant may be sought through the remedy of appeal in
keeping with the matters of fact and legal grounds set forth before the
Court of First Instance by means of a new examination of the procedures
conducted before such court in accordance with the evidence taken before
the court of appeal in the cases set forth herein.

2. Appeals against judgements dismissing the claim and against court orders
putting an end to proceedings shall lack suspensory effects and under no

258
Paragraph 1 amended by Article 4.10 of Act 37/2011 of 10 October

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circumstances may action contrary to whatever may have been decided upon
be taken.

3. Any judgements upholding the claim against which the remedy of appeal
is lodged shall have the efficacy set forth in Title II, Book III herein, on the
basis of the nature and contents of their rulings.

Section 2. On the conduction of the appeal

Article 457. Preparation of the appeal.259

Without content.

Article 458. Lodging the appeal.260

1. The appeal shall be lodged before the court which has issued the
decision being contested within twenty days counting from the date
following that on which notice thereof was served.

2. When lodging the appeal, the appellant shall set forth the pleas upon
which the challenge is based, the decision against which the appeal is
being lodged and the decisions being contested.

3. Should the decision contested be subject to appeal and the appeal is

lodged within the time limit, the Court Clerk shall have three days in which
to deem that the appeal has been lodged. Otherwise the Court Clerk shall
inform the court thereof, so that it may issue a decision on whether the
appeal should be given leave to proceed.

Should the court deem that the requirements to give the appeal leave to
proceed have been met, it shall issue a procedural court order deeming
the appeal to have been lodged. Otherwise, it shall issue a court order
dismissing it as inadmissible. Only an appeal of complaint may be lodged
against such court order.

No appeal may be lodged against the procedural court order deeming the
appeal to have been lodged. Nonetheless, the appellee may allege the
appeal’s inadmissibility in the procedural step to contest the appeal
referred to in Article 461 herein.

259
Left without content by Article 4.11 of Act 37/2011 of 10 October
260
Amended by Article 4.12 of Act 37/2011 of 10 October.

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Article 459. Appeal for breach of procedural rules or safeguards.

The breach of rules or procedural safeguards in the first instance may be

alleged in the remedy of appeal. Where this should be the case, the written
statement to lodge the appeal shall state the rules that have been infringed
and set forth, as appropriate, the lack of proper defence suffered. Likewise,
the appellant shall prove that he reported the breach in a timely fashion,
should he have had a procedural opportunity to do so.

Article 460. Documents that may be attached to the written statement to

lodge the appeal. Application for the taking of evidence.

1. Solely the documents included under the cases set forth in Article 270
and which have not been filed in the first instance may be attached to the
written statement to lodge the appeal.

2. The taking of the kinds of evidence set forth below may additionally be
sought in the written statement to lodge the appeal:
a) Any evidence that may have been unduly rejected in the first instance,
as long as a reversal of the decision dismissing such evidence has been
attempted or the appropriate protest filed at the hearing.
b) Any evidence proposed and admitted in the first instance which
could not be taken for reasons not imputable to the applicant, not even
as final proceedings.
c) Any evidence referring to relevant facts for the decision on the case that
may have occurred after the time limit to issue a judgement in the first
instance commenced, or after such time limit, as long as in the latter case
the party can prove he became aware of such evidence subsequently.

3. Any defendant declared to have been in default for any reason not
attributable to him, and who has subsequently been a party to proceedings
after the moment set to propose the taking of evidence in the first instance,
may request any taking of evidence he may be entitled to under the law in
the second instance.

Article 461. Notification of the written statement to lodge the appeal to the
appellee. Contesting the appeal and challenging the judgement.261

1. The Court Clerk shall serve notice of the written statement to lodge the
appeal to the other parties, summoning them to file before the court which

261
Paragraphs 1 and 4 have been worded in accordance with Act 13/2009 of 3 November
5 was added by Act 15/2007 of 3 July .

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issued the decision subject to appeal a written statement contesting the

appeal or, as appropriate, challenging the decision subject to appeal with
regard to whatever may be unfavourable to them.

2. The written statements contesting the appeal and, as appropriate, those

challenging the judgement filed by those who would have not lodged an
appeal initially shall be filed in accordance with the provisions laid down for
written statements to lodge an appeal.

3. Documents may be attached thereto and the appellee or appellees

may seek the taking of evidence they deem necessary pursuant to the
provisions set forth in the preceding paragraph. They may likewise set
forth the allegations they consider appropriate concerning the admissibility
of any documents filed or of any evidence proposed by the appellant.

4. The Court Clerk shall transfer to the main appellant the written
statements contesting the appeal referred to in paragraphs 1 and 2 of this
article, so that the appellant may state whatever he may deem suitable on
the admissibility of the challenge and, as appropriate, on the documents
and the evidence proposed by the appellee.

5. The Court Clerk shall transfer to the National Free Competition

Commission written statements lodging an appeal in any proceedings in
which Articles 81 and 82 of the Treaty Establishing the Community
European or Articles 1 and 2 of the Defence of Free Competition Act
should apply.

Article 462. Competence of the Court of First Instance during the appeal.

While the appeal is being conducted, the jurisdiction of the court that has
issued the decision against which the appeal has been lodged shall limit
itself to procedures concerning the provisional enforcement of the decision
subject to appeal.

Article 463. Sending the proceedings.262

1. Once the appeals have been lodged and, as appropriate, the written
statements contesting or challenging them have been filed, the Court Clerk
shall order the proceedings to be sent to the court holding jurisdiction to

262
Paragraph 1 amended by Article 4.13 of Act 37/2011 of 10 October.
Article worded in accordance with Act 13/2009 of 3 November.

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decide on the appeal, summoning the parties within a time limit of ten
days.

Should the appellant fail to appear within the aforementioned time limit,
the Court Clerk shall declare the appeal abandoned and the decision
subject to appeal shall become final.

2. Should provisional enforcement have been sought, a certification of

whatever may be necessary for such enforcement shall remain in the
Court of First Instance.

Where such enforcement is sought after the records are sent to the
competent court to decide on the appeal, the applicant shall first have to
obtain such certification of whatever may be necessary for the enforcement.

Article 464. Admission of evidence and setting a date for the hearing.263

1. Once the records have been received by the Court that has to deal with
the appeal and should any new documents or proposals for evidence have
been filed, it shall decide on the appropriateness of their admission within
ten days. Should evidence have to be taken, the Court Clerk shall set a
date for a hearing, which shall be held within the following month in keeping
with the provisions laid down for oral trials.

2. Should no evidence have been proposed or if all such proposals have

not been given leave to proceed, the holding of a hearing may also be
agreed upon through a procedural court order, as long as it has been
sought by one of the parties or the Court deems it necessary. Should the
holding of a hearing have been agreed upon, the Court Clerk shall set a
date and time for it.

Article 465. Decision on the appeal.264

1. The Court shall decide on the appeal through a court order where it has
been lodged against a court order, and otherwise by means of a judgement.

2. The decision shall be issued within ten days from the date the hearing
comes to an end. Should a hearing not have been held, the court order or
the judgement shall be issued within a month counting from the date

263
Article worded in accordance with Act 13/2009 of 3 November.
264
Article worded in accordance with Act 13/2009 of 3 November

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following that on which the records were received at the competent court
for the appeal.

3. Should the breach of procedure alleged have been committed when

judgement was issued in the first instance, the Court of appeal shall, after
having set aside the judgement subject to appeal, decide on the matter or
matters at issue of the proceedings.

4. Where the provisions set forth in the preceding paragraph of this article
do not apply and the breach of procedure has given rise to the total nullity
of the procedures or of part of them, the Court shall declare their nullity by
means of a procedural court order and reverse their situation to the stage
at which they were to be found when the breach was committed.

The nullity of the procedures shall not be declared should it be possible to

rectify the procedural fault or defect in the second instance, for which the
Court shall grant a time limit not exceeding ten days, except where the
fault is revealed at the hearing and it may be rectified immediately.

Once the rectification has come about and, as appropriate, the parties
have been heard and the admissible evidence has been taken, the Court
of appeal shall issue a decision on the matter or matters at issue.

5. The court order or judgement issued on appeal shall solely deal with the
points and matters broached in the appeal and, as appropriate, in the
written statements contesting the appeal or challenging the decision
referred to in Article 461. The decision may not be damaging to the
appellant, except where such damage arises from upholding the challenge
to the decision in question set forth by the initial appellee.

6. The time limit to issue judgement may be suspended in proceedings

dealing with the application of Articles 81 and 82 of the Treaty Establishing
the European Community or Articles 1 and 2 of the Defence of Free
Competition Act where the Court is aware of the existence of administrative
proceedings being conducted before the European Commission, the
National Free Competition Commission or the competent bodies of the
autonomous regions and knowing the decision issued by the administrative
body is essential. Such suspension shall be adopted stating its grounds
after hearing the parties, and notice thereof shall be given to the
administrative body. Such administrative body shall in turn transfer its
decision to the court.

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Only an appeal for reversal may be lodged against such order for
suspension.

Article 466. Appeals against judgements in the second instance.

1. Parties holding legal capacity may choose to lodge an extraordinary

appeal for breach of procedure or an appeal in cassation against any
judgements issued by Provincial Courts in the second instance in any kind
of civil procedure.

2. Should the two kinds of appeal be prepared by the same party against
the same decision, the appeal in cassation shall not be given leave to
proceed.

3. Where different litigants of the same proceedings should each choose

to lodge a different kind of extraordinary appeal, the provisions set forth in
Article 488 herein shall apply.

Article 467. Appeal in cassation against judgements issued by the

Provincial Courts after upholding an extraordinary appeal for breach of
procedure.

Notwithstanding the provisions set forth in the preceding article, a new

extraordinary appeal for breach of procedure may not be lodged against
judgements issued by the Provincial Courts as a result of upholding such
an extraordinary appeal if they are not grounded on matters that are
different to those dealt with in the first appeal.

CHAPTER IV
ON EXTRAORDINARY APPEALS FOR INFRINGEMENT OF
PROCEDURE

Article 468. Competent body and decisions subject to appeal.

The Civil and Criminal Chamber of the High Courts of Justice shall deal
with, as Civil Chamber, any appeals for a breach of procedure against
judgements and court orders issued by the Provincial Courts which bring
the second instance to an end.

Article 469. Grounds. Prior reporting in the instance.

1. extraordinary appeals for breach of procedure may solely be based on

the following grounds:

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(i). A breach of the rules on objective or functional jurisdiction and

competence.

(ii). A breach of the procedural rules governing the judgement.

(iii). A breach of the legal rules governing the procedures and

safeguards of the proceedings, where such breach gives rise to their
nullity in accordance with the law or could have brought about a lack of
proper defence.

(iv). A violation in the civil procedure of the fundamental rights

recognised by Article 24 of the Constitution.

2. extraordinary appeals for breach of procedure shall only be given leave

to proceed where the infringement or the violation of Article 24 of the
Constitution has been reported, wherever possible, in the appropriate
instance and, if it was reported in the first instance, when it has also been
reported in the second instance. Furthermore, should a violation of
fundamental rights have given rise to a fault or defect that can be rectified,
such rectification should have been sought in the appropriate instance.

Article 470. Lodging the appeal.265

1. Extraordinary appeals for an infringement of procedure shall be lodged

before the court which has issued the decision being contested within
twenty days counting from the date following that on which notice thereof
was served.

2. Once the statement lodging the appeal has been filed and the time limits
for all the parties to lodge an appeal have elapsed, the Court Clerk shall
deem the appeal to have been lodged within the time limit of three days,
provided the decision is subject to appeal, one of the reasons set forth in
Article 469 is alleged and, as appropriate, the procedure laid down in
paragraph 2 of said article has been followed. Otherwise the Court Clerk
shall inform the court thereof, so that it may issue a decision on whether
the appeal should be given leave to proceed.

Should the court deem that the requirements to give the appeal leave to
proceed have been met, it shall issue a procedural court order deeming
the appeal to have been lodged. Otherwise, it shall issue a court order
dismissing it as inadmissible. Only an appeal of complaint may be lodged
against such court order.

265
Amended by Article 4.14 of Act 37/2011 of 10 October.

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No appeal may be lodged against the order deeming the appeal to have
been lodged. Nonetheless, the appellee may allege the appeal’s
inadmissibility in the procedural step to contest the appeal.

Article 471. Contents of the written statement to lodge the appeal.266

The breach or infringement committed shall be set forth in a reasoned

fashion in the written statement to lodge the appeal and it shall state, as
appropriate, the way in which it has influenced the proceedings. The taking
of evidence deemed essential to prove the infringement or breach and the
holding of a hearing may also be sought in the written statement to lodge
the appeal.

Article 472. Sending the records.267

Once the written statement to lodge the appeal has been filed, all the
original records shall be sent to the Chamber referred to in Article 468 and
the parties shall be summoned to appear before it within thirty days.
Nonetheless, where a litigant or litigants other than the appellants for a
breach of procedure have prepared an appeal in cassation against the
same judgement, the court holding competence to deal with the appeal in
cassation shall be sent a certification of the judgement and of any details
of interest to the appellant in cassation, along with an explanatory note
indicating that an extraordinary appeal for breach of procedure has been
prepared for the purposes of the provisions set forth in Article 488 herein.

Should the appellant fail to appear within the aforementioned time limit,
the Court Clerk shall declare the appeal abandoned and the decision
subject to appeal shall become final.

Article 473. Leave to proceed268.

1. Once the records have been received at the Court, they shall be passed
on to the Senior Reporting Judge so that he may be duly informed and
may submit to the Chamber’s deliberation whatever may have to be
decided concerning whether or not the extraordinary appeal for
infringement of procedure should be given leave to proceed.

266
Amended by Article 4.15 of Act 37/2011 of 10 October
267
Article worded in accordance with Act 22/2003 of 9 July.
268
Amended by Article 4.16 of Act 37/2011 of 10 October

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2. The extraordinary appeal for infringement of procedure shall not be

given leave to proceed in the following cases:
(i). Should it be deemed at this stage that the requirements laid down in
Articles 467, 468 and 469 have not been met.
(ii). Should the appeal be manifestly groundless.

Before issuing a decision, the Chamber shall inform the parties who have
entered an appearance of the possible cause for not giving the appeal
leave to proceed, so that they may file the pleas they may deem suitable
within ten days.

Should the Chamber deem that any of the causes for rejection exists, it
shall issue a court order stating the rejection and declare the decision
appealed against as final. Should the cause for rejection only affect some
of the breaches alleged, it shall also issue a court order giving the other
infringements stated in the appeal leave to proceed.

3. No appeals may be lodged against a court order resolving to give an

extraordinary appeal for infringement of procedure leave to proceed.

Article 474. Challenge by the appellees.

Once the extraordinary appeal for breach of procedure has been given
total or partial leave to proceed, the written statement to lodge the appeal
shall be transferred to the appellee or appellees and to any other persons
who may have entered an appearance, so that they may file their challenge
thereto within twenty days. During such time limit, the records shall be
made available at the Court Clerk’s office.

Any causes deemed to exist for the appeal was not given leave to proceed
and which have not been rejected by the court may be alleged in the
challenge, which may also seek the taking of evidence considered
essential and the holding of a hearing.

Article 475. Hearing and evidence.

1. Once the time limit referred to in the preceding article has elapsed and
whether or not any challenges have been filed, the Chamber shall have
thirty days in which to issue a court order setting a time and date to hold a
hearing or, as appropriate, to vote and issue a ruling on the extraordinary
appeal for breach of procedure.

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2. Should the taking of any evidence have been sought and admitted or
should the Chamber deem it suitable on an ex officio basis or at the
request of a party to ensure justice is made with regard to the
extraordinary appeal, a decision shall be taken to hold a hearing, which
shall commence with a report from the appellant to then proceed with the
appellee’s report. Should there be several appellants, the order in which
the appeals were lodged shall be followed and should there be several
appellees, the order in which they entered an appearance shall be
followed.

3. The taking of evidence shall be governed by the provisions laid down by

the law for oral trials.

Article 476. Judgement. Effects.

1. The Chamber shall issue a judgement within twenty days from the end
of the hearing, or from the date set for the vote and the ruling.

2. Should the appeal have been grounded on a breach of the rules on

objective or functional jurisdiction or competence, this issue shall be
examined and dealt with first.

Should the appeal have been grounded on a lack of jurisdiction or of

objective competence and it is upheld, the Chamber shall set aside the
contested decision and the parties’ entitlement to lodge their pleas before
whoever it may correspond shall remain unharmed.

Should the appeal have been lodged against a judgement confirming or

declaring a lack of jurisdiction or competence and the Chamber upholds it,
the Chamber shall, after having set aside the judgement, order the court in
question to initiate or continue dealing with the matter, except where the
lack of jurisdiction was erroneously upheld once the defence to the claim
was filed and the evidence taken, in which case it shall order the court in
question to issue a ruling on the grounds of the matter at issue.

In all other cases, should the appeal be upheld with regard to all or some
of the infringements or violations alleged, the Chamber shall set aside the
contested decision and order that the procedures be reversed to the
situation and moment at which the infringement or violation took place.

3. Should the Chamber not deem any of the grounds alleged appropriate,
it shall dismiss the appeal and the records shall be returned to the court
from whence they came.

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4. No appeals may be lodged against a judgement on an extraordinary

appeal for breach of procedure, except as laid down on appeals in the
interest of the law before the Civil Chamber of the Supreme Court.

CHAPTER V
ON APPEALS IN CASSATION

Article 477. Grounds for the appeal in cassation and decisions subject to
appeal in cassation.269

1. Appeals in cassation may solely be grounded on a breach of the rules

that apply to decide on matters at issue in the proceedings.

2. Appeals in cassation may be lodged against judgments issued in the

second instance by the Provincial Courts in the following cases:
(i). Where they are issued to provide fundamental rights with the
effective protection of the civil courts, apart from the fundamental rights
recognised by Article 24 of the Constitution.
(ii). Whenever the amount of the proceedings exceeds 600.000 euros.
(iii). Where the amount of the proceedings does not exceed 600,000
euros or the proceedings have been conducted due to their subject
matter, provided that in both cases the decision on the appeal has
reversal interest.

3. It shall be deemed that an appeal has interest to set aside when the
judgement subject to appeal contradicts the Supreme Court’s jurisprudence
or decides on points and issues about which contradictory jurisprudence
from the Provincial Courts exists or where it applies rules that have been
in force for less than five years, as long as, in the latter case, no
jurisprudence from the Supreme Court should exist concerning previous
rules of identical or similar content.

In the case of appeals in cassation which a High Court of Justice must

deal with, it shall be construed that interest to set aside also exists where
the judgement subject to appeal contradicts jurisprudence or where such
jurisprudence from the High Court of Justice does not exist on the rules of
the specific law of the autonomous region in question.

269
Paragraph 2 amended by Article 4.17 of Act 37/2011 of 10 October.

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Article 478. Jurisdiction. Simultaneity of appeals.270

1. The First Chamber of the Supreme Court shall hold responsibility for
dealing with appeals in cassation on civil matters.

Notwithstanding the above, the Civil and Criminal Chamber of the High
Courts of Justice shall hold responsibility for dealing with appeals in
cassation lodged against decisions of the civil courts located in the
autonomous region, as long as the appeal is solely grounded on a breach
of the rules of civil, jurisdictional or special law specific to the autonomous
region, or jointly with other grounds, and where the relevant Statute of
Autonomy sets forth such attribution.

2. Where the same party should lodge appeals in cassation against the
same judgment before the Supreme Court and a High Court of Justice, the
former shall be deemed not to have been lodged through a procedural
court order, as soon as such circumstance is known.

Article 479. Lodging the appeal.271

1. The appeal in cassation shall be lodged before the court which has
issued the decision being contested within twenty days counted from the
date following that on which notice thereof was served.

2. Should the decision contested be subject to appeal and the appeal is

lodged within the time limit, the Court Clerk shall have three days in which
to deem that the appeal has been lodged. Otherwise the Court Clerk shall
inform the court thereof, so that it may issue a decision on whether the
appeal should be given leave to proceed.

Should the court deem that the requirements to give the appeal leave to
proceed have been met, it shall issue a procedural court order deeming
the appeal to have been lodged. Otherwise, it shall issue a court order
dismissing it as inadmissible. Only an appeal of complaint may be lodged
against such court order.

No appeal may be lodged against the order deeming the appeal to have
been lodged. Nonetheless, the appellee may contest the fact it has been
given leave to proceed upon appearing before the court of cassation.

270
Amended by Article 4.18 of Act 37/2011 of 10 October
271
Amended by Article 4.19 of Act 37/2011 of 10 October

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Article 480. Decision on the preparation of the appeal.272

Without content

Article 481. Contents of the written statement to lodge the appeal.273

1. The written statement to lodge the appeal shall state the grounds for the
appeal against the judgment among the grounds set forth in Article 477.2.
The legal grounds shall likewise be set forth with the necessary detail and
the holding of a hearing may be sought.

2. A certification of the judgment contested shall be attached to the written

statement lodging the appeal and, where appropriate, the texts of the
judgments put forward as the grounds for the interest to be set aside.

3. In addition to grounding the appeal in cassation, the written statement

shall, as appropriate, state in a reasoned fashion the time during which the
rule has been in force and the lack of jurisprudence concerning the rule
which is deemed to have been infringed.

4. Without content

Article 482. Sending the records. Refusal to issue certifications.274

1. Once the written statement to lodge the appeal has been filed, the Court
Clerk shall send all the original records to the court holding competence to
deal with the appeal in cassation within five days and summon the parties
to appear within thirty days.

Should the appellant fail to appear within the aforementioned time limit,
the Court Clerk shall declare the appeal abandoned and the decision
subject to appeal shall become final.

2. Should the appellant have been unable to obtain the certification of

judgement referred to in Article 481, the records shall nonetheless be sent
as set forth in the preceding paragraph. The refusal or resistance to issue
such certification shall be put right through disciplinary proceedings and,

272
Left without content by Article 4.20 of Act 37/2011 of 10 October
273
Heading and paragraph 1 amended and paragraph 4 left without content by Article 4.21 of Act
37/2011 of 10 October.
274
Article worded in accordance with Act 13/2009 of 3 November on the reform of procedural legis-
lation for the implementation of the new Court Office

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where necessary, the Chamber of cassation shall demand it from the Court
Clerk who should issue it.

Article 483. Decision on giving the appeal leave to proceed.275

1. Once the records have been received at the court, they shall be passed
on to the Senior Judge so that they may be duly informed and may submit
to the Chamber’s deliberation whatever may have to be decided concerning
whether or not the appeal for judicial review should be given leave to
proceed.

2. The appeal for judicial review shall not be given leave to proceed in the
following circumstances:
(i) If the appeal is contrary to procedure because the judgment cannot
be appealed or due any other procedural error which cannot be
rectified.
(ii) Should the writ lodging the appeal not meet the requirements set
out in this Act for the different cases.
(iii) Should the matter at issue not reach the required amount, or should
there be no interest to set aside due to the lack of contradiction with
jurisprudence, a lack of contradictory jurisprudence or should the rule
which is alleged to have been infringed have been in force for more
than five years, or should there be, in the Chamber’s opinion,
jurisprudence from the Supreme Court on such a rule or on a previous
rule with identical or similar contents.
The appeal shall also not be given leave to proceed in the cases in the
second paragraph of Article 477.3, where the corresponding Supreme
Court of Justice deems that a precedent has been set on the rule at
issue or on another previous rule with identical or similar contents.
(iv) If the appeal manifestly lacks grounds or if other substantially
similar appeals have already be resolved in depth.

3. Before issuing a decision, the Chamber shall inform the parties who
have entered an appearance of the possible cause for not giving the
appeal for judicial review leave to proceed by means of a procedural court
order, so that they may file such allegations as they deem fit within a time
limit of ten days.

275
Paragraph 2 is amended by final provision 4.12 of Organic Law 7/2015, of 21 July.
Item (i), paragraph 2 amended by Article 4.22 of Act 37/2011 of 10 October

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4. Should the Chamber deem that any of the causes for not giving the
appeal in cassation leave to proceed exists, it shall issue a court order
rejecting the appeal leave to proceed and declare the decision subject to
appeal as final. Should the cause for non-admission only affect some of
the infringements alleged, it shall also issue a court order giving the other
infringements stated in the appeal leave to proceed.

5. No appeal whatsoever may be lodged against the court order deciding

on whether or not to give the appeal for judicial review leave to proceed.

Article 484. Decision on competence upon granting leave to proceed.

1. Before issuing a decision on the appeal’s admissibility, the Chamber

shall examine its competence to deal with the appeal in cassation during
the formal step on giving it leave to proceed referred to in the preceding
paragraph. Should it deem it does not hold competence, the Chamber
shall, after hearing the parties, agree to send the records to the Chamber
it considers is competent and summon the parties to appear before it
within a time limit of ten days.

2. In the case referred to in the preceding paragraph, once the records

have been received and the parties have entered an appearance before
the Chamber deemed to hold competence, the appeal shall continue to be
conducted from the formal step dealing with its leave to proceed.

3. The Chambers of the High Courts of Justice may not decline their
competence to deal with any appeals in cassation which have been sent to
them by the First Chamber of the Supreme Court.

Article 485. Admission and transfer to the other parties.276

Once the appeal in cassation is admitted, the Court Clerk shall transfer the
document of opposition with its attached documents to the party or parties
appealed against, so that they can formalise their opposition in writing
within the time limit of twenty days and state whether they consider the
hearing to be necessary.

In the document of opposition it is possible to allege the reasons for the

inadmissibility of the appeal which are considered to exist and have not
been rejected by the court.

276
Article worded in accordance with Act 13/2009, of 3 November

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Article 486. Voting and ruling. Possible hearing.277

1. Once the time limit referred to in the preceding article has elapsed,
regardless of whether the documents of opposition have been submitted
or not, if all the parties have requested the holding of a hearing, the Court
Clerk shall state the day and time for it to be held. The same shall occur
when the court has decided, through a procedural court order, to hold the
hearing for the better application of justice. Otherwise, the Chamber shall
state the day and time for voting and ruling on the appeal for cassation.

2. The hearing shall begin with the report of the appellant and then move
on to the appellee. If there are several appellants, the order shall be the
order in which the appeals were lodged, and if there are several appellees,
the order shall be that of the appearances.

Article 487. Judgement. Effects.

1. The Chamber shall issue judgement on the appeal in cassation within a

time limit of the twenty days following the end of the hearing, or the day
stated for the vote and ruling.

2. If the appeals in cassation are those stipulated in numbers (i) and (ii) of
paragraph 2 of article 477, the decision which puts an end to the appeal in
cassation shall confirm or annul all or part of the decision appealed.

3. When the appeal in cassation is one of those stipulated in number 3 of

paragraph 2 of article 477, if the decision considers the appeal to have
grounds, the Chamber shall annul the decision challenged and decide on
the case, declaring what corresponds in accordance with the terms in
which the opposition to jurisprudence occurred or the contradiction or
divergence of jurisprudence.

The rulings of the judgement which are issued in cassation shall in no case
affect the legal situations created by the judgements, other than those
challenged, which might have been invoked.

Article 488. Performance and decision concerning appeals in cassation

and extraordinary appeals in cases of breach of procedure, when litigants
in the same case choose different extraordinary appeals.

277
Article worded in accordance with Act 13/2009, of 3 November .

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1. When there are different litigants involved in the same proceedings and
each one chooses a different extraordinary appeal, and there is a breach
of procedure, this shall be substantiated by the competent court and the
court of cassation shall have preference; however, the processing shall
commence and shall continue until its admission is decided, afterwards
remaining suspended.

2. If a decision is issued which quashes the appeal totally due to breach of

procedure, the court competent for cassation shall be immediately notified,
its suspension shall be immediately lifted and the appeal shall be conducted
in keeping with the provisions in this chapter.

3. If the extraordinary appeal is upheld due to breach of procedure, the

appeal in cassation submitted shall not take effect, notwithstanding the
provisions in Article 467 herein.

Article 489. Performance and decision on the appeals in cassation which

are under special local jurisdictions and extraordinary jurisdictions due to
breach of procedure, when litigants in the same case choose different
extraordinary appeals.

When there are different litigants in the same proceedings and each one
chooses different extraordinary appeals, one for breach of procedural
rules and the other for a violation of the local jurisdiction’s rules of civil law
or the special civil law of an autonomous region, both appeals shall be
substantiated and decided as a single accumulated appeal, and the
Chamber shall decide in one judgement, taking into account that it shall
only be able to deal with the appeal in cassation if the extraordinary appeal
for breach of procedure is not upheld.

CHAPTER VI
ON THE APPEAL IN THE INTEREST OF THE LAW

Article 490. Decisions subject to appeal in the interest of the law.

1. An appeal in the interest of the law may be lodged for the coherence of
jurisprudence, as regards judgements which resolve extraordinary appeals
for a breach of procedural law when the Civil and Criminal Chambers of
the High Courts of Justice hold opposing criteria as regards the
interpretation of procedural rules.

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2. The appeal in the interest of the law shall not apply against judgements
which have been appealed against before the Constitutional Court for
protection.

Article 491. Standing for appealing in the interest of the law.

In any case the Public Prosecution Service and the Ombudsman may
appeal in the interest of the law. Furthermore, legal persons under public
law may lodge this appeal due to the activities they carry out and the
functions attributed to them, and in relation to the procedural questions
involved in the appeal, and they accredit legitimate interest in the
coherence of jurisprudence in such questions.

Article 492. Lodging and performance.278

1. Appeals in the interest of the law shall be lodged within the time limit of
one year from the time that the most recent judgement was given, directly
before the Civil Chamber of the High Court.

2. The following documents shall be attached to the document used to

lodge the appeal in the interest of the law:
(i). A certified copy or testimony of the decisions which show the
alleged discrepancy.
(ii). Certification issued by the Constitutional Court, which accredits
that the time limit for appealing for protection has elapsed, and no
appeal has been lodged against any of the alleged decisions.

3. The Court Clerk shall transfer the draft or drafts for lodging the appeal
together with the attached documents to those who have appeared as
parties to the proceedings whose judgements are the subject of the appeal
so that, within the time limit of twenty days, they may formulate allegations
stating the legal criteria they consider to be most grounded.

Article 493. Judgement.

The judgement issued in appeals in the interest of the law shall, in any
case, respect the particular legal situations arising from the alleged
judgements and, when it is upheld, the ruling shall establish the
jurisprudence. In this case, it shall be published in the «Official State
Gazette» and, as from its publication there, it shall complement legislation,

278
Paragraph 3 worded in accordance with Act 13/2009 of 3 November.

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and shall bind all the Judges and courts at the civil jurisdictional levels
other than the High Court in this matter.

CHAPTER VII
ON THE APPEAL OF COMPLAINT

Article 494. Decisions subject to appeal of complaint.279

Against the court orders in which the court which has issued the decision
refuses the processing of an extraordinary recourse to appeal due to
breach of procedure or cassation, an appeal of complaint may be lodged
before the body which is responsible for resolving the unprocessed appeal.
Appeals of complaint shall be conducted and resolved with priority.

The appeal of complaint shall not apply in eviction proceedings related to

urban and rustic property when the judgement which would rightly be
issued, as appropriate, did not have the consideration of res judicata.

Article 495. Substantiation and decision280.

1. The appeal of complaint shall be lodged before the court holding

jurisdiction to rule on the appeal which has not been conducted within ten
days of notice being served of the decision dismissing the appeal for
remedy, the extraordinary appeal for an infringement of procedure or the
appeal in cassation. A copy of the decision against which the appeal is
lodged shall be attached to the appeal.

2. Once the appeal and said copy have been filed in time, the court shall
decide within a time limit of five days. Should the appeal’s dismissal be
deemed appropriate, an order shall be issued to notify the corresponding
court so that it may be reflected in the records. Should it be deemed that it
has been improperly dismissed, the court shall continue to conduct the
proceedings.

3. No appeals may be lodged against the court which rules on the appeal
of complaint.

279
Paragraph added in accordance with Act 19/2009, of 23 November .
280
Amended by Article 4.23 of Act 37/2011 of 10 October.

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 Book II. On declaratoy proceedings

TITLE V
ON DEFAULT AND RESCISSION OF FINAL JUDGEMENTS AND NEW
HEARINGS FOR THE DEFENDANT IN DEFAULT

Article 496. Declaration of default and effects.281

1. The Court Clerk shall declare the defendant who fails to appear on the
date or within the time limit stated in the summons or the order to attend in
default, except in the cases stipulated herein in which the declaration of
default corresponds to the court.

2. The declaration of default shall not be considered to be acceptance of

the claim nor admission of the facts of the claim, except in the cases in
which the law sets forth otherwise.

Article 497. Regime for notifications.282

1. The defendant shall be notified by mail of the decision declaring default

if his address is known and, if it is not known, through public notices. Once
this notification is given, no other notification shall be made, except for
notification of the decision which terminates the proceedings.

2. The defendant shall be notified personally of the judgment or decision

which terminates the proceedings, in the manner provided for in Article
161 of this Act. However, if the location of the defendant is unknown,
notification shall be made through a public notice published in the Official
Gazette of the autonomous region or in the Official State Gazette.

The same shall apply to decisions issued in appeals, in extraordinary

appeals for breach of procedure or in judicial reviews.

When the matter is a judgment for eviction due to failure to pay rent or
amounts due, or due to the legal or contractual expiry of the time limit, and
the defendant properly summoned has not appeared on the date or within
the time limit stated in the summons, notification shall be made through
public notices, and a copy of the decision shall be posted on the bulletin
board of the Court Office.

281
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.
282
Paragraph 3 amended by Article 2.5 of Law 4/2013 of 4 June.
Paragraphs 2, 3 and 4 are worded in accordance with Act 13/2009, of 3 November, except the last
sub-paragraph of paragraph 2 which is worded in accordance with Act 19/2009, of 23 November .

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3. It will not be necessary to publish notices in the Official Gazette of the

Autonomous Region or in the Official State Gazette for proceedings where
the judgment does not have res judicata effect and in eviction proceedings
where the there is a joinder for the claim for rents and amounts due. In
such cases, the posting of a public notice on the Bulletin Board of the
Judicial Office shall suffice.

4. Such publication may be substituted, in the regulatory terms provided

for, by using telematic, computer or electronic means, in accordance with
the provisions of Article 236 of the Judiciary Act.

Article 498. Notification of the existence of proceedings to the defendant

in default summoned or ordered to attend through public notices.

The defendant in default who lacks a known address or is in an unknown

location who has been summoned or ordered to attend through public
notices, shall be notified that the proceedings are pending, ex officio or at
the request of any of the parties of the proceedings, as soon as the place
where notification can be made is known.

Article 499. Subsequent appearance of the defendant.

Regardless of the state of the proceedings at which the defendant in

default appears, this shall be understood as performance, and the
defendant may not withdraw in any case.

Article 500. Lodging of ordinary appeals by the defendant in default.283

The defendant in default who has been personally notified of the decision
may only use a recourse to appeal against this, and an extraordinary
appeal due to breach of procedure or an appeal in cassation, when these
apply, if they are lodged within the legally established time limit.

The same appeals may be used by the defendant in default who has not
been personally notified of the decision. However, in this case, the time limit
for lodging these shall count from the day following the date of publication of
the public notice, with notification of the judgement in the “Official State
Gazette”, Official Gazette of the autonomous region or the Official Gazette of
the Province or, as appropriate, through the telematic, computing or
electronic means referred to in paragraph 2 of Article 497 herein, or in the
manner set forth in paragraph 3 of the same article.

283
Paragraph 2 worded in accordance with Act 13/2009, of 3 November.

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Article 501. Rescission of a final judgement at the request of the party in

default.

Cases where this applies. The defendants who have remained constantly
in default may request the rescission of the final judgement by the court
which issued this judgement, in the following cases:
(i). Uninterrupted force majeure, which prevented the party in default
from appearing at any time even though he knew of the case, as he
had been properly summoned or ordered to attend.
(ii). Ignorance of the claim and the case when the summons or order to
attend is carried out through a summons pursuant to Article 161, but
this had not reached the defendant in default due to a reason not
attributable to him.
(iii). Ignorance of the summons and the case when the defendant in
default has been summoned or ordered to attend through public
notices and was absent from the place in which the proceedings take
place and from any other place in the State or autonomous region, in
whose Gazettes these were published.

Article 502. Time limits for the expiry of the action of rescission.

1. The rescission of a final decision at the request of the defendant in

default shall only apply if this is requested within the following time limits:
(i). Twenty days counting from notification of the final judgement, if this
notification is served in hand.
(ii). Four months counting from the publication of the public notice
informing of the final judgement, if this was not served in hand.

2. The time limits referred to in the preceding paragraph may be extended,

in accordance with the second paragraph of Article 134, if the force majeure
which prevented the defendant in default from appearing subsists; however,
in no case may the action of rescission be exercised after eighteen months
have elapsed from the time notice of the judgement was served.

Article 503. Exclusion of the rescission of judgements without the effects

of res judicata.

The rescission of final judgements which, by a legal provision, lack the

effects of res judicata, shall not apply.

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Article 504. Possible stay of execution. Procedure for rescission.

1. The claims for the rescission of final judgements issued in default shall
not stay their enforcement, except for what is stipulated in Article 566 herein.

2. The intention of the defendant to rescind a final judgement shall be

substantiated through the steps established for ordinary proceedings,
which may be commenced by those who have been parties in the
proceedings.

Article 505. Decision on rescission.

1. Once the proceedings in which the relevant evidence on the reasons

that justify the rescission are over, the court shall decide on the recission
through a judgement which shall not be subject to any appeal.

2. At the request of the party, if, in accordance with the provisions in Article
566, it had not already ordered a stay of execution, the court responsible
for the enforcement must then agree to the stay of execution of the
judgement rescinded.

Article 506. Costs.

1. When it is declared that the rescission requested by the litigant in default

does not apply, all the court costs shall be imposed on this litigant.

2. If a judgement is issued upholding the rescission, costs shall not be

imposed on any of the litigants, unless the court observes recklessness in
any of these.

Article 507. Performance of the procedure after the upholding judgement.

1. When the request of the defendant in default is upheld, the certification

of the judgement which considers the rescission to be upheld shall be sent
to the court which dealt with the case in the first instance and, before this
court, procedure shall be in accord with the following rules:
a)The records shall be handed over to the defendant so that he may
put forward and seek what is advisable for his rights, in the manner
stipulated for the statement of defence.
b) What is put forward and requested shall be granted to the counter-
party for another ten days, together with copies of the written
statements and documents.

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c) Subsequently, the steps of the relevant declaratory proceedings

shall be followed, until the issue of the appropriate judgement, and the
appeals stipulated herein may be lodged against this.

2. It shall not be necessary to forward the certification referred to in the

preceding paragraph to the Court of First Instance if this court upheld the
rescission appropriately.

Article 508. Inactivity of the defendant and another judgement.

If the defendant does not formulate pleas and requests in the steps referred
to in rule (a) of the preceding article, it shall be construed that he waives
being heard and another judgement shall be issued in the same terms as
the one rescinded.

There shall be no appeal against this judgement.

TITLE VI

ON THE REVIEW OF FINAL JUDGEMENTS

Article 509. Competent body and decisions subject to appeal.

The review of final judgements shall be requested from the Civil Chamber
of the High Court or from the Civil and Criminal Chambers of the High
Courts of Justice, in accordance with the provisions in the Organic Act on
the Judiciary Branch.

Article 510. Grounds.284

1. The review of a final judgment shall apply in the following cases:

(i) After it is issued, if decisive documents are recovered or obtained,
and these were not available due to force majeure or due to the party
the judgment was found in favour of.
(ii) Due to documents which, at the time the judgment was issued, one of
the parties did not know that they had been declared to be false in criminal
proceedings, or whose falsehood was subsequently declared penally.

284
Amended by final provision 4.13 of Law 7/2015 of 21 July.

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(iii) Due to evidence from witnesses or experts, and such witnesses or

experts had been convicted of perjury in the declarations which served
as grounds for the judgment.
(iv) If the case was won unjustly due to bribery, violence or fraudulently.

2. Furthermore, an appeal for judicial review may be lodged against a final

judicial decision where the European Court of Human Rights has declared
that such decision was passed in violation of any of the rights recognised
in the European Convention for the Protection of Human Rights and
Fundamental Freedoms and its Protocols, as long as such violation, due
to its nature and seriousness, has effects that persist and cannot be
ceased in any other way than by judicial review, without the latter
prejudicing rights acquired in good faith by third parties.

Article 511. Active Entitlement.285

Review may be requested by the party aggrieved by the final decision

being challenged.

In the case of paragraph 2 of the preceding article, review may only be

requested by the party who was the claimant at the European Court of
Human Rights.

Article 512. Time limit for lodging.286

1. In no case may the review be sought after five years have elapsed from
the date of publication of the judgment that it is intended to challenge. All
applications for review after this time limit has elapsed shall be rejected.

The provisions of the preceding paragraph will not be applicable where the
review is grounded on a Judgment from the European Court of Human
Rights. In this case, the application must be made within a period of one
year from when the judgment of that Court becomes final.

2. Within the time limit stated in the preceding paragraph, it shall be

possible to seek a review on condition that three months have not elapsed
from the date on which the decisive documents, bribery, violence or fraud
were discovered, or on which the falsehood was acknowledged or
declared.

285
Amended by final provision 4.14 of Law 7/2015 of 21 July.
286
Paragraph 1 is amended by final provision 4.15 of Organic Law 7/2015, of 21 July.

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Article 513. Deposit.287

1. In order to be able to lodge a claim for review, it shall be essential to attach

a receipt for having deposited € 300 in the establishment assigned for this
purpose. This amount shall be returned if the court upholds the claim for
review.

2. Failure to deposit or insufficiency of the said deposit not rectified within

the time limit which the Court Clerk states for this purpose, which, in no
case, shall be greater than five days, shall determine that the court flatly
rejects the claim.

Article 514. Conduct.288

1. Once the claim for review is submitted and admitted, the Clerk of the
Court shall request that all the proceedings of the case whose judgment is
challenged be forwarded to the court, and shall summon all the litigants
involved in the case, or their assignees, so that, within the time limit of
twenty days they shall respond to the claim, sustaining what is advisable
for their rights.

2. Once there is a response to the claim for review, or when the time limit
expires without this being made, the Clerk of the Court will call the parties
to a hearing which will be conducted in accordance with the provisions of
articles 440 et seq.

3. In any case, the Public Prosecution Service must inform on the review
before the judgment is issued on whether or not the claim shall be upheld.

4. If pre-hearing matters arise during the processing of the review, the

general rules established in Article 40 of this Act shall apply, and the
absolute expiry time limit referred to in paragraph 1 of Article 512 shall not
apply.

Article 515. Possible stay of execution.

The claims for review shall not suspend the enforcement of the final
judgements which give rise to these, except for what is stipulated in Article
566 herein.

287
Paragraph worded in accordance with Act 13/2009, of 3 November.
288
Paragraphs 1 and 2 are amended by single article 57 of Law 42/2015, of 5 October.
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.

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Article 516. Decision.

1. If the court deems that the review sought should be upheld, it shall
declare this to be so, and shall rescind the decision challenged. It shall
then order that a certificate of the ruling be issued, and shall return the
records to the court they have come from so that the parties might exercise
their rights, as appropriate, in the relevant proceedings.

In these proceedings, the declarations made in the judgement of review

must be taken as the basis and the declarations cannot be discussed.

2. If the court dismisses the review sought, the claimant shall be ordered to
pay costs and he shall lose the deposit made.

3. There shall be no appeals against the judgement issued by the court of

review.

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 Book III. On compulsory enforcement and injunctions

BOOK III

ON COMPULSORY ENFORCEMENT AND INJUNCTIONS

TITLE ONE

ON ENFORCEMENT TITLES
CHAPTER ONE
ON JUDGEMENTS AND OTHER ENFORCEMENT TITLES

Article 517. Enforcement action. Enforcement orders.289

1. Enforcement action must be grounded on an order involving enforcement.

2. Only the following orders shall involve enforcement:

(i) Final judgment.
(ii) Arbitration awards or resolutions and mediation agreements, the
latter of which shall be made public by means of a public deed in
accordance with the Mediation Act on Civil and Commercial Matters.
(iii) Court rulings which approve or validate court settlements and
agreements achieved in the proceedings, accompanied, if necessary
in order to record its specific content, by the corresponding records of
the proceedings.
(iv) Public deeds, which must be the first notarial copy, or if it is a
second copy it must be issued by court order and with a summons to
the person who may be aggrieved, or the grantor, or issued with the
agreement of all parties.
(v) Commercial agreements signed by the parties and by a registered
broker who supervises them, and on condition that there is a certificate
attached in which the broker certifies that the agreement is in
accordance with the entries in their register and the dates of them.
(vi) Bearer or registered securities, legitimately issued, which represent
past-due bonds and coupons, also past-due, of such securities, on
condition that the coupons are in consonance with the securities and
these are in consonance with the books of securities.

289
Paragraph (viii) is amended by final provision 1 of Law 35/2015, of 22 September, in force from
01/01/2016.

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Protesting the falsehood of the security formulated in the confrontation

shall not prevent the enforcement being carried out, if the confrontation
is positive, notwithstanding the subsequent opposition to the
enforcement formulated by the debtor alleging falsehood in the
security.
(vii) Certificates which have not expired and have been issued by the
entities in charge of the accounting registers of the securities
represented through book entries referred to in the Stock Market Act,
on condition that there is a copy of the public deed of the representation
of the securities attached or, as appropriate, of the issue, when this
instrument is necessary, in accordance with the legislation in force.
Once the enforcement is commenced and dealt with, the certificates
referred to in the preceding paragraph shall not expire.
(viii) The court order which establishes the maximum amount which
may be claimed as compensation, passed in the cases provided for by
the law in criminal proceedings initiated due to events covered by
Compulsory Civil Liability Insurance arising from the use and driving of
motor vehicles.
(ix) Other procedural rulings and documents that involve enforcement
according to the provisions of this, or any other, act.

Article 518. Expiry of enforcement action grounded on a court judgment,

arbitration award or mediation agreement.290

An enforcement action grounded on a judgment, a decision of the court or of

the Court Clerk which approves a court settlement or agreement reached in
the proceedings, or in an arbitration award or mediation agreement shall
expire if the relevant enforcement claim is not lodged within a time limit of
the five years once the judgment or decision becomes final.

Article 519. Enforcement action for consumers and users grounded on a

conviction without individual determination of beneficiaries.291

Where the convictions referred to in the first rule of Article 221 do not state
the individual consumers or users benefiting thereof, the court holding
jurisdiction for enforcement shall at the request of one or several interested
parties issue a court order in which it shall decide whether it recognises
the applicants as beneficiaries of the conviction in accordance with the

290
Amended by final provision 3.16 of Royal Decree-Law 5/2012 of 6 July.
291
Amended by final provision 3 of Royal Decree-Law 16/2011 of 24 June

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data, characteristics and requirements set forth in the judgment. With the
certification of this court order, the parties thus recognised may seek
enforcement. The Public Prosecution Service may seek enforcement of
the judgment to the benefit of the consumers and users affected.

Article 520. Enforcement action based on non-judicial and non arbitration

entitlements.

1. When it is a question of the enforcement titles stipulated in numbers (iv),

(v), (vi) and (vii) of paragraph 2 of Article 517, enforcement may only be
applied as regards a certain amount which exceeds 50,000 pesetas:
(i). In cash.
(ii). In convertible foreign currency on condition that the obligation to
pay in this currency is authorised or is legally permitted.
(iii). In kind which can be calculated in cash.

2. The limit of the amount stated in the preceding paragraph may be

obtained through the addition of several enforcement titles from among
those stipulated in this paragraph.

Article 521. Decisions which are merely declaratory and establishing

judgements.

1. Enforcement of the decisions which are merely declaratory or

establishing shall not be carried out.

2. Through their certification and, possibly, a due mandamus, final

establishing judgements may be registered and modifications may be
made in Public Registries, with no need for enforcement to be carried out.

3. When an establishing judgement also contains a conviction rulings,

these shall be carried out in the manner stipulated herein.

Article 522. Obedience and compliance with establishing judgements.

Application for the necessary court proceedings.

1. All the persons and authorities, especially those in charge of the Public
Registries, must abide by and comply with what is stipulated in the
establishing judgements and adapt to the judicial state or situation which
arises from these, unless there are obstacles arising from the Registry in
accordance with its specific legislation.

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2. Those who have been parties to the proceedings or accredit a direct

and legitimate interest may request the court for the precise proceedings
for the efficacy of the establishing judgements and in order to overcome
possible resistance to what is laid down by these.

CHAPTER II
ON FOREIGN ENFORCEMENT TITLES

Article 523. Enforceability in Spain. Law applicable to the procedure.

1. For the definitive judgements and other enforcement titles that entail
enforcement in Spain, the provisions in the International Treaties and the
legal provisions on international judicial co-operation shall apply.

2. In any case, the enforcement of foreign judgements and enforcement

titles shall be carried out in Spain in accordance with the provisions herein,
unless otherwise provided in the International Treaties in force in Spain.

TITLE II
ON THE PROVISIONAL ENFORCEMENT OF COURT RULINGS

CHAPTER ONE
ON PROVISIONAL ENFORCEMENT : GENERAL PROVISIONS

Article 524. Provisional enforcement: claim and content.292

1. Provisional enforcement shall be sought through a claim or a simple

application, as set forth in Article 549 herein.

2. The provisional enforcement of convictions, which are not final, shall be

attended to and carried out in the same way as ordinary enforcement, by
the competent court in the first instance.

3. In provisional enforcement of convictions, the parties shall have the

same procedural rights and powers as in ordinary enforcement.

4. While they are not final, or are final but the time limits stated herein for
the exercise of the action of rescission of judgement issued in default have
not elapsed, only the preventive annotation of the judgements which

292
Paragraphs 1 and 5 of this Article are worded in accordance with Act 13/2009, of 3 November .

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provide or permit the registration or cancellation of entries in Public

Registries shall apply.

5. The provisional enforcement of judgements in which fundamental rights

are involved shall have priority.

Article 525. Judgments not provisionally enforceable.293

1. The following shall never be subject to provisional enforcement:

(A) Judgments passed in proceedings relating to paternity, maternity,
kinship, annulment of marriage, separation and divorce, civil capacity
and marital status, opposition to administrative orders on the protection
of minors, or on measures relating to the restitution or return of minors
in cases of international abduction and the right to honour, except for
pronouncements governing family relations and obligations which
relate to the main object of the proceedings.
(B) Judgments which sentence a party to issue a declaration of will.
(C) Judgments which declare the annulment or expiry of industrial
property rights.

2. Neither shall the provisional enforcement of non-final foreign judgments

apply unless it is provided for otherwise in the International treaties in
force in Spain.

3. The provisional enforcement of rulings involving indemnity in judgments

which declare the violation of the rights to honour, to personal and family
privacy and personal image.

CHAPTER II
ON THE PROVISIONAL ENFORCEMENT OF SENTENCES ISSUED IN
THE FIRST INSTANCE

Section 1. of provisional enforcement and opposition to this

Article 526. Provisional enforcement of convictions in the first instance.

Legitimisation. Except in the cases referred to in the preceding article, the

party who has received a ruling in his favour in a conviction issued in the
first instance may, with no need for security, request and obtain its

293
Amended by single article 58 of Law 42/2015, of 5 October.

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provisional enforcement in accordance with the provisions in the following

articles.

Article 527. Application for provisional enforcement, performance thereof

and appeals.294

1. Provisional enforcement may be sought at any time as from the date

notice is served of the decision in which the appeal is deemed to have
been lodged or, as appropriate, from the moment the apellee’s statement
of adherence to the appeal is transferred to the appellant, provided it is
before a ruling is issued on the appeal.

2. When provisional enforcement is applied for after the records of the

proceedings have been forwarded to the Court with the competence to
decide on the appeal, the applicant shall previously obtain a testimony
from the latter indicating the requirements for the execution and shall
attach the said testimony to the application.

If the provisional execution has been sought prior to remittance of the

records referred to in the preceding paragraph, the Court Clerk shall issue
the testimony before remitting the said records.

3. Once the provisional execution has been requested, the Court shall
dispatch the said execution, except in the case of a judgement included in
Article 525 or a judgement not containing any decision of conviction in
favour of the applicant.

4. A remedy of appeal may be lodged against the court order rejecting the
provisional execution and shall be resolved as a matter of priority. No appeal of
any nature may be lodged against the court order for the dispatch of the
provisional execution, notwithstanding the objection that may be lodged by the
enforcement debtor in accordance with the provisions of the following article.

Article 528. Objection to the provisional execution and specific

enforcement actions.295

1. The enforcement debtor may only object to the provisional enforcement

once the latter has been dispatched.

294
Paragraph 1 amended by Article 4.25 of Act 37/2011 of 10 October.
Paragraphs 1 and 2 of this article have been worded in accordance with Act 13/2009 of 3 November .
295
Paragraph 2, the third sub-paragraph of paragraph 3 and paragraph 4 of this article are worded in
accordance with Act 13/2009 of 3 November.

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2. The objection to the provisional enforcement may only be based,

notwithstanding the provisions of paragraph 4 of this article, on the
following grounds:
(i). At all events, if the provisional enforcement has been dispatched
infringing the preceding article.
(ii). In the case of a non-monetary conviction, when it is impossible or
extremely difficult, in view of the enforcement actions, to restore the
situation prior to the provisional enforcement or to compensate the
enforcement debtor financially by compensating the damages incurred
by the latter, if the said judgement were to be reversed.

3. In the event of a monetary conviction, the enforcement debtor may not

object to the provisional enforcement, but only to the specific enforcement
actions of the distraint proceedings if, in his opinion, the said actions shall
lead to a situation impossible to restore or to compensate financially by
means of the compensation of damages.

When lodging this objection to specific enforcement measures, the

enforcement debtor shall indicate other enforcement measures or
proceedings that are possible and shall not provoke situations similar to
those that, in his opinion, would be caused by the proceeding or measure
to which he objects, and shall offer security sufficient to make up for the
delay in the enforcement if the alternative measures are not accepted by
the Court and the monetary conviction is subsequently upheld.

If the enforcement debtor fails to indicate alternative measures and does

not post security, the objection to the enforcement shall under no
circumstances be appropriate and the Court Clerk shall immediately issue
an order to this effect. A direct appeal for judicial review may be lodged
against the said order but shall have no suspensory effects.

4. In addition to the grounds mentioned in the preceding paragraphs, the

objection may be based on the payment of or compliance with the
instructions of the judgement, which shall be based on documentary
evidence, and on the existence of covenants or settlements agreed upon
and documented at the proceedings to avoid the provisional enforcement.
These grounds for objection shall be dealt with in accordance with the
provisions regarding the ordinary or final enforcement.

Article 529. Carrying out of the objection to the provisional enforcement or

to specific enforcement actions.

1. The statement of objection to the provisional enforcement shall be

lodged with the Court of the enforcement within a time limit of five days

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following that of the notice of the decision ordering the dispatch of the
enforcement or the specific proceedings to which the objection is lodged.

2. The statement of objection to the enforcement and the accompanying

documents shall be transferred to the enforcement creditor and to any
parties to the provisional enforcement to allow them to state and to evidence,
within a time limit of five days, whatever they consider appropriate.

3. In the case of provisional enforcement of a non-monetary conviction

and having alleged the second ground of paragraph 2 of Article 528 for
objection to the provisional enforcement, the party that applied for the
latter, in addition to challenging the allegations of the counter-party, may
offer a security sufficient to guarantee that, in the event of reversal of the
judgement, the previous situation shall be restored or, should this prove
impossible, the damages caused shall be compensated.

The security may be posted in cash, by means of a joint and several

guarantee of indefinite duration and payable upon first demand, issued by
a credit entity or a reciprocal guarantee company or by any other means
that, in the opinion of the Court, guarantees the immediate availability, as
appropriate, of the amount concerned.

Article 530. Decision on the objection to the provisional enforcement and

to specific enforcement measures. Unappealability.

1. When the objection is allowed on the basis of the first ground of

paragraph 2 of Article 528, the objection to the provisional enforcement
shall be decided by court order declaring that it is not appropriate to
proceed with the said provisional enforcement, lifting the attachments and
distraints, and the guarantee measures that have been adopted.

2. If the objection has been lodged in the case of a provisional enforcement

of a non-monetary conviction and, in the opinion of the Court, in the event
of a subsequent reversal of the conviction, it would be impossible or
extremely difficult to restore the situation prior to the provisional
enforcement or to guarantee the compensation by means of the security
that the applicant declares to be willing to post, it shall issue a court order
staying the enforcement but the attachments and the guarantee measures
adopted shall subsist and those that are appropriate shall be adopted, in
accordance with Article 700.

3. If, in the case of a monetary conviction, the objection has been lodged
in relation to specific enforcement actions, the said objection shall be

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allowed if the Court considers the alternative proceedings or measures

indicated by the provisional enforcement debtor to be viable and to have a
similar effectiveness. The same shall apply if the debtor has offered a
security considered sufficient to make up for the delay in the enforcement
and the Court considers that, in the event of a reversal of the conviction, it
would be absolutely impossible in the case at hand to restore the situation
prior to the enforcement or to compensate the provisional enforcement
debtor financially by means of a subsequent compensation of damages.

The upholding of this objection shall merely determine that the performance
of the specific enforcement action to which the said objection refers is
denied, and the distraint proceedings shall continue in accordance with
the provisions herein.

4. No appeal of any nature may be lodged against the court order resolving
on the objection to the provisional enforcement or to specific enforcement
measures.

Article 531. Stay of the provisional enforcement in the event of monetary

convictions.296

The Court Clerk shall issue an order to stay the provisional execution of
rulings to pay liquid cash when the enforcement debtor has deposited the
amount he has been ordered to pay in the Court, to be delivered to the
enforcement creditor, notwithstanding the provisions of the section below,
as well as the corresponding interest and the costs for which the
enforcement was carried out. After the payments have been settled and
the costs assessed, the Clerk Court in charge of the provisional
enforcement shall decide on the continuance or shelving of the
enforcement. A direct appeal for judicial review against the order issued for
this purpose may be lodged with the Court that has authorised the
enforcement.

Section 2. On the reversal or upholding of the

provisionally enforced judgement

Article 532. Upholding of the provisionally enforced decision.

If a judgement is passed upholding the provisionally enforced rulings, the

enforcement shall proceed if not already terminated, barring explicit
abandonment by the enforcement creditor.

296
Article worded in accordance with Act 13/2009, of 3 November.

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If no appeal may be lodged or is lodged against the ruling upholding the

judgement, the enforcement shall proceed as final, except in the case of
abandonment.

Article 533. Reversal of convictions to pay an amount of money.297

1. If the provisionally enforced ruling concerns a conviction to pay an

amount of money and is reversed in full, the Court Clerk shall stay the
provisional enforcement and the enforcement creditor shall return the
amount he received, as appropriate, reimburse to the enforcement debtor
any costs of the provisional enforcement paid by the latter, and compensate
him for any damages the said enforcement may have caused him.

2. In the event of partial reversal of the judgement, only the difference

between the amount received by the enforcement creditor and the amount
resulting from the partial upholding shall be reimbursed, together with the
increase resulting from the annual application to the said difference, as of
the time of its reception, of the legal money interest rate.

3. If the judgement of reversal is not final, the collection of the amounts

and increases referred to in the preceding paragraphs of this article may
be sought through an attachment proceeding filed with the Court that
carried out the provisional enforcement. Settlement of the damages shall
be carried out in accordance with Article 712 and subsequent articles
herein.

The party bound to return, reimburse and compensate may object to

specific distraint actions in accordance with the terms of paragraph 3 of
Article 528.

Article 534. Reversal in cases of non-monetary convictions.

1. If the reversed provisionally enforced decision was a conviction to

deliver a specific asset, the said asset shall be returned to the enforcement
debtor under the same title as he had it before, increased by the rents,
yields or products or the monetary value obtained by the use of the asset.

If the return is impossible, either in fact or under the law, the enforcement
debtor may request compensation of the damages, which shall be settled
by the procedure set forth in Article 712 and subsequent articles.

297
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.

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2. If a decision is reversed involving an order to carry out a certain act and

the said act has already been performed, a petition may be filed to undo
the act and to compensate the damages caused.

3. The return of the object, the undoing of the inappropriate act or the
request for damages referred to in the preceding paragraphs may be
carried out, if the judgement of reversal is not final, by means of
enforcement before the Court competent for the provisional enforcement.

4. In the cases set forth in the preceding paragraphs, the party bound to
return, undo or compensate may object, within the enforcement procedure,
in keeping with the provisions of Article 528 herein.

CHAPTER III
ON DE PROVISIONAL ENFORCEMENT OF CONVICTIONS ISSUED
IN SECOND INSTANCE

Article 535. Provisional enforcement of judgments issued in the second

instance.298

1. The provisional enforcement of non-final judgements passed in second

instance, as well as the objection to the said enforcement, shall be
governed by the provisions of the preceding chapter.

2. In the cases referred to in the preceding paragraph, provisional

enforcement may be sought at any time as from the date notice is served
of the decision deeming that the extraordinary appeal for infringement of
procedure or the appeal in cassation has been lodged, provided it is before
a ruling is issued on such appeals.

The application shall be filed with the Court that heard the proceedings in the
first instance, attaching thereto a certification of the judgment whose provisional
enforcement is requested, as well as an affidavit of all the particulars considered
necessary, which certification and affidavit shall be obtained from the Court that
passed the judgment of appeal or, as appropriate, the body competent to hear
the appeal that was lodged against the said judgment.

3. The objection to the provisional enforcement and to specific enforcement

measures in second instance shall be governed by the provisions of
Articles 528 to 531 herein.

298
Paragraph 2 amended by Article 4.26 of Act 37/2011 of 10 October.

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Article 536. Ratification in second instance of the provisionally enforced

decision.

If the provisionally enforced judgement in second instance is ratified in all

its rulings, the second subparagraph of Article 532 shall apply.

Article 537. Reversal of the provisionally enforced decision in second

instance.

If the judgement passed in second instance and provisionally enforced is

reversed, Articles 533 and 534 shall apply.

TITLE III

ON THE ENFORCEMENT: GENERAL PROVISIONS

CHAPTER ONE
ON THE PARTIES TO THE ENFORCEMENT

Article 538. Parties and individuals subject to the compulsory enforcement.

1. Parties to the enforcement proceedings are the individual or individuals

requesting and obtaining the dispatch of the enforcement and the individual
or individuals against whom the said enforcement is being dispatched.

2. notwithstanding the provisions of Articles 540 to 544, at the request of

the party appearing as creditor in the enforcement title, an enforcement
may only be dispatched against the following parties:
(i). The party appearing as debtor in the same title.
(ii). The individual who, while not appearing as debtor in the
enforcement title, is personally liable for the debt pursuant to a legal
provision or by virtue of a guarantee certified by public document.
(iii). The individual who, while not appearing as debtor in the
enforcement title, is the owner of the assets specifically subject to the
payment of the debt in relation to which the proceedings are being
carried out, provided that the said charge derives from the law or is
certified by means of an authentic document. With regard to these
persons, the enforcement shall be carried out in relation to the assets
specifically charged.

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3. The means of defence granted by the law to the enforcement debtor

may also be used by the individuals against whom the enforcement was
not dispatched but whose assets have been included in the said
enforcement by decision of the Court, as the latter considers that, although
the said assets do not belong to the enforcement debtor, they are
nevertheless encumbered by the compliance with the obligation subject of
the proceedings.

4. If the enforcement creditor induces the Court to extend the enforcement

to individuals or assets not authorised under the title or the law, he shall be
liable for the damages.

Article 539. Representation and defence. Costs and expenses of the

enforcement.299

1. The enforcement creditor and the enforcement debtor shall be instructed

by counsel and represented by a court representative, unless it concerns
the enforcement of decisions issued in proceedings where the involvement
of the said professionals is not mandatory.

The involvement of counsel and court representative shall be required for

enforcement actions arising from uncontested small claims procedures
whenever the amount for which the enforcement is being ordered exceeds
2,000 euros.

The involvement of counsel and court representative shall be required for

enforcement actions arising from mediation agreements or arbitration
awards whenever the amount for which the enforcement is being ordered
exceeds 2,000 euros.

2. In the actions of the enforcement proceedings for which this law expressly
requires a ruling on costs, the parties shall pay the expenses and costs
corresponding to them in accordance with Article 241 herein, notwithstanding
any reimbursements that may be in order after the decision of the Court or
the Court Clerk, as appropriate, in relation to the costs.

The costs of the enforcement proceedings not included in the preceding

subparagraph shall be for the account of the enforcement debtor without
any express taxation being required, but, until their settlement, the
enforcement creditor shall pay the expenses and costs that are being
incurred, except those corresponding to proceedings carried out at the

299
A subparagraph added to paragraph 1 by final provision 3.17 Law 5/2012 of 5 6 July.

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request of the enforcement debtor or other parties, which shall be paid by

whomever has sought the proceeding concerned.

Article 540. Enforcement creditor and enforcement debtor in cases of

succession.300

1. The enforcement may be dispatched or continued in favour of the

individual demonstrating that they are the successor of the party appearing
as enforcement creditor in the enforcement title and against the individual
who proves to be the successor of the party appearing as enforcement
debtor in that title.

2. In order to demonstrate succession for the purposes of the preceding

paragraph, the written documents in which such succession is recorded
shall be submitted to the Court. If the court considers them to be sufficient
for such purposes as they meet the requirements demanded for their
validity, the enforcement will be dispatched without further ado in favour of
or against the successor by reason of the documents submitted.

In the event that the enforcement has already been dispatched, the
succession will be notified to the enforcement creditor or enforcement
debtor, as appropriate, and enforcement will continue in favour or against
whoever is the successor.

3. If succession is not recorded in written documents or the court does not

consider them to be sufficient, it will order the Clerk of the Court to send
the request submitted by the enforcement creditor or debtor who is to be
succeeded, who appears as enforcement creditor or debtor in the title and
who is intended to be the successor, granting a hearing within a time limit
of 15 days. Once the allegations have been submitted, or the time limit
expires without them having been made, the court will pass a decision on
the succession for the sole purposes of the dispatch or continuance of the
enforcement.

Article 541. Enforcement in the case of spouses’ joint property.

1. No enforcement shall be dispatched in relation to the community of joint

property.

300
Amended by single article 59 of Law 42/2015, of 5 October.
Paragraph 3 worded in accordance with Act 13/2009 of 3 November.

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2. When the enforcement is being carried out as a result of debts incurred

by one of the spouses but to be guaranteed by the community property,
although the enforcement claim may be brought exclusively against the
debtor spouse, the attachment of assets shall be notified also to the other
spouse, transferring to the latter the enforcement claim and the court order
resolving the enforcement in order to allow the latter to object to the
enforcement within the ordinary time limit. The objection to the enforcement
may be based on the same grounds as those corresponding to the
enforcement debtor and, in addition, on the ground that the spouses’ joint
property should not answer for the debt for which the enforcement has
been dispatched. If the objection is based on the latter ground, it shall be
up to the creditor to prove the liability of the spouses’ joint property. If no
such liability is demonstrated, the spouse of the enforcement debtor may
apply for the dissolution of the community property in accordance with the
following paragraph.

3. If the enforcement is being carried out as a result of personal debts of

one of the spouses and common assets are the object of the enforcement
due to the lack or insufficiency of the exclusive assets, the attachment of
the former shall be notified to the non-debtor spouse. In this case, if the
latter opts for requesting the dissolution of the community property, the
Court, having heard the spouses, shall resolve whatever is appropriate on
the division of the estate and, as appropriate, shall decide that the said
dissolution be carried out in keeping with the provisions of the law, in the
meantime suspending the enforcement to the extent it concerns the joint
assets.

4. In the cases referred to in the preceding paragraphs, the spouse who

has been notified of the attachment may lodge the appeals and use the
means of contest available to the enforcement debtor in defence of the
interests of the joint property.

Article 542. Enforcement against the joint and several debtor.

1. The judgements, awards and other judicial enforcement titles obtained

only against one or more joint and several debtors shall not have the effect
of an enforcement title against the joint and several debtors who were not
a party in the proceedings.

2. In the case of extrajudicial enforcement titles, the enforcement may only

be dispatched against the joint and several debtor included in the said
titles or in another document evidencing the joint and several nature of the
debt and entailing enforcement in accordance with the law.

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3. When several joint and several debtors are indicated in the enforcement
title, the enforcement may be sought for the total amount of the debt, plus
interest and costs, against one or some of the said debtors or against all of
them.

Article 543. Temporary associations or entities.

1. When the enforcement title specifies as debtors joint ventures or groups

of different companies or entities, the enforcement may be dispatched
against their shareholders, members or associates only if, by agreement
of the latter or pursuant to a legal provision, they are joint and severally
liable for the acts of the joint venture or group.

2. If the law expressly establishes the subsidiary nature of the liability of

the members or companies in the joint ventures or groups referred to in
the preceding paragraph, for the enforcement to be dispatched against the
former it shall be necessary to demonstrate the insolvency of the latter.

Article 544. Entities lacking legal personality.

In the case of enforcement titles against entities lacking legal personality

and trading as separate entities, the enforcement may be dispatched
against the shareholders, members or managers who have intervened in
the legal transactions in the name of the entity, provided that, in the opinion
of the Court, the condition of shareholder, member or manager and the
intervention in the name of the entity in relation to third parties has been
sufficiently demonstrated.

The provisions of the preceding paragraph shall not apply to the

communities of owners of real property under the condominium system.

CHAPTER II
OTHE COMPETENT COURT

Article 545. Competent Court. Manner of compulsory enforcement

decisions.301

1. If the enforcement title consists of court rulings, decisions issued by

Court Clerks considered enforcement titles herein, or settlements and

301
Paragraph 2 amended by final provision 3.18 of Law 5/2012 of 6 July.
Paragraphs 1, 2 and 4 are worded in accordance with Act 13/2009 of 3 November.

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agreements sanctioned or approved by the courts, the competent Court to

issue the court order containing the general order for enforcement and its
dispatch shall be the Court that heard the matter in first instance or
sanctioned or approved the settlement or agreement.

2. Where title for enforcement resides in an arbitration award or mediation

agreement, the Court of First Instance of the place where the award has
been issued or where the mediation award has been executed shall hold
jurisdiction to reject or authorise the enforcement action and its
performance.

3. For the enforcement based on titles other than those referred to in the
preceding paragraphs, the competent Court shall be the Court of First
Instance of the place corresponding in accordance with the provisions of
Articles 50 and 51 herein. The application for enforcement may also be
lodged, at the discretion of the enforcement creditor, with the Court of First
Instance of the place of compliance with the obligation, according to the title,
or with the Court of any place where the assets of the enforcement debtor
liable to be attached are situated, but the rules concerning explicit or tacit
submission contained in section 2 of chapter II of title II of Book I shall not
apply under any circumstances.

If there are several enforcement debtors, the competent Court shall be the
one that, pursuant to the preceding subparagraph, is competent in respect
of any enforcement debtor, at the discretion of the enforcement creditor.

The provisions set forth in the preceding subparagraph notwithstanding,

when the enforcement affects only specifically mortgaged or pledged
assets, the competence shall be determined in keeping with the provisions
of Article 684 herein.

4. In all the events set forth in the preceding paragraphs, the Court Clerk
shall be responsible for determining the assets of the enforcement debtor
to be included in the dispatch of the enforcement and the adoption of any
measures required to ensure the effectiveness of the dispatch, and shall
order any means for verifying the assets that are necessary in accordance
with Articles 589 and 590 herein and the specific enforcement measures
that are appropriate.

5. In enforcement proceedings, Court decisions shall be given in the form

of a court order when they:

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(i). Contain the general enforcement order authorising and dispatching

the said enforcement.
(ii). Decide on the objection to the final enforcement based on
procedural reasons or reasons relating to the merits of the case.
(iii). Decide on third-party claims to ownership.
(iv). Refer to any other decisions specified herein.

6. The form of an order shall be given to the decisions of the Court Clerk
determining the assets of the enforcement debtor to be included in the
dispatch of the enforcement and any other decisions specified herein.

7. The Court shall resolve by means of a procedural court order in all cases
expressly indicating so, whereas in all other cases the appropriate decisions
shall be issued by the Court Clerk in the form of orders to move the
proceedings forward, except when it is appropriate to decide by court order.

Article 546. Ex officio examination of territorial jurisdiction.

1. Before dispatching the enforcement, the Court shall examine ex officio

its territorial jurisdiction and if, in view of the enforcement title and other
documents accompanying the claim, it considers that it does not have the
territorial jurisdiction, it shall issue a court order abstaining from dispatching
the enforcement and indicating to the claimant the Court with which he
should lodge the claim. This decision may be appealed against in
accordance with paragraph 2 of Article 552.

2. Once the enforcement has been dispatched the Court cannot review its
territorial jurisdiction ex officio.

Article 547. Declinatory plea in the compulsory enforcement.

The enforcement debtor may challenge the jurisdiction of the court by

submitting a declinatory plea within a time limit of five days following the
day on which he receives the first notice of the enforcement proceedings.

The declinatory plea shall be processed and resolved in accordance with

Article 65 herein.

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CHAPTER III
ON THE DISPATCH OF THE ENFORCEMENT

Article 548. Time limit to enforce procedural rulings, arbitration awards or

mediation agreements.302

No enforcement actions of procedural rulings, arbitration awards or

mediation agreements shall be ordered before twenty days have elapsed
since the date on which notice is served on the enforcement creditor of the
conviction, the covenant’s approval or the agreement’s execution.

Article 549. Enforcement claim. Content.303

1. An enforcement shall be dispatched only at the request of a party, in the

form of a claim, in which the following shall be specified:
(i) The title on which the enforcement creditor bases their claim.
(ii) The enforcement protection sought, in connection with the
enforcement title submitted, specifying, as appropriate, the amount
claimed in accordance with Article 575 of this Act.
(iii) The assets of the enforcement debtor subject to attachment known
to them and, as appropriate, if they consider them to be sufficient for
the purposes of the enforcement.
(iv) As appropriate, the measures of location and investigation
requested pursuant to Article 590 of this Act.
(v) The person or persons, specifying their identification details, against
whom the dispatch of the enforcement is sought, due to such person
or persons appearing in the title as debtors or being subject to the
enforcement in accordance with Articles 538 to 544 of this Act.

2. If the enforcement title is a decision of the Clerk of the Court or a

judgment or decision issued by the Court competent to examine the
enforcement, the enforcement claim may be limited to a request for
dispatch of the enforcement, identifying the judgment or decision whose
enforcement is sought.

302
Amended by final provision 3.19 of Royal Decree-Law 5/2012 of 6 July.. Amended by Article 4.27
of Act 37/2011 of 10 October.
303
Paragraph 3 amended by Article 2.6 of Law 4/2013 of 4 June.

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3. In a judgment for eviction due to non-payment of rents or amounts due,

or due to the legal or contractual expiry of the term, or in orders which end
the eviction if there is no opposition to the payment order, the request for
enforcement of the eviction order will be sufficient for the direct execution
of such orders without the need for further procedures to proceed with the
eviction on the date and time shown in the judgment itself of on the date
that may have been set to serve the payment notice on the defendant.

4. The legal time limit referred to in the preceding article shall not apply to
the enforcement of decisions on eviction for non-payment of rents or
amounts due or legal or contractual expiry of the term, which shall be
governed by the provisions applicable in such cases.

Article 550. Documents to be attached to the enforcement claim.304

1. The following shall be attached to the enforcement claim:

(i). The enforcement title, except where the enforcement action is
grounded on a judgment, order, agreement or settlement that is
recorded in the proceedings.
If the title is an award, the arbitration agreement and the documents
proving the notice of the latter has been served on the parties shall
also be attached.
Where the title is a mediation agreement made public through a deed,
a copy of the minutes of the initial and final sessions of the proceedings
shall additionally be attached.
(ii). The power of attorney granted in favour of a court representative,
provided that the representation is not conferred «apud acta» or is not
already recorded in the proceedings, when an application is lodged for
the enforcement of judgements, settlements or agreements sanctioned
by the Court.
(iii). The documents evidencing the prices or rates applied for the
monetary calculation of non-monetary debts, unless they are official
data or data of public knowledge.
(iv). All other documents required by law for the dispatch of the
enforcement.

2. The enforcement claim may also be accompanied by any documents

the enforcement creditor considers useful or convenient for the most

304
A paragraph added to item (i), paragraph 1 by final provision 3.20 ofLaw 5/2012 of 6 July.

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appropriate execution of the enforcement and containing details of interest

for their dispatch.

Article 551. General order of enforcement and dispatch of the

enforcement.305

1. Once the enforcement claim has been lodged and provided that the
procedural rules and requirements are met, that the enforcement claim
does not contain any formal irregularity and the acts of enforcement sought
are in keeping with the nature and the contents of the title, the Court shall
issue a court order containing the general order of enforcement and
dispatching the latter.

Beforehand, the Clerk of the Court will carry out the relevant consultation
at the Public Bankruptcy Registry for the purposes provided for in
paragraph 4 of article 5 a) of the Bankruptcy Act.

2. The court order shall indicate:

(i) The person or persons in whose favour the enforcement is being
dispatched and the person or persons against whom such enforcement
is being dispatched.
(ii) Whether the enforcement is being dispatched in a joint or a joint
and several manner.
(iii) The amount, as appropriate, for which the enforcement is being
dispatched, for all items.
(iv) The clarifications that are required in relation to the parties or the
contents of the enforcement, in keeping with the provisions in the
enforcement title, as well as concerning those personally liable for the
debt or the owners of assets specifically subject to its payment or
those who must be included in the enforcement, in accordance with
the provisions of Article 538 of this act.

3. Once the court order has been issued by the Judge or Senior Judge, the
Clerk of the Court in charge of the enforcement, on the same day or on the
working day following the day on which the writ of enforcement was issued,
shall issue an order containing:
(i) The specific enforcement measures that are appropriate, including,
if possible, the attachment of assets.

305
Amended by single article 60 of Law 42/2015, of 5 October.

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(ii) The measures aimed at locating and verifying the appropriate

assets of the enforcement debtor, in accordance with the provisions of
Articles 589 and 590 of this act.
(iii) The content of the payment order to be served on the debtor, in the
cases where the law provides for this requirement, and if this is made
by civil servants from the Judicial Assistance Body or by the procurator
of the enforcement creditor, if this is requested.

The Clerk of the Court will make the existence of the order dispatching the
enforcement known to the Public Bankruptcy Registry with express
specification of the tax identification number of the individual or corporate
debtor against whom the enforcement is dispatched. The Public Bankruptcy
Registry will notify the court that is hearing the enforcement of the practice
of any entry against the tax identification number notified for the purposes
provided for in bankruptcy legislation. The Clerk of the Court will notify the
Public Bankruptcy Registry of the termination of the enforcement
proceedings as soon as this occurs.

4. No appeal of any nature may be lodged against the court order

authorising and dispatching the enforcement, without prejudice to any
objection that may be filed by the enforcement debtor.

5. A direct appeal for judicial review without suspensive effects against the
order issued by the Clerk of the Court may be lodged with the Court that
issued the general enforcement order.

Article 552. Rejection of the dispatch of the enforcement. Appeals.306

1. If the Court considers that the rules and requirements established by

law to dispatch the enforcement have not been complied with, it shall issue
a court order rejecting the dispatch of the enforcement.

The court will review ex officio if any of the clauses included in an

enforcement title from those cited in article 557.1 could be classified as
abusive. If any clause appears that could be classified as such the parties
will be given fifteen days for a hearing. Once they have been heard, the
appropriate ruling will be made within five working days in accordance with
the provisions of article 561.1.(iii).

306
Amended by single article 61 of Law 42/2015, of 5 October.
Please note transitional provision 2 of the afore-mentioned Law with respect to the last paragraph of
section 1 for small claims proceedings and enforcement of arbitration awards.

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2. A direct appeal may be lodged against the court order rejecting the
dispatch of the enforcement and such appeal may be lodged only by the
creditor. The creditor may also, at their discretion, attempt an appeal for
reversal prior to the remedy of appeal.

3. Once the court order rejecting the dispatch of the enforcement has
become final, the creditor may only assert his rights in the relevant ordinary
proceedings, provided the latter are not prevented by the res judicata of
the final judgment or decision on which the enforcement claim was based.

Article 553. Notice.307

The court order authorising and dispatching the enforcement, as well as the
order issued by the Clerk Court, as appropriate, together with a copy of the
enforcement claim, shall be notified simultaneously to the enforcement debtor
or, as appropriate, to the court representative representing him, without
summons or order to attend, in order to allow him to be present at the
enforcement, informing the latter, in such case, of the subsequent proceedings.

Article 554. Immediate measures following the court order of dispatch of

the enforcement.308

1. In the cases where no request for payment is made, the measures

referred to in number 2 of paragraph 3 of Article 551 shall be put into effect
immediately, without previously hearing the enforcement debtor or waiting
for the notice of the decree issued to this effect.

2. Even if a request for payment has to be made, the procedure shall be

carried out in the way set forth in the preceding paragraph if requested by
the enforcement creditor, justifying, in the opinion of the Court Clerk
responsible for the enforcement, that any delay in locating and investigating
the assets could thwart the successful conclusion of the enforcement.

Article 555. Joinder of enforcements.309

1. At the request of any of the parties or ex office, the Court Clerk shall
resolve the joinder of the enforcement proceedings between the same
enforcement creditor and the same enforcement debtor.

307
This article is worded in accordance with Act 13/2009, of 3 November.
308
Article worded in accordance with Act 13/2009 of 3 November.
309
Paragraphs 1 and 2 of this article have been worded in accordance with Act 13/2009 of 3 Novem-
ber («Official State Gazette» number 266 of 4 November).

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2. The enforcement proceedings carried out against the same enforcement

debtor may be joined, at the request of any of the enforcement creditors, if
the Court Clerk competent in the oldest proceedings considers it more
convenient for the satisfaction of all the enforcement creditors.

3. The application for a joinder shall be substantiated in the form set forth
in Article 74 and subsequent articles.

4. When the enforcement concerns exclusively specifically mortgaged

assets, the joinder with other enforcement proceedings may only be
decided if the latter are being carried out to execute other mortgage
guarantees on the same assets.

CHAPTER IV
ON THE OBJECTION TO THE ENFORCEMENT AND THE CONTESTING
OF ENFORCEMENT ACTS CONTRARY TO LAW OR THE ENFORCEMENT TITLE

Article 556. Contesting the enforcement of procedural rulings, arbitration

awards or mediation agreements.310

1. If the enforcement title is a court or arbitration conviction or a mediation

agreement, the enforcement debtor shall have ten days in which to lodge an
objection in writing, counted from the date notice is served of the court order
ordering enforcement, alleging payment or fulfilment of the instructions
contained in the judgment, which shall be proven by means of documents.

The expiry of the enforcement action and the agreements and settlements
reached in order to avoid enforcement may also be alleged, provided that
such agreements and settlements are recorded in public instruments.

2. The objection lodged in the cases of the preceding paragraph shall not
suspend the enforcement.

3. The provisions of the preceding paragraphs notwithstanding, when the

enforcement has been dispatched by virtue of the court order referred to in
number 8 of paragraph 2 of Article 517, once the Court Clerk has admitted
the objection to the enforcement, he shall, in the same decision, order the
stay of the latter. This objection may be based on any of the grounds set
forth in the following article and on those specified below:

310
Heading and paragraph 1(1) amended by final provision 3.21 of Law 5/2012 of 6 July.
Paragraph 1 amended by Article 4.28 of Act 37/2011 of 10 October.
Article worded in accordance with Act 13/2009 of 3 November.

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(A) Exclusive fault of the victim.

(B) Force majeure unrelated to the driving or operation of the vehicle.
(C) Concurrence of faults.

Article 557. Objection to the enforcement based on non-judicial or

arbitration titles.311

1. When enforcement is dispatched based on the titles provided for in

numbers (iv), (v), (vi) and (vii) and on other enforceable documents
referred to in number (ix) of paragraph 2 of Article 517, the enforcement
debtor may only object to the latter, in the time and form provided for in the
preceding article, if the objection is based on any of the following grounds:
(A) Payment which can be proven with documentary evidence.
(B) Compensation of a liquid credit resulting from an enforceable
document.
(C) Excess amount sought or excess in the cash calculation of the
debts in kind.
(D) Prescription and expiry.
(E) Debt relief, arrangement with creditors or covenant or promise not
to request, with documentary evidence.
(F) Settlement, provided it is recorded in a public document.
(G) That the title contains abusive clauses.

2. If the objection specified in the preceding paragraph is lodged, the Clerk

of the Court shall, by order to move the proceedings forward, stay the
course of the enforcement.

Article 558. Objection on the ground of excess amount sought. Special

cases.312

1. The objection based exclusively on an excess amount sought or an

excess shall not suspend the course of the enforcement, unless the
enforcement debtor puts at the disposal of the Court for its immediate

311
Point (G) is added to paragraph 1 by article 7.2 of Law 1/2013, of 14 May.
Please note the transitional regime for enforcement proceedings regulated by Transitional Provision
4 of that Law.
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.
312
Article worded in agreement with Act 13/2009, of 3 November.

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delivery by the Court Clerk to the enforcement creditor the amount he

considers due. Apart from this case, the enforcement shall continue its
course, but the product of the sale of attached assets, to the extent it
exceeds the amount acknowledged as due by the enforcement debtor,
shall not be delivered to the enforcement creditor as long as the objection
has not been resolved.

2. In the cases referred to in Articles 572 and 574, concerning account

balances and variable interest, the Court Clerk in charge of the enforcement
may, at the request of the enforcement creditor, appoint an expert by means
of an order to move the proceedings forward, who, subject to a prior provision
of funds, shall issue an opinion on the amount of the debt. This opinion shall
be transferred to both parties to allow them, within a common time limit of
five days, to submit their pleas in respect of the opinion issued. If both parties
are in agreement with the opinion or fail to submit any pleas within the time
limit granted to this effect, the Court Clerk shall issue an order of conformity
with the said opinion. A direct appeal for judicial review without suspensory
effects may be lodged with the Court against this order.

In case of controversy or if only one of the parties submitted pleas, the

Court Clerk shall indicate a day and time for the holding of a hearing at the
Court that issued the general enforcement order.

Article 559. Substantiating objections on the grounds of procedural

defects and decisions on them.313

1. The enforcement debtor may also object to the enforcement by alleging

the following defects:
(i) The enforcement debtor lacks the condition or the representation in
which the claim is lodged against him.
(ii) Lack of capacity or representation of the enforcement creditor or failing
to prove the condition or representation in which the claim is lodged.
(iii) Absolute nullity of the enforcement order due to the judgment or
arbitration award not containing any statement of sentence, or because
documentation submitted was non-compliant, the award or mediation
agreement does not meet the legal requirements for enforcement, or due
to a breach of the provisions of Article 520 when ordering enforcement.

313
Point (iii) of paragraph 1 amended by single article 62 of Law 42/2015, of 5 October.
Item (iii), paragraph 1 amended by final provision 3.22 of Law 5/2012 of 6 July.
Number iv added by Act 60/2003 of 23 December.

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(iv) If the enforcement title is an arbitration award not officially recorded

with a Notary Public, the lack of authenticity of such title.

2. If the objection of the enforcement debtor is based on procedural

defects, either exclusively or jointly with other reasons or grounds, the
enforcement creditor may submit pleas in respect of the latter within a time
limit of five days. If, in the opinion of the Court, the defect can be rectified,
it shall, by procedural court order, grant the enforcement creditor a term of
ten days to rectify it.

If the defect or fault cannot be rectified, or is not rectified within the said
time limit, a court order shall be issued voiding the dispatched enforcement
and ordering the enforcement creditor to pay the costs. If the Court fails to
discern the existence of the procedural defects forming the sole ground of
the objection, it shall issue a court order dismissing the objection and
ordering the enforcement to go ahead and the enforcement debtor to pay
the costs of the objection.

Article 560. Substantiating the objection based on reasons of substance.314

Once a decision has been issued on the objection to the enforcement for
procedural reasons or if no such reasons have been alleged, the enforcement
creditor may challenge the objection based on reasons of substance within
a time limit of five days from the day on which the decision on the former
grounds was notified to them or from the transfer of the writ of objection.

The parties, in their respective writs of objection and challenge to the

latter, may apply for a hearing to be held, which the Court shall resolve by
procedural court order if the dispute concerning the objection cannot be
resolved on the basis of the documents submitted, and the Clerk of the
Court shall indicate the day and time for the hearing within a time limit of
ten days following the day of conclusion of the challenge procedure.

If a hearing is not requested, or if the Court considers that it is not

appropriate to hold a hearing, the objection shall be resolved without
further ado in accordance with the following article.

Where it is agreed to hold a hearing, if the enforcement debtor does not

appear at it the court will take the objection to have been abandoned and will
pass the decisions provided for in article 442. If the enforcement creditor fails

314
The last paragraph is amended by single article 63 of Law 42/2015, of 5 October.
Paragraph 2 worded in accordance with Act 13/2009, of 3 November.

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to appear, the Court shall resolve on the objection to the enforcement without
hearing them. If both parties appear, the hearing shall be carried out in
accordance with the proceedings established for the oral hearing, proceeding
to issue the appropriate decision in accordance with the following article.

Article 561. Court order deciding on the objection based on reasons of

substance.315

1. Having heard the parties on the objection to the enforcement not based
on procedural defects and, as appropriate, having held a hearing, the
Court shall, by means of a court order, for the sole purposes of the
enforcement, adopt one of the following decisions:
(A) Declare it appropriate for the enforcement to proceed for the
amount that has been dispatched, when the objection is dismissed
completely. If the objection was based on an excess amount sought
and the latter is rejected in part, the enforcement shall be declared
appropriate only for the relevant amount.
The court order rejecting the objection completely shall order the
enforcement debtor to pay the costs of the objection, in accordance
with the provisions of Article 394 concerning the order to pay costs in
first instance.
(B) Declare that the enforcement is not appropriate, when one of the
grounds for objection set out in Articles 556 and 557 is upheld or the
excess amount sought that was admitted in accordance with Article
558 is deemed well-founded in full.
(C) Where one or several clauses are deemed to be abusive, the order
passed will set out the effects of such classification and decree either
the inappropriateness of the enforcement or its dispatch without
applying the clauses which are considered to be abusive.

2. If the objection to the enforcement is upheld, the latter shall be declared

void and the Court shall order the lifting of the attachments and the
measures of guarantee of the charge that were adopted, restoring the
enforcement creditor to the situation existing prior to the dispatch of the
enforcement, in accordance with Articles 533 and 534. The enforcement
creditor will also be ordered to pay the costs of the objection.

315
Point (C) is added to paragraph 1 by article 7.3 of Law 1/2013, of 14 May.
Please note the transitional regime for enforcement proceedings regulated by Transitional Provision
4 of that Law.

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3. A remedy of appeal may be lodged against the court order deciding on

the objection, which shall not suspend the course of the enforcement if the
decision appealed against is one of dismissal of the objection.

If the decision appealed against upheld the objection, the enforcement

creditor may request the attachments and the guarantee measures adopted
to be maintained and to adopt those that are appropriate in accordance with
Article 697 of this Act, and the Court shall resolve to do so by means of a
procedural court order, provided that the enforcement creditor posts a
security in an adequate amount, which shall be determined in the same
decision, to guarantee any compensation that may correspond to the
enforcement debtor in case the upholding of the objection is confirmed.

Article 562. Contest of legal infringements in the course of the

enforcement.316

1. Regardless of the objection to the enforcement by the enforcement

debtor in accordance with the preceding articles, any persons referred to
in Article 538 may denounce the infringement of rules regulating the
specific acts of the enforcement proceedings:
(i). By means of the appeal for reversal established herein if the
infringement is recorded or has been committed in a decision of the
Court of the enforcement or of the Court Clerk.
(ii). By means of a remedy of appeal in the cases where this is
expressly established herein.
(iii). By means of a brief lodged with the Court in the absence of an
express decision against which an appeal may be filed. The brief shall
clearly express the decision or proceeding sought in order to remedy
the alleged infringement.

2. If it is alleged that the infringement implies the nullity of proceedings or

the Court so upholds, the provisions of Article 225 and subsequent articles
shall apply. If the said nullity has been alleged before the Court Clerk or
the latter considers that there are grounds to declare the said nullity, he
shall inform the Court that authorised the enforcement in order for the
latter to adopt a decision on the matter.

316
Numbers (i) and (iii) of paragraph 1 and paragraph 2 are worded in accordance with Act 13/2009
of 3 November.

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Article 563. Acts of enforcement contradictory to the judicial enforcement

title.317

1. Should the court holding jurisdiction for the enforcement adopt a

decision contrary to the enforcement title once the enforcement action has
been ordered by virtue of court judgments or decisions, the party suffering
damages may lodge an appeal for reversal and, should the latter be
dismissed, a remedy of appeal.

Should the decision contrary to the enforcement title be issued by the

Court Clerk, an appeal for judicial review may be lodged before the court
and, should it be dismissed, a remedy of appeal may be lodged.

2. In the cases of the preceding paragraph, the apellant may request the
suspension of the specific contested enforcement activity, which shall be
granted if, in the opinion of the Court, the said party posts a security sufficient
to cover the damages that the delay may cause to the other party.

The security may be posted in any of the forms specified in the second
subparagraph of paragraph 3 of Article 529.

Article 564. Legal defence of the enforcement debtor based on facts and
acts not included in the grounds for objection to the enforcement.

If, after the possibilities of a plea in the trial or subsequent to the submission
of an extrajudicial enforcement title have been exhausted, facts or acts
occur other than those admitted by this law as grounds of objection to the
enforcement but legally relevant in relation to the rights of the enforcement
creditor as against the enforcement debtor or the rights of the enforcement
debtor as against the enforcement creditor, the legal validity of the said
facts or acts may be enforced in the corresponding proceedings.

CHAPTER V
ON THE STAY AND TERMINATION OF THE ENFORCEMENT

Article 565. Scope and general rule regarding the stay of the enforcement.

1. A stay of the enforcement shall be ordered only in the cases where the
law so orders expressly or all the parties to the enforcement so agree.

317
Paragraph 1 amended by Article 4.29 of Act 37/2011 of 10 October
Article worded in accordance with Act 13/2009, of 3 November.

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2. After the stay has been ordered, measures of guarantee of the agreed
attachments may nevertheless be adopted or maintained and those
already agreed shall at all events be carried out.

Article 566. Stay, dismissal and resumption of the enforcement in cases of

reversal and review of a final judgement.318

1. If, after the enforcement has been dispatched, a claim for review or
reversal of a final judgement passed in default is lodged, the Court
competent for the enforcement may, at the request of a party and if deemed
advisable in view of the circumstances of the case, order the stay of the
proceedings for enforcement of the judgement. To decide the stay, the
Court shall demand that the party requesting it post a security equal to the
value of the subject of litigation and the damages that may derive from the
non-enforcement of the judgement. Before deciding on the stay of the
enforcement of the judgement under review, the Court shall hear the
opinion of the Public Prosecution Service.

The security referred to in the preceding subparagraph may be posted in any of

the forms set forth in the second subparagraph of paragraph 3 of Article 529.

2. The stay of the enforcement shall be lifted and its continuance ordered if
the Court Clerk responsible for the enforcement is informed of the dismissal
of the review or the claim for reversal of a judgement passed in default.

3. The Court Clerk shall stay the enforcement if the review is allowed or if,
after the judgement passed in default has been reversed, a judgement
acquitting the defendant is passed

4. If, the judgement passed in default having been reversed, a judgement

is passed with the same contents as the reversed judgement or if, although
having a different content, it contains rulings of conviction, its enforcement
shall be carried out and the previous enforcement acts shall be considered
valid and effective to the extent that they are suitable to achieve the
effectiveness of the rulings of the said judgement.

Article 567. Lodging or ordinary appeals and suspension.319

The lodging of ordinary appeals shall not by itself suspend the course of
the enforcement actions. However, the enforcement debtor who evidences

318
Paragraphs 2 and 3 of this article are worded in accordance with Act 13/2009 of 3 November.
319
Article worded in accordance with Act 13/2009 of 3 November.

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that the decision he is appealing is causing him damages difficult to repair

may apply to the Court that dispatched the enforcement for the suspension
of the proceeding appealed against, posting, in the forms allowed by this
law, a security sufficient to cover the damages that may be caused by the
delay.

Article 568. Stay in cases of bankruptcy or pre-bankruptcy.320

1. No court order will be passed authorising and dispatching enforcement

where the Court has evidence that the defendant is bankrupt or has made
the notification referred to in article 5 a) of the Bankruptcy Act with respect
to the goods set out in that article. In the latter case, where enforcement
affects a guarantee in rem, the enforcement will be taken as commenced
for the purposes of article 57.3 of the Bankruptcy Act in the event that
bankruptcy eventually occurs in spite of the enforcement not being
dispatched.

2. The Clerk of the Court shall order the stay of the enforcement action at
the stage it has reached where a declaration of bankruptcy is reflected in
the proceedings. The commencement of the enforcement and the
continuance of the procedure already commenced concerning exclusively
mortgaged and pledged assets shall be governed by the provisions of the
Bankruptcy Act.

3. If there are several defendants and only one or some of them are in the
situation referred to in the two preceding paragraphs, the enforcement
shall not be suspended in respect of the others.

Article 569. Suspension on the grounds of criminal first-ruling procedure.321

1. The filing of a complaint or the lodging of an action putting forward

allegedly criminal matters relating to the enforcement title or the dispatch
of the compulsory enforcement shall not, as such, imply an order of
suspension of the said enforcement.

If, however, a criminal case is pending in which allegedly criminal matters are
being investigated that, if true, would determine the falsehood or nullity of the

320
The heading and paragraph 1 amended by final provision 1 of Law 17/2014, of 30 September.
Paragraph 2 amended by final provision 3.7 of Act 22/2003 of 9 July.
Article worded in accordance with Act 13/2009 of 3 November.
321
The second subparagraph of paragraph 1 and paragraph 3 are worded in accordance with the Act
13/2009 of 3 November.

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title or the invalidity or illegality of the dispatch of the enforcement, the Court
that authorised the said dispatch, after having heard the parties and the Public
Prosecution Service, shall order the suspension of the enforcement.

2. If the criminal case referred to in the preceding paragraph terminates

with a decision declaring the non-existence of the fact or that the said fact
is not of a criminal nature, the enforcement creditor may request the
compensation of damages, in the terms of paragraph seven of Article 40.

3. The provisions of paragraph one of this article notwithstanding, the

enforcement may move forward if the enforcement creditor posts a security
in any of the forms laid down in the subparagraph two of paragraph 3 of
Article 529 that, in the opinion of the Court that dispatched the enforcement,
is sufficient to cover whatever he may receive and the damages that are
caused to the enforcement debtor as a result of the enforcement.

Article 570. End of the enforcement.322

The compulsory enforcement may only terminate with the complete

satisfaction of the enforcement creditor, which shall be decided by an
order of the Court Clerk, against which a direct appeal for judicial review
may be lodged.

TITLE IV
ON THE MONETARY ENFORCEMENT

CHAPTER ONE
ON THE MONETARY ENFORCEMENT: GENERAL PROVISIONS

Article 571. Scope of this title.

The provisions of this Title shall apply when the compulsory enforcement
is appropriate by virtue of an enforcement title directly or indirectly resulting
in the obligation to deliver an amount of liquid money.

Article 572. Liquid amount. Enforcement for balance of transactions.

1. For the purposes of the dispatch of the enforcement a liquid amount

shall be considered any specified amount of money expressed in the title

322
Article worded in accordance with Act 13/2009 of 3 November .

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with comprehensible letters, figures or numbers. In case of differences

between various expressions of the amount, the amount specified in letters
shall prevail. However, for the purposes of dispatching the enforcement, it
shall not be necessary for the amount requested by the enforcement
creditor in respect of the interest that may accrue during the enforcement
and the costs originated by the latter to be a liquid amount.

2. An enforcement may also be dispatched for the amount of the balance

resulting from transactions deriving from contracts executed by public
deed or in a policy authenticated by a certified trade broker, provided that
it has been agreed in the title that the amount due in case of enforcement
shall be that resulting from the settlement carried out by the creditor in the
manner agreed upon by the parties in the enforcement title itself.

In such case, the enforcement shall be dispatched only if the creditor

demonstrates that he has previously notified the enforcement debtor and
the guarantor, if appropriate, of the amount due resulting from the
settlement.

Article 573. Documents to be attached to the enforcement claim for

balance of account.

1. In the cases referred to in the second paragraph of the preceding article,

the following documents shall be attached to the enforcement claim, in
addition to the enforcement title and the documents referred to in Article 550:
(i). The document or documents expressing the balance resulting from
the settlement carried out by the creditor, as well as the statement of
the credit and debit items and those corresponding to the application
of interest determining the exact balance for which the dispatch of the
enforcement is requested.
(ii). The authentic document evidencing that the settlement was carried
out in the form agreed upon by the parties in the enforcement title.
(iii). The document evidencing that the amount due has been notified
to the debtor and the guarantor, if appropriate.

2. If considered convenient by the enforcement creditor, the claim may

also be accompanied by the supporting evidence of the various credit and
debit items.

3. If the creditor is in doubt as to the reality or the demandability of a

specific item or its actual amount, he may request the dispatch of the

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enforcement for the unquestioned amount and reserve the claim of the
rest for the corresponding declaratory action, which may be simultaneous
to the enforcement.

Article 574. Enforcement in cases of variable interest.

1. In the enforcement claim the enforcement creditor shall set forth the
calculation operations resulting in the balance of the specified amount for
which the dispatch of the enforcement is sought in the following cases:
(i). When the amount claimed by him derives from a loan or credit in
which a variable interest rate was agreed.
(ii). When the amount claimed derives from a loan or credit in which it
is necessary to adjust the pars of exchange of different currencies and
their respective interest rates.

2. In all the preceding cases the provisions of numbers two and three of
the first paragraph of the preceding article and the second and third
paragraphs of the said article shall apply.

Article 575. Determination of the amount and dispatch of the

enforcement.323

1. The enforcement shall be dispatched for the amount claimed in the

enforcement claim for principal and ordinary and late-payment interest
due, increased by the amount anticipated to cover the interest that may
accrue, as appropriate, during the enforcement and the costs of the latter.
The amount estimated for these two items, which shall be fixed
provisionally, may not exceed 30% of the amount claimed in the
enforcement claim, without prejudice to subsequent settlement.

In exceptional cases, if the enforcement creditor justifies that, taking into

account the foreseeable duration of the enforcement and the applicable
interest rate, the interest that may accrue during the enforcement, in
addition to the costs of the latter, shall exceed the limit set in the preceding
subparagraph, the amount established provisionally for such items may
exceed the indicated limit.

323
Paragraph 1a added by Article 7.4 of Law 1/2013 of 14 May.
Please note the transitional regime for enforcement proceedings regulated by Transitional Provision
4 of that Law.

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1 a. At any event, in the case of enforcement on a habitual residence the

costs that may be awarded against the enforcement debtor may not
exceed 5% of the amount claimed in the enforcement order.

2. Without prejudice to the excess amount sought that may be alleged by

the enforcement debtor, the Court may not reject the dispatch of the
enforcement because it considers the amount due to be different from the
one set by the enforcement creditor in the enforcement claim.

3. However, no enforcement shall be dispatched if, as appropriate, the

enforcement claim fails to set out the calculations referred to in the
preceding articles or the latter is not accompanied by the documents
required by these precepts.

Article 576. Procedural delay interest.324

1. The moment when any judgement or decision ordering the payment of a

liquid amount of money has been issued in first instance shall determine the
accrual of annual interest in favour of the creditor equal to the legal interest on
money increased by two percentage points or the appropriate rate established
by agreement between the parties or by a special provision of the law.

2. In the cases of partial reversal, the Court shall decide on the procedural
delay interests in accordance with its prudent discretion, setting out the
relevant grounds.

3. The provisions set forth in the preceding paragraphs shall apply to court
rulings of any jurisdictional level, arbitration awards and mediation
agreements containing an order to pay a net amount, apart from the
special cases legally laid down for Pubic Treasury Departments.

Article 577. Debt in foreign currency.

1. If the title establishes the amount of money in a foreign currency, the

enforcement shall be dispatched to obtain and to deliver it. The costs and
expenses, as well as the procedural delay interests, shall be paid in the
national currency.

2. For the purposes of calculating the assets that need to be attached, the
amount in foreign currency shall be counted at the official exchange rate
on the day of dispatch of the enforcement.

324
Paragraph 3 amended by final provision 2.20 of Royal Decree-Law 5/2012 of 5 March.

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In the case of a foreign currency without official listing, the calculation shall
be made applying the exchange rate deemed appropriate by the Court in
view of the pleas and documents submitted by the enforcement creditor
with the claim, notwithstanding the subsequent settlement of the conviction,
which shall be carried out in accordance with the provisions or Articles 714
to 716 herein.

Article 578. Maturity of new instalments or of the entire debt.

1. If, subsequent to the dispatch of the enforcement for debt of a liquid

amount, any instalment of the same obligation subject of the procedure or
the entire obligation matures, the enforcement shall be deemed extended
by the amount corresponding to the new maturities of principal and
interests if the claimant so requests and without need to date back the
procedure.

2. The extension of the enforcement may be requested in the enforcement

claim. In this case, when notifying the court order dispatching the
enforcement to the enforcement debtor, the latter shall be advised that the
enforcement shall be deemed automatically extended if, on the dates of
maturity, the corresponding amounts have not been placed at the disposal
of the Court.

If the enforcement creditor seeks the automatic extension of the

enforcement, he shall submit a final settlement of the debt, including the
maturity dates of principal and interests during the enforcement. If this
settlement is in accordance with the enforcement title and the amount of
the maturities included in the latter has not been deposited, the payment to
the enforcement creditor shall be carried out in keeping with the amount
resulting from the submitted settlement.

3. The extension of the enforcement shall be sufficient ground for the

extension of the attachment and may be recorded in the preemptive
annotation of the latter in accordance with the provisions of paragraph 4 of
Article 613 herein.

In the case of the preceding paragraph, the extension of the enforcement

shall not involve the automatic adoption of these measures, which shall
only be agreed, if appropriate, at the request of the enforcement creditor
after each maturity that has not been complied with.

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Article 579. Monetary enforcement in cases of especially mortgaged or

pledged assets.325

1. Where enforcement actions are solely aimed at mortgaged or pledged

assets to guarantee a monetary debt, the provisions of Chapter V of this
Title shall apply. If the proceeds from auctioned mortgaged or pledged
assets are insufficient to cover the debt, the enforcement creditor may
seek the enforcement of the remaining amount against whomever it may
be appropriate, and the enforcement action shall proceed in accordance
with the normal rules that apply to any enforcement action.

2. Without prejudice to the provisions of the preceding paragraph, in the

case of repossession of the mortgaged habitual residence, if the approved
auction is insufficient to achieve complete satisfaction of the enforcement
creditor’s rights, the enforcement, which will not be stayed, will be in
accordance with the following particulars:
a) The enforcement debtor will be discharged if their liability is covered,
within a period of five years from the date of the order approving the
auction or repossession, by 65% of the total amount which is pending
at the time, solely increased by the legal interest rate at the time of
payment. They will be discharged under the same terms if, being
unable to pay 65% within the period of five years, they are able to pay
80% within ten years. If the foregoing circumstances do not exist, the
creditor may claim the total amount due to them in accordance with the
applicable contractual clauses and regulations.
b) In the case that the auction or repossession is approved in favour of
the enforcement creditor or whoever they may have assigned their
right to, and these, or any company in their group, within a period of 10
years from the approval, proceed to sell the property, the remaining
debt payable by the enforcement debtor at the time of the sale will be
reduced by 50% of the profit obtained on such sale. In order to calculate
this amount all costs duly proven by the enforcement creditor will
deducted.

If, within the afore-mentioned periods, a monetary enforcement occurs

which exceeds the amount by which the debtor may be discharged
according the foregoing rules, the remainder will be placed at their

325
Amended by Article 7.5 of Law 1/2013 of 14 May.
Please note the transitional regime for enforcement proceedings regulated by Transitional Provision
4 of that Law.
Amended by Article 4.30 of Act 37/2011 of 10 October.

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disposal. The Clerk of the Court in charge of the enforcement will record
these circumstances in the repossession order and will order the relevant
registration to be made at the Land Registry in relation to the provisions in
letter b) above.

CHAPTER II
OTHE REQUEST FOR PAYMENT

Article 580. Cases where requirement for payment is unnecessary.326

If the enforcement title consists of decisions issued by the Court Clerk,

court rulings or arbitration awards, decisions approving settlements or
covenants reached within the proceedings or mediation agreements,
which involve the obligation to deliver specific amounts of money, it shall
not be necessary to require the enforcement debtor to pay in order to
proceed to the attachments of his assets.

Article 581. Cases in which a request for payment is appropriate.327

1. If the enforcement for the delivery of specific amounts of money is not

based on procedural rulings or arbitration awards, after the enforcement
has been dispatched the enforcement debtor shall be requested to pay the
amount claimed as principal and interests accrued, as appropriate, to the
date of the claim, and if he fails to pay immediately, the Court shall proceed
to attach his assets to an extent sufficient to cover the amount for which
the enforcement was dispatched and the costs of the latter.

2. The request established in the preceding paragraph shall not be

made if the enforcement claim is accompanied by a notary deed
certifying that the enforcement debtor has been requested to pay at
least ten days in advance.

Article 582. Place of the request for payment.

The request for payment shall me made at the address indicated in the
enforcement title. However, at the request of the enforcement creditor, the
request may also be made at any place where, even accidentally, the
enforcement debtor may be found.

326
Amended by final provision 3.24 of Law 5/2012 of 6 July.
327
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.

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If the enforcement debtor is not present at the address recorded in the

enforcement title, the attachment may be carried out at the request of the
enforcement creditor, notwithstanding a new attempt of making the request
in keeping with the provisions herein for the acts of communication by
means of the delivery of the decision or a summons and, as appropriate,
for the communication of the notice.

Article 583. Payment by the enforcement debtor. Costs.328

1. If the enforcement debtor pays the request immediately or prior to the

dispatch of the enforcement, the Court Clerk shall put the relevant amount
of money at the disposal of the enforcement creditor and shall deliver a
proof of payment to the enforcement debtor.

2. Even if the debtor pays at the time of the request, all costs incurred shall
be for his account, unless he demonstrates that, for reasons not attributable
to him, he was unable to make the payment before the enforcement
creditor demanded the enforcement.

3. Once the interests and costs have been paid, if accrued, the Court Clerk
shall issue an order declaring the termination of the enforcement.

CHAPTER III
ON THE ATTACHMENT OF ASSETS

Section 1. On the attachment of assets

Article 584. Target scope and sufficiency of the attachment.

Assets whose foreseeable value exceeds the amount for which

enforcement has been ordered, except when the estate of the enforcement
debtor only contains assets with a value greater than these items and the
addition of these assets is necessary for the purposes of the enforcement.

Article 585. Avoidance of attachment through a deposit.

Once enforcement is ordered, the attachment of assets shall take place as

stipulated herein, unless the enforcement debtor deposits the amount he
is ordered to pay, in which case the attachment shall be suspended.

328
Paragraph 1 has been worded in accordance with Act 13/2009 of 3 November and paragraph 3
has been added by the same law.

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The enforcement debtor who has not made the deposit before the
attachment can do so at any subsequent time, before opposition to the
enforcement is decided upon. In this case, once the deposit is made, the
attachments shall be lifted.

Article 586. Assignment of the amount deposited.

If the enforcement debtor formulates opposition, the amount deposited in

accordance with the preceding article shall be deposited in the
establishment designated for this and the attachment shall continue to be
suspended.

If the enforcement debtor does not formulate opposition, the amount

deposited to avoid the attachment shall be handed over to the enforcement
creditor notwithstanding the subsequent settlement of interest and costs.

Article 587. Time of the attachment.329

1. The attachment shall be understood to have been carried out from the
time this is ordered by the Court Clerk or the description of an asset is
described in the certificate of the formal document of the attachment, even
though measures for the guarantee or publicity of the attachment have not
been adopted. The Court Clerk shall immediately adopt these guarantee
and publicity measures, by issuing the precise orders ex officio and these
shall be handed over to the court representative of the enforcement
creditor who requests this.

2. The provisions in the preceding paragraph shall be understood

notwithstanding any rules of protection of the third party in good faith which
must be applied.

Article 588. Nullity of the undetermined attachment.330

1. The attachment of assets and rights whose effective existence is not on

record shall be null.

2. Notwithstanding the provisions in the preceding paragraph, bank

deposits and positive balances of accounts opened in credit institutions
may be attached on condition that, due to an executive entitlement, the
amount decided by the Court Clerk is the maximum limit.

329
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.
330
Paragraph 2 worded in accordance with Act 13/2009, of 3 November.

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The enforcement debtor shall freely dispose of whatever exceeds this limit.

Article 589. Statement of assets of the enforcement debtor.331

1. Unless the enforcement creditor states assets whose attachment he

considers sufficient for the purposes of the enforcement, the Court Clerk
shall request, through an order, to move the enforcement debtor forward,
ex officio, so that he provides a list of assets and rights sufficient to cover
the amount of the enforcement, with a statement, as appropriate, of
charges and encumbrances, as well as whether property is occupied, by
whom and with what entitlement.

2. The request made to the enforcement debtor for a statement of his

assets shall be made with a caution regarding the sanctions which may be
imposed, at least for serious disobedience, in the event that a list of his
assets is not submitted, he includes assets which are not his, he excludes
his own assets subject to attachment, or fails to disclose charges and
encumbrances on these assets.

3. Through an order, the Court Clerk may also impose periodical coercive
fines on the enforcement debtor who does not duly respond to the request
referred to in the preceding paragraph.

In order to set the amount of the fines, the amount for which the enforcement
was ordered, the resistance to the submittal of the list of assets, and the
economic capacity of the party requested shall be taken into account. The
financial judicial order may be modified or declared void due to the
subsequent conduct of the party requested and the allegations which he
might make in order to justify himself.

A direct appeal for judicial review may be lodged against these decisions
of the Court Clerk, with no suspension effects, before the court which
deals with the enforcement.

Article 590. Judicial investigation of the estate of the enforcement

debtor.332

At the request of the enforcement creditor who canot designate sufficient

assets of the enforcement debtor for the purposes of the enforcement, the

331
Paragraphs 1 and 3 of this article are worded in accordance with Act 13/2009, of 3 November .
332
Article worded in accordance with Act 13/2009, of 3 November («Official State Gazette» Nº. 266,
of 4 November).

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Court Clerk shall issue an order to move proceedings forward and shall
contact the financial institutions, bodies, public registries and persons
stated by the enforcement creditor so that they shall provide the list of any
assets and rights of the enforcement debtor which they know of. After
formulating these statements, the enforcement creditor must succinctly
state the reasons why he considers that the institution, body, registry or
person involved has the information on the estate of the enforcement
debtor. When the enforcement creditor requests this, at his own expense,
his court representative may intervene in the processing of the official
written statements which may have been issued for this purpose and
receive these once completed, notwithstanding the provisions in paragraph
1 of the following article.

The Court Clerk shall not claim data from bodies and registries when the
enforcement creditor can obtain these himself, or through his court
representative, duly empowered to do so by the grantor of his power of
attorney.

Article 591. The duty to cooperate.333

1. All persons and public and private institutions are obliged to cooperate
in the enforcement proceedings and to submit any documents and data
they have in their power and whose submittal has been decided by the
Court Clerk in charge of the enforcement or to the court representative of
the enforcement creditor, when requested by the person represented and
at his cost, with no limitations other than those which impose respect for
fundamental rights or the limits which, for certain cases, are expressly
imposed by the laws. When these persons or institutions plead legal
reasons or the respect for fundamental rights to avoid complying with the
submittal and do not cooperate as requested, the Court Clerk shall inform
the court so that it might decide whatever is appropriate.

2. Once the parties concerned have been heard, the court, apart from the
case in question, shall agree to the imposition of periodical coercive fines
on the persons and institutions which do not provide the cooperation which
the court has requested in accordance with the preceding paragraph. In
application of these judicial orders, the court shall take the criteria stipulated
in paragraph of article 589 into account.

333
This article has been worded in accordance with Act 13/2009, of 3 November.

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3. The sanctions imposed pursuant to this article are subject to the regime
of appeals stipulated in Title V of Book VII of the Organic Act on Judiciary
Branch.

Article 592. Order in attachments. Attachment of companies.334

1. If the creditor and the debtor have not agreed otherwise, within or apart
from the enforcement, the Court Clerk responsible for the enforcement
shall attach the assets of the enforcement debtor, attempting to take into
account the greater ease of transfer and the lower cost of this for the
enforcement debtor.

2. Due to the circumstances of the enforcement, if it is impossible or very

difficult to apply the criteria set out in the preceding paragraph, the assets
shall be attached in the following order:
(i). Cash or current accounts of any kind.
(ii). Credits and rights realisable in the act or in the short term, and
entitlements, securities or other financial instruments admitted for
negotiation on an official secondary securities market.
(iii). Jewels and works of art.
(iv). Income in cash, regardless of its source and the reason for its
accrual.
(v). Interest, income and revenue of any kind.
(vi). Moveable property or livestock, shares, titles or securities not
admitted to official listing, and company shares.
(vii). Real estate.
(viii). Wages, salaries, pensions and income from self-employed
professionals and commercial activity.
(ix). Credits, rights and securities realisable in the medium and long
term.

3. The attachment of companies may also be ordered when, in the light of

the circumstances, the attachments of the components of its wealth is
preferable.

334
Paragraph 1worded in accordance with Act 13/2009 of 3 November .

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Section 2. On the attachment of the assets of third parties

and the third party ownership

Article 593. Ownership of the enforcement debtor. Prohibition of the lifting

of the attachment ex officio.335

1. In order to judge the ownership of the enforcement debtor of the assets

proposed to be attached, the Court Clerk, with no need for investigations
or other operations, shall base his judgement on external indications and
signs from which ownership can be deduced.

2. Due to direct perception or through statements of the enforcement debtor

or other persons, when the Court Clerk has rational reasons to construe that
the assets which he proposes to attach may belong to a third party, he shall
issue an order to move the proceedings forward and inform of the imminence
of the attachment . Within five days, if the third party fails to appear or does
not provide reasons, the Court Clerk shall issue an order to attach the assets
unless the parties, within the same time limit granted to the third party, have
stated their agreement that the attachment not be carried out. If the third
party opposes the attachment with reasons providing, as appropriate, the
documents which justify his right, the Court Clerk shall previously transfer
these to the parties for a common period of five days, and then forward the
records to the court so that it might decide what is appropriate.

3. In the case of assets whose ownership is subject to registration, in all

cases, their attachment shall be ordered unless the third party accredits that
he is the registered owner through the relevant certification of the Registrar,
and the rights of possible non-registered owners shall be safeguarded,
which might be exercised against the relevant party and as corresponds.

Notwithstanding the provisions in the preceding paragraph, when the

asset whose attachment is involved is the family house of the third party
and this party submits the private document which justifies its acquisition
to the court, the Court Clerk shall inform the parties and, if these state their
agreement that the attachment not be carried out within a time limit of five
days, the Court Clerk shall refrain from deciding the attachment.

Article 594. Subsequent transfer of assets attached not belonging to the

enforcement debtor.

1. The attachment on the assets which do not belong to the enforcement

debtor, however, shall be effective. If the real owner does not enforce his

335
Article worded in accordance with Act 13/2009 of 3 November.

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rights through the third party ownership, he shall not be able to challenge
the transfer of the assets attached, if the successful bidder has acquired
these in a way which cannot be claimed, in accordance with what is set out
in substantive legislation.

2. The provisions in the preceding paragraph shall be understood,

notwithstanding the actions for compensation or unjust enrichment or the
nullity of the transfer.

Article 595. Third party ownership. Legitimisation.

1. The third party ownership may be lodged, in the form of a claim, by a

party not a party to the enforcement, who states that he is the owner of an
asset attached as belonging to the enforcement debtor and which was not
acquired from the latter after the attachment was applied.

2. Third party ownership may also be lodged for the lifting of the attachment
by those who are the owners of rights which, by an express legal provision,
may oppose the attachment or the compulsory execution of one or several
assets attached as belonging to the enforcement debtor.

3. A principle of evidence in writing with the grounds for the pretension of

the third party owner must be attached to the claim for third party ownership.

Article 596. Time for lodging and possible full rejection of the third party
ownership.

1. Third party ownership may be lodged from the time that the asset or
assets referred to are attached, even when the attachment is preventive.

2. Through a court order, the court shall fully reject the claim for third party
ownership without substantiation when the principle of evidence required
in paragraph 3 of the preceding article is not attached, as well as the claim
which is lodged after the time when, in accordance with the provisions in
civil legislation, the transfer of the asset to the creditor or to the third party
who acquired it in a public auction takes place.

Article 597. Prohibition of second and subsequent third party ownership.

In no case shall second or subsequent third party ownership of assets,

founded on entitlements or rights held by the party lodging the claim at the
time the first is formulated be permitted.

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Article 598. Effects of the admission of third party ownership.336

1. The admission of the claim for third party ownership shall only suspend
the enforcement as regards the asset involved, and the Court Clerk must
adopt the measures required to comply with the suspension ordered.

2. Once the claim is admitted by the Court Clerk, and the court has heard
the parties, if this is considered to be necessary, the court may condition
the stay of execution as regards the asset referred to in the claim for
third party ownership on the third party owner posting security for the
damages which might occur to the enforcement creditor. This security
may be posted in any of the manners stipulated in the second sub-
paragraph of paragraph 3 of Article 529.

3. The admission of third party ownership shall be sufficient reason for the
Court Clerk to order the further attachment at the request of a party.

Article 599. Jurisdiction and substantiation.337

Third party ownership, which shall have to be lodged before the Court
Clerk responsible for the enforcement, shall be decided by the court that
issued the general order and its execution and this shall be substantiated
by the steps stipulated for oral trials.

Article 600. Legal capacity to act as the defendant.338

Voluntary joint litigation. Intervention of the enforcement debtor not claimed

against. The claim for third party ownership shall be lodged against the
enforcement creditor and against the enforcement debtor when the asset
referred to has been designated by him.

Even though the claim for third party ownership is not against the
enforcement debtor, he may intervene in the procedure with the same
procedural rights as the parties of the third party ownership, and for this
purpose he shall be notified of the admission to processing of the claim so
that he may intervene according to his rights.

336
Article worded in accordance with Act 13/2009, of 3 November.
337
Amended by Article 4.31 of Act 37/2011 of 10 October.
338
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.

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Article 601. Purpose of third party ownership.

1. As regards third party ownership, the only plea by the third party owner
admitted shall be the lifting of the attachment.

2. In the case of third party ownership, the enforcement creditor and,

possibly, the enforcement debtor may only plea the maintenance of the
attachment or submittal to the enforcement of the asset which is the
subject of third party ownership.

Article 602. Effects of failure to respond.

If the defendants do not respond to the claim for third party ownership, it
shall be construed that they admit the facts alleged in the claim.

Article 603. Decision on third party ownership.

Third party ownership shall be decided by a court order, which shall be

issued on the ownership of the asset and the source of its attachment for
the sole purposes of the enforcement in progress, and there shall be no
effects of res judicata in relation to the ownership of the asset.

The court order which decides the third party ownership shall state the
costs in accordance with the provisions in Articles 394 et seq. herein. The
defendants who do not respond shall not have costs imposed unless the
court with due reasons observes bad faith in the procedural action, taking
into account, as appropriate, their intervention in the proceedings referred
to in paragraphs 2 and 3 of Article 593.

Article 604. Upholding decision and lifting of the attachment.

The court order which upholds the third party ownership shall order the
lifting of the attachment and the reconsideration of the deposit, as well as
the cancellation of the preventive annotation and of any other measure of
surety for the attachment of the asset referred to in the third party
ownership.

Section 3. On assets which cannot be attached

Article 605. Assets which are absolutely non-attachable.

The following shall be absolutely non-attachable:

(i). The assets which have been declared untransferable.

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(ii). Accessory rights which are not transferable regardless of the

principal.
(iii). Assets which, in themselves, lack content as estate.
(iv). Assets expressly declared to be non-attachable by a legal
provision.

Article 606. Non-attachable assets of the enforcement debtor.

The following are also non-attachable:

(i). The furniture and household goods of the house, as well as the
clothes of the enforcement debtor and his family, insofar as these
cannot be considered to be superfluous. In general, the assets such as
food, fuel and others which, in the opinion of the court, are essential for
the enforcement debtor and the persons dependent on him to attend
with reasonable dignity to their subsistence.
(ii). Books or instruments required for the exercise of his profession,
art or trade in which the enforcement debtor works when their value is
not in proportion with the amount of the debt claimed.
(iii). Sacred objects and those dedicated to the practice of legally
registered religions.
(iv). The amounts expressly declared to be non-attachable by law.
(iv). Assets and amounts declared to be non-attachable by Treaties
ratified by Spain.

Article 607. Attachment of wages and pensions.339

1. The salary, wage pension, remuneration or equivalent which does not

exceed the amount stated for the minimum wage are not attachable.

2. The salaries, wages, day wages, remuneration or pensions which are

above the minimum wage shall be attached in accordance with the
following scale:
(i). For the first additional amount up to what entails double the
minimum wage, 30%.
(ii). For the additional amount up to the amount equivalent to a third
minimum wage, 50%.

339
Paragraphs 3 and 4 are worded in accordance with Act 13/2009, of 3 November, and paragraph 7
has been added by the same Act.

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(iii). For the additional amount up to the amount equivalent to a fourth

minimum wage, 60%.
(iv). For the additional amount up to the amount equivalent to a fifth
minimum wage, 75%.
(v). For any amount which exceeds the above amount, 90%.

3. If the enforcement debtor is a beneficiary of more than one income,

these shall be accrued in order to deduct the part which is not attachable
in a single deduction. Furthermore, the salaries, wages, pensions,
remuneration or equivalent amounts shall accrue when there is no pre-
nuptial agreement on assets and income of any kind, a fact that must be
accredited to the Court Clerk.

4. As regards the family responsibilities of the enforcement debtor, the

Court Clerk may apply a discount of between 10% and 15% in the
percentages set out in numbers (i), (ii), (iii) and (iv) of paragraph 2 of this
article.

5. If the salaries, wages, pensions or remuneration are encumbered with

permanent or transitory discounts of a public nature, due to tax or Social
Security legislation, the liquid amount which the enforcement debtor shall
receive, once these are deducted, shall be the amount which serves as
the rate for regulating the attachment.

6. The preceding paragraphs of this article shall apply to the earnings from
self-employed professional and commercial work.

7. The amounts attached in accordance with the provisions herein shall be

handed over directly to the enforcement creditor, into the account which he
previously designates, if this is decided by Court Clerk in charge of the
enforcement.

In this case, the person or institution which carries out the withholding and
its subsequent handover, and the enforcement creditor, must inform the
Court Clerk of the amounts forwarded and received respectively every
quarter, while the allegations which the enforcement debtor might formulate
are safeguarded, either because he considers that the debt is paid in full
and, consequently, the attachment should be annulled, or because the
withholding or handovers are not being carried out in accordance with the
decision of the Court Clerk.

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A direct appeal for judicial review may be made before the court against
the decision of the Court Clerk for this direct handover.

Article 608. Enforcement of a maintenance payment order.340

The provisions in the preceding article shall not apply in the case of
enforcement of a judgment which orders maintenance payments, in all the
cases in which the obligation to meet these payments arises directly from
the law, including the rulings in decisions issued in annulment, separation
or divorce proceedings concerning maintenance due to the spouse or the
children or decrees or public deeds which formalise the agreement which
establishes such payments. In these cases, as well as in cases involving
relevant precautionary measures, the court shall establish the amount
which may be attached.

Article 609. Effects of attachment of non-attachable assets.341

The attachment attached to non-attachable assets shall be null in law.

The enforcement debtor may denounce this nullity before the court through
ordinary appeals or by simply appearing before the Court Clerk if he has
not been present at the enforcement nor wishes to be present, and the
court shall decide on the nullity denounced.

Article 610. Re-attachment. Effects.342

1. Assets or rights attached may be re-attached and the re-attachment

shall grant the party re-attaching the right to receive the product of what is
obtained from the realisation of the assets re-attached, once the rights of
the enforcement creditors, at whose request previous attachments had
been ordered are satisfied or, with no need for this previous satisfaction, in
the case of the second paragraph of the following paragraph.

2. If, for any reason, the first attachment is lifted, the enforcement creditor
of the proceedings in which the first re-attachment was attached shall take
up the position of the first enforcement creditor and may request the
compulsory realisation of the assets attached.

340
Amended by final provision 3.4 of Law 15/2015 of 2 July.
341
Paragraph 2 worded in accordance with Act 13/2009, of 3 November.
342
Paragraph 3 has been worded in accordance with Act 13/2009 of 3 November.

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However, the party re-attaching may request the compulsory realisation of

the assets re-attached, with no need for the lifting of the attachment or
attachments, with no need for the previous attachment or attachments to
be lifted when the rights of the previous parties attaching are not affected
by this realisation.

3. The enforcement creditors of the proceedings in which the re-attachment

is ordered may request the Court Clerk to adopt guarantee measures
concerning this attachment on condition that they do not hinder a previous
enforcement and they are not incompatible with those adopted in favour of
the party which first achieved the attachment.

Article 611. Attachment on the remainder.343

Notwithstanding the provisions in Article 588, an attachment on the

remainder of the compulsory realisation of assets carried out in another
enforcement already arranged may be requested.

The amount obtained in this way shall be deposited in the deposit and
apportionment account for allocation in the proceedings where the
attachment of the remainder was ordered.

When the assets realised are real estate, the amount remaining after the
payment of the enforcement creditor, as well as the creditors whose right
is registered or annotated subsequent to that of the enforcement creditor
and who have preference over the creditor in whose favour the attachment
of the remainder was agreed to, shall be deposited.

Article 612. Improvement, reduction and modification of the attachment.344

1. Besides the provisions in Articles 598 and 604 for the cases of admission
and upholding, respectively, of third party ownership, the enforcement
creditor may request the improvement or the modification of the attachment
or of the guarantee measures adopted when a change of circumstances
leads doubt concerning the sufficiency of the assets attached in relation to
the exaction of the liability of the enforcement debtor. The enforcement
debtor may also request the reduction or modification of the attachment
and its guarantees when the attachment or its guarantees may be varied

343
Paragraph 2 worded in accordance with Act 13/2009, of 3 November.
344
Paragraph 2 is worded in accordance with Act 13/2009, of 3 November and paragraph 3 has been
added by the same Act.

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with no risk to the objectives of the enforcement, in accordance with the

criteria established in Article 584 herein.

Through a procedural court order, the court shall decide on these requests,
according to its criteria, with no further appeals.

2. The Court Clerk shall decide on these requests through an order. A

direct appeal for judicial review may be lodged against the said order but
shall have no suspensory effects.

3. The improvement of the attachment may also be agreed on in the cases

stipulated in paragraph four of the following article.

Section 4. ª On the priority of the party attaching and

third party intervention with paramount rights

Article 613. Effects of the attachment. Preventive annotations and third

party owners.

1. The attachment grants the enforcement creditor the right to receive the
product of what is obtained from the realisation of the assets attached in
order to pay the debt which is recorded in the entitlement, the appropriate
interest and the cost of the enforcement.

2. When the enforcement creditor is not completely reimbursed as regards

the capital and interest of his credit and all the costs of the enforcement
have been paid, the amounts realised cannot be applied to any other
matter which has not been declared preferential by a decision issue in the
third party intervention with paramount rights.

3. Notwithstanding the provisions in the preceding paragraphs, when the

assets are of classes which enable preventive annotation of their
attachment, the liability of third party owners who have acquired these
assets in another enforcement shall have the limit of the amounts which
are consigned in the annotation on the date on which the third party owners
had registered their acquisition in order to pay the principal, interest and
costs.

4. The enforcement creditor may request that an order be given to record

the amount stipulated as interest accrued during the enforcement and the
costs of this be recorded in the preventive annotation of attachment,
accrediting that both have exceeded the amounts which are recorded in
the previous annotation for these items.

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Article 614. Third party intervention with paramount rights. Finality.

Prohibition of a second third party intervention.

1. Whoever declares that he has a right to his credit being paid with priority
over the enforcement creditor may lodge a claim for third party intervention
with paramount rights, which shall have a principle of evidence of credit
which declares his preferential status attached.

2. The claim for third party intervention with paramount rights shall not be
admitted if the principle of evidence referred to in the preceding paragraph
is not attached. In no case, shall a second third party intervention with
paramount rights be permitted when this is grounded on entitlements or
rights which the party who lodges the claim owns at the time of formulating
this claim.

Article 615. Time for third party intervention with paramount rights.

1. The third party intervention with paramount rights shall apply from the
time that the asset referred to in the preference has been attached if this is
special or from the time that enforcement is arranged if it is general.

2. A claim for third party intervention with paramount rights shall not be
admitted after the enforcement creditor has been handed over the amount
obtained through compulsory enforcement or, in the case of adjudication
of the assets attached to the enforcement creditor, after the enforcement
creditor acquires the ownership of these assets in accordance with the
provisions in civil legislation.

Article 616. Effects of the third party intervention with paramount rights.

1. Once the third party intervention with paramount rights is lodged, the
compulsory enforcement shall continue until the assets attached are
realised, and what is collected is deposited in the deposit and apportionment
account in order to reimburse the enforcement creditor as regards the
costs of enforcement and to pay the creditors in the order of preference
which is determined on deciding the third party intervention with paramount
rights.

2. If the third party with the best paramount rights has an enforcement
entitlement which records his credit, he may intervene in the enforcement
from the time that the claim for third party intervention with paramount
rights is admitted. If he has no enforcement entitlement, the third party
shall not be able to intervene until the claim is upheld, as appropriate.

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Article 617. Procedure, third party eligibility and joint litigation.345

1. Proceedings to determine paramount rights shall always be directed at

the enforcement creditor and shall be substantiated through the procedures
of an oral hearing.

2. The enforcement debtor may intervene in the proceedings to determine

paramount rights with full procedural rights and shall be claimed against
when the credit whose preference the third party alleges is not recorded in
any enforcement title.

3. Even when not claimed against, the enforcement debtor shall be notified
of the admission of the claim to processing so that they may carry out such
intervention as they have a right to.

Article 618. Effects of failure to respond.

If the defendants fail to respond to the claim for third party intervention with
paramount rights, it shall be understood that they admit the facts alleged in
the claim.

Article 619. Acceptance of claim and abandonment of the enforcement

creditor. Participation of the third party with paramount rights in the costs
of enforcement.346

1. When the credit of the third party with paramount rights is recorded in an
enforcement entitlement, if the enforcement creditor accepts the third party
intervention with paramount rights, an order shall be issued to continue the
enforcement in order to first satisfy the third party with paramount rights,
with no more steps being taken, however, the Court Clerk shall not hand
over any amounts until he has paid the enforcement creditor three fifths of
the costs and expenses incurred for proceedings carried out at his request
up to the time of the notification of the claim for third party intervention with
paramount rights.

If the credit of the third party with paramount rights is not recorded in an
enforcement entitlement, the enforcement debtor who is involved in the
third party intervention with paramount rights must state his agreement or

345
Paragraph 1 is amended by single article 64 of Law 42/2015, of 5 October.
Paragraph 1 amended by Article 4.32 of Act 37/2011 of 10 October.
Paragraph 3 added by Act 13/2009, of 3 November.
346
Article worded in accordance with Act 13/2009 of 3 November.

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disagreement with the acceptance of claim by the enforcement creditor

within the five days following the date on which the draft of the acceptance
of claim was transferred. If the enforcement debtor is in agreement with
the acceptance of claim or allows the time limit to elapse without stating
his disagreement, procedure shall be in accordance with the provisions in
the preceding paragraph. When the enforcement debtor opposes the
acceptance of claim, an order shall be issued which maintains the
acceptance of claim by the enforcement creditor and ordering that the third
party intervention with paramount rights be followed with the enforcement
debtor.

2. Once the claim for third party intervention with paramount rights is
notified, if the enforcement creditor abandons the enforcement and, on
condition that the credit of the third party is recorded in an enforcement
entitlement, the Court Clerk shall issue an order to go ahead with the
enforcement in order to first satisfy the third party with paramount rights. If
this is not so, he shall issue an order for the abandonment of the
enforcement proceedings, and shall consider this to be terminated unless
the enforcement debtor agrees that proceedings continue in order to
satisfy the credit of the third party with paramount rights.

Article 620. Effects of the judgement. The costs of the third party
intervention with paramount rights and the participation of the third party
with paramount rights in the costs of enforcement.

1. The judgement which is issued in the third party intervention with

paramount rights shall decide on the existence of the privilege and the
order in which credits must be met in the enforcement dealt with by the
judgement, but notwithstanding other actions which might correspond to
each party, especially those concerning enrichment.

In addition, if the judgement dismisses the third party intervention with

paramount rights, it shall condemn the third party to pay all the costs of
this. When it is upheld, costs shall be imposed on the enforcement creditor
who responded to the claim and, if the enforcement debtor had intervened,
opposing the third party intervention with paramount rights, costs shall be
imposed on the enforcement debtor half-and-half with the enforcement
creditor, except when, due to the enforcement creditor accepting the claim,
the third party intervention with paramount rights had been substantiated
only with the enforcement debtor, in which case, the full costs shall be
imposed on the enforcement debtor.

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2. Whenever the judgement upholds the third party intervention with

paramount rights, the third party shall not be handed over any amounts
from the enforcement until the enforcement creditor has been paid three
fifths of the costs arising with regard to the enforcement until the time that
this decision is made.

Section 5. On the guarantee of the attachment of

moveable property and rights

Article 621. Security of the attachment of cash, current accounts and

salaries.347

1. Should cash or convertible foreign currencies be attached, they shall be

deposited into the deposit and apportionment account.

2. Where favourable balances in accounts of any kind opened at credit,

savings or financial institutions are attached, the Court Clerk responsible
for the enforcement shall send the institution a withholding order for the
specific amounts attached or for the maximum limit referred to in paragraph
2, Article 588. Such order may be processed by the court representative of
the party seeking enforcement. The institution thus required shall duly
comply the moment the order is served, issuing a receipt certifying the
order’s reception and stating the amounts the party subject to enforcement
has at such institution at that moment. Such receipt shall be handed over
immediately to the court representative of the party seeking enforcement
who has undertaken to process the order. Should this not be the case, it
shall be sent directly to the enforcement body by the quickest possible
means.

3. Should the attachment deal with salaries, pensions or any other periodic
benefits, the provisions set forth in item 7, Article 607 shall apply. Otherwise,
the paying person, institution or branch shall be ordered to withhold them
at the Court’s disposal and transfer them to the deposit and apportionment
account.

Article 622. Security of the attachment of interest, income and proceeds.

1. Where the assets attached are comprised of interest, income or

proceeds of any kind, a withholding order shall be sent to whoever must
pay them or directly to whoever shall receive them, including the party
subject to enforcement, so that, should they be interest, they are deposited

347
Paragraphs 2 and 3 of this article are worded in accordance with Act 13/2009 of 3 November .

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into the deposit and apportionment account or, should they be of any other
kind, they are withheld and placed at the disposal of the court.

2. The Court Clerk shall solely decide on receivership to secure the

attachment of proceeds and income where the nature of the productive
assets and rights, the amount of the interest, income or proceeds attached
or the circumstances of the party subject to enforcement should reasonably
so suggest.

3. The Court Clerk may likewise agree to receivership where it has been
verified that the paying or receiving institution or, as appropriate, the party
subject to enforcement have not complied with the withholding order or
have failed to deposit the proceeds and income referred to in the first
paragraph of this Article.

Article 623. Security of the attachment of securities and financial

instruments.

1. Should the assets attached be securities or other financial instruments,

notice of attachment shall be given to whoever may be obliged to pay them
in the event that this should be done on a periodic basis or on a specific
date, or to the issuing institution should they be redeemable or paid off at
the shall of the holder or owner thereof. A requirement stating that the
financial instrument’s amount or the same value thereof should be withheld
and placed at the disposal of the court on their maturity date or, should
there be no such date, on the date notice is served, along with any interest
or dividends, if any, they may generate shall be included in such notice of
attachment.

2. Where securities or financial instruments listed in secondary official

markets are involved, notice of attachment shall be given to the governing
body thereof for the purposes set forth in the preceding paragraph and, as
appropriate, the governing body shall give notice to the clearing and
settlement institution.

3. Should shares in companies incorporated under civil law, general

partnerships, limited partnerships, limited liability companies or companies
not listed in official secondary markets be attached, notice of attachment
shall be given to the company’s administrators, who shall have to inform
the court of the existence of any agreements limiting the free transfer of
shares or any other bylaw or contractual clause affecting the shares
attached.

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Article 624. Processing the attachment of moveable property. Security of

the attachment.348

1. Where moveable property has to be attached, the following details shall

be included in the certificate on the attachment’s processing:
(i). A list of the assets attached, including a description as detailed as
possible of their shape and aspect, main features, state of use and
conservation, along with the existence of any clear defects or faults
which could have an impact on diminishing their value. In order to do
so, any graphic and visual means of documentation at the disposal of
the court office or of any of the parties shall be used to better identify
the assets.
(ii). Any statements made by anyone involved in the attachment,
particularly those referring to the ownership of the attached assets and
to any possible third-party rights.
(iii). The person appointed as the receiver and the place where the
assets are deposited.

2. A copy of the certificate recording the processing of attachment shall be

handed over to the parties.

Article 625. Consideration as public effects or amounts.

Any amounts of cash and other attached assets shall be deemed as public
effects and amounts from the moment they are deposited or their
withholding is ordered.

Article 626. Deposit in court. Appointment of custodian.349

1. Should titles, securities or especially valuable objects or any needing

special conservation be attached, they may be deposited in the most
suitable public or private establishment.

2. Should any moveable property attached be in the possession of a third-

party, he shall be required through an order to move the proceedings
forward to keep it at the disposal of the Court and shall be appointed as its
custodian, except where the Court Clerk should decide otherwise, stating
his grounds.

348
Item (i) worded in accordance with Act 13/2009 of 3 November.
349
Paragraphs 2 and 4 of this article are worded in accordance with Act 13/2009, of 3 November ).

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3. The party subject to enforcement shall be appointed as the custodian

should he have been using the attached assets for a productive activity or
should they be difficult or costly to transport or store.

4. In cases other than the ones set forth in the preceding paragraphs or
where it may be deemed more suitable, the Court Clerk may appoint the
party seeking enforcement as the custodian or, after hearing such party, a
third party by means of an order to move the proceedings forward.

The appointment may be made to the Professional Association of Court

Representative of the location where the enforcement is being carried out,
as long as it has a suitable service to undertake the legal responsibilities
laid down for custodians. Should this be the case, the Association shall be
empowered to proceed with the location, management and deposit of the
assets and it shall be issued with the necessary credentials for such
purposes.

5. Notice of the attachment of securities represented by account entries

shall be given to the body or institution responsible for recording the entries
in the accounts, so that it may be entered in the corresponding book.

Article 627. Custodian’s responsibilities. Temporary custodians.350

1. The court-appointed custodian shall be obliged to conserve the assets

with all due diligence and place them at the Court’s disposal, to exhibit
them under the conditions the Court Clerk may indicate and to hand them
over to the person he may designate.

Should the custodian fail to fulfil his obligations, the Court Clerk in charge
of the enforcement may, at the request of a party or on an ex officio basis,
order the custodian to be relieved of his duties by means of an order to
move the proceedings forward and appoint another, notwithstanding any
criminal or civil liability in which the custodian relieved from his duties may
have incurred.

2. Until a custodian is appointed or the assets are handed over, the

obligations and responsibilities arising from the deposit shall fall on the
party subject to execution and, should they be aware of the attachment, on
the administrators, representatives, managers or third parties in whose
possession the assets are to be found without the need for any prior
acceptance or requirement.

350
Paragraph 1 worded in accordance with Act 13/2009, of 3 of November.

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Article 628. Costs of the deposit.351

1. Should the custodian be a person other than the party seeking

enforcement, the party subject to enforcement or a third party in whose
possession the moveable property is to be found, he shall be entitled to the
reimbursement of any costs resulting from the assets’ transport, safekeeping,
custody, exhibition and administration. The Court Clerk in charge of the
enforcement may agree, by means of an order to move the proceedings
forward, to the party seeking enforcement paying an advance of some
amounts, notwithstanding his entitlement to reimbursement for costs.

Such third-party shall likewise be entitled to reimbursement for any

damages he may suffer as a result of the deposit.

2. Where the assets are deposited in a suitable institution or establishment,

as set forth in paragraph 1, Article 626, remuneration shall be set by the
Court Clerk in keeping with the usual fee and price schedules through an
order to move the proceedings forward. The party seeking enforcement
shall incur such remuneration, notwithstanding his entitlement to
reimbursement for costs.

Section 6. On the security of the attachment of real

property and other assets subject to registration

Article 629. Preventive attachment entry.352

1. Where the attachment should fall on real property or any other assets or
rights subject to registration at a registry, the Court Clerk in charge of the
enforcement shall, at the request of the party seeking enforcement, issue
an order for a preventive attachment entry to be made at the Land Registry
or an equivalent entry at the registry in question. On the same date it is
issued, the Court Clerk shall send the order to the Land Registry by fax or
by any of the other means set forth in Article 162 contained herein. The
Registrar shall extend the corresponding entry of submission and the
recording of the entry shall be suspended until the original document is
submitted as laid down by mortgage legislation.

2. Should the asset not be registered or should it be registered in favour of

another person other than the party subject to enforcement, but the latter’s

351
Article worded in accordance with Act 13/2009, of 3 November .
352
Paragraph 1 worded in accordance with Act 13/2009, of 3 of November.

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right may be derived from it, a preventive entry suspending the attachment
entry may be recorded with the effects laid down in mortgage legislation.

Section 7. On receivership

Article 630. Cases in which it may proceed.

1. Receivership may be set up when a company or group of companies is

attached, or where shares or stakes representing the majority of the share
capital, common stock or the assets and rights belonging to the companies
or allocated to their operations are attached.

2. Receivership may likewise be set up to secure the attachment of

proceeds and income in the cases set forth in paragraphs 2 and 3, Article
622.

Article 631. Setting up receivership. Appointment of the receiver and

auditors.353

1. In order to set up the receivership, the parties shall be summoned to

appear before the Court Clerk in charge of the enforcement, as shall the
administrators of the companies, where they are not the party subject to
enforcement, along with any partners or shareholders whose shares or
stakes have not been attached, so that they may reach an agreement or
file any relevant pleas and evidence concerning the appointment of the
receiver, the person who shall hold such office, whether or not security is
required, the manner of proceeding, whether or not current management
should be retained, accountability and appropriate remuneration.

Any interested parties that fail to appear without due justification shall be
deemed to be in agreement with whatever may have been agreed upon by
those who have.

Should an agreement be reached, the Court Clerk shall set forth by means
of an order to move the proceedings forward the terms and conditions of
receivership in keeping with the agreement. In order to resolve any matters
on which an agreement has not been reached or which may have been
contested by any of the parties, they shall be summoned, should the taking
of evidence have been sought, to appear before the Court which issued
the general enforcement order, which shall then decide whatever it may
deem appropriate regarding the receivership by means of a court order.

353
Paragraphs 1 and 2 of this article have been worded in accordance with Act 13/2009 of 3 November.

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Should the taking of evidence have not been sought, the records shall be
passed on to Court so that it may decide on whatever may be appropriate.

2. Should the receivership of a company or group of companies be decided

upon, the Court Clerk shall appoint an auditor designated by the owner or
owners of the company or companies attached and, should solely the
majority of share capital be attached or the majority of the assets or rights
belonging to a company or allocated to its operations be attached, two
auditors shall be appointed, one of whom shall be designated by the
majority interest and the other by the minority interest.

3. The receiver’s appointment shall be registered, where appropriate, at

the Companies Registry. The receivership shall likewise be registered at
the Land Registry where it may affect real property.

Article 632. Functions of the office of receiver.354

1. Where the receiver replaces the current administrators and nothing

otherwise is set forth, the receiver’s rights, obligations, powers and
responsibilities shall be the ones that ordinarily correspond to the
administrators replaced. Nonetheless, the receiver shall need the
authorisation of the Court Clerk responsible for the enforcement to dispose
of or encumber stakes in the company or its stakes in another company,
real property or any other assets the Court Clerk may have indicated due
to their nature or importance.

2. Should there be any auditors designated by the parties affected, they

shall be summoned to appear to dispose of or encumber assets and the
Court Clerk shall decide thereof by means of an order.

3. The decisions set forth in the preceding two items are subject to direct
appeals for judicial review before the court which issued the general
enforcement order.

Article 633. Manner in which the receiver must act.355

1. Once receivership has been agreed upon, the Court Clerk shall
immediately grant office to the person appointed, requiring the party
subject to enforcement to relieve the administrators who have held office
up to then.

354
Article worded in accordance with Act 13/2009, of 3 November.
355
Article worded in accordance with Act 13/2009 of 3 November.

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2. Any disputes that may arise with regard to the receiver’s actions shall
be decided upon by the Court Clerk in charge of the enforcement by means
of an order to move the proceedings forward after hearing the parties
affected and notwithstanding the entitlement of contesting the final
accounts the receiver shall have to render.

3. The parties and the auditors shall be shown the final accounts rendered
by the receiver and they may contest them within five days, which may be
extended by up to thirty days due to their complexity.

Should a challenge be filed, a decision shall be taken after the interested

parties are summoned to appear. An appeal for judicial review may be
lodged directly before the court against such decision.

CHAPTER IV
ON DISTRAINT PROCEEDINGS

Section 1. General provisions for the realisation of

attached assets

Article 634. Direct handover to the party seeking enforcement.356

1. The Court Clerk responsible for the enforcement shall directly hand over
to the party seeking enforcement any assets for their nominal value which
are:
(i) Cash.
(ii) Balances of current accounts and other immediately available
accounts.
(iii) Convertible foreign currencies prior to their conversion, as
appropriate.
(iv). Any other asset whose nominal value coincides with its market
value or whose delivery for its nominal value, though it may be less,
the creditor may accept.

2. In the case of favourable balances in accounts having a deferred maturity

date, the Court Clerk shall take the necessary measures to achieve payment
thereof and may appoint a receiver where suitable or necessary for their
realisation.

356
Article worded in accordance with Act 13/2009 of 3 November.

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3. In the enforcement of judgements dealing with the payment of any

amounts owed resulting from a breach of hire purchase sales agreements
involving moveable property, should the party seeking enforcement so
request it, the Court Clerk shall immediately deliver the moveable property
sold or financed on hire purchase for the value resulting from the reference
depreciation schedules and tables set forth in the agreement.

Article 635. Shares and other kinds of corporate stakes.357

1. Should the assets attached be shares, bonds or other securities

admitted to trading in a secondary market, the Court Clerk shall order that
they be disposed of in accordance with the laws governing such markets.

The same shall be done should the asset attached be listed in any
regulated market or may have access to a market listing official prices.

2. Should the assets attached be shares or corporate stakes of any kind

which are not listed on the stock exchange, they shall be realised in
accordance with any bylaw and legal provisions on the disposal of such
shares and stakes and, in particular, on preferential acquisition rights.

Should there be no special provisions, their realisation shall be done through

a notary public or duly authorised broker.

Article 636. Realisation of assets or rights not included under the

preceding articles.358

1. Any assets or rights not included under the preceding articles shall be
realised in the manner agreed upon among the parties and interested
parties and as approved by the Clerk of the Court in charge of the
enforcement in accordance with the provisions of this Act.

2. Should there be no agreement on their realisation, the disposal of the

attached assets shall be carried out in one of the following ways:
(i) Disposal through a specialised person or organisation in the cases
and in the manner provided for in this Act.
(ii) Judicial auction.

357
Paragraph 1 worded according to Act 13/2009 of 3 November.
358
Paragraph 3 amended by Article 1.2 of Law 19/2015 of 13 July.
Paragraphs 1 and 3 of this Article have been worded in accordance with Act 13/2009 of 3 November.

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3. Without prejudice to the provisions of the preceding paragraphs, once

the Clerk of the Court has attached the goods, the acts needed for their
judicial auction will be carried out, which will be done within the time limit
given if this is not requested and ordered beforehand that forcible
realisation be carried out in a different manner, in accordance with the
provisions of this Act.

Section 2. Appraisal of attached assets

Article 637. Appraisal of assets.

Should the attached assets not be those referred to in Articles 634 and
635, they shall be appraised, unless the party seeking enforcement and
the party subject to enforcement have reached an agreement on their
value before or during the enforcement proceedings.

Article 638. Appointment of an appraisal expert, challenge thereto and

involvement in the appraisal of the party seeking enforcement and the
party subject to enforcement.359

1. In order to appraise the assets, the Court Clerk in charge of the

enforcement shall appoint an appraisal expert among those that provide
services to the Justice Administration. Failing these, the appraisal may be
entrusted to the bodies and technical services dependent on the Public
Administrations equipped with qualified personnel that have undertaken
the commitment to cooperate for such purposes with the Justice
Administration. Should it not be possible to use such bodies and services,
an appraisal expert shall be appointed among the natural or legal persons
appearing on a list compiled from the lists provided by public bodies
holding competence to confer certifications for the appraisal of assets, as
well as by professional associations whose members are legally
empowered to make such appraisals.

2. The expert appointed by the Court Clerk may be challenged by the party
seeking enforcement and the party subject to enforcement who have duly
entered an appearance.

3. The expert thus appointed may seek the provision of funds he may
consider necessary, which shall be offset in the final settlement, within three
days of his appointment. The Court Clerk shall decide on the provision of
funds thus sought and, upon its payment, the expert shall issue his opinion.

359
Article worded in accordance with Act 13/2009, of 3 Novembe.

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Article 639. Actions of the expert appointed and subsequent involvement

of the parties and creditors in the appraisal.360

1. Notice of the appointment shall be given to the expert thus appointed,

who shall have to accept it on the following day should none of the grounds
for abstention impede it.

2. The expert shall submit the appraisal of the attached assets to the Court
within the time limit of eight days counting from the date the commission is
accepted. Such time limit may solely be extended for justifiable reasons on
the basis of the appraisal’s amount or complexity, which the Court Clerk
shall indicate through an order to move the proceedings forward.

3. The appraisal of assets or rights shall be done in accordance with their

market value, without taking into consideration any charges or
encumbrances they may bear in the case of real property. The provisions
set forth in Article 666 shall apply with regard to such charges and
encumbrances.

4. Until five days have elapsed from the date the expert thus appointed
has submitted the appraisal of the assets, the parties and the creditors
referred to in Article 658 may file pleas on such appraisal, as well as
reports signed by the appraisal expert stating the economic valuation of
the asset or assets subject to the appraisal. In such a case, the Court
Clerk shall determine through an order to move the proceedings forward
the definitive appraisal for the purposes of enforcement in view of the
pleas filed and taking into consideration all the reports in accordance with
the rules of fair criticism.

The decision issued by the Court Clerk shall be subject to a direct appeal for
judicial review before the court which issued the general enforcement order.

Section 3. On the realisation agreement

Article 640. Realisation agreement approved by the Court Clerk.361

1. The party seeking enforcement, the party subject to enforcement and

whoever may prove a direct interest in the enforcement may seek the
Court Clerk in charge to summon an appearance in order to reach

360
Paragraphs 2 and 4 have been worded in accordance with Act 13/2009 of 3 November.
361
Article worded in accordance with Act 13/2009, of 3 November.

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agreement on the most efficient manner of realising the mortgaged,

pledged or attached assets subject to enforcement.

2. Should the party seeking enforcement be in agreement with the

appearance and should the Court Clerk find no grounds to reject it, the
Court Clerk shall agree to it through an order to move the proceedings
forward without a stay of enforcement and summon the parties and
whoever may have entered an appearance in the proceedings who could
have an interest.

At the appearance, to which other persons may attend at the invitation of

the party seeking enforcement or the party subject to enforcement, those
attending may put forward any way of realising the assets subject to
enforcement and introduce any persons willing to acquire such assets
after posting a deposit at a foreseeably higher price than that likely to be
obtained through a court auction. Other ways of satisfying the rights of the
party seeking enforcement may also be put forward.

3. Should an agreement between the party seeking enforcement and the

party subject to enforcement be reached, which may not harm the rights of
any third parties protected by this Act, the Court Clerk shall approve it and
stay the enforcement of the asset or assets subject to the agreement. he
shall likewise approve the agreement with the same suspensory effects
should it include the agreement of any persons who are affected by it other
than the party seeking enforcement and the party subject to enforcement.

Where the agreement makes reference to any assets subject to registration

at a registry, the agreement of any creditors or third parties who hold rights
over the assets and have registered or recorded their rights at the relevant
registry subsequent to the encumbrance undergoing enforcement shall be
necessary.

4. The Court Clerk shall bring the enforcement proceedings concerning

the asset or assets in question to an end when the agreement’s fulfilment
has been proven. Should the agreement fail to be fulfilled within the time
limit agreed upon or the satisfaction of the party seeking enforcement fail
to be attained under the terms agreed upon for any other reasons, the
party seeking enforcement may seek the lifting of the stay of execution
and an auction to be conducted in the manner set forth herein.

5. Should the agreement referred to in paragraph 3 of this Article not be

reached, the appearance aimed at reaching it may be repeated under the
terms set forth in the first two paragraphs of this Article where, in the Court

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Clerk’s judgement, the case’s circumstances should so suggest to improve

the assets’ realisation.

Section 4. On realisation by a specialised person or

organisation

Article 641. Realisation by a specialist person or organisation.362

1. At the request of the party seeking enforcement, or of the party subject

to enforcement with the consent of the party seeking enforcement, and
where the nature of the attached asset makes it advisable, the Clerk of the
Court responsible for the enforcement may agree through an order to
move the proceedings forward that the asset be realised by a specialist
person having knowledge of the market in which such assets are bought
and sold and who meets the legal requirements to operate in the market in
question.

The Clerk of the Court may also agree to the asset being disposed of by a
specialist public or private organisation where it is requested under the
terms provided for in the preceding paragraph. Where it should be so
ordered, the disposal shall be in keeping with the rules and customs of the
house or company auctioning or disposing of it, as long as they are not
incompatible with the purpose of the enforcement and the interests of the
party seeking enforcement and the party subject to enforcement are
suitably protected.

For such purposes, the Procurators’ Associations may be designated as

organisations specialising in the auctioning of assets.

2. In the cases set out in the preceding paragraph, the specialist person or
organisation shall post security for the amount that the Clerk of the Court
may determine to ensure the commission is fulfilled. Security shall not be
required where the assets’ realisation is entrusted to a public organisation
or to Procurators’ Associations.

3. The assets’ realisation shall be entrusted to the person or organisation

designated in the application, as long as they meet the legal requirements.
The same decision shall determine the terms and conditions under which
the assets’ realisation shall be performed in accordance with whatever the

362
Paragraph 3 is amended by single article 65 of Law 42/2015, of 5 October.
Article worded in accordance with Act 13/2009 of 3 November.

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parties may have agreed upon in this regard. Failing an agreement, the
assets may not be disposed of at a price of less than 50% of their valuation.
Where the nature of the assets or the possible decrease in their value
advise it, the Clerk of the Court in charge of enforcement, with consent
from the enforcement creditor, may appoint the Procurators’ Association
where, in accordance with the provisions of article 626, the goods to be
realised are deposited, as the specialist organisation for the auction.

For this purpose, the requirements and manner of organising the necessary
services will be determined by the regulations, guaranteeing adequate
publicity for the auction, the goods auctioned and its result.

Notwithstanding the provisions of the preceding paragraphs, where the

assets to be realised immovable property, determining the person or
organisation to be entrusted with the assets’ realisation and the terms and
conditions under which it shall be performed shall be done after an
appearance to which the parties and whoever may appear in the
proceedings as having an interest shall be summoned. The Clerk of the
Court will decide, by order, as they deem appropriate, having heard the
statements of those appearing, but may not authorise the disposal to be
made for a price of less than 70% of the valuation given to the property in
accordance with the provisions of article 666, unless there is a record of
the agreement of the parties and all the interested parties, whether or not
they attended the hearing.

4. As soon as the assets’ realisation has finalised, the person or

organisation in question shall proceed to deposit the amount obtained into
the Deposits and Consignments Account, subtracting any expenses
incurred and whatever may correspond to them for their intervention. The
Clerk of the Court must approve the transaction or, as appropriate, request
the relevant justifications for the realisation and its circumstances. Once
the transaction has been approved, the security posted by the person or
organisation entrusted to perform the assets’ realisation shall be returned.

5. Where the assets’ realisation has not come about after six months have
elapsed from the date it was commissioned, the Clerk of the Court shall
issue an order to move the proceedings forward revoking the commission,
unless the person or organisation entrusted with the assets’ realisation
can prove it was impossible within the time limit indicated for reasons not
attributable to them and that the commission may be fulfilled within a
certain time limit, which may not exceed the following six months, because
such reasons have disappeared or are likely to disappear in the near

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future. Once the latter time limit has elapsed without the commission being
fulfilled, the Clerk of the Court shall definitively revoke the commission.

Once the commission has been revoked, the security shall be applied for
the purposes of enforcement, unless the person or organisation providing
it can prove that the assets’ realisation was impossible for reasons not
attributable to them.

Article 642. Persistence and cancellation of charges.363

1. The provisions contained herein on the persistence and cancellation of

charges shall also apply where the ownership of mortgaged or attached
real property is transferred in accordance with the provisions set forth in
this and the preceding Sections.

2. For the purposes set forth in the preceding paragraph, any disposal that
may come about in accordance with the provisions set forth in the
preceding two articles shall be approved by the Court Clerk in charge of
the enforcement by means of an order moving the proceedings forward
after verifying that the transfer of the assets has come about with the buyer
being aware of registry situation arising from the certification of charges.

Once the transfer is approved, the provisions set forth for the auctioning of
real property with regards to the distribution of the amounts received, the
registration of the buyer’s rights and the order to cancel any charges shall
apply.

A certification of the order to move the proceedings forward approving the

transfer of the asset shall be sufficient for the Land Registry.

Section 5. On the auctioning of moveable property

Article 643. Preparation of the auction. Attached assets without significant

value.

1. The purpose of the auction shall be the sale of one or several assets or
lots of assets according to whatever may turn out to be most suitable for
the enforcement’s success. The Court Clerk shall be responsible for
putting together lots after hearing the parties. For such a purpose, before
announcing the auction, the parties shall be summoned to file their pleas

363
Paragraph 2 worded in accordance with Act 13/2009, of 3 of November.

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on whatever they may deem suitable with regard to the creation of lots
within five days.

2. The auction of assets or lots of assets shall not be called where it is

foreseeable according to their definitive appraisal or valuation that the
assets’ realisation shall not obtain an amount of money that at least
exceeds the costs resulting from the auction.

Article 644. Calling the auction.364

Once the fair price has been set for the attached movable property, the
Clerk of the Court, by order, will agree to call the auction.

The auction will be carried out, in all cases, electronically on the Auctions
Portal, with the Clerk of the Court being responsible for it.

Article 645. Advertisement and publicity for the auction.365

1. Once the order provided for in the preceding article is final, the call for
the auction will be advertised in the Official State Gazette and the
advertisement will serve as notice to the enforcement debtor who did not
appear. The Clerk of the Court in charge of the enforcement proceedings
will order publication of the advertisement calling the auction and will send
it themselves, with the content referred to in the next article and
electronically to the Official State Gazette. Furthermore, and merely for
information purposes, the advertisement for the auction will be published
on the Justice Administration Portal.

Additionally, at the request of the enforcement creditor or the enforcement

debtor or should the Clerk of the Court in charge of enforcement deem it
convenient, the auction shall be given reasonable publicity, using the most
suitable public and private media in keeping with the nature and value of
the assets to be realised.

2. Each party will be under the obligation to pay the costs arising from the
measures that, to advertise the auction, they may have requested, without

364
Amended by Article 1.3 of Law 19/2015 of 13 July.
Article worded in accordance with Act 13/2009 of 3 November on the reform of procedural legislation
for the implementation of the new Court Office.
365
Amended by Article 1.4 of Law 19/2015 of 13 July.
Paragraph worded according to Act 13/2009 of 3 November (“Official State Gazette” no. 266 of 4
November).

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prejudice to the inclusion in the taxation of costs such expenses which,

due to publication in the Official State Gazette, may have been generated
by the enforcement creditor.

Article 646. Contents of the advertisement and publicity for the auction.366

1. The advertisement of the auction in the Official State Gazette will sole
contain its date, the Court office where the enforcement proceedings are
being carried out, its identification number and type, and the internet
address for the auction on the Auctions Portal.

2. The notice will be included on the Auctions Portal, separately for each
one of them, and this will include the general and particular terms and
conditions for the auction and the goods to be auctioned along with such
information and circumstances as may be relevant and, necessarily, the
appraisal or valuation of the asset or goods to be auctioned which serves
as a their reserve price. These data must be sent to the Auctions Portal in
such a way that they may be processed electronically by it in order to
provide and order the information.

The notice and the Auctions Portal will also record that is understood that
all bidders accept the existing title to be sufficient, or that they assume its
non-existence, along with the consequences if their bids do not exceed the
reserves for the auction provided for in article 650.

3. The content of publicity carried out by other media will be in line with the
nature of the media that, in each case, is used, in the most cost efficient
manner, and may be limited to the data needed to identify the goods or lots
of goods, their valuation, their ownership position, and the internet address
for the auction within the Auctions Portal.

Article 647. Requirements to bid. Enforcement creditor bidder.367

1. In order to take part in the auction the bidders must comply with the
following requirements:
(i) Identify themselves sufficiently.

366
Amended by Article 1.5 of Law 19/2015 of 13 July.
367
Number (iii) of paragraph 1 and paragraph 3 amended by Article 1.6 of Law 19/2015, of 13 July.
Paragraph 1 amended by Article 7.6 of Law 1/2013 of 14 May.
Please note the transitional regime for enforcement proceedings regulated by Transitional Provision
4 of that Law.
Paragraph 3 worded in accordance with Act 13/2009, of 3 of November.

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(ii) Declare that they are acquainted with the general and specific
conditions of the auction.
(iii) Be in possession of the relevant accreditation, for which it will be
necessary to lodge 5% of the value of the goods. The lodgement will
be carried out by electronic means via the Auctions Portal, which will
use the computer services that the Spanish Tax Office places at its
disposal, which, in turn, will receive the payments via its collaborating
entities.

2. The enforcement creditor may only take part in the auction when there
are other bidders, being able to improve the bids that are made, without
having to deposit any amount whatsoever.

3. Only the enforcement creditor or subsequent creditors may bid reserving

the right to assign the final bid to a third party. The assignment shall be
substantiated by appearing before the Clerk of the Court responsible for the
enforcement, in the presence of the assignee, who shall accept the
assignment, all of which shall be done prior to or at the same time as the
payment or lodgement of the price of the final bid, which shall be recorded in
a document. The enforcement creditor will have the same power, in the
cases provided for, if they request the award of the asset or goods auctioned.

Article 648. Electronic auction.368

Electronic auctions will be held subject to the following rules:

(i). The auction will take place on the Portal which is a part of Official
State Gazette State Agency for holding electronic auctions, and all
Court offices have access to its management system. All exchanges of
information which must be carried out between Court offices and the
Auctions Portal will be made electronically. Each auction will be given
a unique identification number.
(ii). The auction will open after, at least, twenty-four hours after the
publication of the advertisement in the Official State Gazette, when the
Auctions Portal has been sent the information needed to commence it.
(iii). Once the auction is open, only electronic bids may be made
subject to the regulations of this Act regarding types of auction,
lodgements and other rules which may be applicable. At any event, the
Auctions Portal will, whilst being held, give information about the
existence and amount of the bids.

368
Amended by single article 66 of Law 42/2015, of 5 October.

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(iv). To take part in the electronic auction, the interested parties must
be registered as users of the system, accessing it using secure
mechanisms for identification and electronic signatures in accordance
with the provisions of Law 59/2003, of 19 December, on electronic
signatures, in such a way that bidders are fully identified in all cases.
Registration will be carried out via the Auctions Portal using secure
mechanisms for identification and electronic signature and will
necessarily include all of the interested party’s identification details.
Enforcement creditors will be identified in such a way as allows them
to appear as bidders in auctions arising from the enforcement
proceedings initiated by them, without the need to make a lodgement.
(v). The enforcement creditor, enforcement debtor or third party owner
may, at their own liability and, in all cases, via the court office before
which the proceedings are being run, send the Auctions Portal all the
information that they have available about the subject of the bid, arising
from valuation reports or other official documents, obtained directly by
the judicial bodies or via a Notary and which, in their opinion, may be
considered of interest to possible bidders. This may also be done by
the Clerk of the Court, on their own initiative, if considered appropriate.
(vi). Bids will be sent electronically via secure communications systems to
the Auction Portal, which will send a technical advice of receipt, including
a time stamp, for the exact time the bid was received and its amount. The
bidder must also indicate if they consent, or not, to the reserve referred to
in the second sub-paragraph of section 1 of article 652 and whether they
are bidding in their own name or on behalf of a third party. Bids for amounts
higher than, the same as or lower than the highest yet made will be
admissible, with it being understood that in the latter two cases they
consent to the lodgement being reserved and they will be taken into
account in the case that the bidder who has made an equal or higher bid
does not, in the end, pay the remainder of the purchase price. In the case
that there are bids for the same amount, the bid made earliest in time will
be given preference. The auctions portal will only publish the highest bid
from amongst those made up to that time.

Article 649. Evolution and termination of the auction.369

1. The auction will admit bids during the period of twenty calendar days
after it opened. The auction will not close until one hour has passed after
the last bid, as long as this is higher than the best bid made up to that time,

369
Amended by single article 67 of Law 42/2015, of 5 October.

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even if this means extending the initial period of twenty days referred to in
this article by a maximum of 24 hours.

In the event that the Clerk of the Court becomes aware that the debtor has
been declared bankrupt, they will suspend enforcement, by order, and the
auction will be annulled even if it had already opened. This circumstance
will be notified immediately to the Auctions Portal.

2. Suspension of the auction for a period of more than fifteen days will give
rise to repayment of the lodgements, retroacting the situation to the time
immediately prior to publication of the advertisement. The auction will be
resumed by placing a new publication of the advertisement, as if a new
auction was being dealt with.

3. On the closing date of the auction and immediately after it, the Auctions
Portal will send the Clerk of the Court certified information about the
electronic bid which was the winner, with the name, surnames and
electronic address of the bidder.

In the event that the highest bidder does not fulfil the price offered, at the
request of the Clerk of the Court the Auctions Portal will send certified
information about the amount of the next bid in decreasing order and identity
of the bidder making it, as long as the latter had opted for the bid reserve
referred to in the second sub-paragraph of paragraph 1 of article 652.

4. Once the auction has closed and the information is received, the Clerk
of the Court will make a record of it, including the name of the highest
bidder and the bid they made.

Article 650. Approval of the final bid. Payment. Award of goods.370

1. If the highest bid is equal to or higher than 50% of the valuation, the
Clerk of the Court shall issue an order on the same day or the day following
the auction, approving the final bid in favour of the highest bidder. The
highest bidder shall lodge the amount of such bid, less the deposit, within
a time limit of ten days and, after delivery of the lodgement, shall be
granted possession of the goods.

370
Amended by Article 1.9 of Law 19/2015 of 13 July.
Paragraphs 1 and 4 are worded in accordance with Act 13/2009 of 3 November on the reform of
procedural legislation for the implementation of the new Judicial Office which, in turn, introduces a
new paragraph 6.

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2. If it is the enforcement creditor who placed the highest bid, equal to or

higher than 50% of the valuation, once the final bid has been approved the
Clerk of the Court shall carry out the settlement of the amount due as
principal and interests and, after the said settlement has been notified, the
enforcement creditor shall consign the difference, if any, within a time limit
of ten days, resulting from the settlement of costs.

3. If only bids in excess of 50% of the valuation are placed but offering
payment by instalments with adequate bank or mortgage guarantees of
the price reached, these shall be notified to the enforcement creditor who,
within the next five days, may request the awarding of the assets for 50%
of the valuation. If the enforcement creditor does not make use of this
right, the final bid shall be approved in favour of the highest of such bids.

4. If the highest bid placed at the auction is lower than 50% of the valuation,
the enforcement debtor may, within a time limit of ten days, present a third
party improving the bid by offering an amount in excess of 50% of the
appraisal value or that, albeit lower than that amount, proves to be sufficient
for the complete satisfaction of the right of the enforcement creditor.

If, upon expiry of such time limit, the enforcement debtor has failed to
proceed as set out in the preceding subparagraph, the enforcement
creditor may, within a time limit of five days, request the assets be awarded
for half their appraisal value or for the amount due to them for all items,
provided that this amount is higher than the highest bid.

If the enforcement creditor does not make use of this power, the final bid shall
be approved in favour of the highest bidder, provided that the amount offered
by the latter is higher than 30% of the appraisal value or, if lower, covers at
least the amount for which the enforcement was dispatched, including the
provision for interests and costs. If the highest bid fails to meet these
requirements, the Clerk of the Court responsible for the enforcement, after
hearing the parties, shall resolve on the approval of the final bid in view of the
circumstances of the case and taking into account particularly the behaviour
of the debtor in relation to fulfilling the liability under the proceedings, the
possibilities of achieving the satisfaction of the creditor through the sale of
other assets, the loss of assets involved in the final bid for the debtor and the
benefit obtained from it by the creditor. In the latter case, a direct appeal for
judicial review may be lodged against the order approving the final bid with the
Court that issued the general order of enforcement.

If the Clerk of the Court refuses to approve the final bid, the matter shall
proceed in accordance with the provisions of the following article.

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5. If, due to the amount of the bid, the enforcement debtor or the
enforcement creditor may exercise the powers granted in paragraphs 3
and 4 of this article, the Clerk of the Court, once the time limits shown have
passed, will make the mandatory notification to the bidder who made the
highest bid or, as appropriate, will notify them that the enforcement debtor
or enforcement creditor have exercised their respective powers.

6. At any time prior to the approval of the final bid or the award to the
enforcement creditor, the enforcement debtor may release their assets by
paying the full amount due to the enforcement creditor in respect of
principal, interests and costs. In this case, the Clerk of the Court will, by
order, agree the suspension or annulment of the auction and will notify the
Auctions Portal immediately in both cases.

7. Once the final bid has been approved and the difference between the
deposit and the total price of the final bid lodged, as appropriate, in the
Deposits and Consignments Account, the award order will be passed
which will state, as appropriate, that the price has been lodged, and this
order will also be made known to the Auctions Portal.

Article 651. Awarding of assets to the enforcement creditor.371

If there are no bidders at the auction, the creditor may seek the awarding
of the assets at 30 per cent of the appraisal value or for the amount owed
to him for all items.

Under no circumstances may the enforcement creditor seeking

enforcement be awarded the assets or assign them to a third party for an
amount below 30 per cent of the appraisal value, not even when acting as
the highest bidder.

When the creditor fails to use this power within a time limit of twenty days, the
Court Clerk shall lift the attachment at the request of the enforcement debtor.

Article 652. Destination of the deposits made to bid.372

1. Once the auction has closed, the amounts lodged by the bidders will be
freed up or reimbursed, with the exception of the deposit made by the

371
Amended by Article 4.33 of Act 37/2011 of 10 October.
372
Amended by Article 1.10 of Law 19/2015 of 13 July.
Paragraph 1 worded in accordance with Act 13/2009 of 3 November .

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highest bidder, which shall be kept on deposit as a guarantee for compliance

with their obligation and, as appropriate, as part of the sale price.

However, if the other bidders request it, the amounts lodged by them will
also be held in reserve so that, if the highest bidder fails to deliver the
remainder of the price within the time limit, the final bid may be awarded to
whoever follows them, in order of their respective bids and, if they should
be the same, in the chronological order in which they were made.

2. Reimbursements to be made in accordance with the provisions of the

preceding paragraph will be made to whoever lodged the deposit
regardless of whether they acted on their own behalf as bidder, or on
behalf of another.

Article 653. Failure of the auction.373

1. If none of the highest bidders referred to in the preceding article lodge

the price within the time limit given or if, because of them, the sale becomes
ineffective, they will lose the deposit which they have lodged and a new
auction will be held, unless the deposits lodged by the highest bidders are
sufficient to pay the capital and interest of the credit of the enforcement
creditor and the costs.

2. The deposits of the highest bidders who caused the failure of the auction
shall be applied by the Clerk of the Court for the purposes of the
enforcement, in accordance with the provisions of Articles 654 and 672,
but the remainder, if there is one, will be delivered to the depositors. If the
deposits are insufficient to satisfy the right of the enforcement creditor and
the costs, they shall be used in the first place to cover the expenses
deriving from the new auction and the remainder shall be added to the
sums obtained in such new auction and be applied in accordance with the
provisions of Articles 654 and 672. In the latter case, any remainder will be
delivered to the enforcement creditor until the price offered at the auction
is reached and, as appropriate, they will be compensated for any reduction
in price obtained in the new final bid; only once this compensation has
been carried out shall the remainder be returned to the depositors.

3. Deleted.

373
Paragraph 3 deleted by Article 1.11 of Law 19/2015 of 13 July.
Paragraphs 2 and 3 of this article are worded in accordance with Act 13/2009 of 3 November.

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Article 654. Payment to the enforcement creditor, application of the

remainder, allotment of payments and certification of outstanding debt in
the event of a shortfall in the enforcement.374

1. The price of the final bid shall be delivered to the enforcement creditor on
account of the amount for which the enforcement was dispatched and, if
higher than that amount, the remainder shall be withheld at the disposal of the
Court until the settlement of what is finally due to the enforcement creditor and
the amount of the costs of the enforcement has been carried out.

2. The remainder, if there is one after the compulsory sale of the assets has
been completed, the enforcement creditor has been satisfied in full and the
costs have been paid, shall be delivered to the enforcement debtor.

3. In the event that the enforcement is insufficient to pay the entire amount
for which the enforcement was dispatched plus the interest and costs
accrued during enforcement, the amount will be allotted in the following
order: remunerative interest, principal, interest on late payment and costs.
Furthermore, the court will issue a certificate recording the price of the final
bid and the outstanding debt on all items, differentiating the amounts for
principal, remunerative interest, interest on late payment and costs.

Section 6. On the auction of real property

Article 655. Scope of application of this Section and supplemental

application of the provisions of the preceding Section.

1. The rules of this section shall apply to the auctions of real property and
to those of moveable property subject to a system of registry publication
similar to that of the former.

2. The rules governing the auction of moveable property shall apply to the
auctions referred to in the preceding paragraph, with the exception of the
special cases set out in the following articles.

Article 656. Certification of ownership and charges.375

1. Where the subject of the auction is included under this Section, the
Clerk of the Court in charge of enforcement will issue an order to the

374
Amended by Article 7.7 of Law 1/2013 of 14 May.
Please note the transitional regime for enforcement proceedings regulated by Transitional Provision
4 of that Law.
375
Paragraph 1 is amended by single article 68 of Law 42/2015, of 5 October.

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registrar in charge of the Registry in question to send the court a certificate

in which the following facts are recorded:
(i) The title of ownership and other rights in rem of the encumbered
asset or right.
(ii) The rights of any nature whatsoever existing on the attached
registry asset and, in particular, a complete list of the registered
charges on the asset or, as appropriate, a statement that the asset is
free of charges.

In all cases the certificate will be issued electronically and will have
information that is structured in content.

2. The Registrar shall make a marginal annotation of the issue of the

certification referred to in the preceding paragraph, specifying the date
and the proceedings it relates to.

The registrar will, immediately and electronically, notify the Clerk of the
Court and the Auctions Portal of the fact that another title or titles have
been submitted which affect or amend the initial information for the
purposes of article 667.

The Auctions Portal will collect the information provided by the Registry
immediately so that it may be sent to those who consult its content.

3. Without prejudice to the foregoing, the procurator for the enforcement

creditor, duly authorised by the Clerk of the Court and after annotation of
the attachment, may request the certification referred to in paragraph 1 of
this provision, the issue of which shall also be recorded by means of a
marginal annotation. In all cases the certificate will be issued electronically
and with structured content.

Article 657. Information on extinguished or reduced charges.376

1. The Clerk of the Court responsible for the enforcement shall forward an
ex officio order to the holders of previous credits that are preferential to the
credit causing the dispatch of the enforcement and to the enforcement
debtor so that they provide information on the current subsistence of the
guaranteed credit and its current amount. Those who are requested to
provide this information shall indicate with absolute accuracy if the credit

376
Paragraph 3 amended by Article 1.13 of Law 19/2015 of 13 July.
Article worded in accordance with Act 13/2009, of 3 November.

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subsists or was extinguished for any reason and, if it subsists, the

remaining amount pending payment, the date of maturity and, as
appropriate, the time limits and conditions subject to which the payment
must be made. If the credit has matured and was not paid, information
shall also be given regarding the matured late-payment interests and the
amount of the interests accruing per day of delay. If preference arises from
a prior annotation of attachment, the amount pending payment in respect
of principal and interests due on the date of the information shall be
specified, as well as the amount of the late-payment interests accruing per
day that the payment to the creditor is not made and the estimate of costs.

The writs issued by virtue of the provisions of the preceding sub-paragraph

shall be delivered to the procurator for the enforcement creditor, who shall
be responsible for their execution.

2. In view of the statements made by the enforcement creditor and the

creditors referred to in the preceding paragraph in relation to the
subsistence and the actual amount of the credits, if there is an agreement
in that respect, the Clerk of the Court responsible for the enforcement shall
issue the appropriate orders for the purposes provided for in Article 144 of
the Mortgage Act. If there is disagreement, the Clerk of the Court will call
them to a hearing before the Court which must be held within the following
three days and be decided on by order, which cannot be appealed, within
the following five days.

3. When ten days have passed since the request to the enforcement
creditor and the creditors without any of them having replied, it shall be
understood that the charge, for the sole purposes of the enforcement, is
up to date at the time of the request in the terms set out in the preferential
title.

Article 658. Asset registered in the name of a person not being the
enforcement creditor.377

If the certification issued by the registrar evidences that the attached asset
is registered in the name of a person other than the enforcement creditor,
the Court Clerk, after hearing the parties of the proceedings, shall order
the lifting of the attachment, unless the procedure is being carried out
against the enforcement debtor in his capacity of heir of the person
inscribed in the Registry as owner or the attachment was placed taking
into account this concept.

377
Paragraph 1 worded in accordance with Act 13/2009, of 3 November.

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That set out in the preceding subparagraph notwithstanding, if the

inscription of the ownership in the name of a person other than the
enforcement creditor was made after the annotation of the attachment, the
said attachment shall be upheld and the provisions of Article 662 shall
apply.

Article 659. Holders of rights inscribed subsequently.378

1. The Registrar shall notify the existence of the enforcement to the holders
of rights specified in the certification of charges and appearing on
annotations subsequent to that of the right of the enforcement creditor,
provided that their address is recorded at the Registry.

2. The holders of rights inscribed after the issuance of the certification of

ownership and charges shall not receive any communication but if they
evidence the inscription of their right to the Court Clerk responsible for the
enforcement they shall be allowed to intervene in the valuation and other
actions of the procedure affecting them.

3. If the holders of rights inscribed subsequent to the encumbrance being

enforced pay the amount of the credit, interests and costs before the final
bid, within the limits of the liability as evidenced by the Registry, they shall
be subrogated in the rights of the claimant to the extent of the amount
paid. The payment and the subrogation shall be recorded in the margin of
the inscription or annotation of the encumbrance to which the said creditors
are subrogated and those of their respective credits or rights, through the
presentation at the Registry of the notary deed of delivery of the amounts
indicated or the relevant order issued by the Court Clerk, as appropriate.

Article 660. Form of delivering communications.379

1. The communications referred to in articles 657 and 659 will be made to

the address recorded at the Registry by registered post with proof of
delivery or other provable means.

For the purposes of the provisions of this article, any registered holder of a
right in rem, charge or encumbrance over an asset may record an address
in Spanish territory at the Registry where they wish to be notified in the
event of enforcement. This fact will be recorded in a marginal note on the
registration of the right in rem, charge or encumbrance they are the holder

378
Paragraphs 2 and 3 of this article are worded in accordance with Act 13/2009 of 3 November.
379
Second paragraph of paragraph 1 amended by single article 69 of Law 42/2015, of 5 October.

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of. They may also record an electronic address for the purposes of
notifications. If an electronic address is given, it will be understood that
there is consent for this procedure for receiving notifications, without
prejudice to the fact that these may made in addition to and not as an
alternative to those given personally. In this case, time limits will be
calculated from the day following the first of the positive notifications made
in accordance with the procedural rules or Law 18/2011, of 5 July,
regulating the use of information and communications technologies at the
Justice Administration. Setting up or changing an address or electronic
address may be notified to the Registry by any of the means with the
effects referred to in paragraph 2 of article 683 of this Act.

The certification referred to in Article 656, either sent directly by the

Registrar or presented by the procurator for the enforcement creditor, shall
indicate the delivery of such communications.

In the event that the address does not appear at the Registry or that the
communication is returned for any reason, the Registrar will send a new
communication by public notice, which will be inserted in the Official State
Gazette.

2. The absence of the communications of the Registry or any defects of

form in them shall not prevent the registration of the right of whomever
acquires the immovable property in the enforcement.

Article 661. Communication of the enforcement to lessees and de facto

occupiers. Advertisement of the possessory situation.380

1. If, through the statement of assets of the enforcement debtor, by

indication of the enforcement creditor, or in any other way, the procedure
records the existence and the identity of individuals other than the
enforcement debtor who are occupying the attached immovable property,
they shall be notified of the existence of the enforcement, granting them a
time limit of ten days to submit the titles justifying their situation to the
Court. This notification may be made by the procurator for the enforcement
creditor, if requested to so do, or where in the light of the circumstances
this is agreed by the Clerk of the Court.

380
Amended by Article 1.15 of Law 19/2015 of 13 July.
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.

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The advertisement for the auction placed on the Auctions Portal, and in
public and private media as appropriate, will state, with the necessary
detail, the possessory situation of the immovable property or that, on the
contrary, it is unoccupied, if this circumstance is duly accredited to the
Clerk of the Court responsible for the enforcement.

2. The enforcement creditor may request the Court to declare, prior to

announcing the auction, that the occupier or occupiers do not have the
right to remain in the property once the latter has been disposed of in the
enforcement. The request shall be conducted in keeping with the provisions
of paragraph 3 of Article 675 and the Court shall accept it and shall issue
the requested declaration by means of a non-appealable order, if the
occupier or occupiers can be considered merely de facto occupiers or
lacking sufficient title. Otherwise, the Court shall declare, in an order which
also may not be subsequently appealed, that the occupier or occupiers are
entitled to remain in the immovable property, notwithstanding the actions
that may correspond to the future acquirer to evict such occupiers.

The declarations referred to in the preceding subparagraph shall be

included in the advertisement for the auction.

Article 662. Third possessor.381

1. If, before a real property is sold or adjucicated in the enforcement and

subsequent to the annotation of its attachment or the recording of the
commencement of the distraint proceedings in the Registry, the said real
property is passed on to a third possessor, the latter may, evidencing the
inscription of his title, request to be shown the records at the Judicial
Office, which shall be ordered by the Court Clerk without suspending the
course of the procedure, and shall also be informed of the subsequent
proceedings.

2. The consideration of third possessor shall also be given to the person

who, during the time referred to in the preceding paragraph, has acquired
merely the usufruct or useful ownership of the mortgaged or attached
property, or the bare legal title or legal ownership.

3. At any time prior to the approval of the final bid or the adjudication to the
creditor, the third possessor may release the asset by paying the amount
due to the creditor in respect of principal, interests and costs, within the

381
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.

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limits of the liability encumbering the asset, and subject, as appropriate, to

the provisions of paragraph 3 of Article 613 herein.

Article 663. Presentation of title deeds of the attached real property.382

1. In the same decision ordering the issuance of a certification of ownership

and charges in respect of the attached real property, the Court Clerk may,
by order, ex officio or at the request of a party, request the enforcement
debtor to submit, within a time limit of ten days, the titles of ownership in
his possession, if the property is inscribed in the Registry.

2. If the party so requests, the court representative of the enforcement

creditor may carry out the request referred to in the preceding number.

The presentation of the titles shall be notified to the enforcement creditor

to allow him to declare whether he considers them to be sufficient or to
propose the rectification of any defects he may find in them.

Article 664. Non-presentation or non-existence of titles.383

If the enforcement debtor fails to present the titles within the time limit
specified above, the Court Clerk may, at the request of the enforcement
creditor, adopt the constraint measures he deems appropriate to force the
enforcement debtor to present them, obtaining them, as appropriate, from
the registries or files where they can be found, to which end the court
representative of the enforcement creditor may be authorised if the files
and registries arepublic.

In case no ownership titles exist, their absence may be substituted by the

means established in title VI of the Mortgage Act. If the enforcement court
is competent to conduct the court proceedings to be carried out to this
effect, the latter shall be carried out as part of the enforcement proceedings.

Article 665. Auction without substitute measures for the lack of titles.

At the request of the enforcement creditor, the assets may be put up for
public auction without previous substitute measures for the lack of
ownership titles, expressing this circumstance in the public notices. In this
case, that set out in rule 5 of Article 140 of the Regulations for enforcement
of the Mortgage Act shall apply.

382
Paragraphs 1 and 2 are worded and numbered in accordance with Act 13/2009 of 3 November .
383
Subparagraph 1 is worded in accordance with Act 13/2009 of 3 November.

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Article 666. Assessment of real properties for their auction.384

1. The real properties shall be put up for auction for the value resulting
from the deduction from their valuation carried out in accordance with the
provisions of Article 637 and subsequent articles herein of the amount of
all charges and rights existing before the encumbrance that resulted in the
dispatch of the enforcement and whose preferential nature is evidenced
by the registry certification of ownership and charges.

This operation shall be carried out by the Court Clerk by deducting from
the value at which the real property has been assessed the total guaranteed
amount resulting from the certification of charges or, as appropriate, the
amount annotated in the Registry pursuant to the provisions of paragraph
2 of Article 657.

2. If the value of the charges or encumbrances is equal to or higher than

the value determined for the asset, the Court Clerk shall suspend the
enforcement of the said asset.

Article 667. Calling the auction.385

1. The call to the auction will be advertised and subject publicity in

accordance with the provisions of article 645.

2. The Auctions Portal will communicate, via the Registrars’ Association

systems, with the relevant Registry so that the latter may prepare and
issue electronic registration information for the property or properties
auctioned which will be maintained permanently updated until the end of
the auction and will be served via the Auctions Portal. In the same way, if
the property is identified on the basis of drawings, this information will be
made available. In the event that such information cannot be issued for
any reason within forty-eight hours of publication of the advertisement, this
will be stated and the auction will open, without prejudice to its later
inclusion on the Auctions Portal prior the close of the auction.

Article 668. Contents of the advertisement and publicity for the auction.386

1. The content of the advertisement for the auction and its publicity will be
carried out in accordance with the provisions of article 646.

384
Paragraph 2 worded in accordance with Act 13/2009, of 3 of November .
385
Amended by Article 1.16 of Law 19/2015 of 13 July.
386
Amended by Article 1.17 of Law 19/2015 of 13 July.

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2. The Auctions Portal will include, separately for each one of them, the
public notice which will express, in addition to the details shown in article
646, the identification of the property or properties at auction, their
registration details, land office reference, if they have one, and any other
details and facts that may be relevant for the auction and, necessarily, the
appraisal or valuation which serves as a reserve for it, the subtraction of
preferential charges, if any, and the possessory situation, if this is recorded
in the enforcement proceedings. It will also be indicated, if appropriate, if it
is possible to visit the property subject to auction as provided for in
paragraph 3 of article 669. These data must be sent to the Auctions Portal
in such a way that they may be processed electronically by it in order to
provide and order the information.

The notice and the Auctions Portal will also record that is understood that
all bidders accept the title existing in the enforcement proceedings to be
sufficient, or that they assume its non-existence, along with the
consequences if their bids do not exceed the reserves for the auction
provided for in article 670. It will also be indicated that the charges or
encumbrances existing prior to the credit of the claimant, if any, shall
continue to subsist and that the mere participation in the auction implies
that the bidder admits such charges or encumbrances and agrees to
subrogation in the liability deriving from them in case the final bid is
adjudicated in their favour.

3. The registration certificate, if appropriate, may be consulted via the

Auctions Portal. The relevant Registry, via the Auctions Portal, will provide
the certificate which was issued to commence the proceedings for all
properties subject to bidding, along with the updated registration
information referred to in article 667, the land office reference, if recorded
there, and graphic, planning or environmental information associated with
the property under the terms legally provided for, if this is possible.

Article 669. Special conditions of the auction.387

1. To take part in the auction bidders must lodge an amount equivalent to

5% of the value given to the assets in accordance with the provisions of
article 666 of this Act, beforehand in the manner provided for in paragraph
1 of article 647.

2. By the mere fact of their participation in the auction the bidders shall be
understood to accept as sufficient the titles indicated in the records, or that

387
Amended by Article 1.18 of Law 19/2015 of 13 July.

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no titles exist, and also to agree to their subrogation to the charges existing
prior to the credit for which the enforcement is taking place, in case the
final bid is adjudicated in their favour.

3. During the bidding period any party interested in the auction may apply
to the Court to inspect the property or properties under enforcement. The
court will notify whoever is in possession, requesting their consent. Where
the holder consents to inspection of the property and cooperates
adequately with the requirement of the Court to facilitate the best
performance of the property’s auction, the debtor may apply to the Court
for a reduction of the debt up to 2% of the valuation for which the property
would have been awarded if they had been the holder or if the latter had
acted at their request. The Court, given the circumstances and having
heard the enforcement creditor within a period of not more than five days,
will decide on the appropriate reduction within the maximum deductible.

4. The resumption of an auction suspended for more than fifteen days will
be carried out by a new publication of the advertisement and a new
application for registration information, as appropriate, as if a new auction
was being dealt with.

Article 670. Approval of the final bid. Payment. Awarding the assets to the
creditor.388

1. If the highest bid is equal to or higher than 70% of the value at which the
asset was put up for auction, the Clerk of the Court responsible for the
enforcement shall, by order issued on the same day or the day following
the close of the auction, approve the final bid in favour of the highest
bidder. Within a time limit of forty days, the highest bidder shall lodge the
difference between the amount deposited and the total price of the final bid
in the Deposits and Consignments Account.

2. If it is the enforcement creditor who placed the highest bid equal to or

higher than 70% of the value at which the asset was put up for auction,
once the final bid has been approved, the Clerk of the Court shall carry out
the settlement of the amount due as principal, interests and costs and,

388
Paragraphs 1 and 7 are amended by single article 1.19 of Law 19/2015, of 13 July.
Paragraph 1 amended by Article 7.9 of Law 1/2013 of 14 May.
Please note the transitional regime for enforcement proceedings regulated by Transitional Provision
4 of that Law.
Paragraph 4(2) amended by final provision 2.2 of Royal Decree-Law 8/2011 of 1 July.

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after such settlement has been notified, the enforcement creditor shall
lodge the difference, if any.

3. If only bids in excess of 70% of the value at which the asset was put up
for auction are made, but offering to pay in instalments with sufficient bank
or mortgage guarantees of the deferred price, such bids shall be notified to
the enforcement creditor who, within the next twenty days, may request
the award of the immovable property at 70% of the starting value. If the
enforcement creditor does not make use of this right, the final bid shall be
approved in favour of the highest of such bids, with the conditions of
payment and guarantees offered.

4. If the highest bid placed at the auction is lower than 70% of the value at
which the asset was put up for auction, the enforcement creditor may,
within a time limit of ten days, present a third party improving the bid by
offering an amount in excess of 70% of the appraisal value or that, albeit
lower than such amount, proves to be sufficient for the complete satisfaction
of the right of the enforcement creditor.

If, upon expiry of such time limit, the enforcement debtor has failed to
proceed as set out in the preceding paragraph, the enforcement creditor
may, within the time limit of five days, seek the award of the property at
70% of the aforementioned value or for the amount owed to them for all
items, provided that such amount does not exceed sixty per cent of its
appraisal value and of the highest bid.

If the enforcement creditor does not make use of this power, the final bid
shall be approved in favour of the highest bidder, provided that the amount
offered by the latter is higher than 50% of the appraisal value or, if lower,
covers at least the amount for which the enforcement was dispatched,
including the provision for interests and costs. If the highest bid fails to
meet these requirements, the Court Clerk responsible for the enforcement,
after hearing the parties, shall resolve on the approval of the final bid in
view of the circumstances of the case and taking into account particularly
the behaviour of the debtor in relation to fulfilling the liability under the
proceedings, the possibilities of achieving the satisfaction of the creditor
through the sale of other assets, the loss of assets involved in the final bid
for the debtor and the benefit obtained from it by the creditor. In the latter
case, a direct appeal for judicial review may be lodged against the order
approving the final bid with the Court that issued the general order of
enforcement. If the Clerk of the Court refuses to approve the final bid, the
matter shall proceed in accordance with the provisions of the following
article.

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5. Whoever is awarded the immovable property in accordance with the

provisions of the preceding paragraphs must accept the subsistence of
prior charges or encumbrances, if any, and subrogate to the liability arising
from them.

6. When requested to establish the mortgage referred to in number (xii) of

Article 107 of the Mortgage Act, the Clerk of the Court shall immediately
issue a record of the order of approval of the final bid, even before the
price has been paid, indicating the purpose for which it is issued. The
request shall suspend the time limit for payment of the price of the final
bid, which shall resume as soon as the record has been delivered to the
applicant.

7. At any time prior to the approval of the final bid or the award to the
enforcement creditor, the enforcement debtor may release their assets by
paying the full amount due to the enforcement creditor in respect of
principal, interests and costs. In this case, the Clerk of the Court will, by
order, agree the suspension or annulment of the auction and will notify the
Auctions Portal immediately in both cases.

8. Once the final bid has been approved and, as appropriate, the difference
between the deposit and the total price of the final bid has been lodged in
the Deposits and Consignments Account, an order of award shall be
issued indicating, as appropriate, that the price has been lodged, as well
as the other circumstances required for registration in accordance with
mortgage legislation.

Article 671. Auction with no bidders.389

If there are no bidders at the auction, the creditor may, within a period of
twenty days following the close of the auction, apply for the award of the
property. If it is not the debtor’s habitual residence, the creditor may apply
for the award at 50% of the value for which the property would have gone
to auction at or for the amount due to them for all items. If it is the debtor’s
habitual residence, the award will be made for an amount equal to 70% of
the value for which the property would have gone to auction at or, if the
amount owing for all items is lower than this percentage, for 60%. The
rules for allotment of payments contained in article 654.3 will apply in all
cases.

389
Amended by single article 70 of Law 42/2015, of 5 October.

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When the creditor fails to use this power within a time limit of twenty days,
the Clerk of the Court shall lift the attachment.

Article 672. Allocation of the amounts obtained in the real estate auction.390

1. The Court Clerk shall allocate the price of the final bid as stipulated in
paragraph 1 of Article 654, but the remainder, if there is one, shall be
retained in order to pay those who have their rights registered or annotated
subsequent to the enforcement creditor. If these creditors are satisfied and
there is still a remainder, this shall be handed over to the enforcement
debtor or to the third party owner.

The provisions in this article are understood notwithstanding the allocation

of the remainder when its retention has been ordered in another particular
enforcement or in any insolvency proceedings.

2. The Court Clerk responsible for the enforcement shall request the
subsequent holders of credits to accredit the subsistence and enforceability
of their credits within a time limit of thirty days and submit a settlement of
these.

The Court Clerk shall transfer the settlements submitted to the parties so
that they may allege what they have a right to and provide the documentary
evidence they have within a time limit of ten days.

Once this time limit has elapsed, the Court Clerk shall decide what is right
to be done through an order which may be appealed against, for the
purposes of the distribution of the amounts collected in the enforcement
while safeguarding the actions which might correspond to the subsequent
creditors in order to uphold their rights as and against whom this may
correspond. The order may be appealed against only for reconsideration
and third party creditors who have submitted settlements shall be
legitimised to lodge such an appeal.

Article 673. Registration of the acquisition: title.391

The record issued by the Clerk of the Court, of the order of award, including
the resolution of approval of the final bid, of the award to the creditor or the
transfer by agreement or by a specialist person or institution, in which shall

390
Article worded in accordance with Act 13/2009 of 3 November.
391
Amended by Article 1.20 of Law 19/2015 of 13 July.
Article worded in accordance with Act 13/2009, of 3 November.

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be stated, as appropriate, that the price has been deposited, as well as the
other data required for registration in accordance with mortgage legislation,
shall be sufficient title for registration at the Land Registry.

If applicable, the record shall state that the successful bidder has obtained
a loan in order to pay the price of the final bid and, if applicable, the
previous deposit, with a statement of the amounts financed and the
institution which has granted the loan for the purposes provided for in
Article 134 of the Mortgage Act.

Article 674. Cancellation of charges.392

At the request of the acquirer, as appropriate, an order shall be issued

cancelling the annotation or registration of the encumbrance which has
given rise to the successful bid or award.

Furthermore, the Clerk of the Court will order cancellation of all prior
registrations and annotations, including those which may be verified after
issue of the certificate provided for in article 656, and the same order will
record that the sales or award value was the same as or less than the total
credit of the claimant and, in the event that it exceeds it, that the remainder
was retained at the disposal of the interested parties.

The order shall also state all other data which mortgage legislation requires
for registration of the cancellation.

At the request of one of the parties, the record of the award order and the
order to cancel the charges will be sent electronically to the relevant Land
Registry or Registries.

Article 675. Judicial possession and occupants of the property.393

1. If the acquirer requests this, he shall be given possession of the property

which shall be unoccupied.

2. If the property is occupied, the Court Clerk shall immediately agree to

eviction when the court has decided, pursuant to the provisions in
paragraph 2 of Article 661, that the occupant or occupants have no right to

392
Amended by Article 1.21 of Law 19/2015 of 13 July.
Article worded in accordance with Act 13/2009, of 3 of November.
393
Paragraphs 2 and 3 of this article are worded in accordance with Act 13/2009, of November 3.

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remain there. The evicted occupants may exercise the rights they believe
they have in the corresponding proceedings.

When the property is occupied and procedure has not been in keeping
with the provisions in paragraph 2 of Article 661, the acquirer may request
the court to enforce the eviction of those who may be considered to be
mere occupants of fact or without sufficient entitlement. The request must
be made within the time limit of one year from the acquisition of the
property by the successful bidder or the party adjudicated the property,
once this time limit has elapsed the pretension to evict may only be attained
in through the corresponding proceedings.

3. The occupants stated by the acquirer shall be notified of the request for
eviction referred to in the preceding paragraph with a summons to a
hearing which shall be stated by the Court Clerk within a time limit of ten
days, within which they may allege and prove what they consider
appropriate in this situation. Through a court order, the court shall decide
on the eviction, which it shall order, in any case, if the occupants summoned
fail to appear with no justification, and this may not be appealed.

4. The court order which decides on the eviction of the occupants of

property shall safeguard the rights of the parties concerned which may be
exercised in the corresponding proceedings, regardless of the content.

Section 7. On the administration for payment

Article 676. Constitution of the administration.394

1. At any time, the enforcement creditor may request the Court Clerk in
charge of the enforcement to hand over all or part of the assets attached in
administration so that their yield may be applied to the payment of the
principal, interests and costs of the enforcement.

If the enforcement creditor decides that the administration be carried out

by third parties, the Court Clerk shall establish the remuneration by an
order at the expense of the enforcement debtor.

2. Through an order, the Court Clerk shall agree to the administration for
payment when the nature of the assets make this advisable and shall
provide that, once an inventory is made, the enforcement creditor shall

394
Article worded in accordance with Act 13/2009 of 3 November.

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take possession of the assets, and the persons designated by the

enforcement creditor shall be notified of this.

Before administration is agreed to, as appropriate, the third parties who

have rights over the asset attached registered or annotated subsequent to
the enforcement creditor shall be heard.

3. At the request of the enforcement creditor, the Court Clerk may impose
coercive fines on the enforcement debtor which may impede or hinder the
exercise of the powers of the administrator, notwithstanding the other
liabilities which the enforcement creditor might have incurred . In addition,
at the request of the enforcement creditor, the court may impose coercive
fines on third parties which might prevent or hinder the exercise of the
powers of the administrator, in which case, the procedure established in
paragraphs 2 and 3 of Article 591 shall be followed.

Article 677. Form of administration.

The administration for payment shall be carried out as agreed to by the

enforcement creditor and the enforcement debtor; in the absence of an
agreement, sit shall be understood that the assets be administered as per
the customs of the country.

Article 678. Rendering of accounts.395

1. Unless otherwise agreed to by the Court Clerk in charge of the

enforcement or the parties, the creditor shall annually render accounts to
the Court Clerk for the administration of payment. As regards the accounts
submitted by the creditor, the enforcement debtor shall be heard, within a
time limit of fifteen days. If allegations are formulated, these shall be
transferred to the enforcement creditor so that, within a period of nine
days, he might state whether he is in agreement or not with these.

2. If there is no agreement between these, the Court Clerk shall convene

both to appear within five days, within which the evidence proposed shall
be admitted and considered as useful and pertinent, and a prudential time
shall be established to examine these, which shall not exceed ten days.

As appropriate, the evidence admitted shall be examined and the Court

Clerk shall issue an order within a time limit of five days, in which he shall
decide on what is right.

395
Article worded in accordance with Act 13/2009, of 3 November.

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On the approval or rectification of the accounts submitted. A direct appeal

for judicial review may be lodged against this order.

Article 679. Controversies on administration.396

Except for controversies on the rendering of accounts, all the other

questions which arise between the creditor and the enforcement debtor,
due to the administration of the property attached,shall be substantiated
by the steps established for the oral proceedings before the court which
authorises the enforcement.

Article 680. Finalisation of the administration.397

1. When the enforcement creditor has paid his credit, interest and costs
with the product of the assets administered, these shall return to the
possession of the enforcement debtor.

2. The enforcement debtor may pay the rest of his debt at any time, in
accordance with the last state of the account submitted by the creditor, in
which case he shall immediately take possession of his assets and the
creditor shall cease to administer the assets, notwithstanding the rendering
of general accounts in the following fifteen days, and the other claims
which both might believe they have a right to

3. If the enforcement creditor does not satisfy his right through

administration, he may request that the Court Clerk in charge of the
enforcement terminate this, with the previous rendering of accounts, and
proceed to the compulsory realisation by other means.

CHAPTER V
ON THE PARTICULARITIES OF THE ENFORCEMENT OF
MORTGAGED OR PLEDGED ASSETS

Article 681. Procedure for demanding payment of debts guaranteed by a

pledge or a mortgage.398

1. Action intended to demand the payment of debts guaranteed by a

pledge or mortgage may be exercised directly against the assets pledged

396
Article worded in accordance with Act 13/2009, of 3 November.
397
Paragraph 3 worded in accordance with Act 13/2009, of 3 November.
398
Paragraph 2 is amended by final provision 2.1 of Law 14/2014, of 24 July.

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or mortgaged, and its exercise shall be subject to the provisions of this

heading, with the particulars established in this chapter.

2. Where payment is claimed for debts guaranteed by a marine mortgage,

the provisions of the preceding paragraph may only be exercised in the
cases described in article 140.a) and e) of the Shipping Act.

In the cases shown at letters c) and d) of that article, the action may only
be exercised after prior verification of the true situation of the vessel via a
certificate issued by the relevant authority and, in the case of letter b), it
will be necessary to submit evidence of the enforcement action which
records the declaration of bankruptcy.

Article 682. Scope of this chapter.399

1. The rules of this Chapter shall only be applicable when enforcement is

directed exclusively against assets which are pledged or mortgaged in
guarantee of the debt on which the proceedings are based.

2. When mortgaged assets are involved, the provisions of this chapter will
apply on condition that the following requirements are complied with, as
well the provisions in the preceding paragraph:
(i) That the mortgage deed sets out the price at which the interested
parties value the property or asset mortgaged, so that it serves as the
reserve in the auction, which may not be lower, in any case, than 75%
of the value shown in the appraisal that, as appropriate, may be been
made by virtue of the provisions of Law 2/1981, of 25 March, on
Regulation of the Mortgage Market.
(ii) That, in the same document, there is an address given by the debtor
for the service of summons and notifications. In addition, an electronic
address may also be given for the purposes of receiving the relevant
electronic notifications, in which case the provisions in the second sub-
paragraph of paragraph 1 of article 660 will apply.

For mortgages on commercial establishments, the address must be

considered to be the premises where the establishment mortgaged is
installed.

3. The Registrar shall record the circumstances referred to in the preceding

paragraph in the registration of the mortgage.

399
Paragraph 2 amended by Article 1.22 of Law 19/2015 of 13 July.

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Article 683. Change of the address provided for summons and

notifications.400

1. The debtor and the non-debtor mortgager may change the addresses
they designated for summons and notices, subject to the following rules:
(A) When the mortgaged assets are immovable property, the consent
of the creditor shall not be necessary on condition that the change
takes place within the same town designated in the document or any
other which is located in the municipal area where the property lies
and serves to determine the jurisdiction of the court.
In order to change this address to a point other than those stated, it
shall be necessary to have the agreement of the creditor.
(B) When it is a question of a mortgage on moveable assets, the
address cannot be changed without the consent of the creditor.
(C) In the case of a marine mortgage, it shall be sufficient to notify the
creditor of the change of address.

At any event, it will be necessary to prove written notification to the creditor.

2. The changes of address referred to in the preceding paragraph will be

recorded at the Registry in a marginal note on the mortgage registration,
either by an entry with a signature authorised or ratified by the Registrar, or
by an entry submitted electronically to the Registry, guaranteed with a
certificate of recognised electronic signature or by a notarial act.

3. For the purposes of summons and notices, the address for third parties
who acquire mortgaged assets shall be that appearing as designated in
the registration of acquisition. At any event, the provision contained in
paragraph 1 of article 660 will apply.

Article 684. Competence.

1. In order to deal with the procedures referred to in this chapter, the

following shall be competent:
(i). If the mortgaged assets are real estate, the Court of First Instance
of the place where the property is located and if this is located in more
than one judicial district, or if there are several and these are located
indifferent judicial districts, the Court of First Instance of any of these,

400
Amended by Article 1.23 of Law 19/2015 of 13 July.

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at the discretion of the claimant, and, in this case, the rules on express
or tacit submittal contained herein are not applicable.
(ii). If the mortgaged assets are ships, the Court of First Instance to
which the parties submitted in the constitutional entitlement of the
mortgage and, in the absence of this, the court of the place in which
the mortgage was constituted, of the port in which the ship
mortgaged is located, the court of the address of the defendant or
of the place where the Registry in which the mortgage is registered,
at the discretion of the claimant.
(iii). If the assets mortgaged are moveable goods, the Court of First
Instance to which the parties submitted in the document of constitution
of the mortgage and, in its absence, that of the judicial district where
the mortgage was registered. If there are several assets mortgaged
and these are registered in different Registries, the Court of First
Instance of any of the corresponding judicial districts shall be
competent, at the discretion of the claimant.
(iv). If the assets are pledged, the Court of First Instance to which the
parties submitted in the document or policy of the constitution of the
guarantee and, in its absence, that of the place in which the assets are
located, are stored or are understood to be deposited.

2. The court shall examine its own territorial jurisdiction ex officio.

Article 685. The enforcement claim and the documents which must be
attached to it.401

1. The enforcement claim must be made against the debtor and, if

appropriate, against the non-debtor mortgagor or against the third party
owner of the assets mortgaged on condition that the latter had accredited
the acquisition of such assets to the creditor.

2. The credit title or titles shall be attached to the claim, with the
requirements which this Act imposes for dispatch of the enforcement, as
well as the documents referred to in Article 550 and, in their respective
cases, Articles 573 and 574 of this Act.

In the event of enforcement over assets mortgaged or non-dispossessory

pledges of assets, if the title registered cannot be submitted, the document

401
Paragraph 5 added by Article 1.24 of Law 19/2015 of 13 July.

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submitted must have a certificate from the Registry attached, accrediting

the registration and subsistence of the mortgage.

3. For the purposes of the proceedings regulated in this chapter, the private
document constituting a marine mortgage registered at the Property
Register in accordance with the provisions in Article 128 of the Shipping
Act shall be considered to be sufficient title to dispatch enforcement.

4. As regards the enforcement of real estate mortgages constituted in

favour of an institution which can legally issue mortgages or which, on
commencement of the proceedings, may guarantee credits and loans
attached to an issue of mortgage bonds, it shall be sufficient to submit a
Land Registry certificate which certifies the registration and subsistence of
the mortgage. This certificate shall be completed with an authorised copy
of the mortgage, which may be partial and include only the property or
properties which are subject to enforcement.

5. For the purposes provided for in paragraph 1 of article 579, in order to

dispatch the enforcement for the amount due and against whoever is
appropriate, it will be necessary to have notified them of the initial
enforcement order. This notification may be made by the procurator for the
enforcement creditor, if requested to so do, or where in the light of the
circumstances this is agreed by the Clerk of the Court.

The amount claimed in it will serve as a basis for dispatching the

enforcement against the guarantors or bondsmen and may not be
increased due to late payment interest accrued during processing of the
initial enforcement order.

Article 686. Payment order.402

1. The order authorising and dispatching the enforcement will include an

order for payment from the debtor and, if appropriate, the non-debtor
mortgagor or third party owner against whom the claim addressed, at the
address recorded at the Registry.

2. Without prejudice to the notice of the dispatch of the enforcement to the

debtor, the summons referred to in the preceding paragraph shall not be

402
Paragraphs 2 and 3 are amended by single article 1.25 of Law 19/2015, of 13 July.
Paragraph 1 worded according to Act 13/2009 of 3 November .
Paragraph 3 added by Act 13/2009, of 3 November.

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made when it is accredited that the summons was or were made extra-
judicially, in accordance with the provisions in paragraph 2 of Article 581.

For these purposes, the summons to the debtor and, as appropriate, the
notices to the third party owner, non-debtor mortgagor and holders, as
appropriate, of rights registered after the right in rem of the mortgage
being enforced, must be served at the address recorded for each one of
them at the Registry. The summons or notice will be served by the Notary,
in the form appearing in notarial legislation, to the consignee personally, if
they are to be found at the address given. If they are not to be found at the
address, the Notary will effect the process with such person of legal age as
may be found there and who states that they have a personal or working
relationship with the party being summoned. The Notary will expressly
record the statement of such person regarding their consent to take charge
of the writ and their obligation to ensure it reaches its addressee.

Notwithstanding the foregoing, a summons or notification served outside

the address recorded at the Land Registry will be valid as long as it is
served in person to the addressee and, having been identified by the
Notary, with their consent, which will be expressed in the certificate of
summons or notification.

In the event that the addressee is a corporate entity, the Notary will serve
the proceedings on a person of legal age who is to be found in the address
shown at the Registry and who is a part of the management body, who
proves that they are a representative with sufficient powers or who, in the
opinion of the Notary, palpably acts for the corporate entity as the person
in charge of receiving summons or written notifications on its behalf.

3. Having attempted to serve the summons at the address recorded at the

Registry without success and being unable to serve them on the persons
referred to in the preceding paragraph, and once the Court Office has
made the necessary checks to find out the debtor’s address, the publication
of public notices will be ordered in the form provided for in article 164.

Article 687. Deposit of mortgaged motor vehicles and pledged assets.403

1. When the subject of the procedure is debts guaranteed by a pledge or

mortgage of motor vehicles, the Court Clerk shall order that the assets

403
paragraphs 1 and 2 of this article have been worded in accordance with Act 13/2009, of 3 Novem-
ber.

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pledged or the vehicles mortgaged be deposited in the possession of the

person designated by the Court Clerk.

The vehicles deposited shall be sealed and cannot be used unless this is
not possible due to special provisions, in which case the Court Clerk shall
appoint a supervisor.

2. The deposit referred to in the preceding paragraph shall be agreed to

through an order made by the Court Clerk if payment has been requested
from the debtor extra-judicially. Otherwise, an order shall be given to
request payment from the debtor in accordance with the provisions herein
and, if the debtor does not attend to the request, an order shall be given to
constitute the deposit.

3. When the assets pledged cannot be seized and the deposit of these
cannot be constituted, the procedure shall not continue.

Article 688. Certification of ownership and charges. Dismissal of the

enforcement in the event of the non-existence or cancellation of the
mortgage.404

1. When the enforcement involves mortgaged assets, a certificate shall be

claimed from the Registrar in which the points referred to in paragraph 1 of
Article 656 are recorded, together with word for word insertion of the
mortgage registration to be enforced, stating that the mortgage in favour of
the enforcement creditor subsists and has not been cancelled or, as
appropriate, the cancellation and modifications which appear in the
Registry. At any event, the provisions of paragraph 3 of article 656 will
apply.

2. The registrar shall record that the certification of ownership and charges
has been issued in a marginal note on the registration of the mortgage,
stating the date and the existence of the proceedings referred to.

Until such marginal note is cancelled by an order of the Clerk of the Court,
the Registrar cannot cancel the mortgage for reasons other than the
enforcement itself.

404
Paragraph 1 amended by Article 1.26 of Law 19/2015 of 13 July.
Paragraphs 2 and 3 are worded in accordance with Act 13/2009, of 3 November.

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3. If the certification shows that the mortgage on which the enforcement

creditor grounds their claim does not exist, or has been cancelled, the
Clerk of the Court shall issue an order terminating the enforcement.

Article 689. Notification to the registered owner and to subsequent

creditors of the procedure.

1. If the registration certification shows that the person in whose favour the
last registration of ownership was made has not been requested to pay in
any notary or judicial form, stipulated in the preceding articles, this person
shall be notified of the existence of the procedure, at the address recorded
in the Registry so that he may intervene in the enforcement if this is
advisable, in accordance with the provisions in Article 662, or in order to
settle the amount of the credit and the interest and costs as regards the
part which is insured with the mortgage of his property before the final bid.

2. When there are charges or property rights constituted subsequent to the

mortgage which guarantees the credit of the claimant, the provisions in
Article 659 shall be applied.

Article 690. Administration of the property or the asset mortgaged.405

1. When the time limit of ten days has elapsed from the request for payment
or, when this is done extra-judicially, from the time of the arrangement of
the enforcement, the creditor may request that he be granted the
administration or the interim ownership of the property or the asset
mortgaged. In this case, the creditor shall receive the income expired and
not settled, if this was stipulated, and the subsequent benefits, revenue
and products, thus covering the expenses of conservation and exploitation
of the assets and then his own credit.

For the purposes stipulated above, the occupant of the property shall be
notified of the interim administration, with the instruction that he is obliged
to pay the administrator what is owing to the owner.

In the case of unoccupied property, the administrator shall be provisionally

given material ownership of these.

2. If there are more than one creditors, the administration shall correspond to
the one who has preference, according to the Registry, and if these have the
same priority, any of these may request this in common benefit, applying the

405
Paragraphs 2, 3 and 4 are worded in agreement with Act 13/2009, of November.

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benefits, revenue and product as determined in the preceding paragraph, in

proportion with the credits of all the claimants. If several parties with the same
priority request this, the Court Clerk shall decide at his discretion through an
order.

3. As a general rule, the duration of the administration and interim

ownership which is granted to the creditor shall not exceed two years if the
mortgage is on real estate, and one year if it is on moveable or naval
assets. On its termination, the creditor shall render account of his
administration to the Court Clerk in charge of the enforcement, who shall
approve this if this is fitting. The enforcement cannot continue without this
enforcement. A direct appeal for judicial review may be lodged against the
decision of the Court Clerk.

4. When the procedure for debt guaranteed with a mortgage on a motor

vehicle is processed, only the administration referred to in the preceding
paragraphs shall be agreed to by the Court Clerk if the creditor who
requests this seeks sufficient post security in any of the forms stipulated in
the second sub-paragraph of paragraph 3 of Article 529.

5. When the mortgage enforcement occurs together with insolvency

proceedings, as regards administration or interim ownership, the provisions
of the court which deals with the insolvency proceedings shall apply, in
accordance with the rules regulating this.

Article 691. Calling the auction of mortgaged assets. Advertisement and

publicity for the call.406

1. Once the provisions in the preceding articles are complied with and
twenty days have elapsed since service of the afore-mentioned payment
order and the notices, at the request of the claimant, of the debtor or the
third party owner, the property or asset mortgaged shall be auctioned.

2. The auction will be advertised and given publicity in the form set out in
articles 667 and 668.

3. When the procedure for debt guaranteed with a mortgage on a commercial

establishment is being processed, the notice published on the Auctions
Portal shall state that the acquirer shall remain subject to the provisions of
the Urban Leasing Act, with the acceptance, as appropriate, of the right of
the lessor to increase the rent due to the assignment of the contract.

406
Amended by Article 1.27 of Law 19/2015 of 13 July.

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4. The auction of mortgaged assets, regardless of whether these are

movable or immovable, shall be carried out in accordance with the
provisions of this Act for the auction of immovable property.

5. Where the Clerk of the Court has evidence that the debtor has been
declared bankrupt, the auction will be suspended even if it has already
opened. In this case, the auction will be resumed where it is shown, by a
record of the resolution of the Bankruptcy Judge, that the assets or right
are not needed for continuity of the debtor’s professional or business
activity, with the provisions of paragraph 2 of article 649 being applicable.
At any event, the Land Registrar will notify the Court Office before which
the enforcement proceedings are being held of the registration of
annotation of bankruptcy against the mortgaged property along with a
register record that the asset is not affected or is not needed for the
debtor’s professional or business activity.

6. In the enforcement proceedings referred to in this chapter, it shall also

be possible to use the realisation through an agreement and realisation
through a specialist person or institution regulated in Sections 3 and 4 of
chapter IV of this title.

Article 692. Payment of mortgage credit and application of the remainder.

1. The price of the final bid shall be assigned, without delay, to the
payment of the principal of the credit of the claimant, the interest accrued
and the costs involved, but what is handed over to the creditor for each
of these items shall not exceed the limit of the respective mortgage
cover; the excess, if there is any, shall be deposited at the disposal of the
owners of subsequent rights registered or annotated on the asset
mortgaged. When the possible subsequent creditors are paid, the
remainder shall be handed over to the owner of the asset mortgaged.

Notwithstanding the provisions in the preceding paragraph, when the

owner of the asset mortgaged is the debtor, the price of the final bid,
insofar as this exceeds the limit of the mortgage cover, shall be assigned
to the payment of the totality of what is owed to the enforcement creditor
for the credit which s the subject of the enforcement, once the possible
credits registered or annotated subsequent to the mortgage are settled, on
condition that the debtor is not involved in temporary receivership,
insolvency or bankruptcy.

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2. The parties which consider that they have a right to the remainder which
may remain after the payment made to the subsequent creditors may put
forward the provision in paragraph 2 of Article 672.

The provisions in this paragraph and in the previous one are understood
notwithstanding the allocation of the remainder when its retention was
ordered in another singular enforcement or in any insolvency proceedings.

3. The order which is issued for the cancellation of the mortgage which
guaranteed the credit of the enforcement creditor and, possibly, the
subsequent registrations and annotations, shall state the provision in Article
674, and the fact that the notices referred to in Article 689 were also made.

Article 693. Claim limited to part of the capital or the interest whose
payment must be made within different time limits. Early due dates for
instalment debt.407

1. The provisions of this Chapter will be applicable in the case that a part of
the capital of the credit or the interest are unpaid, where such payment must
be made in instalments, if at least three monthly instalments become due and
the debtor does not fulfil their obligation to pay, or a number of instalments
which involves the debtor not fulfilling their obligation to pay during a period
equivalent to, at least, three months. This will be recorded by the Notary in the
mortgage deed and by the Registrar in the relevant entry. If it is necessary to
transfer the asset mortgaged in order to pay any of the instalments of the
capital or interest, and other instalments of the obligation are not yet due, the
sale shall be verified and the property shall be transferred to the buyer with the
mortgage corresponding to the part of the credit which has not been paid.

2. The entire amount owed for capital and interest may be claimed if total
repayment had been agreed in the event of non-payment of, at least, three
monthly instalments without the debtor fulfilling their payment obligations, or
a number of instalments which involved the debtor not fulfilling their obligation
to pay during a period equivalent to, at least, three months and this
agreement is recorded in the mortgage deed and respective registry entry.

3. In the case referred to in the preceding paragraph, the creditor may

request that, without prejudice to the enforcement being dispatched for the
entire debt, the debtor is notified that, prior to the auction closing, the asset
may be released by lodging the exact amount for principal and interest as
may be due on the date of the claim was submitted, increased, as

407
Amended by Article 1.28 of Law 19/2015 of 13 July.

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appropriate, with the accrued loan and interest on late payment due
accumulating throughout the procedure and which are totally or partially
unpaid. For these purposes, the creditor may request that procedure be in
accordance with the provisions of paragraph 2 of Article 578.

Even if the asset mortgaged is the habitual residence, the debtor may,
even without the consent of the creditor, release the asset by lodging the
amounts stated in the previous paragraph.

Once an asset has been released for the first time, it may be released a
second time or at other times on condition that, at least, five years have
elapsed between the date of release and that of the judicial or extra-judicial
payment order made by the creditor.

If the debtor pays under the conditions provided for in the preceding
paragraphs, the costs shall be assessed by calculating the amount of the
instalments in arrears paid, with the limit provided for in article 575.1 b,
and, once these have been settled, the Clerk of the Court shall issue an
order releasing the asset and declaring the proceedings terminated. The
same agreement shall be made when payment is made by a third party
with the consent of the enforcement creditor.

Article 694. Realisation of the pledged assets.

1. Once the deposit of the pledged assets is constituted, these shall be

realised in accordance with the provisions herein for distraint proceedings.

2. When the assets pledged are not those referred to in Section 1 of

chapter IV of this part, the auction shall be announced in accordance with
the provisions in Articles 645 et seq. herein.

The value of the assets for the auction shall be established in the document
or policy of constitution of the pledge and, if this is not stated, the value
shall be the total amount of the claim for the principal, interest and costs.

Article 695. Contesting enforcement.408

1. In the proceedings referred to in this chapter, a challenge to enforcement

shall solely be given leave to proceed where it is based on the following grounds:

408
Paragraph 4 is amended by final provision 3 of Law 9/2015, of 25 May.
Please note the transitional regime for enforcement proceedings regulated by Transitional Provision
4 of that Law.

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(i) Extinction of the security or the obligation guaranteed, as long as a

Registry certificate reflecting cancellation of the mortgage or, as
appropriate, the non-dispossessory pledge, or a public deed of receipt
of payment or cancellation of the security is submitted.
(ii) An error in determining the enforceable amount, where the
guaranteed debt is the balance resulting from the closure of an account
between the enforcement creditor and the enforcement debtor. The
enforcement debtor shall attach a copy of the bank book recording the
entries on the account and a challenge shall solely be given leave to
proceed where the balance appearing in such savings book differs
from the balance filed by the enforcement creditor.
It will not be necessary to attach the bank book where the proceedings
refer to the final balance on closure of current accounts or similar
transactions arising from commercial contracts granted by credit,
savings or financial institutions in which it was agreed that the
enforceable amount in the event of enforcement would be that specified
in the certificate issued by the creditor entity, but the enforcement
debtor must express with due precision the points where the settlement
made by the entity is disputed.
(iii) In the case of the enforcement of mortgaged movable property or
upon which a non-dispossessory pledge has been set up, the
subjection of such assets to another pledge, movable or immovable
property mortgage or attachment registered prior to the encumbrance
giving rise to the proceedings, which shall be proven by means of the
relevant registry certification.
(iv) The abusive nature of a contractual clause which constitutes the
grounds for the enforcement or which may have determined the
enforceable amount.

2. Once the challenge referred to in the preceding paragraph has been

filed, the Clerk of the Court shall stay the enforcement and shall summon
the parties to a hearing before the court which issued the general
enforcement order. At least fifteen days shall have elapsed from the date
the general enforcement order is issued. At such hearing, the court shall
hear the parties, admit any documents submitted and agree upon whatever
may be appropriate within two days by means of a court order.

3. The order upholding the challenge based on grounds a) and c) of

paragraph 1 of this article will order the proceedings to be dismissed; the
order upholding the challenge based on grounds b) will sent the amount
for which the enforcement shall continue.

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If grounds d) are upheld, it will be agreed to dismiss the enforcement

where the contractual clause grounds the enforcement. In any other case,
the enforcement will continue with non-application of the abusive clause.

4. An appeal may be lodged against the order ordering dismissal of the

enforcement, non-application of the abusive clause or the dismissal of the
challenge on the grounds provided for in paragraph 1.d) above.

Other than these cases, orders deciding on challenges referred to in this

article may not be appealed in any way and their effects will exclusively be
confined to the enforcement proceedings in which they were passed.

Article 696. Third-party claims to ownership.

1. In order to give third-party claims to ownership leave to proceed in the

proceedings referred to in this chapter, a title of ownership irrefutably dated
prior to the date on which security was established shall have to be
attached to the claim. In the case of assets whose ownership is susceptible
to registration at a registry, such title shall have to have been registered in
favour of the third-party or his predecessor in title on a date prior to the
security’s registration, which shall be proven by means of a registry
certification reflecting the registration of the third-party’s ownership or that
of his predecessor in title and a certification stating that the entry on such
ownership has neither expired nor been cancelled.

2. Giving the third-party claim to ownership leave to proceed shall stay

enforcement with regard to the assets such claim refers to, and should
such assets comprise only a part of the assets making up the security, the
proceedings may follow their course with regard to the other assets should
the creditor so request.

Article 697. Stay of enforcement due to preliminary criminal ruling.

Apart from the cases referred to in the preceding two articles, the
proceedings referred to in this chapter may only be stayed due to
preliminary criminal rulings where the existence of a criminal case on
apparently illegal facts which may determine the falsity of the title or may
render the enforcement proceedings invalid or illegal is certified pursuant
to Article 569 contained herein.

Article 698. Claims not included under the preceding articles.

1. Any claim that the debtor, a third-party holder or any other interested
party may bring which is not included under the preceding articles,

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including any concerning the nullity of title or on the expiry, certainty,

extinction or amount of the debt, shall be dealt with in the relevant trial
without ever having the effect of staying or hindering the proceedings set
forth in this chapter.

Competence for dealing with such proceedings shall be determined by the

ordinary rules.

2. At the time a claim referred to in the preceding paragraph is brought or

during the course of the trial it may give rise to, the effectiveness of the
judgement issued in such trial may be sought by withholding all or part of
the amount which should be handed over to the creditor through the
proceedings governed by this chapter.

The court shall order such withholding through a procedural court order in
view of the documents filed should it deem that the grounds alleged are
sufficient. Should the applicant of such withholding be widely known not
have sufficient solvency, the court shall require him to post sufficient
security beforehand to cover any late-payment interest and any other
damages that may be caused to the creditor.

3. Should the creditor post security for the amount to be withheld as a

result of the trial referred to in the first paragraph to the court’s satisfaction,
the withholding shall be lifted.

TITLE V

ON NON-MONETARY ENFORCEMENT

CHAPTER ONE
ON GENERAL PROVISIONS

Article 699. Conducting enforcement.

Where an enforceable right should contain a penalty or an affirmative or

negative obligation or an obligation to hand over something other than an
amount of money, the court order dealing with the enforcement shall
require the party subject to enforcement to comply with whatever may be
set forth in the enforceable right under his/own terms within the time limit it
may deem appropriate.

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The court may threaten the party subject to enforcement with the employment
of personal distraining measures or monetary fines in such requirement.

Article 700. Attachment guarantee and alternative security.409

Should it be impossible to immediately comply with the affirmative or

negative obligation or the obligation to hand over something other than
money, the Court Clerk may, at the request of the party seeking
enforcement, agree upon any guarantee measures that may turn out to be
suitable to ensure the penalty’s effectiveness

The attachment of assets belonging to the party subject to enforcement for

an amount sufficient to cover any possible alternative compensation and
enforcement costs shall, in any event, be agreed upon. A direct appeal for
judicial review lacking suspensory effects may be lodged against such
order before the court which issued the general enforcement order.

The attachment shall be lifted should the party subject to enforcement post
security for a sufficient amount set by the Court Clerk when agreeing to the
attachment in any of the manners set forth in the second sentence of the
paragraph 3, Article 529.

CHAPTER II
ON THE ENFORCEMENT OF OBLIGATIONS TO HAND OVER THINGS

Article 701. Handover of a specific moveable asset.410

1. Where of the enforceable right should set forth the obligation of handing
over a certain specific moveable asset and the party subject to enforcement
fails to hand it over within the time limit laid down, the Court Clerk
responsible for the enforcement shall grant possession thereof to the party
seeking enforcement, using any distraining measures he may deem
necessary. Should it be necessary to gain entry to closed places, he shall
seek the authorisation of the court which ordered the enforcement and,
where necessary, may be aided by public law enforcement forces.

Where moveable property subject to registration similar to that of real

property is involved, the necessary measures shall likewise be taken to
adjust the registry to the matters dealt with by the enforceable right.

409
Article worded in accordance with Act 13/2009, of 3 November.
410
Paragraphs 1 and 2 of this Article have been worded in accordance with Act 13/2009 of 3 November.

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2. Should the asset’s whereabouts be unknown or should it not be found at

the place where it should be when it is sought, the Court Clerk shall
question the party subject to enforcement and threaten him with contempt
of court, so that he may reveal whether it is in his possession and whether
he knows its whereabouts.

3. Where, despite having proceeded in accordance with the preceding

paragraphs, the asset cannot be found, the court shall, at the request of
the party seeking enforcement, order the replacement of the asset or
assets owed for fair monetary compensation, which shall be set pursuant
to Articles 712 and the following, through a procedural court order.

Article 702. Handover of generic or indeterminate assets.411

1. Should the enforceable right refer to the handover of generic or

indeterminate assets which can be acquired in markets and the requirement
has not been complied with once the time limit has elapsed, the party
seeking enforcement may petition the Court Clerk to grant him possession
of the assets owed or to empower him to acquire them at the cost of the
party subject to enforcement and to order, at the same time, the attachment
of sufficient assets to pay for such acquisition, of which the party seeking
enforcement shall duly render accounts.

2. Should the party seeking enforcement state that the late acquisition of
the generic or indeterminate assets in keeping with the preceding
paragraph no longer satisfies his legitimate interests, a monetary
equivalent shall be set, along with any damages that the party seeking
enforcement may have suffered, which shall be settled in accordance with
Article 712 and following.

Article 703. Handover of immovable property.412

1. Should the enforceable right set out the transfer or handover of

immovable property, once the court order authorising and ordering the
enforcement has been issued, the Clerk of the Court in charge of it shall
immediately order measures to be taken in accordance with the judgment
and, as appropriate, take the necessary steps to adjust the Registry to the
enforceable right.

411
Article worded in accordance with Act 13/2009, of 3 November.
412
Paragraph 1 amended by Article 2.7 of Law 4/2013 of 4 June.

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If there are items within the property which are not subject to the
enforcement, the Clerk of the Court will demand that the enforcement
debtor remove them within a given time limit. If they are not removed, they
will be considered to be abandoned goods for all purposes.

In cases of repossession due to non-payment of rents or amounts due, or

due to the legal or contractual expiry of the term, to avoid delays in the
eviction process, with prior authorisation from the Clerk of the Court, the
presence of a single official at Manager level will be sufficient, who may, if
appropriate, request assistance from the police force.

2. Where in the procedure of eviction the party being evicted should claim
ownership over inseparable items consisting of plant or facilities which are
strictly necessary for the property’s ordinary use, the obligation of paying
for their value shall be decided upon in the enforcement proceedings
should the interested parties request it within five days of the eviction.

3. Should the existence of any defects be recorded at the property caused

by the enforcement debtor or its occupants during the eviction, the
withholding and posting of a deposit of sufficient assets by the possible
party responsible may be agreed upon to cover any damages caused,
which shall be settled, as appropriate and at the request of the enforcement
creditor, according to the provisions of Articles 712 et seq.

4. Should effective possession of the property be handed over to the

claimant prior to the date set for eviction, in the event of an enforceable
right consisting of a judgment in an urban property eviction hearing and
the lessee should prove it before the Clerk of the Court in charge of the
enforcement, an order moving the proceedings forward declaring the
judgment enforced shall be issued and the procedure cancelled, unless
the claimant should have an interest in maintaining it to draw up a certificate
on the state in which the property is to be found.

Article 704. Occupants of real property to be handed over.413

1. Where the real property whose possession is to be handed over is the

usual residence of the party subject to enforcement or whoever may be his
dependants, the Court Clerk shall grant them one month to vacate it. Such
time limit may be extended for an additional month should there be solid
grounds.

413
The first sentences of paragraphs 1 and 2 of this Article have been worded in accordance with Act
13/2009 of 3 November.

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Once such time limits set forth have elapsed, the eviction shall be carried
out immediately and the date for such eviction shall be set in the initial
decision or in the decision agreeing to the extension.

2. Should the real property that must be handed over pursuant to the
enforceable right be occupied by third parties other than the party subject
to enforcement who share its use with the latter, the Court Clerk in charge
of the enforcement shall give them notice of the enforcement or that it is
pending as soon as he is aware of their existence, so that they may file
any titles justifying their situation within ten days.

The party seeking enforcement may petition the court to evict whoever he
may deem as mere occupants lacking sufficient title. Such petition shall be
transferred to the persons indicated by the party seeking enforcement and
the procedures shall proceed in accordance with paragraphs 3 and 4,
Article 675.

CHAPTER III
ON THE ENFORCEMENT OF AFFIRMATIVE AND NEGATIVE
OBLIGATIONS

Article 705. Requirement and setting a time limit.

Should the enforceable right oblige somebody to do anything, the court

shall require the debtor to carry it out within a time limit which shall be set
on the basis of the nature of the obligation and existing circumstances.

Article 706. Penalty of affirmative non-personal obligation.414

1. Where the enforceable right should set forth an affirmative non-personal

obligation, the party seeking enforcement may petition that he be
empowered to commission a third party to carry it out at the cost of the
party subject to enforcement or claim compensation for damages should
the party subject to enforcement fail to carry it out within the time limit set
by the Court Clerk.

Where the enforceable right should contain an express provision in the

event of non-compliance by the debtor, the provisions set forth therein
shall apply without the party seeking enforcement being able to choose
between performance by a third party or compensation.

414
The first sentences of paragraphs 1 and 2 of this Article are worded in accordance with Act
13/2009 of 3 November.

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2. Should the party seeking enforcement opt for commissioning a third

party to carry out the obligation in accordance with the preceding
paragraph, the cost thereof shall be previously appraised by an appraisal
expert appointed by the Court Clerk and assets shall immediately be
attached for their immediate realisation until the amount required is
obtained should the party subject to enforcement fail to post the amount
agreed upon by the Court Clerk by means of an order to move the
proceedings forward, which is subject to an appeal for judicial review with
non-suspensory effect before the court which issued the general
enforcement order, or fail to guarantee payment.

Where the party seeking enforcement should opt for compensation for
damages, they shall be quantified in accordance with the provisions set
forth in Article 712 and the following.

Article 707. Publication of judgement in the media.415

Where the judgement should order the publication or dissemination of its

contents, either partially or fully, in the media at the cost of the party
condemned in the proceedings, enforcement may be carried out to ensure
the effectiveness of such decision through the Court Clerk by requiring the
party subject to enforcement to place the appropriate advertisements.

Should the party subject to enforcement fail to comply with such

requirement within the time limit set, the party seeking enforcement may
place the advertisement after obtaining funds at the cost of the assets
belonging to the party subject to enforcement in accordance with the
provisions set forth in paragraph 2 of the preceding Article.

Article 708. Penalty of issuing a declaration of shall.416

1. Where a definitive court judgement or arbitration award should set a

penalty of issuing a declaration of shall, the competent court shall deem
such declaration of shall to have been issued should the essential elements
of the transaction be predetermined once the twenty-day time limit laid
down in Article 548 has elapsed without it being issued by the party subject
to enforcement. Once the declaration has been issued, the party seeking
enforcement may petition the Court Clerk in charge of the enforcement to
issue an order for an entry or registration in keeping with the contents and

415
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.
416
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.

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purpose of the declaration of shall to be made at the relevant registry or

registries, attaching a certification of the court order thereto.

The preceding shall be construed to be notwithstanding civil and

commercial rules on the form and documentation of legal acts and
transactions.

2. Should any unessential elements of the transaction or agreement which

the declaration of shall should cover not be predetermined, the court shall,
after hearing the parties, determine them in keeping with the usual
practices of the market or legal transactions in the decision deeming the
declaration to have been issued.

Where such lack of determination should affect essential elements of the

transaction or agreement which the declaration of shall should cover,
enforcement proceedings for damages caused to the party seeking
enforcement shall be appropriate, which shall be settled in accordance
with Articles 712 and the following, should the party thus penalised fail to
issue it.

Article 709. Penalty of affirmative personal obligation.417

1. Where the enforceable right refers to an affirmative personal obligation,

the party subject to enforcement may state before the court any reasons
for refusing to carry out whatever the enforceable right sets forth and may
allege whatever he may deem appropriate regarding the personal or non-
personal nature of the obligation owed before the time limit granted to
comply with the requirement referred to in Article 699 has elapsed. Once
such time limit has elapsed without the party subject to enforcement having
performed the obligation, the party seeking enforcement may opt between
seeking the enforcement to proceed so that a monetary equivalent of the
obligation is handed over or seeking that the party subject to enforcement
be compelled through a fine for each month that elapses without carrying
out the obligation from the finalisation of the time limit. The court shall
decide whatever may be appropriate by means of a court order, agreeing
to what the party seeking enforcement may have sought where it deems
that the obligation set forth in the penalty has the special features that
characterise a personal obligation. Otherwise, is shall order the
enforcement to proceed in accordance with the provisions set forth in
Article 706.

417
Paragraph 3 worded in accordance with Act 13/2009 of 3 November.

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2. Should it be agreed upon to proceed with the enforcement in order to

obtain the monetary equivalent of the obligation owed, a single fine shall
be imposed on the party subject to enforcement in accordance with the
provisions set forth in Article 711.

3. Where it is agreed to compel the party subject to enforcement through

monthly fines, the requirements shall be repeated on a quarterly basis by
the Court Clerk in charge of the enforcement until one year has elapsed
from the first such requirement. Should the party subject to enforcement
continue to refuse to comply with the enforceable right after one year,
enforcement shall proceed to hand over to the party seeking enforcement
a monetary equivalent of the obligation or to adopt any other suitable
measures to ensure the satisfaction for the party seeking enforcement the
court may have agreed upon at the latter’s request and after hearing the
party subject to enforcement.

4. The provisions set forth in the preceding paragraphs shall not apply to
this Article where the enforceable right should contain an express provision
on the debtor’s non-compliance. In such case, the provision set forth
therein shall apply.

Article 710. Penalty of negative obligation.418

1. Should a party penalised with a negative obligation breach the

judgement, such party shall be required by the Court Clerk in charge of the
enforcement at the request of the party seeking enforcement to put right, if
possible, any harm, done compensate any damages caused, and, as
appropriate, refrain from repeating such breach with a threat of incurring in
contempt of court.

Such procedure shall be repeated as many times as the penalty is

breached and, in order to ensure that any harm done is put right, the party
in question shall be advised by the Court Clerk of the imposition of fines for
every month that elapses without putting it right.

2. Should such breach not be susceptible to repetition on the basis of the

negative obligation’s nature and should it also be impossible to put right
the harm done, the enforcement shall proceed to compensate the party
seeking enforcement for any damages such breach may have caused
him.

418
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.

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Article 711. Amount of coercive fines.419

1. The price of or consideration for the personal affirmative obligation set

forth in the enforceable right shall be taken into consideration in order set
the amount of the fines laid down and, should they not appear in it or an
effort is made to put right any harm done, the monetary market value
attributed to such behaviour shall be taken.

Monthly fines may amount to up to twenty per cent of such price or value
and the single fine may amount to up to fifty per cent of said price or value.

2. A judgement upholding an action for cessation in defence of collective

interests and of the diffuse interests of consumers and users shall,
nevertheless, impose a fine ranging from six hundred to sixty thousand
euros per day of delay in the enforcement of the court judgement within
the time limit set forth therein, depending on the nature and significance of
the damages caused and the economic capacity of the party thus
condemned. Such fine shall be paid into in the Public Treasury.

CHAPTER IV
ON THE SETTLEMENT OF DAMAGES, PROCEEDS AND INCOME
AND ON THE RENDERING OF ACCOUNTS

Article 712. Scope of the procedure’s application.

The procedure laid down in the following articles shall be followed where
the compulsory enforcement of the monetary equivalent of a non-monetary
obligation has to be determined or where an amount owed for damages or
for proceeds, income, gains or products of any kind has to be set or where
the resulting balance of an administration’s rendering of accounts has to
be determined in accordance with this Act.

Article 713. Petition for settlement and submission of list of damages.420

1. The party that may have suffered damages shall submit a detailed list
thereof containing their valuation along with a written statement petitioning
the court to determine such damages. Any opinions and documents
deemed appropriate may be attached thereto.

419
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.
420
Paragraph 2 worded in accordance with Act 13/2009, of 3 of November.

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2. The written statement along with of the list of damages and any other
documents shall be transferred by the Court Clerk to whoever would have
to pay for such damages, who may respond within ten days with whatever
he may deem appropriate.

Article 714. Debtor’s acceptance of the list of damages.421

1. Should the debtor accept the list of damages and their amount, the
Court Clerk in charge of the enforcement shall accept them through an
order to move the proceedings forward and the amount agreed upon shall
be made effective in the manner laid down in Articles 571 and the following
for monetary enforcement.

2. It shall be construed that the debtor has granted his agreement to the
facts alleged by the party seeking enforcement should he not respond to
the documents thus transferred within ten days or should he limit himself/
herself to denying in a generic fashion the existence of the damages
without either specifying the points at issue on the list submitted by the
creditor or expressing the grounds and scope of the dispute.

Article 715. Challenge by the debtor.422

Should the debtor contest the claimant’s claim regarding either the items
setting out the damages or their monetary valuation within the legal time limit
and with grounds, the settlement for damages shall be conducted through the
procedures laid down for oral hearings. However, the court which issued the
general enforcement order may, if it deems fit, at the request of a party or on
an ex officio basis, issue an order to appoint an expert to issue an opinion on
whether the damages have effectively come about and on their monetary
appraisal, after submission of the writ of challenge from the opposing party. In
this case, the court shall set a time limit for the expert to issue the opinion and
file it before the court and the oral hearing shall not be held until ten days have
elapsed after such opinion has been sent to the parties.

Article 716. Court order setting the amount determined.

The court shall issue the decision it may deem fair by means of a court
order within five days from the date on which the hearing is held, setting
the amount the creditor shall pay the debtor as compensation for damages.

421
Paragraph 1 worded according to Act 13/2009 of 3 November.
422
Amended by single article 71 of Law 42/2015, of 5 October.
Article worded in accordance with Act 13/2009 of 3 November.

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An appeal may be lodged against such court order without suspensory

effects and expressly declaring the imposition of costs in accordance with
the provisions set forth in Article 394 contained herein.

Article 717. Petition for setting the monetary equivalent of a non-monetary

obligation.423

Where the setting of a monetary equivalent for an obligation not consisting

of the handover of an amount of money is sought, monetary estimates of
such obligation and the grounds for them shall be stated, attaching any
documents the applicant may deem suitable to ground his petition, which
the Court Clerk shall transfer to whoever may have to pay, so that they
may respond with whatever they may consider appropriate within ten days.

The application shall be conducted and resolved in the same way as that
set forth in Articles 714 to 716 to settle damages.

Article 718. Settlement of proceeds and income. Application and

requirement to debtor.424

Should the setting of an amount owed for proceeds, income, gains or

products of any kind be sought, the Court Clerk in charge of the enforcement
shall require the debtor to file a settlement within a time limit which shall be
determined according to the circumstances of the case, taking into
consideration, as appropriate, the bases set forth by the enforceable right.

Article 719. Settlement filed by the creditor and transferred to the debtor.425

1. Should the debtor file the settlement of proceeds, income, gains or

products of any kind as referred to in the preceding Article, it shall be
transferred to the creditor and, should the latter be in agreement with it, an
order moving the proceedings forward shall be issued and the amount
agreed upon shall be made effective in the manner laid down in Articles
571 and the following for its monetary enforcement.

Where the creditor should not be in agreement with the settlement, it shall
be conducted in accordance with the provisions set forth in Article 715
contained herein.

423
Subparagraph 1 worded in accordance with Act 13/2009 of 3 November.
424
Article worded in accordance with Act 13/2009 of 3 November.
425
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.

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2. Should the debtor fail to file the settlement referred to in the preceding
paragraph, the creditor shall be required to file whatever he may deem fair and
such settlement shall be transferred to the party subject to enforcement and the
procedures shall follow their course in accordance with Articles 714 to 716.

Article 720. Rendering the accounts of an administration.426

The provisions contained in Articles 718 and 719 shall apply should an
enforceable right refer to an administration’s obligation of rendering
accounts and handing over the balance thereof. However, the time limits
may be extended by means of an order to move the proceedings forward
issued by the Court Clerk in charge of the enforcement where he may
deem it necessary, taking into consideration the importance and complexity
of the matter.

TITLE VI
ON INJUNCTIONS

CHAPTER ONE
ON INJUNCTIONS: GENERAL PROVISIONS

Article 721. Need for a party’s petition.

1. Any claimant, either of the main claim or of the counterclaim, may under
his liability seek an injunction under the provisions set forth in this Title
from the court for the precautionary measures he may deem necessary to
ensure the effective protection of the courts granted in a favourable
judgement that has been issued.

2. The injunctions set forth in this Title may under no circumstances be

agreed upon on an ex officio basis by the court, notwithstanding the
provisions set forth for special proceedings. Neither may more onerous
measures than the ones sought be agreed upon.

Article 722. Injunctions in arbitration proceedings and foreign litigation.427

Whoever may prove to be a party to an arbitration agreement may seek

injunctions from the court prior to the arbitration proceedings. Whoever may

426
Article worded in accordance with Act 13/2009 of 3 November.
427
First paragraph amended by final provision 2 of Law 11/2011 of 20 May.
Article worded in accordance with Act 13/2009, of 3 of November.

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prove to be a party in pending arbitration proceedings in Spain may also seek

them; or, as appropriate, whoever may have sought the court’s certification
referred to in Article 15, Act 60/2003 of 23 December on Arbitration; or, in the
event of institutional arbitration, whoever may have duly filed an application or
commission to the relevant institution according to their regulations.

Notwithstanding any special rules set forth in treaties and conventions or

any European Union rules that may apply, whoever can prove to be party
to any jurisdictional or arbitration proceedings being conducted in a foreign
country may seek injunctions from a Spanish court should the legally
required prerequisites be met, except in cases where the main matter at
issue should solely lie within the competence of Spanish courts.

Article 723. Competence.

1. The competent court to deal with any petitions for injunctions shall be the
court dealing with the matter in the first instance or, should the proceedings
have yet to be initiated, the court holding competence to deal with the main
claim.

2. The court responsible for dealing with any petitions for injunctions filed
while the second instance or an extraordinary appeal for infringement of
procedure is being conducted shall be the court holding competence to
deal with the second instance or such appeals.

Article 724. Competence in special cases.

Where injunctions are sought whilst arbitration proceedings or a court’s

certification of arbitration are pending, the competent court shall be the
court of the place where the arbitration award has to be enforced or, failing
that, the court of the place where the injunction has to take effect.
The same rules shall apply where the proceedings are being conducted in
a foreign court, unless any treaties should set forth otherwise.

Article 725. Ex officio examination of competence. Precautionary

injunction.

1. If the injunction is requested prior to the claim, no declinatory plea based

on a lack of territorial jurisdiction shall be admitted, but the Court shall
examine ex officio its jurisdiction, its objective competence and its territorial
competence. If it considers that it lacks jurisdiction or objective competence,
after having heard the Public Prosecution Service and the applicant for the
injunction, it shall issue a court order abstaining from hearing the case and

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advise the parties to exercise their right before the appropriate body if the
abstention is not based on the lack of jurisdiction of the Spanish Courts.
The same decision shall be adopted if the territorial jurisdiction of the Court
cannot be based on any of the legal venues, mandatory or not, that prove
to be applicable in view of what the applicant intends to claim at the principal
trial. However, if the applicable legal venue is dispositive, the Court shall
not decline its competence if the parties have expressly submitted
themselves to its jurisdiction for the principal case.

2. In the cases referred to in the preceding paragraph, if the Court considers

itself to be territorially competent, it may nevertheless, if advisable in view
of the circumstances of the case, take the precaution of ordering the
injunctions proving to be most urgent, referring the records subsequently
to the Court found to be competent.

Article 726. Characteristics of the injunctions.

1. By way of injunction, the Court may order any kind of direct or indirect
proceedings in relation to the assets and rights of the defendant that have
the following characteristics:
(i) Aimed exclusively at guaranteeing the effectiveness of the judicial
protection that may be granted in a possible affirmative judgement, to
ensure that it cannot be prevented or hampered by situations occurring
while the relevant proceedings are still pending.
(ii) They cannot be replaced by another measure equally effective for
the purposes of the preceding paragraph but less burdensome or
damaging for the defendant.

2. Subject to the temporary, provisional and conditional nature and the

possibility of modification and lifting established herein in relation to
injunctions, the Court may adopt as such injunctions those consisting of
orders and prohibitions with a content similar to that claimed in the
proceedings, without prejudging the judgement to be finally passed.

Article 727. Specific injunctions.

In accordance with the provisions of the preceding article, the following

injunctions may be ordered, among others:
(i) The pre-judgement attachment, aimed at ensuring the enforcement
of judgements ordering the delivery of amounts of money or yields,
rents and fungible goods that can be estimated in cash by applying
fixed prices.

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Apart from the preceding subparagraph, a pre-judgement attachment

shall also be appropriate if it proves to be the most suitable measure
and cannot be replaced by another measure that is equally or more
efficient and less damaging for the defendant.
(ii) The intervention or court-ordered receivership of productive assets,
when a judgement is sought ordering their delivery under the title of
owner, usufructuary or any other title involving a legitimate interest in
maintaining or improving productivity or when guaranteeing the latter
is of paramount importance for the effectiveness of the judgement to
be passed in due time.
(iii) The deposit of a moveable asset, when the claim seeks a conviction to
deliver the said asset and the latter is in the possession of the defendant.
(iv) The drawing up of inventories of assets in accordance with the
conditions to be specified by the Court.
(v) The precautionary registry notation of the claim when the latter
refers to assets or rights subject to inscription in public Registries.
(vi) Other registry notations in cases where registry publication is
useful to ensure adequate enforcement.
(vii) The court order to provisionally cease an activity, that of temporarily
abstaining from performing a certain conduct or the temporary
prohibition to suspend or to cease carrying out a performance that was
being carried out.
(viii) The intervention and deposit of income obtained through an
activity considered illicit and whose prohibition or cessation is
requested in the claim, as well as the consignment or deposit of the
amounts claimed as compensation for the intellectual property.
(ix) The temporary deposit of the works or objects allegedly produced
contrary to the rules on intellectual and industrial property, as well as
the deposit of the material employed for their production.
(x) The suspension of contested corporate resolutions when the
claimant or claimants represent at least 1 or 5 percent of the corporate
capital, depending on whether or not the defendant company has
issued securities that, at the time of the contest, are admitted to
negotiation on an official secondary market.
(xi) Any other measures expressly established by the laws for the
protection of certain rights or deemed necessary to ensure the
effectiveness of the judicial protection that may be granted in the
affirmative judgement that may be passed at the trial.

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Article 728. Risk deriving from the procedural delay. Appearance of legal
standing. Security.428

1. Injunctions may only be decided if the applicant justifies that, in the case
at hand, failure to do so could, during the course of the proceedings, lead
to situations preventing or hindering the effectiveness of the protection that
may be granted in case an affirmative judgement is eventually passed.

No injunctions shall be decided if it is their aim to alter de facto situations

that the applicant has been accepting during a prolonged period, unless
the latter duly justifies the reasons for which the said measures have not
been requested until then.

2. Together with his application, the applicant for injunctions shall also
submit the particulars, arguments and documentary evidence allowing the
Court to justify, without prejudging the merits of the case, a provisional and
circumstantial judgement in favour of the basis of his claim. Lacking such
documentary evidence, the applicant may offer other means of evidence,
which he shall propose in due form in the same brief.

3. Unless expressly decided otherwise, the applicant for the injunction shall
post security sufficient to compensate, in a speedy and effective manner, the
damages that the adoption of the injunction may cause to the estate of the
defendant.

The Court shall determine the security taking into account the nature and
contents of the claim and its assessment, in accordance with the preceding
paragraph, of the basis of the application for the measure.

The security referred to in the preceding subparagraph may be granted in

any of the modalities set out in the second subparagraph of paragraph 3 of
Article 529.

In the procedures in which an action for cessation is filed in defence of the

collective interests and the particular interests of consumers and users,
the Court may exempt the applicant for the injunction from the obligation to
post security taking into account the circumstances of the case and the
financial significance and the social repercussion of the various interests
affected.

428
Paragraph 2 worded in accordance with Act 13/2009, of 3 of November
Subparagraph (3) added by Act 39/2002 of 28 October.

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Article 729. Third-party claims in cases of pre-judgement attachment.

In a pre-judgement attachment a third-party claim to ownership may be

lodged, but no third-party intervention with a paramount right shall be
admitted unless it is lodged by a party who, in different proceedings, is
claiming the delivery of an amount of money from the same debtor.

The competence to examine the third-party claims referred to in the

preceding subparagraph shall correspond to the Court that ordered the
pre-judgement attachment.

CHAPTER II
ON THE PROCEDURE FOR THE ADOPTION OF INJUNCTIONS

Article 730. Moments to apply for the injunctions.429

1. As a rule, the injunctions shall be requested together with the main

claim.

2. Injunctions may also be sought prior to the claim if, at the relevant time,
the applicant alleges and evidences reasons of urgency or necessity.

In this case, the measures adopted shall cease to have effect if the claim
is not lodged with the same Court that heard the request for the said
measures within twenty days following their adoption. The Court Clerk
shall issue ex officio an order lifting or revoking any acts of compliance that
have been performed, ordering the applicant to pay the costs and declaring
that the latter is liable for the damages caused to the person in relation to
whom the measures were adopted.

3. The temporary requirement referred to in the preceding paragraph shall

not apply in the cases of judicial formalisation of arbitration or institutional
arbitration. For the injunction to be maintained in the latter cases it shall be
sufficient for the party benefiting from the said injunction to carry out all the
proceedings required to initiate the arbitration procedure.

4. Subsequent to the lodging of the claim or while an appeal is pending,

the adoption of injunctions may only be sought when the request is based
on facts and circumstances justifying the request at that time.

429
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.

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This request shall be carried out in accordance with the provisions of this
chapter.

Article 731. Accessory nature of the injunctions. Provisional enforcement

and injunctions.

1. An injunction shall not be maintained for any reason once the main
proceedings have terminated, except in the event of a verdict of guilty or
equivalent court order, in which case the adopted injunctions shall be
maintained until the time limit referred to in Article 548 herein has expired.
Upon expiry of the said time limit without the enforcement having been
sought, the measures that were adopted shall be lifted.

Nor shall an injunction be maintained if he proceedings have been

suspended for more than six months for reasons attributable to the
applicant for the measure.

2. When the provisional enforcement of a judgement is dispatched, the

injunctions that were ordered in relation to the said enforcement shall be
lifted.

Article 732. Application for the injunctions.

1. The application for injunctions shall be formulated clearly and accurately,

duly justifying the existence of the prerequisites legally required for their
adoption.

2. The application shall be accompanied by the supporting documents or

other means of proof shall be proposed to evidence the existence of the
prerequisites allowing the adoption of injunctions.

When the injunctions are sought in relation to proceedings initiated

concerning claims for the prohibition or cessation of illicit activities, the
Court may also be asked, as a matter of urgency and without transferring
the brief of petition, to request the reports or to order the inquiries that the
petitioner is unable to submit or to carry out and that are necessary to
resolve on the petition.

For the plaintiff, the possibility to submit evidence shall preclude with the
application for injunctions.

3. The brief of petition shall include an offer to post security, specifying the
type or types of security offered and justifying the amount proposed.

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Article 733. Hearing of the defendant. Exceptions.430

1. As a general rule, the Court shall resolve on the petition for injunctions
after hearing the defendant.

2. That set out in the preceding paragraph notwithstanding, if the applicant

so requests and evidences the existence of reasons of urgency or that the
prior hearing may jeopardise the efficiency of the injunction, the Court may
order the said injunction without further ado by court order within a time
limit of five days, explaining separately the existence of the requirements
for the injunction and the reasons why it has considered it advisable to
order the injunction without hearing the defendant.

No appeal of any nature may be lodged against the court order adopting
injunctions without prior hearing of the defendant and the provisions
contained in chapter III of this title shall apply. The court order shall be
notified to the parties without delay and, if it cannot be notified sooner,
immediately after the enforcement of the measures.

Article 734. Hearing of the parties.431

1. Upon reception of the application, the Court Clerk shall, by notice,

except in the cases of the second subparagraph of the preceding article,
within a time limit of five days as of the notification of the application to the
defendant, summon the parties to appear at a hearing, which shall be held
within the next ten days without need to follow the order of causes pending
if required for the effectiveness of the injunction.

2. At the hearing the claimant and the defendant may put forward whatever
is convenient for their right, submitting any evidence they have available,
which shall be admitted and examined if relevant taking into account the
prerequisites of the injunctions. They may also request, if necessary to
demonstrate relevant issues, the examination of evidence by the Court,
which, if considered relevant and impossible to examine at the hearing
itself, shall be carried out within a time limit of five days.

Likewise, they may formulate pleas relating to the type and the amount of
the security. And the party to be subject of the injunction may ask the Court
to accept instead of the said injunction a substitute security, in accordance
with the provisions of Article 746 herein.

430
Paragraph 2 worded in accordance with Act 19/2006 of 5 June.
431
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.

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3. No appeal of any nature may be lodged against the decisions of the

Court concerning the development of the appearance, its contents and the
evidence proposed, notwithstanding the right to allege, after the appropriate
protest, the infringements that may have occurred in the appearance, in
the appeal against the court order resolving on the injunctions.

Article 735. Court order establishing injunctions.

1. Upon termination of the hearing, the Court shall, within a time limit of
five days, decide by court order on the application for injunctions.

2. If the Court considers that all the established requirements are met and
that, in view of the pleas and the justifications, the risk involved in a
procedural delay is evident, taking into account the appearance of legal
standing, it shall grant the request for measures, determine with absolute
accuracy the measure or injunctions adopted and shall specify the system
to which these shall be submitted, determining, as appropriate, the form
and the amount of the security and the time limit within which it shall be
posted by the applicant.

A remedy of appeal without suspensory effects may be lodged against the

court order establishing injunctions.

Article 736. Court order rejecting the injunctions. Reiteration of the

application in the event of change of circumstances.

1. The court order by which the Court rejects the injunction may only be
subject of a remedy of appeal, which shall be conducted in a preferential
manner. The costs shall be awarded in keeping with the criteria established
in Article 394.

2. Although the petition for injunctions has been rejected, the plaintiff may
renew his petition in case of a change in the circumstances existing at the
time of the petition.

Article 737. Posting of security.

The security shall at all times be posted prior to any act of compliance with
the injunction established.

The Court shall decide by procedural court order on the suitability and
sufficiency of the amount of the security.

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Article 738. Enforcement of the injunction.432

1. Once the injunction has been established and the security posted, it shall
be complied with immediately ex officio, using to this end any means that
are required, including those established for the enforcement of judgements.

2. If the pre-judgement attachment has been ordered, this shall be carried

out in accordance with the provisions of Article 584 and subsequent articles
concerning the attachments ordered in enforcement proceedings, although
without the debtor being bound to submit the statement of assets established
in Article 589. The decisions on extension, reduction or modification of the
pre-judgement attachment shall be adopted, as appropriate, by the Court.

If a court-ordered receivership is ordered, the latter shall be carried out in

accordance with Article 630 and subsequent articles.

In the case of a precautionary registry notation, this shall be carried out in

accordance with the rules of the relevant Registry.

3. The depositories, receivers or persons responsible for the assets or

rights subject of an injunction may only dispose of them by prior
authorisation by means of a procedural court order issued by the Court
and subject to the existence of circumstances of such an exceptional
nature that preserving them would prove more costly for the estate of the
defendant than disposing of them.

CHAPTER III
ON THE OBJECTION TO THE INJUNCTIONS ADOPTED WITHOUT
HEARING THE DEFENDANT

Article 739. Objection to the injunction.

In the cases where the injunction has been adopted without previously
hearing the defendant, the latter may file an objection within a time limit of
twenty days as of the notification of the court order adopting the injunctions.

Article 740. Grounds of objection.

Offer of substitute security. The party lodging an objection to the injunction

may put forward as grounds for the objection any facts and reasons

432
The first and second subparagraphs of paragraph 2 have been worded in accordance with Act
13/2009 of 3 November.

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contrary to the appropriateness, requirements, scope, type and other

circumstances of the measure or measures actually adopted, without any
limitation whatsoever.

He may also offer a substitute security, in keeping with the provisions or

chapter V of this title.

Article 741. Transfer of the objection to the applicant, appearance at the

hearing and decision.433

1. The brief of objection shall be transferred by the Court Clerk to the

applicant and the procedure shall then continue in accordance with the
provisions of Article 734.

2. After the hearing is held, the Court shall, within a time limit of five days,
decide on the objection by means of a court order.

If it upholds the injunctions adopted, it shall order the opponent to pay the
costs of the objection.

If it lifts the injunctions, it shall order the plaintiff to pay the costs and the
damages caused by the said injunctions.

3. The court order resolving on the objection may be appealed against

without suspensory effects.

Article 742. Compulsory exaction of damages.

Once the court order upholding the objection is final, at the request of the
defendant and following the procedures established in Article 712 and
subsequent articles, the damages caused, as appropriate, by the revoked
injunction, shall be determined and, once determined, the applicant for the
measure shall be requested to pay the said damages and, should he fail to
do so, their compulsory exaction shall be carried out immediately.

433
Paragraph 1 worded in accordance with Act 13/2009, of 3 of November.

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CHAPTER IV
ON THE MODIFICATION AND LIFTING OF THE INJUNCTIONS

Article 743. Possible modification of the injunctions.

The injunctions can be modified by alleging and proving facts and

circumstances that could not have been taken into account at the time of
their approval or within the time limit established to object to them.

The request for modification shall be made and resolved in accordance

with the provisions of Article 734 and subsequent articles.

Article 744. Lifting of the measure after a non-definitive judgment.434

1. Once the defendant has been acquitted in the first or second instance,
the Court Clerk shall order the lifting of any injunctions adopted if the
appellant does not seek that they be kept or the adoption of any other
injunction at the moment of lodging an appeal against the judgment. Once
the other party has been heard and prior to transferring the proceedings to
the court holding jurisdiction to rule on the appeal against the judgment,
the court shall in such case be informed and decide whether applying
them is appropriate, taking into consideration the persistence of the
assumptions and circumstances that justify the maintenance or adoption
of such measures.

2. If the claim is upheld in part, the Court, having heard the counter-party,
shall decide by court order on the maintenance, lifting or modification of
the injunctions adopted.

Article 745. Lifting of the measures after final judgement of acquittal.435

Once a judgement of acquittal has become final, either as to the merits of

the case or the proceedings, the Court Clerk shall lift ex officio all the
injunctions adopted and the procedure shall continue in accordance with
the provisions of Article 742 concerning the damages the defendant may
have incurred.

The same shall be ordered in the cases of waiver of the action or

abandonment of the proceedings.

434
Paragraph 1 amended by Article 4.34 of Act 37/2011 of 10 October.
435
Subparagraph 1 worded in accordance with Act 13/2009 of 3 November.

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CHAPTER V
OTHE SECURITY SUBSTITUTING THE INJUNCTIONS

Article 746. Substitute security.

1. The party against whom injunctions have been requested or adopted may
ask the Court to accept, in substitution of the measure, the posting by the
said party of a security that, in the opinion of the Court, is sufficient to ensure
the effective compliance with the affirmative judgement that may be passed.

2. In order to decide on the petition to accept a substitute security, the Court

shall examine the basis of the request for injunctions, the nature and content
of the claim for conviction and the possible favourable legal appearance of
the position of the defendant. It shall also take into account whether the
injunction would restrict or hinder the patrimonial or financial activity of the
defendant in a serious and disproportionate manner compared to the
guarantee the said measure would represent for the applicant.

Article 747. Request for a substitute security.436

1. The request for the posting of a security substituting the injunction may
be made in accordance with the provisions or Article 734 or, if the injunction
has already been adopted, in the procedure of objection or by means of a
reasoned brief, which may be accompanied by the documents he considers
convenient in relation to his solvency, the consequences of the adoption of
the measure and the most detailed possible assessment of the risk deriving
from the procedural delay.

Five days after the brief has been transferred to the applicant for the
injunction, the Court Clerk shall summon the parties to a hearing on the
request for a substitute security, in accordance with the provisions of Article
734. Once the hearing has been held, the Court shall resolve by court order
as it deems appropriate, within a time limit of a further five days.

2. No appeal of any nature may be lodged against the court order resolving
to accept or to reject the substitute security.

3. The security substituting the injunction may be posted in any of the

forms established in the second subparagraph of paragraph 3 of Article
529.

436
Paragraph 2 (1) worded in accordance with Act 13/2009 of 3 November.

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BOOK IV
ON THE SPECIAL PROCEEDINGS

TITLE ONE
ON THE PROCEEDINGS REGARDING CAPACITY, KINSHIP,
MARRIAGE AND MINORS

CHAPTER ONE
ON GENERAL PROVISIONS

Article 748. Scope of application of this title.437

The provisions of this Title will be applicable to the following proceedings:

(i) Those concerning the capacity of the individuals and those for
declaration of prodigality.
(ii) Those of kinship, paternity and maternity.
(iii) Those of nullity of marriage, separation and divorce and those
modifying measures adopted in them.
(iv) Those relating exclusively to the guardianship and custody of
underage children or to maintenance payments claimed by one parent
from the other on behalf of the underage children.
(v) Those for recognition the civil effectiveness of ecclesiastical
resolutions or decisions in matrimonial issues.
(vi) Those concerning measures relating to the return of minors in
cases of international abduction.
(vii) Those concerning challenges to administrative decisions relating
to the protection of minors.
(viii) Those concerning the need for consent in adoptions.

Article 749. Intervention of the Public Prosecution Service.438

1. In proceedings on the capacity of individuals, annulment of marriages,

international abduction of minors and those deciding and challenging
kinship the Public Prosecution Service will always take part, even though it

437
Amended by final provision 3.5 of Law 15/2015 of 2 July.
438
Section 1 is amended by final provision 3.6 of Law 15/2015, of 2 July

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did not initiate them or, in accordance with the Law, is not under a duty to
defend one of the parties. The Public Prosecution Service will, throughout
the entire process, ensure that the best interests of the affected person are
safeguarded.

2. The intervention of the Public Prosecution Service shall be mandatory in

all other proceedings referred to in this title, provided that one of the
interested parties in the proceedings is a minor, incapacitated or in a
situation of legal absence.

Article 750. Representation and defence of the parties.439

1. Apart from those cases where, under the law, they must be defended by
the Public Prosecution Service, the parties shall act in the proceedings
referred to in this title with the assistance of an attorney and represented
by a court representative.

2. In the proceedings of separation or divorce requested by mutual

agreement of the spouses, the latter may use one single counsel for the
defence and representation.

That set out in the preceding subparagraph notwithstanding, if one of the

covenants proposed by the spouses is not approved by the Court, the
Court Clerk shall summon the parties to declare within a time limit of five
days whether they wish to continue with one single counsel and
representative or, on the contrary, prefer to litigate each of them with their
own counsel and representative. Likewise, if, notwithstanding the
agreement subscribed by the parties and ratified by the Court, either party
requests the judicial enforcement of the said agreement, the Court Clerk
shall request the other party to appoint an attorney and a court
representative to defend and represent him or her.

Article 751. Unavailability of the object of the proceedings.

1. In the proceedings referred to in this title neither the waiver nor the
acceptance of a claim or the settlement shall have any effect.

2. The abandonment shall require the conformity of the Public Prosecution

Service, except in the following cases:

439
Subparagraph 2 (2) worded in accordance with Act 13/2009 of 3 November.

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(i). In the proceedings of declaration of prodigality and those referring

to kinship, paternity and maternity, provided none of the parties
interested in the procedure are minors, incapacitated or absent.
(ii). In the proceedings of nullity of marriage due to minority, if the
spouse who married while still a minor lodges the action for nullity after
having become of age.
(iii). In the proceedings of nullity of marriage due to error, coercion or
serious fear.
(iv). In the proceedings of separation and divorce.

3. The provisions of the preceding paragraphs notwithstanding, the pleas

formulated at the proceedings referred to in this title and concerning
objects of which the parties may freely dispose, according to the applicable
civil legislation, can be the subject of waiver, acceptance of claim,
settlement of abandonment, in accordance with the provisions of chapter
IV of the first title of the first Book herein.

Article 752. Evidence.

1. The proceedings referred to in this Title shall be resolved in keeping with

the facts that were object of the debate and have been proven, regardless
of the moment when they were alleged or otherwise introduced in the
procedure.

Notwithstanding the evidence submitted at the request of the Public

Prosecution Service and the other parties, the Court may order ex officio
the examination of any evidence it deems relevant.

2. The conformity of the parties with the facts shall not be binding upon the
Court and neither may the latter resolve the matter in dispute exclusively
on the basis of the said conformity or of the silence or evasive replies
concerning the facts alleged by the counter-party. Nor shall the Court be
bound, in the proceedings referred to in this title, by the provisions herein
concerning the value as evidence of the questioning of the parties, of the
public documents and the recognised private documents.

3. The provisions contained in the preceding paragraph shall be equally

applicable to the second instance.

4. With regard to the pleas formulated in the proceedings referred to in this

title in relation to objects of which the parties may freely dispose under the

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applicable civil legislation, the special cases contained in the preceding

paragraphs shall not apply.

Article 753. Conduct.440

1. Unless expressly established otherwise, the proceedings referred to in

this title shall be conducted following the procedures of the oral trial, but
the Court Clerk shall transfer the claim to the Public Prosecution Service,
as appropriate, and to the remaining persons who, under the law, shall be
party in the procedure, regardless of whether or not they have been sued,
summoning them to reply to the claim within a time limit of twenty days, in
accordance with Article 405 herein.

2. At the oral trial hearing in these proceedings and the appearance referred
to in Article 771 herein, once the evidence has been submitted, the Court
shall allow the parties to set out their conclusions verbally, in which respect
the provisions of paragraphs 2, 3 and 4 of Article 433 shall apply.

3. The procedures referred to in this Title shall be conducted as fast-track

procedures whenever any of the parties involved in the proceedings is a
minor, a disabled person or legally declared missing.

Article 754. Exclusion of publicity.

In the proceedings referred to in this title the Courts may decide by court
order, ex officio or at the request of a party, that the acts and hearings shall
take place in closed session and that the proceedings shall be reserved,
provided that it is advisable in view of the circumstances and even though
it does not concern any of the cases of paragraph 2 of Article 138 herein.

Article 755. Communication of the judgements to Public Registries.441

When appropriate, the Court Clerk shall order that the judgements and
other decisions passed in the procedures referred to in this Title shall be
notified ex officio to the Public Registries to carry out the corresponding
annotations.

At the request of a party, they shall also be notified to any other Public
Registry for the purposes appropriate in each case.

440
Paragraph 3 added by Article 4.35 of Act 37/2011 of 10 October.
Article worded in accordance with Act 13/2009, of 3 November.
441
Paragraph 1 worded in accordance with Act 13/2009, of 3 November.

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CHAPTER II
ON THE PROCEEDINGS CONCERNING THE CAPACITY OF THE
INDIVIDUALS

Article 756. Competence.

The Judge of First Instance of the place of residence of the individual

referred to in the statement sought shall be competent to hear the claims
concerning the capacity and the declaration of prodigality.

Article 757. Legitimation in the proceedings of incapacitation and

declaration of prodigality.442

1. The declaration of incapacity may be requested by the presumed

incompetent, the spouse or the person in a de facto situation of a similar
nature, the descendants, ascendants or siblings of the presumed
incompetent.

2. The Public Prosecution Service shall request the incapacitation if the

persons mentioned in the preceding paragraph do not exist or have not
requested the said incapacitation.

3. Any person is authorised to notify the Public Prosecution Service of the

facts that may be decisive to determine the incapacitation. The authorities
and civil servants who, by reason of their posts, are aware of the existence
of a possible cause for incapacitation of a person shall notify this cause to
the Public Prosecution Service.

4. That set out in the preceding paragraphs notwithstanding, the

incapacitation or minors in the cases where this is appropriate in
accordance with the law, may only be applied for by those who exercise
the parental authority or the guardianship.

5. The declaration of prodigality may only be sought by the spouse, the

descendants or ascendants who receive alimony from the presumed
prodigal or are entitled to claim such alimony from the latter and the legal
representatives of any of them. If the legal representatives fail to seek
such declaration, the Public Prosecution Service shall do so.

442
Paragraph 1 worded in accordance with Act 41/2003 of 18 November.

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Article 758. Appearance of the defendant.443

Allegedly disabled persons or persons regarding whom a declaration of

prodigality is sought may enter an appearance with their own defence and
representation.

Should they not do so, they shall be defended by the Public Prosecution
Service, as long as it did not initiate the proceedings. Otherwise, the Clerk
of the Court shall appoint a counsel for the defence, unless such counsel
has already been appointed.

Article 759. Evidence and compulsory hearings in disability proceedings.

1. In addition to the evidence taken pursuant to the provisions set forth in

Article 752, in disability proceedings the court shall hear the allegedly
disabled person’s next of kin, examine him and agree to the necessary or
relevant medical opinions with regard to the claim’s petitions and any other
measures laid down by the law. A decision on disability shall never be
taken without an expert medical opinion agreed upon by the court.

2. Where the claim should seek the disabled person’s incapacity to appoint
the person or persons to help, represent and take care of him, the next of
kin of the allegedly disable person shall be heard, as shall the disabled
person, should he be of sound judgement, and any other people the court
may deem appropriate.

3. Should an appeal be lodged against a judgement upholding disability,

the taking of the compulsory evidence referred to in the preceding
paragraphs shall also be ordered on an ex officio basis in the second
instance.

Article 760. Judgement.

1. A judgement declaring disability shall determine the extent and limits of

such disability, as well as the custodianship or guardianship scheme the
disabled person shall be subject to and, as appropriate, a decision shall
also be taken on the need for hospitalisation notwithstanding the provisions
set forth in Article 763.

443
Second paragraph amended by final provision 3.7 of Law 15/2015, of 2 July.
Paragraph 2 worded in accordance with Act 13/2009, of 3 November.

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2. In the event of the case referred to in paragraph 2 of the preceding

Article, should the court uphold the petition, the judgement declaring
disability or issuing the spendthrift decree shall appoint the person or
persons who shall assist and represent the disabled person and take care
of him in accordance with the law.

3. A judgement issuing a spendthrift decree shall determine any actions

the spendthrift may not carry out without the consent of the person who
should assist him.

Article 761. Recovery of capacity and amendment of the scope of

disability.

1. A judgement upholding disability shall not hinder new proceedings being

brought aimed at rendering without effect or amending the scope of the
already established disability should new circumstances come about.

2. The persons referred to in paragraph 1, Article 757, those exercising

custody or guardianship over the disabled person, the Public Prosecution
Service or the disabled person himself/herself may file the petition to
initiate such proceedings.

Should the disabled person have been deprived of the capacity to appear
in trial, he shall have to obtain the court’s express authorisation to act in
the proceedings on his own behalf.

3. The compulsory taking of evidence referred to in Article 759 shall be

conducted in the proceedings referred to in this Article in both the first
instance and, as appropriate, the second instance.

The judgement to be issued shall decide on whether or not to render the

disability ineffective and on whether or not the extent and limits of the
disability should be amended.

Article 762. Precautionary measures.

1. Where a competent court should become aware of the existence of a

possible cause of disability in a person, it shall adopt any measures it may
deem necessary to suitably protect the allegedly disabled person or his
assets and it shall give the Public Prosecution Service notice thereof, so
that it may initiate disability proceedings should it deem them appropriate.

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2. The Public Prosecution Service may likewise petition the court to

immediately adopt the measures referred to in the preceding paragraph
should it become aware of a possible cause of disability in a person.

Such measures may be taken on an ex officio basis or at the request of a

party during any stage of the disability proceedings.

3. As a general rule, the measures referred to in the preceding paragraphs

shall be taken after a hearing of the persons affected. In order to do so, the
provisions contained in Articles 734, 735 and 736 contained herein shall
apply.

Article 763. Non-voluntary hospitalisation due to mental disorders.444

1. The hospitalisation of a person due to mental disorders who is not in a

condition to decide for himself/herself, even should he/she be subject to
parental authority or guardianship, shall require court authorisation, which
shall be obtained from the court of the place of residence of the person
affected by such hospitalisation.

Authorisation shall be obtained prior to hospitalisation, unless reasons of

urgency should make it necessary to adopt the measure immediately. In
such case, the manager of the centre at which patient was admitted shall
give the competent court notice thereof as soon as possible and, in any
event, within twenty-four hours, so that the court may proceed to ratify the
measure, which must take place within no more than seventy-two hours
from the time the court was made aware of the hospitalisation.

In the event of emergency hospitalisations, competence for ratifying the

measures shall lie with the court of the place in which the centre of
hospitalisation is located. Such court shall act, as appropriate, in
accordance with the provisions set forth in paragraph 3, Article 757
contained herein.

2. The hospitalisation of minors shall always be done in suitable mental

health centres for their age after receiving a report from the minor’s social
services.

3. Prior to granting authorisation for or ratifying a hospitalisation that has

already taken place, the court shall hear the person affected by such

444
The items highlighted in Paragraph 1 have been declared unconstitutional by Constitutional Court
Judgment 132/2010 of 2 December.

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decision, the Public Prosecution Service and any another person whose
appearance it may deem appropriate or may be requested by the person
affected by the measure. Furthermore, the court shall examine the person
hospitalised and hear the opinion of the physician in whose care he has
been entrusted, notwithstanding taking any other evidence it may deem
relevant for the case. In all such procedures, the person affected by the
hospitalisation measure shall be entitled to representation and defence
under the terms set forth in Article 758 contained herein.

In any event, any decision the court may take with regard to the
hospitalisation shall be subject to appeal.

4. The same decision agreeing to the hospitalisation shall state the

obligation of the physicians in charge of the hospitalised person’s care to
periodically inform the court on the need to maintain the measure,
notwithstanding any other reports the court may require where it deems
them relevant.

Such periodic reports shall be issued every six months, unless the court
should set a shorter period due to the nature of the disorder that has given
rise to the hospitalisation.

Once such reports are received, the court shall decide on the suitability of
whether or not to continue with the hospitalisation after conducting any
procedures, if any, it may deem essential.

Where the physicians in charge of the hospitalised person’s care should

consider it unnecessary to continue with the hospitalisation, they shall
discharge the patient and immediately give the competent court notice
thereof notwithstanding the provisions set forth in the preceding
paragraphs.

CHAPTER III
ON KINSHIP, PATERNITY AND MATERNITY PROCEEDINGS

Article 764. Legal determination of kinship through a definitive judgement.

1. The courts may be petitioned to legally determine kinship, as well as to

contest legally determined kinship before them in the cases set forth by
civil legislation.

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2. The courts shall not give leave to proceed to any claim aiming to contest
kinship declared by a definitive judgement or to determine any kind of
kinship which is contradictory to any other kind of kinship likewise
established through a definitive judgement.

Should the existence of such definitive judgement be certified once the

proceedings have initiated, the court shall proceed to shelve the
proceedings.

Article 765. Exercising actions corresponding to minor offspring or

disabled persons and procedural succession.

1. Any actions to determine or contest kinship which correspond to minor

offspring or disabled persons pursuant to civil legislation may be indistinctly
exercised by their legal representative or by the Public Prosecution
Service.

2. Upon the death of the claimant, his heirs may continue with any of the
proceedings referred to in this chapter which have already been initiated.

Article 766. Legal capacity to act as a defendant.

Any persons who may be deemed as parents or offspring, should they not
have brought the claim, and whoever may be attributed with the status of
being parents or offspring by virtue of legally determined kinship, where
such kinship is being contested, shall be the defendant in the proceedings
referred to in this chapter where the determination of kinship is sought.
Should any of them have died, their heirs shall be the defendant.

Article 767. Specificities concerning procedure and evidence.

1. Under no circumstances shall a claim to determine or contest kinship be

given leave to proceed should the preliminary evidence upon which it is
grounded not be filed with it.

2. The examination of paternity and maternity through all kinds of tests,

including biological tests, shall be admissible in kinship trials.

3. Despite the lack of direct evidence, kinship may be declared as a result

of an express or implicit recognition, the possession of civil status,
cohabitation during the time of conception or any other facts from which
kinship may similarly be inferred.

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4. An unjustified refusal to undergo biological paternity or maternity tests

shall allow the court to declare the kinship thus claimed, as long as other
evidence of paternity or maternity should exist and evidence thereof has
not been obtained by other means.

Article 768. Precautionary measures.445

1. Whilst any proceedings aimed at contesting kinship may last, the court
shall adopt any suitable protection measures for the person and assets
under the authority of whoever may appear to be a parent.

2. Once kinship has been claimed in the courts, the court may agree to
provisional alimony at the defendant’s cost and, as appropriate, adopt any
of the protection measures referred to in the preceding paragraph.

3. As a general rule, the measures referred to in the preceding paragraphs

shall be taken after a hearing of the persons who may be affected. In order
to do so, the provisions contained in Articles 734, 735 and 736 contained
herein shall apply.

Nonetheless, where reasons of urgency should exist, such measures may

be taken without further ado. The Court Clerk shall then order the interested
parties to be summoned to a hearing, which shall be held within ten days
and at which the court shall decide as appropriate by means of a court
order after hearing those attending on the suitability of the measures thus
adopted.

It may be possible not to require the applicants to post security for the
adoption of precautionary measures in such proceedings.

CHAPTER IV
ON PROCEEDINGS DEALING WITH MATRIMONY AND MINORS

Article 769. Jurisdiction.446

1. Except where expressly provided for otherwise, the competent court to

deal with the proceedings referred to in this chapter shall be the Court of
First Instance in the place where the marital home is. Should the spouses
reside in different court districts, either the court of the last marital home or

445
Paragraph 2 (3) worded in accordance with Act 13/2009, of 3 of November.
446
Paragraphs 1 and 2 amended by final provision 3.8 of Law 15/2015 of 2 July

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that of the defendant’s domicile shall hold jurisdiction at the claimant’s

choice.

A claim may be brought against those lacking a fixed domicile or residence

either in the place they are to be found or in their last place of residence, at
the claimant’s choice. Should it prove to be impossible to determine
jurisdiction in this manner, the court of the claimant’s place of residence
shall hold jurisdiction.

2. In the event of the uncontested separations or divorce proceedings

referred to in Article 777, the Court of the last common domicile or of either
of the claimants shall hold jurisdiction.

3. In the case of proceedings which solely deal with the guardianship and
custody of minor children or the maintenance payments claimed by a
parent against the other on behalf of minor children, the Judge of the Court
of First Instance of the parents’ last common domicile shall hold jurisdiction.
Should the parents reside in different court districts, either the court of the
defendant’s domicile or the court of the minor’s residence shall hold
jurisdiction, at the claimant’s choice.

4. The court shall examine its jurisdiction on an ex officio basis.

Any agreements between the parties which contravene this Article shall be
null and void.

Article 770. Procedure.447

Apart from those set forth in Article lo 777, any claims for separation,
divorce, nullity of matrimony and any others brought under Title IV, Book 1
of the Civil Code shall be conducted through the procedures for oral trials
in accordance with the provisions set forth in chapter 1 of this title subject
to the following rules:

1. A certification of the marriage’s registration shall be attached to the

claim and, as appropriate, of the Civil Registry entry on the birth of any
offspring, along with any other documents upon which the spouse may
ground his rights. Should any measures concerning assets be sought, the
claimant shall file any documents he may have that would allow the
economic situation of the spouses and, as appropriate, of the offspring to

447
Rule 4 worded in accordance with Act 13/2009 of 3 November.

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be assessed, such as tax returns, pay slips, bank certificates, titles of

property or registry certifications.

2. The counterclaim shall be filed along with the defence of the claim. The
claimant shall have 10 days to respond to it.

Counterclaims shall only be given leave to proceed:

a) Where the counterclaim is based on any of the grounds that could
give rise to the matrimony’s nullity.
b) Where the defendant spouse of a claim for separation or nullity
seeks divorce.
c) Where the defendant spouse of a claim for nullity seeks separation.
d) Where the defendant spouse seeks the adoption of definitive
measures, which have not been sought in the claim and regarding
which the court does not have to issue a decision on an ex officio
basis.

3. The parties shall attend the hearing on their own behalf with a warning
that any unjustified absence may lead to the admission of the facts alleged
by the other party who does attend to ground his petitions on definitive
measures regarding assets. The presence of their respective attorneys
shall also be obligatory.

4. Any evidence that cannot be taken at the hearing shall be taken within
the time limit the court may set, which may not exceed thirty days.

During such time limit, the Court may decide on an ex officio basis to any
evidence it may deem necessary to verify the existence of the circumstances
required by the Civil Code in each case to decide on nullity, separation or
divorce, as well as any evidence referring to the facts upon which decisions
on measures affecting minor offspring or disabled persons may depend in
accordance with the civil legislation that applies. Should the procedure be
contentious, minor offspring or disabled persons over the age of twelve
shall be heard, should they have sufficient judgement, on an ex officio
basis or at the request of the prosecutor, the parties, members of the
court’s technical team or the minor.

The Judge shall ensure that any questioning of minors in civil proceedings
is conducted under suitable conditions to safeguard their interests without
interferences from other people, exceptionally making use of the help of
specialists wherever necessary.

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5. Where the requirements set forth in Article 777 are met, the parties may
seek to continue with the proceedings through the procedures set forth
therein at any stage of the proceedings.

6. In the case of proceedings which solely deal with the guardianship and
custody of minor offspring or the alimony claimed by a parent against the
other on behalf of minor offspring, the procedures set forth herein to adopt
preventive, simultaneous or definitive measures in proceedings dealing
with nullity, separation or divorce shall be followed in order to adopt
precautionary measures in keeping with the former proceedings.

7. The parties may mutually agree on a stay of the proceedings according

to the provisions set forth in Article 19.4 contained herein in order to submit
themselves to mediation.

Article 771. Provisional measures prior to a claim for nullity, separation or

divorce. Application, hearing and decision.448

1. A spouse aiming to bring a claim for nullity, separation or divorce of his

matrimony may seek the effects and measures referred to in Articles 102
and 103 of the Civil Code before the court of his domicile.

The involvement of a court representative and attorney shall not be

required to file such application, but their involvement shall be necessary
for any subsequent written statements or procedures.

2. In view of the application, the Court Clerk shall summon the spouses and,
should there be any minor offspring or disabled persons involved, the Public
Prosecution Service to a hearing, at which an effort shall be made to reach
an agreement between the parties. The date of such hearing shall be set by
the Court Clerk within ten days. The defendant spouse shall have to attend
such hearing, assisted by his attorney and represented by his court
representative.

Should the urgency of the case so suggest, notice of such decision shall
be given to the court on the same day, so that it may immediately take a
decision on the effects referred to by Article 102 of the Civil Code and on
the custody of the offspring and on the use of the family home and
household goods. No kind of appeal may be lodged against such decision.

448
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.
Paragraph 1 (3) worded in accordance with Act 13/2009.

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3. Should an agreement between the parties fail to be reached at the

hearing referred to in the preceding paragraph or should such agreement
fail to be approved, either entirely or in part, by the court after hearing, as
appropriate, the Public Prosecution Service, the allegations of those
appearing shall be heard and any evidence they may propose shall be
taken, unless it should be useless or irrelevant, along with any the court
may decide on an ex officio basis. Should it be impossible to take any of
the evidence at the hearing, the Court Clerk shall set a date for it to be
taken as a single procedure within ten days.

The failure of any of the spouses to attend such hearing may lead to the
facts alleged by the spouse who has attended being admitted to ground
his petitions for provisional measures concerning assets.

4. Once the hearing or, as appropriate, the taking of any evidence that could
not be taken at the hearing have finalised, the court shall take a decision within
three days by means of a court order, against which no kind of appeal may be
lodged.

5. Any effects and measures decided according to the provisions set forth
in this Article shall persist only where the claim for nullity, separation or
divorce is brought within thirty days.

Article 772. Confirmation or amendment of the provisional measures

taken prior to the claim, where the claim is given leave to proceed.449

1. Where measures prior to the claim have been adopted and the claim
has been given leave to proceed, the Court Clerk shall join the procedures
on the adoption of such measures to the records of the proceedings on
nullity, separation or divorce. For such a purpose, the relevant certification
shall be requested should the procedures on the measures have been
conducted in a court other than the one dealing with the claim.

2. Solely where the court should deem that completing or amending the
measures previously agreed upon is appropriate shall it order that the
parties be summoned to a hearing, which the Court Clerk shall set. Such
hearing shall be conducted in accordance with the provisions set forth in
the preceding Article.

No kind of appeal may be lodged against the court order thus issued.

449
Article worded in accordance with Act 13/2009 of 3 November.

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Article 773. Provisional measures arising from giving the claim for nullity,
separation or divorce leave to proceed.450

1. A spouse seeking the nullity of his matrimony, separation or divorce may

seek in the claim whatever he may deem suitable concerning any
provisional measures to be adopted, as long as they have not been
adopted beforehand. Both spouses may likewise submit for the court’s
approval any agreement they may have reached on such matters. Such
agreement shall neither be binding for the respective pleas of the parties
nor for the decision the court may take with regard to any definitive
measures.

2. Once the claim is given leave to proceed, the court shall decide on the
pleas referred to in the preceding paragraph and issue a ruling as
appropriate, complying in any event with the provisions set forth in Article
103 of the Civil Code.

3. Before the court issues the ruling referred to in the preceding paragraph,
the Court Clerk shall summon the spouses and, as appropriate, the Public
Prosecution Service to a hearing, which shall be conducted in accordance
with the provisions set forth in Article 771.

No kind of appeal may be lodged against the court order.

4. The defendant spouse may likewise seek provisional measures in

accordance with the provisions set forth in the preceding paragraphs,
where they have neither been adopted beforehand nor have been sought
by the claimant. The application shall be made in the defence of the claim
and shall be conducted at the main hearing, where it has been set within
ten days of the defence of claim.

The court shall issue a decision by means of a court order not subject to
appeal, where the judgement could not be issued immediately after the
hearing.

Should it be impossible to set the date of the hearing within the time limit
laid down, the Court Clerk shall call the hearing referred to in paragraph 3
of this Article.

450
Paragraph 1 (3) worded in accordance with Act 13/2009 of 3 November.
Paragraph 2 (4) worded in accordance with Act 13/2009, of 3 November.

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5. Such measures shall be rendered without effect where they are replaced
by any measures definitively set forth in the judgement or should the
proceedings be brought to an end in any other way.

Article 774. Definitive measures.451

1. The spouses may submit any agreements they may have reached to
govern the consequences of the nullity, separation or divorce and put
forward any evidence they may consider suitable to justify their
appropriateness at the trial hearing should they have not done so
previously pursuant to the preceding articles.

2. Failing such agreement, any useful and relevant evidence shall be taken
which the spouses or the Public Prosecution Service may put forward,
along with any the court may decide on an ex officio basis about the
relevant facts for the decision on the measures to be adopted.

3. The court shall decide in the judgement on the measures sought by the
spouses by mutual agreement, whether they have already been adopted
as provisional measures or have been put forward subsequently.

4. Failing such agreement between the spouses or should it not be

approved, the court shall establish in the judgement the measures to
replace any that may have been adopted beforehand regarding the
offspring, the family home, the matrimony’s encumbrances, the winding up
of its financial arrangements and the respective safeguards and
guarantees, setting forth any which are appropriate should no measures
have been previously adopted for any such items.

5. Any appeals lodged in accordance with the law against the judgement
shall not stay the effects of the measures which may have already been
decided in it. Should the challenge solely affect the decisions on measures,
the Court Clerk shall declare the definitive nature of the decisions on
nullity, separation or divorce.

Article 775. Amendment of definitive measures.452

1. Should there be any minor children or disabled persons involved, the

Public Prosecution Service and, in any event, the spouses may petition

451
Paragraph 5 worded in accordance with Act 13/2009 of 3 November.
452
Amended by single article 72 of Law 42/2015, of 5 October.
Paragraph 2 worded in accordance with Act 15/2005 of 8 July .

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the court which agreed to the definitive measures to amend any measures
agreed upon by the spouses or any adopted failing such agreement, as
long as the circumstances taken into account at the moment of agreeing to
or deciding on them have changed substantially.

2. Such petitions shall be dealt with in accordance with the provisions of

Article 770. Nevertheless, if the petition is made by both spouses by mutual
agreement or by one with the consent of the other and accompanied by a
proposal for a settlement agreement, the proceedings provided for in
article 777 shall apply.

3. The parties may seek the provisional amendment of any definitive

measures granted in a preceding case in the claim or defence of claim.
Such petition shall be dealt with in accordance with the provisions of Article
773.

Article 776. Compulsory enforcement of decisions on measures.453

Any decisions on measures shall be enforced in keeping with the provisions

set forth in Book III contained herein, with the following specificities:
a) Coercive judicial fines may be imposed on any spouse or parent
who repeatedly fails to fulfil any obligations imposed on him to pay an
amount of money pursuant to the provisions set forth in Article 771 and
notwithstanding making effective any amounts owed and not paid up
through his assets.
b) In the event of a breach of non-monetary personal obligations, the
automatic replacement by a monetary equivalent set forth in Article
709 shall not proceed and monthly coercive fines may, should the
court so deem, be maintained whilst necessary beyond the one-year
time limit set forth therein.
c) A repeated breach of obligations arising from visiting rights
arrangements by either the parent holding custody or by the parent
that does not may give rise to the court amending such visiting rights
arrangements.
d) Where any extraordinary expenses not expressly set forth in
definitive or provisional measures are subject to compulsory
enforcement, a declaration stating that the amount claimed is to be
deemed as an extraordinary expense shall be sought prior to the
enforcement being conducted. The other party shall be shown the

453
Article worded in accordance with Act 13/2009, of 3 November.

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written statement seeking the declaration of an extraordinary expense

and, should it be contested, the court shall summon the parties to a
hearing, which shall be conducted in accordance with Articles 440 and
the following and decided upon by means of a court order.

Article 777. Separation or divorce sought by mutual agreement or by one

of the spouses with the other’s consent.454

1. Any petitions for separation or divorce submitted with both spouses’

mutual agreement or by one of them with the other’s consent shall be
processed using the procedure provided for in this Article.

2. The certificate of registration of the marriage and, if appropriate, those

for registration of the children’s birth at the Civil Register must be attached
to the writ bringing the proceedings, along with the proposal for a settlement
agreement, in accordance with the provisions of civil legislation and the
document or documents in which the spouse or spouses found their rights,
including, if appropriate, the final agreement reached in family mediation
proceedings. Should it be impossible to prove any relevant facts with
documents, the writ shall set out the evidence the spouses put forward to
prove it.

3. Once the petition for separation or divorce has been given leave to
proceed, the Clerk of the Court shall summon the spouses within three
days, so that they may ratify their claim separately. If this is not ratified by
either of the spouses, the Clerk of the Court shall immediately decide to
file the proceedings away and the spouses’ right to bring a claim for
separation or divorce in accordance with the provisions of Article 770 shall
remain intact. A direct appeal for judicial review before the court may be
lodged against such decision by the Clerk of the Court.

4. Once the petition has been ratified by both spouses, if the documents
submitted be insufficient, the Judge or the Clerk of the Court shall grant
the petitioners a time limit of ten days to complete them. Any evidence the
spouses may have proposed, if any, shall be taken during this period,
along with any other evidence the court may deem necessary to prove the
existence of the circumstances required by the Civil Code for each case

454
Paragraph 4 is amended and paragraph 10 is added by additional provision 3.9 of Law 15/2015,
of 2 July.
Paragraph 3 worded in accordance with Act 13/2009 of 3 November
Paragraph 2 and worded according to Act 15/2005 of 8 July.

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and to appreciate the appropriateness of approving the settlement

agreement proposal.

5. Should there be any minor children or disabled persons be involved, the

Court shall seek the Public Prosecution Service’s report on the terms of
the agreement with regard to the children and it shall hear the minors,
should they have sufficient capacity, wherever the court may deem it
necessary on an ex officio basis or at the request of the prosecutor, the
parties, members of the court’s technical team or the minor themselves.
Such procedures shall be conducted within the time limit referred to in the
preceding paragraph and, should such time limit have not begun, within
five days.

6. Once the provisions in the preceding paragraphs have been fulfilled or

should they not be necessary, the court shall, immediately after the
spouses’ ratification, issue a judgment granting or rejecting the separation
or divorce and ruling, as appropriate, on the settlement agreement.

7. Once the separation or divorce has been granted, should the judgment
fail to approve the settlement agreement, in whole or in part, the parties
shall be granted ten days to put forward a new settlement agreement,
which shall be limited, as appropriate, to the points the court has not
approved. Once such proposal has been filed or the time limit has elapsed
without it being filed, the court shall issue a court order deciding on
whatever may be appropriate within three days.

8. Judgments dismissing the separation or divorce and any court orders

deciding on measures that are not within the terms of the agreement put
forward by the spouses may be subject to appeal. Any appeals lodged
against a court order deciding on measures shall not stay their effects, nor
shall they affect the definitive nature of the judgment on the separation or
divorce.

Appeals against judgments or court orders approving the entire settlement

agreement may solely be lodged, in the interest of minor children or
disabled persons, by the Public Prosecution Service.

9. Any amendments made to the settlement agreement or to the measures

agreed upon by the court in the proceedings referred to in this Article shall
be conducted in accordance with its provisions where they are sought by
mutual agreement by both spouses or by one of them with the other’s
consent and with a new settlement agreement proposal. Otherwise, the
provisions of Article 775 shall apply.

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10. If jurisdiction falls to the Clerk of the Court as there are no unemancipated
minor children or with limited legal capacity who depend on their parents,
immediately after the ratification by the spouses before the Clerk of the
Court, the latter will issue an order pronouncing on the settlement
agreement.

The order formalising the settlement agreement proposal will declare the
separation or divorce of the spouses.

If, in their opinion, it is considered that any of the agreements in the

agreement could be damaging or seriously prejudicial to one of the
spouses or to the emancipated children affected, whether minors or of
legal age, the proceedings will be terminated. In this case, the spouses
may only go before the Judge for approval of the settlement agreement
proposal.

The order may not be appealed.

Amendment to the settlement agreement formalised by the Clerk of the

Court will be conducted in accordance with the provisions of this article
where the necessary requisites to do so concur.

Article 778. Civil efficacy of decisions of the ecclesiastical courts or

pontifical decisions on matrimonio rato non consumado.

1. As regards the claims requesting the civil efficacy of the decisions

issued by the ecclesiastical courts on the annulment of matrimony under
Canon Law or the pontifical decisions on matrimonio rato non consumado,
if the adoption or modification of measures are not requested, the court
shall give a hearing to the other spouse and to the Public prosecution
Service within a time limit of ten days and shall decide what is appropriate
regarding the efficacy in the civil order of the decision or the ecclesiastical
decision through a court order.

2. When the adoption or modification of measures is requested in the

claim, the request for the civil efficacy of the decision or the decision made
under Canon Law jointly with the decision on the measures shall be
substantiated, following the corresponding procedure in accordance with
the provisions in Article 770.

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Article 778 a. Committal of minors with behavioural problems to specific

protection centres.455

1. The Public Authority which has custody or guardianship of the minor,

and the Public Prosecution Service are authorised to request court
authorisation to commit a minor to the specific protection centres for
minors with behavioural problems referred to in article 25 of Organic Law
1/1996, of 15 January, on Legal Protection of Minors, partially modifying
the Civil Code and Civil Procedure, and the request must be accompanied
by the psychosocial assessment justifying it.

2. The Courts of First Instance where the centre is located will have
jurisdiction to authorise committal of the minor to such centres.

3. Court authorisation is obligatory and must be given prior to such

committal, unless reasons of urgency make immediate adoption of the
measure necessary. In this case, the Public Authority or the Public
Prosecution Service must notify the relevant Court, within twenty-four
hours, for the purposes of proceeding with the mandatory ratification of
such measure, which must be made within a maximum time limit of
seventy-two hours from when the Court becomes aware of the committal,
and the committal will cease to be effective immediately in the event that it
is not authorised.

In the cases provided for in this paragraph, the Court of First Instance in
the place where the committal centre is located will have jurisdiction to
ratify the measure and continue to hear the proceedings.

4. The court, in order to grant authorisation or ratify the committal already

made, must examine and hear the minor, who must be informed about the
committal in accessible formats and in terms which are comprehensible to
them and adapted to their age and circumstances, the Public Authority, to
parents or guardians exercising parental authority or guardianship, and
any other person whose appearance it deems fit or is requested of it, and
the Public Prosecution Service will issue a report. The Court will have, at
least, the opinion of a doctor appointed by it, without prejudice to the fact
that it may take any other evidence which it considers to be relevant to the
case or which is requested of it. The authorisation or ratification of the
committal will solely proceed where it is not possible to look after minor
adequately under less restrictive conditions.

455
Added by single art. 2.1 of Law 8/2015 of 22 July.

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5. An appeal may be lodged against the decision passed by the Court in

relation to the authorisation or ratification of the committal by the affected
minor, the Public Authority, the Public Prosecution Services, or the parents
or guardians who continue to have authority to contest decisions relating
to the protection of minors. The appeal will not have a suspensive effect.

6. The decision agreeing to the committal will also set out the obligation on
the Public Authority and the Director of the centre to report periodically to
the Court and the Public Prosecution Service on the condition of the minor
and the need to keep the measure in place, without prejudice to such other
reports that the Judge may demand as they deem fit.

Such periodic reports shall be issued every three months, unless the
Judge sets a shorter period due to the nature of the behaviour that gave
rise to committal.

Once the period ends and the reports have been received from the Public
Authority and the Director of the centre, the Court, having carried out such
acts as it deems essential and having heard the minor and the Public
Prosecution Services, will decide on whether it is appropriate to continue
with the committal or not.

The Court of First Instance in the place where the centre is located will be
responsible for the periodic control of committals. In the event that the
minor is moved to another specific protection centre for minors with
behavioural problems, a new court authorisation will not be necessary and
the Court of First Instance in the place where the new centre is located will
take over hearing the proceedings. The decision in the transfer will be
notified to the interested parties, the minor and the Public Prosecution
Service, who may appeal it before the body overseeing the committal,
which will pass a decision having received a report from the centre and
having heard the interested parties, the minor and the Public Prosecution
Service.

7. Minors will not stay at the centre for longer than strictly necessary to
care for their specific needs.

Discontinuance will be agreed by the relevant judicial body, ex officio or at

the proposal of the Public Authority or the Public Prosecution Service. This
proposal will be grounded in a psychological, social and education report.

8. The minor will be notified of the decisions passed.

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Article 778 b. Entry into homes and other places for compulsory
enforcement of measures for the protection of minors.456

1. The Public Authority must apply to the Court of First Instance with
jurisdiction in the place where the domicile is located for authorisation to
enter homes and other buildings and places, where consent for access is
required from their owner or occupier, where this is necessary for compulsory
enforcement of the measures approved by it for the protection of a minor.
Where dealing with enforcement of an act confirmed by a judicial decision,
the application will be addressed to the body that passed it.

2. The application will commence with a writ which will record, at the least,
the following facts:
a) The administrative order or the proceedings which gave rise to the
application.
b) The specific home or place it is intended to access and the identity
of its owner or occupier from whom consent is required for access.
c) Evidence that an attempt has been made to obtain such consent
without success or with a negative result. In the event that such
consent is not required, this fact will be recorded with the grounds for it
in the writ of application and provision of the afore-mentioned evidence
will not be necessary.
d) The need for such entry to enforce the Public Authority order.

3. Once the Public Authority has submitted the application, the Clerk of the
Court, on the same day, will send it to the owner or occupier of the home
or building so that, within the following 24 hours, they may assert their
rights exclusively in relation to the suitability of granting the authorisation.

Nevertheless, where the applicant Public Authority so requests, with

grounds, and proves that there are urgent reasons why entry should be
granted, either because delay in enforcement of the administrative order
could cause risk to the safety of the minor, or because there is a real and
immediate impairment of their fundamental rights, the Judge may agree to
it by immediately passing an order and, at any event, within a maximum
period of the 24 hours following receipt of the application, after a report
from the Public Prosecution Service. The order passed will reason the
concurrence of the requirements for the measure and the grounds making
agreement advisable without hearing the interested party separately.

456
Added by single art. 2.2 of Law 8/2015, of 22 July.

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4. Once the writ of allegations is submitted by the interested party, or if the

time limit ends without it having been submitted, the Judge will agree to or
deny entry by order within a maximum period of the following 24 hours,
after a report from the Public Prosecution Service, having assessed
concurrence of the facts mentioned in paragraph 3 of this article, the
jurisdiction of the Public Authority to pass the order which it is intended to
enforce and the legality, necessity and proportionality of the entry applied
for to achieve the intended purpose of the protection measure.

5. The order authorising entry will record the material and time limits to
carry it out, which will those which are strictly necessary for enforcement of
the protection measure.

6. The record of the order authorising entry will be delivered to the applicant
Public Authority so that it may proceed to carry it out. The order will be
notified to the parties who may have appeared in the proceedings without
delay and, if they did not appear or if notification is not possible prior to
carrying out the entry procedure, the Clerk of the Court will proceed with
notification when carrying out the procedure.

7. An appeal may be lodged, without suspensive effect, against the order

agreeing or denying the authorisation, even where the order was passed
without hearing the interested party beforehand, and this must be lodged
within the three days following the notification of the order, which will be
given preferential treatment.

Even where the application is denied, the Public Authority may reapply if
the circumstances existing at the time of the application change.

8. Entry into the home will be carried out by the Clerk of the Court, within
the established limits, and may be assisted by the police force, if necessary,
and accompanied by the applicant Public Authority. Once the measure is
finalised, the proceedings will be ordered to be filed.

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CHAPTER IV A457
MEASURES RELATING TO THE REINSTATEMENT OR RETURN OR
MINORS IN CASES OF INTERNATIONAL ABDUCTION

Article 778 c. Scope of application. General rules.458

1. In cases where, as an international convention or provisions of the

European Union apply, it is intended to reinstate a minor or return them to
their place of origin as they were the subject of unlawful removal or
retention, and they are in Spain, the proceedings will be in accordance
with the provisions of this Chapter. This will not be applicable in cases
where the minor comes from a State which does not form a part of the
European Union or is not a party to any international convention.

2. In these processes, the Court of First Instance of the capital of the

province, of Ceuta or Melilla, with jurisdiction in the field of family law, in
whose constituency the minor who has been the subject of unlawful
removal or retention it so be found, shall have jurisdiction, if there is one,
and, in default, the relevant court on duty. The court shall examine its
jurisdiction on an ex officio basis.

3. The proceedings may be instigated by the person, institution or

organisation who has guardianship or custody or a visiting or stay over
arrangements, relationship or communication with the minor, the Central
Spanish Authority in charge of complying with the obligations imposed by
the relevant convention, as appropriate, and, representing it, the person
appointed by that Authority.

4. The parties must act with assistance from a Lawyer and be represented
by a Procurator. The intervention of the Public Prosecutor, where
appropriate at the request of the Central Spanish Authority, will cease at
such time as the applicant for reinstatement or return appears in the
proceedings with their own Lawyer and Procurator.

5. The proceedings will be treated as urgent and preferential. In both

instances, if in existence, they must be carried out within a compulsory
total time limit of six weeks from the date the application requesting the
reinstatement or return of the minor was submitted, unless there are
exceptional circumstances which make this impossible.

457
Added by final provision 3.10 of Law 15/2015 of 2 July.
458
Added by final provision 3.11 of Law 15/2015 of 2 July.

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6. Civil action will in no case be suspended due to the existence of

preliminary criminal rulings grounded on the exercise of criminal
proceedings relating to the abduction of minors.

7. In these types of proceedings and for the purpose of facilitating judicial

communications between the courts of the various countries, if this is
possible and the Judge considers it to be necessary, they may request for
assistance from the Central Authorities involved, from existing Judicial
Cooperation Networks, from members of the International Hague Network
of Judges and from liaison Judges.

8. The Judge may agree, during the process, ex officio, at the request of
whoever instigates the proceedings or the Public Prosecution Service,
appropriate precautionary measures and measures to safeguard the minor
as they deem fit in accordance with article 773, in addition to those
provided for in article 158 of the Civil Code.

Furthermore, the Judge may agree that during the course of the
proceedings the claimant’s stay over or visiting rights and rights to a
relationship and communication with the minor are ensured, even if
supervised, if this is appropriate to the interests of the minor.

Article 778 d. Proceedings.459

1. The proceedings will be instigated by a claim which will call for

reinstatement of the minor or their return to their place of origin and will
include all the information demanded by applicable international regulations
and, in all cases, that relating to the identity of the claimant, the minor and
the person who is considered to have abducted or retained the minor,
along with the grounds used as a basis for claiming reinstatement or
return. The claim must also provide all available information about the
location of the minor and the identity of the person with whom it is supposed
that they can be found.

The claim must have the documentation attached which is required, as

appropriate, by the relevant convention or international law and any other
on which the applicant founds their petition.

2. The Clerk of the Court will decide on admission of the claim within the
following 24 hours and, if they understand that it is not admissible, will give

459
Added by final provision 3.12 of Law 15/2015 of 2 July.

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account to the Judge for an appropriate decision to be passed within that

time limit.

In the order admitting the claim, the Clerk of the Court will summons the
person attributed with the abduction or illegal retention of the minor so
that, on the date given which may not exceed the next three days, they
appear with the minor and declare whether they agree to their reinstatement
or return, or if they oppose it, pleading, in this case, any of the grounds
provided for in the relevant applicable convention or international law.

The summons will be served with the legal warnings and with delivery to
the party summoned of the text of the relevant applicable convention or
international law.

3. When the minor is not to be found in the place indicated in the claim and
if, when the Clerk of the Court has made the relevant investigation into
their home or residence, these are unsuccessful, the proceedings will be
provisionally filed until the minor can be found.

If the minor is found in another province, the Clerk of the Court, after a
hearing with the Public Prosecution Services and the parties appearing
within a period of one day, will give account to the Judge for the appropriate
decision to be passed, by order, on the following day, with the acts being
sent, as appropriate, to the Court considered to have territorial jurisdiction
and summoning the parties to appear before that Court within a time limit
of the following three days.

4. On the day, if the party summoned appears and agrees to reinstatement

of the minor or their return to their place of origin, as appropriate, the Clerk
of the Court will draw up a record and the Judge will pass an order on the
same day agreeing to conclude the process and the reinstatement or
return of the minor, making an order as to costs, including travel expenses
and the costs of the proceedings.

The defendant may appear at any time, prior to the end of the proceedings,
and agree to hand over the minor, or to their return to their place of origin,
and the provisions of this section will apply.

5. If the defendant does not appear or does not do so in form, or submit

opposition or proceed, in this case, to hand over or return the minor, the
Clerk of the Court will, on the same day, declare them to be in default and
will order the proceedings to continue without them, solely calling the
claimant and the Public Prosecution Service to a hearing before the Judge

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which will take place within a period within the next five days, to be held in
accordance with paragraph 6 of this article. Such an order, however, must
be notified to the defendant, after which no further notification will be made
apart from the order closing the process.

The Judge may order such precautionary measures as they deem fit in
relation to the minor, in the event that they have not already been taken
previously, in accordance with article 773.

6. If, at the first appearance, the party summoned contests the reinstatement
or return of the minor on the grounds provided for in the relevant applicable
convention or international regulations, this must be made in writing, the
Clerk of the Court will notify the challenge on the same day and will
summon all interested parties and the Public Prosecution Service to a
hearing which will be held within a non-extendable period of the next five
days.

7. The hearing will not be stayed if the claimant does not appear. If the
defendant lodging the challenge does not appear, the Judge will take the
challenge as withdrawn and will continue with the hearing.

At the hearing the parties appearing shall be heard so that they declare as
appropriate, specifically, to the person who applied for the reinstatement or
return, to the Public Prosecution Service and to the defendant, even if they
are appearing in these proceedings for the first time.

If appropriate, useful, relevant evidence will be taken as proposed by the

parties of the Public Prosecution Service and those agreed by the Judge
ex officio on facts which a relevant to the decision on the unlawfulness, or
not, of the removal or retention and the measures to be taken, within a
non-extendable period of six days. The Judge may also gather, ex officio,
at the request of one of the parties or the Public Prosecution Service, such
reports as they deem appropriate which will be drawn up urgently and will
take preference over any other process.

8. Prior to passing any decision in relation to the suitability or unsuitability

of the reinstatement of the minor or their return to their place of origin, the
Judge, at any time during the process and in the presence of the Public
Prosecution Service, may hear the minor separately, unless this hearing is
considered inappropriate given their age or level of maturity, which will be
recorded in a grounded decision.

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When cross examining the minor it will be ensured that they may be heard
in ideal conditions which safeguard their interests, without interference
from other people, and, exceptionally, calling on assistance from specialists
where this should be necessary. This act may be carried out via video
conferencing or another similar system.

9. Within the three days following the hearing being held and, as
appropriate, the relevant evidence taken, the Judge will pass judgment in
which they will solely pronounce on whether the removal or retention are
unlawful and will resolve whether reinstatement of the minor to the person,
institution or organisation allotted the guardianship or custody or their
return to their place of origin to allow the applicant to exercise the stay
over and visiting rights or a relationship with the minor is appropriate, or
not, taking into account the best interests of the latter and the terms of the
relevant convention or the provisions of the European Union on the subject,
as appropriate. The order resolving reinstatement or return of the minor
will set out in detail the form and time limit for enforcement and may take
the necessary measures to prevent a new unlawful removal or retention of
the minor after notification of the judgment.

10. If reinstatement or return of the minor is agreed, the order will provide
that the person who removed or retained the minor must pay for the costs
of the proceedings, including those incurred by the applicant, travel
expenses and those incurred in reinstatement or return of the minor to the
State where they habitually resided prior to the abduction.

In all other cases the costs of the proceedings will be awarded ex officio.

11. Only an appeal with suspensive effects may be made against the order
passed, which will have preferential processing and must be resolved
within a non-extendible period of twenty days.

The following particulars will be adhered to in the appeal procedure:

a) It will be lodged within a period of three days from the day following
notification of the decision and the judicial body must resolve its
admission or non-admission within the 24 hours following its
submission.
b) Once the appeal is admitted, the other parties will have three days
in which to submit a writ of challenge to the appeal or, as appropriate,
a writ of rebuttal. In this last case, the main appellant will also have a
period of three days in which to declare as appropriate.

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c) After this, the Clerk of the Court will order remittance of the orders to
be sent, on the same day, to the Court with jurisdiction to decide on the
appeal and before which the parties must appear within a period of 24
hours.
d) Once the orders are received, the Court will resolve on their
admission within a period of 24 hours. If evidence must be heard or if
it is agreed to hold a hearing, the Clerk of the Court will set the date for
within the following three days.
e) The decision must be passed within the three days following the end
of the hearing or, if there is none, counted from the day following the
day on which the Court with jurisdiction for the appeal received the
orders.

12. At any point in the proceedings, the parties may request a stay of the
proceedings in accordance with the provisions of article 19.4 in order to
submit to mediation. The Judge may also, at any time, ex officio or at the
request of any of the parties, propose a mediation solution if, given the
concurring circumstances, it is considered possible that an agreement
may be reached, without this involving an unjustified delay to the
proceedings. In such cases, the Clerk of the Court will resolve to stay the
proceedings for the time needed to process the mediation. The Public
Authority having the duty to protect the minor may intervene as mediator, if
requested to do so ex officio by the parties or the Public Prosecution
Service.

The duration of the mediation procedure will be as short as possible and

its acts will be held in the minimum number of sessions, and in no case
may the stay of the proceedings for mediation exceed the time limit legally
provided for in this Chapter.

The legal proceedings will resume if requested by any of the parties or, in
the event of reaching an agreement in the mediation, this must be approved
by the Judge taking into account current legislation and the best interests
of the child.

13. In enforcing the judgment resolving reinstatement of the minor or their

return to their State of origin, the Central Authority will give the necessary
assistance to the Court to ensure that this is carried out without danger,
adopting the appropriate administrative measures in each case.

If the parent who has been ordered to reinstate or return the minor
opposes, prevents or impedes its fulfilment, the Judge must take the

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necessary measures to enforce the judgment immediately and may call for
assistance from social services and the Security Forces.

Article 778 e. Declaration of an international removal or retention as

unlawful.460

Where a minor with habitual residence in Spain is the subject of an international

removal or retention, in accordance with the provisions of the relevant
convention or applicable international regulations, any interested person,
apart from the proceedings initiated to request international reinstatement,
may address the competent judicial authority in Spain in the substance of the
matter for the purpose of obtaining a decision specifying that the removal or
retention were unlawful, for which purpose they may use the procedural
channels available in Title I of Book IV for adoption of definitive or provisional
measures in Spain, including the measures in article 158.

The competent authority in Spain to issue a decision of certification of

article 15 of The Hague Convention of 25 October 1980 on the civil aspects
of international abduction of minors, which records that the removal or
retention of the minor was unlawful in the sense provided for in article 3 of
the Convention, where possible, will be the last judicial authority in Spain
that heard any proceedings on parental responsibility affecting the minor. If
there is none, the Court of First Instance in the last domicile of the minor in
Spain will have jurisdiction. The Central Spanish Authority will do everything
possible to provide assistance to the applicant in obtaining a decision or
certification of this type.

CHAPTER V
CHALLENGES TO ADMINISTRATIVE DECISIONS IN RELATION TO
THE PROTECTION OF MINORS, THE PROCEDURE TO DECIDE THE
NEED FOR CONSENT TO ADOPTION AND CHALLENGES TO CERTAIN
RESOLUTIONS AND ACTS OF THE GENERAL DIRECTORATE OF
REGISTRIES AND NOTARIES IN RELATION TO THE CIVIL REGISTER461

Article 779. Preferential nature of the procedure. Jurisdiction.462

The procedures for substantiating the challenge to administrative decisions

in relation to the protection of minors shall be of a preferential nature.

460
Added by final provision 3.13 of Law 15/2015 of 2 July.
461
The heading is amended by final provision 4.2 of Law 20/2011, of 21 July
462
Amended by Article 4.3 of Law 26/2015 of 28 July.
Article of agreement with Act 54/2007, of 28 December.

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The Court of First Instance of the address of the Public institution shall have
jurisdiction to hear them and, in its absence, or in the cases included in Articles
179 and 180 of the Civil Code, the Court of the address of the adoptive parent.

Article 780. Challenges to administrative decisions in relation to the

protection of minors.463

1. A previous claim through administrative proceedings shall not be

necessary in order to contest administrative decisions in relation to the
protection of minors before the civil courts. They may be contested with a
time limit of two months from notification.

The minors affected by the decision, parents, guardians, foster parents,

carers, the Public Prosecution Service and any persons recognised law as
being authorised, are authorised to context administrative decisions in relation
to the protection of minors, as long as they have a legitimate, direct interest in
such a decision. Even if they were not directly involved they may appear in
person at any time during the proceedings without the actions being backdated.

Minors will have the right to be a part or and be heard in the process in
accordance with the provisions of the Legal Protection of Minors Act. They
will make their claims in relation to the administrative decisions affecting
them via their legal representatives as long as the latter do not have
interests that are in conflict with their own, or via the person appointed as
their defender in representation of them.

2. The proceedings for contesting a decision in relation to the protection of

minors will be initiated by submission of an initial writ in which the claimant
expresses the claim succinctly and the decision being contested.

The writ will expressly contain the date of notification of the administrative
decision and will state if there are existing proceedings in relation to the minor.

3. The Clerk of the Court shall claim a complete record of the proceedings
from the administrative institution, which must be provided within a time
limit of twenty days.

4. Once the record of the administrative proceedings has been received,

the Clerk of the Court shall order the claimant to submit the claim within

463
Paragraphs 1 and 2 are amended and article 5 added by single article 4.4 of Law 26/2015, of 28 July.
Paragraphs 3 and 4 of this Article are worded in accordance with Act 13/2009, of 3 November.
Paragraph 1 worded in accordance with Act 54/2007, of 28 December 28.

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twenty days, which shall be processed in accordance with the provisions

of Article 753.

5. If the Public Prosecution Service, the parties or the competent Judge

are aware of the existence of more than one proceedings contesting
administrative decisions in relation to the protection of the same minor, the
first two will request, and the Judge, even if ex officio, will order joinder at
the Court hearing the oldest proceedings.

Once joinder is agreed, proceedings will continue in accordance with the

provisions of article 84, with the particular that the hearing already
scheduled will not be stayed if it is possible to deal with the remaining
proceedings joindered within the time limit set for the schedule. Otherwise,
the Clerk of the Court will agree the proceedings where the hearing is
already fixed to be stayed until the others are at the same stage, and will
set a new date for all of them which will be preferential in nature and, in all
cases, within the following ten days.

Appeals for reversal and appeals with no suspensive effect may be lodged
against the order denying joinder. No appeal of any nature may be lodged
against the order resolving joinder.

Article 781. Procedure for determining the need for consent to adoption.464

1. Parents intending that the need for their consent to the adoption is
recognised may appear before the Court that is hearing the relevant
adoption proceedings and state this. The Clerk of the Court, staying the
proceedings, will grant a period of fifteen days to submit the claim and the
same Court will have jurisdiction to hear it.

2. If the claim is not submitted within the period fixed, the Clerk of the
Court will pass an order terminating the procedure and lift the stay on the
adoption proceedings which will continue to proceed in accordance with
the provisions of voluntary jurisdiction legislation. A direct appeal for
judicial review may be lodged before the court against such order. Once
this decision is definitive, no subsequent claim shall be admitted from the
same parties regarding the need for consent to the adoption in question.

3. If the claim is submitted within the time limit, the Clerk of the Court will
pass an order declaring the adoption proceedings to be contentious and

464
Amended by Article 4.5 of Law 26/2015 of 28 July.

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will resolve to process the claim submitted in the same proceedings, as a

separate part, in accordance with the provisions of article 753.

Once the decision passed on the separate part relating to the need for
consent from the parents of the child in adoption is definitive, the Clerk of
the Court will resolve to summons the persons indicated in article 177 of
the Civil Code to appear before the Judge, and they must give their consent
or assent to the adoption and also be heard, if this has not already been
done, and afterwards a decision must be passed on the adoption.

The summons will be made in accordance with the rules provided for in the
Voluntary Jurisdiction Act for such cases.

The order terminating the proceedings may be appealed and such appeal
would have a suspensive effect.

The record of the definitive decisions resolved for the adoption will be sent
to the Civil Register so that it may be registered.

Article 781 a. Challenge to resolutions and acts by the Directorate General

of Registries and Notaries in relation to the Civil Register.465

1. Challenges to resolutions of the Directorate General of Registries and

Notaries in relation to the Civil Register, except for those passed in relation
to nationality due to residence, may be made within a period of two months
from their notification, without it being necessary to lodge a prior
administrative claim.

2. Whoever intends to challenge the resolutions will submit an initial writ

succinctly expressing their claim and the resolution being contested.

3. The Clerk of the Court will demand a complete record of the proceedings
from the Directorate General of Registries and Notaries, which must be
provided within a period of twenty days.

4. Once the record of the administrative proceedings has been received,

the Clerk of the Court shall order the claimant to submit the claim within
twenty days, which shall be processed in accordance with the provisions
of Article 753.

465
Added by final provision 4.3 of Law 20/2011, of 21 July.

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TITLE II

ON THE judicial division of estates

CHAPTER ONE
ON THE DIVISION OF INHERITANCE

Section 1. On the procedure for the division of

inheritance

Article 782. Request for the legal division of an inheritance.466

1. Any co-heir or legatee with a proportional share may claim the division
of the inheritance judicially, on condition that this must not be carried out
by a commissioner or accountant appointed by the testator, by agreement
amongst the co-heirs, by the Clerk of the Court or by the Notary.

2. The death certificate of the person whose succession is being dealt with
and the document which accredits the applicant’s position as heir or
legatee must be attached to the request.

3. The creditors cannot seek the division, without prejudice to such actions
as correspond to them against the inheritance, the community of heirs or
the co-heirs, which shall be carried out in the relevant declaratory
proceedings, without suspending or hindering the proceedings for the
division of the inheritance.

4. However, creditors recognised as such in the will or by the co-heirs and

those who have their right documented in an enforceable title may oppose
the partition of the inheritance being put into effect until the amounts of
their credits are paid or guaranteed. This request may be deducted at any
time before the handover of the assets adjudicated to each heir.

5. The creditors of one or more of the co-heirs may intervene in the partition
at their own expense in order to prevent this being carried out fraudulently
or to the detriment of their rights.

Article 783. Convening of a meeting in order to appoint an accountant and

experts.467

466
Paragraph 1 is amended by final provision 3.14 of Law 15/2015, of 2 July
467
Paragraphs 2, 4 and 5 of this article are worded in accordance with Act 13/2009, of 3 November .

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1. Once the judicial division of the inheritance is requested, an agreement

shall be reached on the intervention in the estate of the deceased person
and the formation of an inventory when this is requested and is appropriate.

2. Once the preceding proceedings have been carried out or, if it is not
necessary, in the light of the request for the judicial division of the
inheritance, the Court Clerk shall convene the heirs, the legatees with an
equiproportional part and the surviving spouse to a meeting, stating a day
within the following ten days.

3. The summons made to the parties concerned and who were already
present at the proceedings shall be made through the court representative.
Those who have not been present shall be summoned personally if their
addresses are known. If their addresses are not known, they shall be
called through public notices, as stipulated in Article 164.

4. The Court Clerk shall also convene the Public Prosecution Service to
represent the parties concerned in the inheritance who are minors or
incapacitated and do not have legitimate representation and those who
are absent and whose addresses are unknown. The representation of the
Public Prosecution Service shall cease once the minors or incapacitated
persons are authorised to have a legal representative or counsel for the
defence and, as regards those who are absent, when they attend
proceedings or may be personally summoned, even though they again
absent themselves.

5. The creditors referred to in paragraph 5 of the preceding article shall be

convened by the Court Clerk to a meeting when they are present in the
proceedings. those who are not present shall not be summoned, but may
participate in the meeting if they appear on the appointed day with the
entitlements justifying their credits.

Article 784. Designation of the accountant and the experts.468

1. The meeting shall be held within those attending on the day and at the
time stated and shall be presided by the Court Clerk.

2. The parties concerned must agree on the appointment of an accountant

who shall carry out the operations involved in the division of the estate of
the deceased person, as well as the appointment of the expert or experts
who must intervene in the evaluation of the assets. Only one expert may

468
Paragraph 4 worded in accordance with Act 13/2009, of 3 November.

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be appointed for each class of asset and these must be given their fair
price.

3. If no agreement is reached at the meeting as regards the appointment

of an accountant, an accountant shall be assigned by drawing lots, in
accordance with what is stipulated in Article 341, from among the practising
attorneys with special knowledge in this matter and with a legal office in
the place of the proceedings. If no agreement is reached on the experts,
those which the accountant or accountants consider necessary to carry
out the evaluations shall be appointed through the same procedure, but
there shall never be more than one for each class of asset which must be
evaluated.

4. The provisions regarding challenging and the provision of funds for the
experts shall be applicable to the accountant appointed by drawing lots.

Article 785. Handover of the documentation to the accountant. Obligation

to comply with the order accepted and the time limit to do this.469

1. Once the accountant and the experts are chosen, as appropriate, once
accepted, the Court Clerk shall deliver the records to the accountant and
shall place any objects, documents and papers required to make the
inventory, when this has not been made, together with the evaluation, the
settlement and the division of the estate of the deceased person at the
disposal of the accountant and the experts.

2. The acceptance of the accountant shall give the right to each of the
parties to oblige him to comply with his mission.

3. At the request of a party, the Court Clerk may establish a time limit for
the accountant to submit the division operations through a formal document
and, if he fails to verify these, he shall be liable for damages.

Article 786. Carrying out of the dividing operations.

1. The accountant shall carry out the dividing operations in accordance with
the provisions in the law applicable to the succession of the causer; but if the
testator has established other rules for the inventory, evaluation, settlement
and division of his assets, these shall be followed on condition that they do
not damage the legitimate proportions of the compulsory heirs. In any case,

469
Paragraphs 1 and 3 are worded in accordance with Act 13/2009, of 3 November.

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he shall endeavour to prevent non-division and the excessive division of the

property.

2. The dividing operations must be submitted within a maximum time limit

of two months from the time these commence, and they shall be contained
in a document signed by the accountant, which shall state the following:
(i). The list of the assets which make up the estate divisible.
(ii). The evaluation of the assets in the list.
(iii). The settlement of the estate, its division and adjudication to each
of the participants.

Article 787. Approval of the dividing operations. Opposition to these.470

1. The Court Clerk shall transfer the dividing operations to the parties, and
shall summon them to formulate opposition over a period of ten days.
During this period of time, the parties may examine the records and the
dividing operations and obtain the copies they request, at their own
expense, at the Judicial Office.

Opposition must be formulated in writing, stating the points in the dividing

operations referred to and the reasons.

2. Once this period of time has elapsed, and no opposition has been
lodged or, once the parties concerned have stated their agreement, the
Court Clerk shall issue an order approving the dividing operations, and
shall order their registration.

3. When opposition to the dividing operations is formalised within the

authorised time limit, the Court Clerk shall convene the accountant and the
parties to appear before the court, within the following ten days.

4. During the appearance, if the agreement of all the parties concerned as

regards the questions tabled is achieved, what is agreed to shall be
implemented and the accountant shall carry out the reforms agreed to in
the dividing operations, which shall be approved in accordance with the
provisions in paragraph 2 of this article.

5. If no agreement is reached, the court shall hear the parties and shall
admit the evidence these might propose and which is not irrelevant or

470
Paragraphs 1, 2, 3, 4 and 6 are worded in accordance with Act 13/2009, of November 3 .

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useless, and the procedure shall be carried out in accordance with the
provisions for the oral proceedings.

The judgement given shall be put into effect in accordance with the
provisions in the following article, but it shall not have the efficacy of res
judicata, and the parties concerned may uphold the rights they believe
correspond to them as regards the assets adjudicated in the corresponding
ordinary proceedings

6. In accordance with what is set out in Article 40 herein, when proceedings

have been have been suspended as a criminal case involving the
investigation of an offence of bribery committed in the evaluation of the
assets of the inheritance is pending, the suspension shall be lifted by the
Court Clerk, without waiting for the case to terminate with a definitive
decision, when the parties concerned, renouncing the evaluation
challenged, submit another fact by common agreement, in which case a
decision shall be issued in keeping with the result of this case.

Article 788. handover of the assets adjudicated to each heir.471

1. Once the divisions are definitively approved, the Court Clerk shall hand
over to each one of the parties concerned what has been adjudicated to
them and the entitlements of ownership, and the actuary shall previously
note the adjudication in these.

2. Once these are registered, the Court Clerk shall give testimony of their
respective assets and adjudication to the participants who request this.

3. Notwithstanding the provisions in the preceding paragraphs, when a

creditor of the inheritance formulates the request referred to in paragraph
4 of Article 782, none of the assets shall be handed over heirs or legatees
unless these are completely paid up or guaranteed to the satisfaction of
the Court Clerk.

Article 789. Termination of the procedure by an agreement of the

co-heirs.472

At any point in the proceedings, the parties concerned may refrain from
their pretensions and adopt the agreements they consider to be advisable.

471
Paragraphs 1 and 2 of this article are worded in accordance with Act 13/2009, of 3 November .
472
Article worded in accordance with Act 13/2009, of 3 November.

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When requested by a common agreement, the Court Clerk must suspend

the proceedings and place the assets at the disposal of the heirs.

Section 2. On the supervision of the estate of a

deceased person

Article 790. Guaranteeing the assets of the inheritance and the documents
of the deceased.473

1. On condition that the Court is notified of the death of a person and there
is no record of a will, nor forebears, descendants or a spouse of the
deceased, nor a person who is in a similar de facto position, nor are there
relatives within the fourth degree, the court shall ex officio adopt the most
essential measures for the burial of the deceased person, if necessary,
and for the security of the goods, books, papers, correspondence and
effects of the deceased which may be liable to removal or concealment.

Procedure shall be the same when the persons referred to in the preceding
paragraph are absent or when any of these are minors or legally
incapacitated and do not have legal representatives.

2. In the cases referred to in this article, after the relatives appear, or a

legal representative is appointed for the minors or persons who are legally
incapacitated, the goods and effects which belonged to the deceased will
be handed over to them and judicial intervention shall cease, apart from
the provisions of the following article, and they must go to a Notary for the
purpose of initiating the proceedings to declare the heirs.

Article 791. Judicial intervention in the inheritance when there is no record

of the existence of a will nor of relatives with legitimate succession.474

1. In the case referred to in paragraph 1 of the preceding article, once the

proceedings mentioned are carried out, the Clerk of the Court shall adopt
the measures they consider most appropriate to verify whether the person
whose succession is involved has died having made a will or not, and for
this purpose, they shall order that a certificate from the General Registry of

473
Amended by final provision 3.15 of Law 15/2015 of 2 July.
474
Paragraph 2 is amended and paragraph 3 is added by additional provision 3.16 of Law 15/2015,
of 2 July.
Paragraph 1worded in accordance with Act 13/2009 of 3 November (“Official State Gazette” no. 266
of 4 November).

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Last Wills be brought to the proceedings, as well as the death certificate if

this is possible.

If there are no other means, through a procedural court order the court
shall order that the relatives, friends or neighbours of the deceased person
be questioned regarding the fact that the person died intestate and whether
they had relatives with a right to legitimate succession.

2. If, in fact, it turns out that the person died intestate and with no relatives
with a right to succession in law the Court, by a court order, shall order that
procedure be:
(i) To take possession of the books, papers and correspondence of the
deceased person.
(ii) To make an inventory of and deposit the assets, stipulating what is
to be done as regards their administration, in accordance with the
provisions of this Act. The court may appoint a person, at the expense
of the State, to carry out and guarantee the inventory and its deposit.

The same order will order ex officio notification to the relevant Tax Office in
case it is appropriate to make a declaration of intestate successor in favour
of the State, by transferring the result of the measures carried out and the
documentation collected in accordance with paragraph 1.

3. From the moment when the General State Administration or the

Administration of an Autonomous Region notifies the Court that it has
initiated proceedings for its declaration as intestate successor, the latter
will the appointment for administration of the goods will fall on the former.
In this case, it will not demand that the Public Administration provide a
guarantee and will prepare expert reports where they are necessary using
their own technical services.

The Administration must notify the Court of the order terminating the
proceedings. If such an order concludes that it is not appropriate to make
the declaration of intestate successor in favour of the Administration, the
latter may not continue to take charge of the estate, and will request the
Court to appoint a new judicial administrator within a period of one month
from the notification. Once this one month period has ended, in all cases,
the Administration will cease to hold the post of administrator.

Where the order declares that the Administration is intestate successor,

the judicial body hearing the intervention in the estate will, within one

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month, adopt the provisions leading to the handover of the goods and
rights making up the estate.

Article 792. Judicial intervention in the inheritance during processing of

the declaration of heirs or the judicial division of the inheritance. Intervention
at the request of the creditors of the estate.475

1. The proceedings referred to in paragraph 2 of the preceding article may

be agreed to at the request of a party in the following cases:
(i) By the spouse or any of the relatives who believe they have a right
to legitimate succession on condition that they accredit having sought
the declaration of intestate heirs before a Notary, or the application for
the court intervention in the estate of a deceased person is formulated
at the same time as the notarial declaration of heirs is sought.
(ii) By any co-heir or legatee with a proportional share, when requesting
the judicial division of the inheritance unless the intervention has been
expressly forbidden by a provision in the will.
(iii) By the Public Administration which initiated proceedings for its
declaration as intestate successor.

2. The creditors recognised as such in the will or by the co-heirs and those
who have their right documented in an enforceable title may also request
intervention in the estate in accordance with the provisions of the second
paragraph of the preceding article.

Article 793. First proceedings and the summons of the persons concerned
for the formation of the inventory.476

1. Once the supervision of the estate of a deceased person is agreed to in

any of the cases referred to in the preceding articles, if it is necessary and
has not been done previously, through a court order, the court shall order
the adoption of the measures essential for the security of the assets, the
books, papers, correspondence and effects of the deceased person
subject to withdrawal or concealment.

2. Once this decision is issued, the Court Clerk shall state a day and time
for the formation of the inventory, and shall order the persons concerned to
be summoned.

475
Paragraph 1 is amended by final provision 3.17 of Law 15/2015, of 2 July
476
Paragraph 2 worded in accordance with Act 13/2009 of 3 November .

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3. The following persons must be summoned for the formation of the inventory:
(i). The surviving spouse.
(ii). The relatives who may have a right to the inheritance and are
known when there is no record of a shall nor has the intestate
declaration of heirs been made.
(iii). The heirs or legatees with an equiptroportional part.
(iv). The creditors at whose request the supervision of the estate of a
deceased person was ordered and, possibly, those who attended the
procedure for the division of the inheritance.
(v). The Public Prosecution Service on condition that there may be
unknown relatives with a right to legitimate succession, or that any of
the known relatives with a right to the inheritance or the heirs o legatees
with an equiprortional part not be summoned personally as their
addresses are not known, or when any of the persons concerned is a
minor or is incapacitated and has no legal representative.
(vi). The State Lawyer or, in the cases legally stipulated, the Judicial
Services of the Autonomous Communities, when there is no record of
the existence of a shall nor a spouse or relatives who might have a
right to legitimate succession.

Article 794. Drawing up the inventory.477

1. When those mentioned in the preceding article are summoned on the day
and at the time stated, the Clerk of the Court shall draw up the inventory
together with those attending, which shall contain the list of assets of the
estate and such deeds, documents and papers of importance as are found.

2. If, due to testamentary provisions, special rules have been established

for the inventory of the assets of the estate, the inventory shall be drawn
up subject to such rules.

3. When it is not possible to finish the inventory on the day stated, it shall
continue on the following days.

4. If any dispute arises over the inclusion or exclusion of the assets in the
inventory, the Clerk of the Court will make a record of the claims of each
one of the parties over such goods and their legal grounds and will summon

477
Paragraph 4 is amended by single article 73 of Law 42/2015, of 5 October.

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the interested parties to a hearing, with the procedure continuing in

accordance with the provisions for oral hearings.

The judgment which is issued on the inclusion or exclusion of assets in the

inventory shall safeguard the rights of third parties.

Article 795. Decision on the administration, custody and conservation of

the hereditary estate.

Once the inventory is made, through a court order, the court shall determine
what corresponds depending on the circumstances as regards the
administration, custody and conservation of the estate of the deceased
person, possibly, following what the testator had arranged in this matter
and, in the absence of this, it shall determine subject to the following rules:
(i) Cash and public instruments shall be deposited in accordance with law.
(ii) The widower or widow shall be appointed administrator, and, in
their absence, the heir or the legatee with an equiproportional part who
has the greater part of the inheritance. In the absence of these, or if
they do not have the capacity necessary to hold the post, in the opinion
of the court, the court may appoint any of the heirs or legatees with a
proportional part, if there are any, as administrator or a third party.
(iii) The administrator must provide sufficient security in any of the forms
permitted by this law to respond for the assets handed over to him and this
shall be established by the court. However, the court may dispense the
widowed spouse or the heir designated administrator from the security
when they have sufficient assets to respond for those handed over to them.
(iv) The heirs and legatees with a proportional part may dispense the
administrator from the duty to provide security. if the re is no agreement
on this point, the security shall be in proportion to the interest in the
estate of the deceased person of those who do not grant the dispensation.
In any case, security shall be constituted as regards the participation in
the inheritance of the minors or those incapacitated who do not have
legal representatives and those who are absent due to their not having
been summoned as their addresses are unknown.

Article 796. Cessation of the judicial supervision of the inheritance.478

1. The judicial supervision of the inheritance shall cease when the

declaration of heirs is made unless any of these request the judicial division

478
Paragraph 2 worded in accordance with Act 13/2009 of 3 November

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of the inheritance, in which case the supervision may subsist if this is

requested until each heir is handed over the assets adjudicated to him.

2. During the performance of the procedure of judicial division of the

inheritance, the heirs may, by common agreement, request that the
judicial supervision cease. The Court Clerk shall agree to this through an
order except when any of the persons concerned is a minor or incapacitated
and does not have a legal representative or when there is an absent heir
who it has not been possible to summon due to his address being
unknown.

3. If there are creditors recognised in the shall or by the co-heirs or by a

right documented in an executive entitlement, and these have opposed
the partition of the inheritance until the amounts of their credits are paid or
guaranteed, the cessation of the supervision shall not be agreed to until
the payment or guarantee takes place.

Section 3. On the administration of the estate of a

deceased person

Article 797. Holding the post of administrator of the inheritance.479

1. Once the administrator is appointed and he has provided security, the

Court Clerk shall give him possession of the post and shall inform him of
the persons he designates from those he must deal with in order to carry
out his work.

2. So that he may accredit his representation, the Court Clerk shall provide
him with testimony which shall record his appointment and the fact that he
is in possession of the post.

3. The state of administration of the property of the inheritance and the

appointment of the administrator may be registered in the Property
Registry through the corresponding order issued by the Court Clerk with
the requirements stipulated in mortgage legislation.

Article 798. representation of the inheritance by the administrator.

Until the inheritance is accepted by the heirs, the administrator of the

assets shall represent the inheritance in all the actions brought or which
had begun when the testator died and, with this representation, he shall

479
Article worded in accordance with Act 13/2009, of 3 November .

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carry out the actions which might correspond to the deceased person, until
the declaration of heirs is made.

Once the inheritance is accepted, the administrator shall only have the
representation of the inheritance as refers directly to the administration,
the custody and conservation of the estate, and, as such, he can and must
administer it properly, and carry out the actions required.

Article 799. Periodical rendering of accounts.480

1. The administrator shall render justified accounts within the time limits
which the court states, which shall be in proportion to the importance and
conditions of the estate, and in no case shall this exceed one year.

2. On rendering accounts, the administrator shall deposit the resulting

balance or shall present the original receipt which accredits having
deposited it at the establishment assigned for this purpose. In the first
case, the Court Clerk shall immediately agree to the deposit through a
formal document and, in the second case, the records shall include a
formal document stating the date and the amount of the deposit.

3. For the examination of the accounts and in order to inspect the

administration or to arrange measures concerning the rectification or
approval of these, they shall be shown at the Judicial Office to the party
who might request this at any time.

Article 800. Final rendering of accounts. Challenging the accounts.481

1. When the administrator ceases to hold their post, they shall render final
accounts supplementary to those already submitted.

2. All the accounts of the administrator, including the final accounts, shall
be shown to the parties at the Judicial Office, when they cease to hold their
post, for a common period of time, which the Clerk of the Court shall state
in a formal document depending on their importance.

3. Once that period of time has ended without the accounts being
contested, the Clerk of the Court will pass an order approving them and
declaring the administrator to be free from liability. In the same order he

480
Paragraphs 2 and 3 are worded in accordance with Act 13/2009, of November 3.
481
Paragraph 4 is amended by single article 74 of Law 42/2015, of 5 October.

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shall order the security which may have been provided by the administrator
to be returned to them.

4. If the accounts are challenged in due time, the writ of challenge shall be
sent to the person reporting them so that they may respond in accordance
with the provisions of article 438. The parties, in their respective writs of
challenge and response, may request a hearing to be held, with the
procedure continuing in accordance with the provisions for oral hearings.

Article 801. Conservation of the assets of the inheritance.482

1. The administrator is obliged under his own responsibility to conserve

the assets of the inheritance with no impairment and to endeavour that
these produce the corresponding income, products or usefulness.

2. For this purpose, he must carry out the ordinary repairs which are
essential for the conservation of the assets. When repairs or extraordinary
expenses are necessary, he shall notify the court, which, once it has heard
the persons concerned at the appearance mentioned in paragraph 3 of
Article 793, on the day and at the time stated by the Court Clerk for this
purpose, with a previous expert examination and the formation of a budget,
the court shall decide what it considers to be appropriate, taking into
account the circumstances of the case.

Article 802. Destination of the amounts collected by the administrator in

performance of their duties.483

1. The administrator shall deposit without delay the amounts collected in

performing their duties at the disposal of the court, solely retaining the
amounts required to attend to the expenses of judicial proceedings or
notaries, payment of taxes and other ordinary expenses.

2. In order to pay the extraordinary costs referred to in the preceding

article the Court may, through a procedural court order, leave the sum it
believes necessary in the power of the administrator, and shall order that
this be taken from the deposit if there is not sufficient ordinary income to
cover these. This shall also be ordered when an ordinary expense occurs
and the administrator does not have sufficient amount available from the
administration of the estate.

482
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.
483
Section 1 is amended by final provision 3.18 of Law 15/2015, of 2 July.

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Article 803. Prohibition to transfer the assets in the inventory. Exceptions

to this prohibition.

1. The administrator cannot transfer or encumber assets in the inventory.

2. The following are exceptions to this rule:

(i). Those which can deteriorate.
(ii). Those which are difficult and costly to conserve.
(iii). When it is considered that there are advantageous circumstances
for the transfer of products.
(iv). The other assets whose transfer is necessary for the payment of
debts, or to cover other requirements of the administration of the
inheritance.

3. On the proposal of the administrator, and having heard the persons

concerned referred to in paragraph 3 of Article 793, through a procedural
court order, the court may order the sale of any of the assets, which shall
be verified in a public auction as established in notary legislation or in
voluntary jurisdiction procedure.

Securities admitted to official listing shall be sold through this market.

Article 804. Remuneration of the administrator.484

1. The administrator shall have no right to remuneration other than the

following:
(i). From the liquid product of the sale of products and other moveable
assets included in the inventory, he shall receive 2%.
(ii). From the liquid product of the sale of realty and payment from
securities of all kinds, 1%.
(iii). from the liquid product of the sale of public instruments, 0.5%.
(iv). From the other income involved in the administration, for several
items from among those stated in the preceding paragraphs, the Court
Clerk shall state 4%, taking into consideration the products of the
estate and the work of administration.

484
Number 4 of paragraph 1 and paragraph 2 are worded in accordance with Act 13/2009.

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2. When he considers it to be just, through an order, the Court Clerk may

order that the administrator be paid travelling expenses when these are
incurred while carrying out his work as administrator.

Article 805. Subordinate administrations.485

1. Any subordinate administrations the deceased may have to take care of

his assets shall be maintained, with the same retribution and faculties as
the latter has granted them.

2. The said administrators shall render their accounts and shall deliver
whatever they collect to the court receiver, whose subordinates they are
considered to be, but they cannot be removed by the latter without
justifiable cause and authorisation by order of the Court Clerk.

3. Subject to the same authorisation, the court receiver may, on his own
responsibility, cover any vacancies that may occur.

CHAPTER II
ON THE PROCEDURE FOR THE LIQUIDATION OF THE
MATRIMONIAL ECONOMIC CONTRACT

Article 806. Scope of application.

The liquidation of any matrimonial economic settlement determining, by

marriage settlement or legal provision, the existence of a common body of
assets and rights subject to specific charges and liabilities, shall be carried
out, failing an agreement between the spouses, in accordance with the
provisions of this chapter and the civil rules that are applicable.

Article 807. Competence.

The competent court to hear the procedure of liquidation shall be the Court
of First Instance that is hearing or has heard the proceedings of nullity,
separation or divorce, or before which the proceedings concerning the
dissolution of the matrimonial economic settlement are being or have been
conducted on any of the grounds set out in the civil legislation.

Article 808. Request of inventory.

1. Once the petition for nullity, separation or divorce has been admitted or
the proceedings requesting the dissolution of the matrimonial economic

485
Paragraph 2 worded in accordance with Act 13/2009 of 3 November.

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settlement have been initiated, either of the spouses may request the that
an inventory be drawn up.

2. The request referred to in the preceding paragraph shall be accompanied

by a proposal setting out, duly separated, the various items to be included
in the inventory in accordance with civil legislation.

In addition, the request shall be accompanied by the documents justifying

the various items included in the proposal.

Article 809. Drawing up the inventory.486

1. In view of the request referred to in the preceding paragraph, the Clerk

of the Court shall set a date and time for drawing up the inventory within a
maximum time limit of ten days, ordering that the spouses be summoned.

On the specified day and time, the Clerk of the Court shall, together with
the spouses, proceed to draw up the inventory of the marital community
property, complying with the provisions of civil legislation governing the
matrimonial financial regime in question.

If one of the spouses fails to appear on the specified day without justifiable
reason, they shall be deemed to agree with the inventory proposal made
by the spouse who did appear. In this case, as in the case when, both
spouses having appeared, an agreement is reached, the latter shall be
placed on the record and the act shall be concluded.

On the same or the following day, the Court shall resolve as appropriate
with respect to the administration and disposal of the assets included in
the inventory.

2. If any dispute arises over the inclusion or exclusion of any item in the
inventory, or over the amount for any of the entries, the Clerk of the Court
will make a record of the claims of each one of the parties over such goods
and their legal grounds and will summon the interested parties to a hearing,
with the procedure continuing in accordance with the provisions for oral
hearings.

486
Paragraph 2 is amended by single article 75 of Law 42/2015, of 5 October.
The first and fourth subparagraphs of paragraph 1 and the first subparagraph of paragraph 2 have
been worded in accordance with Act 13/2009 of 3 November.

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The judgment shall resolve on all issues that arose, approving the inventory
of the marital community property, and shall decide as appropriate on the
administration and disposal of the jointly held assets.

Article 810. Liquidation of the matrimonial economic settlement.487

1. Upon conclusion of the inventory and once the decision declaring the
dissolution of the matrimonial economic settlement is final, either of the
spouses may seek the liquidation of the said settlement.

2. The request shall be accompanied by a liquidation proposal including

the payment of the compensations and reimbursements owed to each
spouse and the division of the remainder in the corresponding proportion,
taking into account at the time of forming the lots the preferences
established by the applicable civil rules.

3. Once leave has been given to proceed with the liquidation request, the
Court Clerk shall, within a maximum time limit of ten days, set a day and
time for the spouses to appear before him with a view to reaching an
agreement and, failing such agreement, to appoint an auditor and, as
appropriate, experts, to perform the division operations.

4. If one of the spouses fails to appear on the established day without

justifiable reason, the said spouse shall be deemed to agree with the
liquidation proposal made by the spouse who did appear. In this case, as
in the case when, both spouses having appeared, an agreement is
reached, the latter shall be recorded in the deed and the act shall be
concluded, and that agreed upon shall be put into effect in accordance
with the first two paragraphs of Article 788 herein.

5. If no agreement is reached among the spouses on the liquidation of

their matrimonial economic settlement, an order shall be issued appointing
an auditor and, as appropriate, experts, in accordance with the provisions
of Article 784 herein, continuing the procedure in accordance with the
provisions of Article 785 and subsequent articles.

Article 811. Liquidation of the participation settlement.488

487
Paragraphs 3 and 5 have been worded in accordance with Act 13/2009 of 3 November.
488
Paragraph 3 and the first subparagraph of paragraph 5 are worded in accordance with Act
13/2009 of 3 November.

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1. The liquidation of the participation settlement cannot be requested until

the decision declaring the dissolution of the matrimonial economic
settlement has become final.

2. The request shall be accompanied by a liquidation proposal including

an assessment of the initial and final estate of each spouse, specifying, as
appropriate, the resulting amount payable by the spouse who has obtained
the largest patrimonial increase.

3. In view of the liquidation request, the Court Clerk shall set, within a time
limit of ten days, the day and time for the spouses to appear before him
with a view to reaching an agreement.

4. If one of the spouses fails to appear on the established day without

justifiable reason, the said spouse shall be deemed to agree with the
liquidation proposal made by the spouse who did appear. In this case, as in
the case when, both spouses having appeared, an agreement is reached,
the latter shall be recorded in the deed and the act shall be concluded.

5. Failing an agreement between the spouses, the Court Clerk shall

summon them to a hearing and the procedure shall continue in accordance
with the provisions for the oral trial.

The judgement shall resolve on the issues that have arisen, determining
the initial and final estates of each spouse and, as appropriate, the amount
to be paid by the spouse whose estate has increased the most and the
form in which the said payment shall be made.

TITLE III
ON THE SMALL CLAIMS AND NEGOTIABLE INSTRUMENTS PROCEDURES

CHAPTER ONE
ON THE SMALL CLAIMS PROCEDURE

Article 812. Cases in which the small claims procedure is appropriate.489

1. Whoever seeks payment from another party for a net, specific, due and
enforceable monetary debt of any amount may file a small claims procedure
where such debt can be proven by any of the following means:

489
Paragraph 1 amended by Article 4.36 of Act 37/2011 of 10 October

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(i). By documents which are signed by the debtor or contain his seal,
stamp or mark or any other physical of electronic sign, regardless of
their form and nature or the support used.

(ii). By invoices, delivery notes, certifications, telegrams, telefaxes or

any other documents which, even if created unilaterally by the creditor,
are commonly used to prove credits and debts in relationships of the
nature that appear to exist between creditor and debtor.

2. Notwithstanding the provisions of the preceding paragraph and in the

event of debts meeting the requirements established in the said paragraph,
a small claims procedure may also be lodged to claim the payment of such
debts in the following cases:
(i). When, together with the document recording the debt, commercial
documents are submitted evidencing a previous enduring relation.
(ii). When the debt is evidenced by means of certifications of non-
payment of amounts owed as common expenses of communities of
owners of urban real properties.

Article 813. Jurisdiction.490

The Court of First Instance of the address or place of residence of the

debtor or, if the latter are unknown, of the place where the debtor can be
found for the purposes of the payment request by the Court, shall be
exclusively competent, except in the case of a claim of debt referred to in
number (ii) of paragraph 2 of Article 812, in which case the Court of the
place where the property is located shall equally be competent, at the
discretion of the applicant.

At all events, the rules concerning explicit or tacit submission contained in

section 2 of chapter II of title II of Book I shall not apply.

If the relevant enquiries on the address or residence conducted by the

Court Clerk bear no fruit or if the debtor is located in another court district,
the judge shall issue an order deeming the proceedings to have come to
an end, reflecting such circumstance in the records and reserving the
creditor’s entitlement to bring the proceedings once again before the
competent court.

490
Last paragraph added by Article 1.5 of Act 4/2011 of 24 March.
Paragraph 1 worded in accordance with Act 13/2009, of 3 November.

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Article 814. Initial request of the small claims procedure.

1. The small claims procedure shall commence with a request by the

creditor expressing the identity of the debtor, the address or addresses of
the creditor and the debtor or the place where they reside or can be found
and the origin and amount of the debt, accompanied by the document or
documents referred to in Article 812.

The request may be issued on a printed or other form facilitating the

expression of the circumstances referred to in the preceding paragraph.

2. The presentation of the initial request of a small claims procedure shall

not require a court representative and attorney.

Article 815. Admission of the claim and payment order.491

1. If the documents submitted with the claim are among those described in
paragraph 2 of Article 812 or constitute a principle of evidence of the right
of the claimant, confirmed by what is set out in the claim, the Clerk of the
Court shall request the debtor to pay the claimant within a time limit of
twenty days, proving payment to the Court, or to appear before it to allege
in a justified and grounded manner, in a writ of objection, the reasons why,
in their opinion, they do not owe the amount claimed, either in full or in
part. Otherwise they shall give account to the Judge who shall resolve as
appropriate on admission of the initial claim to proceedings.

The payment order shall be notified in the manner provided for in Article
161 of this Act, with the warning that, should they fail to pay or appear
alleging the reasons for refusal to pay, an enforcement order shall be
dispatched against them in accordance with the provisions of the following
article. The payment order to the defendant by means of public notices
shall only be admitted in the case regulated in the following paragraph of
this article.

2. In the claims of debt referred to in number (ii) of paragraph 2 of Article

812, notification shall be made at the address previously indicated by the

491
The first sub-paragraph of paragraph 1 is amended and paragraph 4 added by single article 76 of
Law 42/2015, of 5 October.
Please note the transitional regime for enforcement proceedings regulated by Transitional Provision
2 of that Law.
Paragraph 3 added by Article 1.6 of Act 4/2011 of 24 March.
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.

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debtor for notices and summons of all kinds relating to the affairs of the
community of owners. If no such address has been given, an attempt shall
be made to serve the notice at the flat or premises and, should this also
prove impossible, notification will be made in accordance with the
provisions of Article 164 of this Act.

3. Should the amount claimed appear to be incorrect according to the

documents attached to the plea, the Clerk of the Court shall notify the
judge who, if appropriate, may make a proposal to the claimant to either
accept or reject a proposed payment order for an amount lower than the
amount initially claimed, which the judge shall specify.

The claimant shall be informed in such proposal that the plea shall be
dismissed if they do not reply within ten days or rejects the proposal.

4. If the claim for the debt is grounded on a contract between a business

person or professional and a consumer or user, the Clerk of the Court,
prior to making the payment order, will give account to the Judge so that
they may assess the possible abusive nature of any clause constituting
grounds for the application or which may have determined the enforceable
amount.

The Judge will review ex officio whether any of the clauses constituting
grounds for the application or which may have determined the enforceable
amount could be classified as abusive. If any clause appears that could be
classified as such the parties will be given five days for a hearing. Once
they have been heard, the appropriate decision will be made by order
within the following five days. Intervention of a lawyer or procurator will not
be compulsory for these proceedings.

If any of the contractual clauses are deemed to be abusive, the order

passed will set out the consequences of such consideration resolving on
either the inadmissibility of the claim or continuation of the proceedings
without applying the clauses which are considered to be abusive.

If the court does not find the existence of abusive clauses, it will declare as
such and the Clerk of the Court will proceed to summons the debtor under
the terms provided for in paragraph 1.

A direct appeal may be lodged against the order passed in all cases.

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Article 816. Failure of the summoned debtor to appear and dispatch of the
enforcement. Interest.492

1. If the debtor does not comply with the payment order or does not appear, the
Clerk of the Court will pass an order terminating the small claims process and
will send it to the creditor so that they may call for dispatch of the enforcement,
with a simple request being sufficient for this purpose, without the need for the
twenty day period provided for in article 548 of this Act to have passed.

2. Once the enforcement has been dispatched, this will follow the
procedure provided for in court judgments, and the challenge provided for
in these cases may be made, but the small claims applicant and the
enforcement debtor may not subsequently, in ordinary proceedings, claim
the amount claim in the small claims procedure or reimbursement of the
amount obtained through the enforcement.

From the moment the order dispatching the enforcement is issued, the
debt shall accrue the interest referred to in Article 576.

Article 817. Payment of the debtor.493

If the debtor complies with the payment request, the Court Clerk shall
order the staying of the proceedings as soon as the payment has been
evidenced.

Article 818. Challenge by the debtor.494

1. If the debtor files a writ of challenge in due time, the matter shall be
resolved definitively in the relevant hearing and the judgment passed shall
have the effect of res judicata.

The writ of challenge shall be signed by a lawyer and a procurator if their

intervention is required in view of the amount, in accordance with the
general rules.

492
Paragraph 1 is amended by single article 77 of Law 42/2015, of 5 October.
Paragraph 1 worded in accordance with Act 13/2009 of 3 November («Official State Gazette» num-
ber 266 of 4 November), on the reform of procedural legislation for the implementation of the new
Judicial Office.
493
Article worded in accordance with Act 13/2009 of 3 Novembe.
494
Paragraph 2 is amended by single article 78 of Law 42/2015, of 5 October.
Paragraph 3 added by Act 19/2009 of 23 November.
Paragraph 2 worded in accordance with Act 13/2009, of 3 of November .

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If the challenge of the debtor is based on the existence of an excess

amount sought, action will be taken with respect to the amount recognised
as due in accordance with the second paragraph of Article 21 of this Act.

2. Where the amount of the claim does not exceed that set for an oral
hearing, the Clerk of the Court will issue an order terminating the small
claims procedure and resolving to continue the process in accordance with
the provisions for that type of hearing, sending the challenge to the claimant,
who may object to it in writing within a period of ten days. The parties, in their
respective writs of objection and challenge, may request an oral hearing,
following the procedures provided for oral hearings in articles 438 et seq.

If the amount of the claim is higher than such amount and the claimant
does not lodge the corresponding claim within a time limit of one month
from the transfer of the writ of challenge, the Clerk of the Court shall issue
an order declaring the staying of the proceedings and ordering the creditor
to pay the costs. If the claim is lodged, the order putting an end to the small
claims procedure shall resolve the transfer of such claim to the defendant,
in accordance with the provisions of Article 404 et seq unless its admission
is not appropriate, in which case it shall be resolved to notify the Judge for
the latter to decide as appropriate.

3. At all events, when rents or amounts due from a lessee of urban property
are claimed and the latter files a writ of challenge, the issue shall be
definitively resolved by oral hearing, regardless of the amount.

CHAPTER II
OTHE NEGOTIABLE INSTRUMENTS COLLECTION PROCEEDINGS

Article 819. Cases in which it is appropriate.

The negotiable instruments collection proceedings shall be appropriate

only if, at the time of filing, a bill of exchange, cheque or promissory bill is
presented meeting the requirements set out in the Act on Negotiable
Instruments and Cheques.

Article 820. Competence.

The competent court for the negotiable instruments collection proceedings

shall be the Court of First Instance of the address of the defendant.

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If the holder of the title sues several debtors whose liability derives from the
same title, the competent court shall be that of the address of any one of
them, who may appear at the trial by means of an independent representation.

The rules concerning explicit or tacit submission contained in Section 2 of

chapter II, title II of Book I shall not apply.

Article 821. Initiation. Claim. Payment request and pre-judgement

attachment.

1. The negotiable instruments collection proceedings shall commence with

a succinct claim to be accompanied by the title of the negotiable instrument.

2. The Court shall analyse by means of a court order the formal accuracy
of the negotiable instrument and, if it finds it to be in order, shall adopt the
following measures without further ado:

(i) Request the debtor to pay within a time limit of ten days.

(ii) Order the immediate pre-judgement attachment of the assets of the

debtor in the amount specified in the enforcement title, and a further
amount for late-payment interests, expenses and costs, in case the
payment request is not complied with.

3. The claimant may lodge the appeals referred to in paragraph 2 of Article

552 against the court order rejecting the adoption of the measures referred
to in the preceding paragraph.

Article 822. Payment.

If the debtor of the negotiable instrument complies with the payment

request the steps set out in Article 583 shall be taken, but the costs shall
be for the account of the debtor.

Article 823. Lifting of the attachment.

1. If the debtor appears in person or through his representative within five

days following the day on which he was requested to pay and categorically
denies the authenticity of his signature or alleges an absolute lack of
representation, the Court may, in view of the circumstances of the case and
the documentation submitted, lift the attachments that had been ordered
requesting, if it deems it convenient, the adequate security or guarantee.

2. The attachment shall not be lifted in the following cases:

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(i). If the issuance, acceptance, guarantee or endorsement has been

made, with indication of the date, before an official notary public or the
respective signatures have been authenticated on the bill of exchange
itself by a notary public.

(ii). If, at the time of the protest or the payment request through a
notary public, the debtor of the negotiable instrument did not
categorically deny the authenticity of his signature on the title or fails to
allege an absolute lack of representation.

(iii). If the obligee of the negotiable instrument has acknowledged his

signature before the court or in a public deed.

Article 824. Objection to the negotiable instruments collection proceedings.

1. Notwithstanding the provisions of the preceding article, the debtor may

lodge a claim of objection to the negotiable instruments collection
proceedings within ten days following the payment request.

2. The objection shall be lodged in the form of a claim. The debtor of the
negotiable instrument may allege against the holder of the bill of exchange,
cheque or promissory note all the reasons or grounds for objection set out
in Article 67 of the Act on Negotiable Instruments and Cheques.

Article 825. Effects of the lack of objection.495

If the debtor fails to lodge a claim of objection within the established time limit,
the Court shall dispatch enforcement for the amounts claimed and, thereupon,
the Court Clerk shall order an attachment if the said enforcement has been
impossible to carry out or has been lifted in accordance with Article 823.

In this case, the dispatched enforcement shall be carried out in accordance

with the provisions herein for judgements, court rulings and arbitration awards.

Article 826. Conduct of a challenge to negotiable instruments collection

proceedings.496

Once the writ of challenge has been submitted by the debtor, the Clerk of
the Court will send this to the creditor so that they may object to it in writing

495
Paragraph 1 worded in accordance with Act 13/2009 of 3 November.
496
Amended by single article 79 of Law 42/2015, of 5 October.
Subparagraph 1 worded in accordance with Act 13/2009 of 3 November.

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within a period of ten days. The parties, in their respective writs of challenge
and objection, may request an oral hearing, following the procedures
provided for in articles 438 et seq for oral hearings.

If a hearing is not requested, or if the court does not consider it appropriate

to hold it, the challenge will be decided on without further ado.

Where it is agreed to hold a hearing, if the debtor does not appear, the
court will take the challenge to have been abandoned and will pass the
decisions provided for in the preceding article. If the creditor does not
appear, the Court shall resolve on the challenge without hearing them.

Article 827. Judgement on the objection. Enforceability.

1. Within a time limit of ten days, the Court shall pass judgement resolving
on the objection. If the latter is dismissed and the judgement is appealed
against, the said judgement shall be provisionally enforceable in
accordance with the provisions herein.

2. If the judgement upholding the objection is appealed against, the

provisions of Article 744 shall apply with respect to the pre-judgement
attachments that were executed.

3. The final judgement passed in negotiable instruments collection

proceedings shall have the effects of res judicata in relation to the issues
that may have been alleged and discussed in the said proceedings, while
the remaining issues may be raised in the corresponding trial.

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ADDITIONAL PROVISIONS

One. Ordinary nature and Scope of powers.497

1. This law is ordinary with the exception of articles 763, 778 a and 778 b
which are organic and passed under article 81 of the Constitution.

2. This Act is passed under the powers which correspond to the State in
accordance with Article 149.1.6.a of the Constitution, without prejudice to
the necessary special cases arising in this order from the particular
features of the substantive law of the Autonomous Regions.

Two. Updating of amounts.

1. The Government may, by Royal Decree, update the amounts specified

herein every five years, subject to a prior report of the General Council of
the Judiciary and an opinion of the Council of State.

2. At least six months prior to the full implementation of the European currency
(euro), the Government, subject to a prior report of the General Council of the
Judiciary and an opinion of the Council of State, shall convert the amounts
established in pesetas herein into the said currency, elimination the fractions of
the latter and establishing the amounts in euro to ensure that, as is customary in
our laws, the said amounts are easy to use. The above notwithstanding, together
with the new amounts expressed in the European currency, those established
in pesetas by this Act shall be maintained in the rules on the determination of the
type of trial to be held and on access to appeals.

Three. Material means and human resources for the recording of trials,
hearings and appearances.

Within a time limit of one year as of the approval herein, the Government
of the Nation and the Councils of Government of the Autonomous Regions
to whom the relevant competences have been transferred shall adopt the
measures required to allow the Courts and Tribunals to avail of the material
means and human resources necessary for the recording of the oral
proceedings in accordance with the provisions of Article 147 herein.

Four. Fees for the obtaining of copies of documents and instruments.

Within a time limit of six months as of the approval herein, the Government
of the Nation shall approve by Royal Decree a system of rated prices for

497
Amended by single article 2.3 of Law 8/2015 of 22 July.

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the obtaining of non-certified copies of documents and instruments forming

part of the records and requested by the parties of the proceedings.

Five. Measures to speed up certain civil proceedings.498

1. The Ministry of Justice, in accordance with the relevant autonomous

region having jurisdiction in the matter, subject to a favourable report from
the General Council of the Judiciary, may create offices for the immediate
setting of trial dates (Oficinas de Señalamiento Inmediato) in those judicial
districts where courts of firts instance and magistrates courts are separate.

These Offices shall render a common procedural service and perform the
functions of registry, distribution and setting of dates for hearings,
appearances and proceedings in the procedures referred to in this
additional provision.

2. In the court districts where Offices of Immediate Assignment are set up,
the claims and applications concerning the following issues shall be
submitted to the said offices, provided that the claimant or applicant is able
to indicate an address or place of residence of the defendant for the
purposes of his summons:
a) Claims of amounts referred to in paragraph 2 of Article 250 herein.
b) Evictions from urban property resulting from the legal or contractual
expiry of the term or failure to pay rents or amounts due and, as
appropriate, claims of these rents or amounts when the claim
proceedings are joined to the eviction proceedings.
c) Injunctions prior or simultaneous to the claim referred to in rule 6 of
Article 770.
d) Provisional measures of nullity, separation or divorce, prior to
simultaneous to the claim, as set out in Articles 771 and 773.1.
e) Petitions for separation or divorce lodged by mutual agreement or by
one of the spouses with the consent of the other.

498
The highlghted paragraph in section 1 is declared unconstitucional and null and void, in accordan-
ce with legal grounds 7), by Constitucional Court ruling 224/2012, of 29 November.
Provision added by the Organic Act 19/2003 of 23 December on the modification of the Organic Act
6/1985 of 1 July on the Judiciary, paragraphs 2 and 3 are worded in accordance with the Acts 13/2009
of 3 November on the reform of procedural legislation for the implementation of the new Judicial
Office, and 19/2009 of 23 November on measures for the promotion and procedural speeding up of
the lease and the energy efficiency of the buildings.

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3. These claims and petitions lodged with the Immediate Assignment

Offices shall be processed in accordance with the rules herein, with the
following peculiarities:
First. Prior to giving leave to proceed, on the same day of their lodging
or, if this is impossible, on the next working day, the Immediate
Assignment Offices shall, in one single proceeding:
a) Register the claims or petitions set out in the preceding paragraph
that are submitted to them.
b) Agree their distribution to the corresponding Court and directly
set the date for the hearing referred to in Article 440.1, the
appearance referred to in Articles 771.2 and 773.3, the appearance
for the ratification of the claim contemplated in Article 777.3, and
the date and time when the eviction shall take place in the case
referred to in Article 440.3.
c) Resolve and issue the relevant order for the performance of the
corresponding summonses and judicial instructions for the latter to
be carried out through the common notifications service or, as
appropriate, by the court representative who so requests, and their
delivery, once completed, directly to the corresponding Court.
d) Request the claimant, if necessary, to rectify any procedural
defects in the filing of the claim or petition, which shall be remedied
within a maximum time limit of three days.
e) Forward the submitted claim or petition immediately to the
corresponding Court.
Two. The summonses for the appearances and hearings referred to in
the preceding rule shall contain the requests and warnings
contemplated in each case herein. They shall also indicate the
circumstances referred to in paragraph 3 of Article 440.
Furthermore, the summons shall indicate that, if the defendant requests
the acknowledgement of the right to free legal assistance or desires the
appointment of a legal aid attorney and court representative in the case
of Article 33.2, he shall so request before the Court within a time limit of
three days as of the reception of the summons.
Three. Upon reception of the claim or petition, the appropriate decision
shall be made regarding the leave to proceed. If leave is given to
proceed with the claim, the date set shall be observed. If leave to
proceed is not given, the setting of the date shall cease to have effect
and the Court shall notify this circumstance to those who have already

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been summoned, through the common notification service or, as

appropriate, by the court representative who requested it.
If either of the parties seeks the acknowledgement of the right to free
legal assistance or the appointment of a legal aid attorney and court
representative, in the same decision to give leave to proceed with the
claim if at that moment the said request is already known or, otherwise,
in a subsequent order, the immediate appointment of the professionals
shall be requested in accordance with the provisions of paragraph 3 of
Article 33. In this case, the appointment shall be made in favour of the
professionals assigned for the date on which the set hearing or
appearance has to take place, in accordance with a special shift of
assistance established to this end by the Bar Associations.
Fourth. The Immediate Assignment Offices shall perform the setting of
dates referred to in subparagraph b) of paragraph 3, First, of this provision,
before the Court of First Instance corresponding by shift in accordance
with a programmed system of designations, on the nearest possible
working day and time and, at all events, within the following times limits:
a) The setting of dates for the hearings referred to in Article 440.1
shall take place within the time limits indicated in the same provision,
calculated as of the fifth day following that of lodging of the claim
with the Immediate Assignment Office.
b) The setting of a date for the hearings referred to in Articles 771.2
and 773.3 shall be carried out between the fifth and tenth day
following the lodging of the petition or claim with the Immediate
Assignment Office.
c) The setting of a date for the appearances for the ratification of
the claim contemplated in Article 777.3 shall take place within three
days following the lodging of the relevant claim.
d) The setting of a date and time when, as appropriate, the eviction shall
take place in accordance with the final subsection of paragraph 3 of
Article 440 shall take place within a time limit of less than one month as
of the date on which the date of the corresponding hearing has been set.
Five. Each Court of First Instance in the court districts where Immediate
Assignment Offices are set up shall reserve its entire agenda on the
dates when it is their turn to render continued assistance, in order to
allow the Immediate Assignment Office to directly carry out the said
setting of dates.
The General Council of the Judiciary, pursuant to a favourable report
of the Ministry of Justice, shall issue the necessary Regulations to

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regulate the organisation and operation of the programmed system of

date setting, the establishments of the shifts or continued assistance
among the Courts of First Instance and the fractioning of time
schedules for the direct setting of dates.
Six. The rules of distribution of the court districts where Immediate
Assignment Offices are set up shall assign the hearing of the
procedures contemplated in paragraph 2 of this provision to the Court
of First Instance assigned to act in a shift of continued assistance on
the date on which the dates are set for the hearings and appearances
as referred to in rule four.

4. In the proceedings carried out in the scope of this additional provision, the
court representatives of the parties of the proceedings may carry out, at their
request and at the expense of the party they represent, the notices, citations,
summonses and requests by any of the means generally admitted herein.

These acts of communication shall be deemed validly carried out when

there is sufficient evidence of their delivery to the person or at the address
of the adressee.

To these effects, the court representative shall evidence, on his personal

responsibility, the identity and condition of the recipient of the notification,
ensuring that the copy contains his signature and the date on which the
notice has been served.

With regard to the communications by means of delivery of a copy of the

decision or summons at the address of the addressee, the provisions of
Article 161 shall be adhered to as far as applicable, and the court
representative shall evidence the existence of the circumstances
contemplated in the said provision, to which end he may request the
assistance of two witnesses or use any other adequate means.

Six. Awarding of real property.499

In the case of awards sought by the enforcement creditor under the terms
set forth in Section VI, Chapter IV, Title IV, Book III and as long as the
auctions at which there were no bidders concern real property other than
the debtor’s normal place of residence, the creditor may seek the awarding
of the assets for an amount equivalent to or greater than fifty per cent of
their appraisal value or for the amount owed to him for all items.

499
Added by Article 4.37 of Act 37/2011 of 10 October.

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Likewise, under the terms set forth in the aforementioned Section and
regarding real property other than the debtor’s normal place of residence,
where the highest bid offered is less than 70 per cent of the property’s
starting price and the enforcement debtor has not submitted a bid, the
creditor may seek the awarding of the property at 70 per cent or for the
amount he is owed for all items, provided such amount is greater than the
highest bid.
TRANSITIONAL PROVISIONS

First. System of appeals against interlocutory or non-definitive decisions.

The system of ordinary appeals set forth herein shall apply to any
interlocutory or non-definitive decisions issued in all kinds of proceedings
and instances after the entry into force of this Act.

Two. Proceedings in the first instance.

Except as set forth otherwise in the First Transitional Provision, any

declaratory proceedings which are in the first instance at the time this Act
enters into force shall continue to be conducted until a judgement is issued
in such instance in accordance with the preceding procedural legislation.
The provisions set forth herein shall apply to appeals, the second instance,
enforcement, including provisional enforcement, and extraordinary appeals.

Three. Proceedings in the second instance.

Except as set forth otherwise in the First Transitional Provision, where any
declaratory proceedings are in the second instance at the time this Act
enters into force, they shall be conducted in accordance with the preceding
Act, and this Act shall apply for all intents and purposes as from the
judgement.

Nonetheless, the provisional enforcement of a judgement upholding the

claim which is subject to appeal may be petitioned in accordance with the
provisions set forth herein.

Fourth. Matters in cassation.

Any matters pending an appeal in cassation upon the entry into force of
this Act shall continue to be conducted and decided upon in accordance
with the preceding Act. Nonetheless, the provisional enforcement of a

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judgement upholding the claim which is subject to an appeal in cassation

may be sought in accordance with this Act.

Five . Enforcement proceedings.

Any enforcement proceedings which are pending upon the entry into force
of this Act, whatever the title upon which they are grounded may be, shall
continue to be conducted in accordance with the preceding Act.
Nonetheless, should the proceedings have reached the distraint procedure,
this Act shall apply with regard to such procedure.

Six. Compulsory enforcement.

Any enforcement proceedings which have already been initiated upon the
entry into force of this Act shall be governed by the provisions set forth
herein with regard to any procedures that have yet to be conducted or
amended until the party seeking enforcement is fully satisfied.

Seven. Injunctions.

1. Any injunctions sought after the entry into force of this Act in proceedings
initiated before its entry into force shall be governed by the provisions set
forth herein.

2. Any injunctions that may have already been adopted before this Act
enters into force shall be governed by the provisions set forth in preceding
legislation. Nonetheless, a petition for their review and amendment may
be filed and obtained in accordance with this Act.
REPEALING PROVISION

Single.

1. The Civil Procedure Act approved by Royal Decree on 3 February 1881

shall be repealed, with the following exceptions:
a) Titles XII and XIII of Book II and Book III, which shall remain in force
until the Insolvency Act and the Voluntary Jurisdiction Act respectively
enter into force, apart from Article 1,827 and Articles 1,880 to 1,900,
both inclusive, which shall be repealed.
Until the aforementioned Acts enter into force, items (i) and (v) of Article
4, items (i) and (iii) of Article 10 and rules 8, 9, 16, 17, 18, 19, 22, 23, 24,
25, 26 and 27 of Article 63 of the Civil Procedure Act of 1881 shall
likewise remain in force.

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Whilst the Insolvency Act does not enter into force, any incidents which
may arise in insolvency proceedings shall be governed by the
provisions set forth herein to deal with such incidents.
Whilst the Voluntary Jurisdiction Act does not enter into force, any
references to the appropriate contentious procedure contained in Book
III shall be construed to be done through an oral trial.
b) Title I of Book II, as well as Article 11 on conciliation, and Section 2, Title
IX of Book II on declaring heirs ab intestato, which shall remain in force
until the rules on both matters in the Voluntary Jurisdiction Act enter into
force.
c) Articles 951 to 958 on the efficacy in Spain of judgements issued by
foreign courts, which shall remain in force until the International Judicial
Co-operation Act on Civil Matters enters into force.

2. The following rules, laws and provisions shall also be repealed:

(i). Paragraph 2, Article 8; the second sentence of paragraph 6, Article
12; Articles 127 to 130, both inclusive; paragraph 2 of Article 134 and
Article 135; Articles 202 to 214, both inclusive; Articles 294 to 296, both
inclusive, and Article 298; and Articles 1,214, 1,215, 1,226 and 1,231 to
1,253, both inclusive, all of them of the Civil Code.
(ii). Articles 119, 120, 121 and 122.1 of the revised text of the Public
Limited Companies Act approved by Royal Legislative Decree
1564/1989 of 22 December.
(iii). Articles 11, 12, 13, 14 and 15 of Act 62/1978 of 26 December on
the Jurisdictional Protection of Fundamental Personal Rights.
(iv). Articles 2, 8, 12 and 13 of the Act of 23 of July 1908 on the nullity
of certain loan agreements.
(v). Articles 17 and 18 of the revised text of the Civil Liability and
Circulating Motor Vehicle Insurance Act approved by Decree 632/1968
of 21 March.
(vi). Articles 38 to 40, both inclusive, of Act 29/1994 of 24 November on
Urban Property Leases.
(vii). Articles 123 to 137 of Act 83/1 980 of 31 December on Rural
Property Leases.
(viii). Articles 82, 83, 84, 85, 92 and 93 of the Non-Transferable Real
Estate Mortgage and Pledge Act of 16 December 1954.
(ix). Articles 41 and 42 the Naval Mortgage Act of 21 August 1893.

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(x). The First to Ninth Additional Provisions of Act 30/1981 of 7 July

amending the governance of matrimony in the Civil Code and setting
forth the procedure to be followed in proceedings on nullity, separation
and divorce.
(xi). Articles 23, 25 and 26 of Act 3/1991 of 10 January on Unfair
Competition.
(xii). Articles 29, 30 and 33 of Act 34/1988 of 11 January, the General
Advertising Act.
(xiii). Article 142 of the revised text of the Intellectual Property Act approved
by Royal Legislative Decree 1/1996 of 12 April.
(xiv). Paragraphs 3 and 4, Article 125; paragraph 2, Article 133; Article
135; and paragraphs 1 and 2, Article 136 of Act 11/1986 of 20 March
on Patents.
(xv). Paragraph 3, Article 9 and Articles 14, 15, 18 and 20 of Act 7/1998
of 13 April on General Contracting Terms and Conditions.
(xvi). Article 12 of Act 28/1998 of 13 July on the Hire Purchase of
Moveable Property.
(xvii). Decree-Act 18/1969 of 20 October on receivership in the event
of the attachment of companies.
(xviii). Decree of 21 November 1952 regulating the tenth base of the Act
of 19 July 1944 on the procedural rules which apply to municipal justice.
(xix). Act 10/1968 of 20 June on attributing competencies on civil
matters to the Provincial Courts.
(xx). Decree of 23 February 1940 on the reconstitution of court orders
and records.
(xxi). Decree-Act 5/1973 of 17 July on declaring all days in the month
of August as holidays for judicial purposes.

3. Likewise, any legislation which may oppose or contradict the provisions

set forth herein shall be deemed to have been repealed pursuant to
paragraph 2, Article 2 of the Civil Code.

Act 52/1997 of 27 November on Legal Assistance to the State and Public

Institutions shall be deemed to be in force.

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FINAL PROVISIONS

First. Amendment of the Condominium Property Act.

1. The third sentence of paragraph 2, Article 7 of Act 49/1960 of 21 July on

Condominium Property, amended by Act 8/1999 of 6 April shall be worded
as follows:
“Should the offender’s behaviour persist, the President may, after
having received authorisation from the Condominium Owners’ Meeting
duly called for such a purpose, bring an action for cessation against
him, which shall be conducted through an ordinary trial on any matters
not expressly set forth in this Article.”

2. Article 21 of Act 49/1960 of 21 July on Condominium Property shall be

worded as follows:
“1. The obligations referred to in items e) and f) of Article 9 shall be
fulfilled by the owner of the dwelling or shop within the time and in the
manner established by the Meeting. Otherwise, the president or the
administrator may require it through the courts by means of a small
claims procedure should the Condominium Owners’ Meeting so
resolve.
2. The use of the small claims procedure shall require the prior
certification of the Meeting’s resolution approving the settlement of the
debt with the condominium of owners by whoever may act as its
secretary, along with the president’s counter-signature, as long as
notice thereof has been given in the manner set forth in Article 9 to the
property owners affected.
3. Any amounts arising from the costs of the prior notice of payment
may be added to the amount claimed in accordance with the provisions
set forth in the preceding paragraph, as long as service thereof is
recorded in documents and the receipt of such costs is attached to the
claim.
4. Where the former owner of the dwelling or shop may be held jointly
and severally liable for the payment of the debt, the claim may be
brought against him without prejudice to his right of subsequently
bringing it again against the current owner. Likewise, the claim may be
brought against the owner appearing in the registry entry, who shall be
entitled to the same right mentioned above.
In all these cases, the initial claim may be brought against any of those
liable or jointly against all of them.

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5. Where the debtor should contest the initial claim of the small claims
procedure, the creditor may seek the preventive attachment of the
former’s assets sufficient to cover the amount claimed, interest and
costs.
The court shall, in any event, agree to such preventive attachment
without the need of the creditor posting security. Nonetheless, the
debtor may render the attachment ineffective by posting a bank
guarantee for the amount agreed upon by the court.
6. Where the professional services of an attorney and court
representative are used to petition for the amounts owed to a
condominium of property owners in the initial claim, the debtor shall
pay any fees and duties due from both for their involvement, subject in
any case to the limits set forth in paragraph 3, Article 394 of the Civil
Procedure Act, where the debtor either responds to the requirement
of payment or fails to appear before the court. Should the claim be
contested, the general rules on costs shall be followed. Nonetheless,
should the creditor obtain a totally favourable judgement on his
petition, the fees of the attorney and the court representative arising
from their involvement shall be included, even though such
involvement may not have been obligatory.”

Two. Amendment of the Intellectual Property Act.

1. Article 25.20 of the revised text of the Intellectual Property Act approved
by Royal Legislative Decree 1/1996 of 12 April shall be worded as follows:
“20. In the circumstance indicated in the preceding paragraph and in
any other circumstance involving the failure to pay remuneration, the
management organisation or organisations or, as appropriate, the
management representative or association may, without prejudice to
any civil or criminal actions they may be entitled to, petition the court to
adopt any injunctions that may proceed in accordance with the Civil
Procedure Act and, more specifically, the attachment of the relevant
equipment, devices and material. The assets thus attached shall be
allocated to the payment of the remuneration claimed and suitable
compensation for any damages.”

2. Article 103 of the revised text of the Intellectual Property Act approved
by Royal Legislative Decree 1/1996 of 12 April shall be worded as follows:
“Article 103.Protection measures. The holder of the rights recognised
in this Title may bring the actions and proceedings which are generally
set forth in Title I, Book III contained herein and seek any injunctions

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that may proceed in accordance with the provisions set forth in the
Civil Procedure Act.”

3. Article 143 of the revised text of the Intellectual Property Act approved
by Royal Legislative Decree 1/1996 of 12 April shall be worded as follows:
“Article 143.Criminal proceedings. Any injunctions which may proceed
in civil proceedings in accordance with the provisions set forth in the
Civil Procedure Act may be adopted in criminal proceedings conducted
as a result of an infringement of the rights recognised herein. Such
measures shall not impede the adoption of any other measures set
forth in criminal procedural legislation.”

4. Article 150 of the revised text of the Intellectual Property Act approved
by Royal Legislative Decree 1/1996 of 12 April shall be worded as follows:
“Article 150. Legal capacity. Once they are duly authorised,
management organisations shall have the legal capacity resulting from
their own bylaws to exercise any rights entrusted to their management
and assert them in any kind of administrative or judicial proceedings.
To certify such legal capacity, management organisations shall only
have to file a copy of their bylaws and a certification of their
administrative authorisation at the start of the proceedings. The
defendant may solely ground his challenge on the claimant’s lack of
representation, the authorisation of the exclusive holder of the right or
the payment of the relevant remuneration.”

Three. Amendment of the Public Limited Companies Act.

1. Article 118 of Royal Legislative Decree 1564/1989 of 22 December

approving the revised text of the Public Limited Companies Act shall be
worded as follows:
“The procedures for ordinary trials and the provisions contained in the Civil
Procedure Act shall be followed in order to contest corporate resolutions.”

2. Paragraphs 2 and 3, Article 122 of the aforementioned text of the Public

Limited Companies Act shall respectively become paragraphs 1 and 2 of
said Article.

Fourth. Amendment of the Unfair Competition Act.

Article 22 of Act 3/1991 of 10 January on Unfair Competition shall be

worded as follows:

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”Article 22. Procedure. Any proceedings dealing with unfair competition

shall be conducted in accordance with the provisions on ordinary trials
set forth in the Civil Procedure Act.”

Five. Amendment of the Patents Act.

1. Paragraph 1, Article 125 of Act 11/1986 of 20 March on Patents shall be

worded as follows:
“1. Any civil litigation which may arise pursuant to this Act shall be
resolved in the corresponding trial in accordance with the Civil
Procedure Act.”

2. Article 133 of Act 11/1986 of 20 March on Patents shall be worded as

follows:
“Whoever may or plans to exercise an action among the ones set forth
herein may petition the court responsible for dealing with it for the
adoption of any injunctions aimed at ensuring the effectiveness of such
actions, as long as he duly justifies the exploitation of the patent at issue
in the action under the terms set forth in Article 83 contained herein or
has initiated serious effective preparatory actions to such an effect.”

Six. Amendment of the General Contracting Terms and Conditions Act.

1. Paragraph 2, Article 12 of Act 7/1998 of 13 April on General Contracting

Terms and Conditions shall be worded as follows:
“2. An action for cessation is aimed at obtaining a judgement that
penalises the defendant to delete from his general terms and
conditions any that may be deemed null and void and to refrain
from using them in the future, setting or clarifying, wherever
necessary, the agreement’s contents which may be deemed as
valid and effective.
The reimbursement of any amounts charged according to the terms
and conditions affected by the judgement and compensation for any
damages caused by the application of such terms and conditions may
be joined as accessory claims to the action for cessation.”

2. Paragraph 3, Article 12 of Act 7/1998 of 13 April on General Contracting

Terms and Conditions shall be worded as follows:
“3. An action for withdrawal is aimed at obtaining a judgement that
declares and imposes on the defendant, whether or not he is the

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stipulator, the obligation of withdrawing a recommendation he has

made to use the clauses of the general terms and conditions which are
deemed null and void and to refrain from continuing to recommend
them in the future.”

3. Paragraph 4, Article 12 of Act 7/1998 of 13 April on General Contracting

Terms and Conditions shall be worded as follows:
“4. A declaratory action is aimed at obtaining a judgement which
recognises a clause as a general contracting condition and orders its
registration, where appropriate, in accordance with the provisions set
forth in the final item, paragraph 2, Article 11 contained herein.”

4. A new paragraph has been added the end of Article 16 of Act 7/1998 of
13 April on General Contracting Terms and Conditions, which shall be
worded as follows:
“Such entities may enter an appearance in any of the proceedings
brought by any other such entity should they deem it appropriate to
defend the interests they represent.”

5. A Fourth Additional Provision has been added to Act 7/1998 of 13 April

on General Contracting Terms and Conditions, which shall be worded as
follows:
“Fourth Additional Provision.
Any references to consumers and users contained in the Civil
Procedure Act shall be construed to refer to all parties to any litigation,
whether or not they are consumers or users, where individual or class-
action suits are exercised arising from this General Contracting Terms
and Conditions Act.
Likewise, any references to consumer and users associations
contained in the Civil Procedure Act shall be construed to also apply to
any other persons or entities having the legal capacity to act as a
claimant in any litigation in which the class-action suits set forth in
herein are exercised.”

Seven. Amendment of the Hire Purchase of Moveable Property Act.

1. The first sentence of paragraph 3, Article 15 of Act 28/1998 of 13 July on

the Hire Purchase of Moveable Property shall be worded as follows:
“3. “In the event of the preventive attachment or compulsory
enforcement of moveable property, all distraint proceedings regarding

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such assets or their proceeds or income shall be shelved as soon as a

certification from the registrar should appear in the records stating the
existence of rights in favour of a person other than the person against
whom the attachment was ordered or against whom the proceedings
are being conducted, unless the proceedings were brought against
such person as the heir of the person appearing as their owner in the
registry. The enforcement creditor’s right to seek in the same
proceedings other of the debtor’s assets shall be reserved, as well as
his right to resolve in the corresponding trial any rights he may deem to
enjoy over the assets with regard to which the proceedings have been
stayed.”

2. Paragraph 1, Article 16 of Act 28/1998 of 13 July on the Hire Purchase

of Moveable Property shall be worded as follows:
“1. “The creditor may seek the fulfilment of any obligations arising from
the agreements governed by this Act by exercising the relevant actions
in ordinary declaratory proceedings, small claims proceedings or
enforcement proceedings in accordance with the Civil Procedure Act.
Agreements on the hire purchase of moveable assets shall only
constitute sufficient title for grounding enforcement actions on the
debtor’s assets where such agreements are recorded in any of the
documents referred to in items 4 and 5, paragraph 2, Article 517 of
Civil Procedure Act.”

3. Item d), paragraph 2, Article 16 of Act 28/1998 of 13 July on the Hire

Purchase of Moveable Property shall be worded as follows:
“d) Where the debtor neither pays the amount claimed nor hands over
the assets for disposal in the public auction referred to in the preceding
item, the creditor may petition the court to summarily protect his rights
by exercising the actions laid down in items (x) and (xi), paragraph 1,
Article 250 of the Civil Procedure Act.”

4. Paragraph 2 of the First Additional Provision of Act 28/1998 of 13 July

on the Hire Purchase of Moveable Property shall be worded as follows:
“The financial lessor may seek the fulfilment of any obligations arising
from the agreements governed by this Act by exercising the relevant
actions in ordinary declaratory proceedings, small claims proceedings
or enforcement proceedings in accordance with the Civil Procedure
Act.

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Financial leasing agreements shall only constitute sufficient title for

grounding enforcement actions on the debtor assets where such
agreements are recorded in any of the documents referred to in items
4 and 5, paragraph 2, Article 517 of Civil Procedure Act.”

5. The first sentence and item c), paragraph 3 of the First Additional
Provision of Act 28/1998 of 13 July on the Hire Purchase of Moveable
Property shall be worded as follows:
“3. “In the event of a breach of a financial leasing agreement recorded
in any of the documents referred to in items 4 and 5, paragraph 2,
Article 517 of the Civil Procedure Act, which has been duly registered
at the Hire Purchase of Moveable Property Registry and executed
through the official form laid down for such purposes, the lessor may
petition for the asset’s recovery in accordance with the following rules.
c) Where the debtor neither pays the amount claimed nor hands over
the assets to the financial lessor, the latter may petition the competent
court for the immediate recovery of the assets ceded through financial
leasing by exercising the actions set forth in item (xi), paragraph 1,
Article 250 of the Civil Procedure Act.”

Eight. Amendment of the Arbitration Act.

Article 11 of Act 36/1988 of 5 January on Arbitration shall be worded as

follows:
“1. The arbitration agreement shall oblige the parties to fulfil and
perform the stipulations and shall impede the courts from dealing with
any of the matters at issue submitted to arbitration in the agreement, as
long as the party interested therein should invoke it through a declinatory
plea.
2. The parties may agree to waive the arbitration agreed upon, thus
freeing the way for the judicial track. They shall, in any event, be
deemed to have waived the agreement where the defendant or
defendants, should there be several, perform any procedural action
after entering an appearance in the proceedings other than filing a
declinatory plea once a claim has been brought by any of them.”

Nine. Amendment of the Mortgage Act.

Articles 41, 86, 107, 129, 130, 131, 132, 133, 134 and 135 of the Mortgage
Act of 8 February 1946 have been amended, which shall be worded as
follows:

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1. Article 41:
“Any actions in rem arising from duly registered rights may be exercised
through the oral trials governed by the Civil Procedure Act against
whoever may contest such rights or hinder them from being exercised
without registered title. Such actions, which are based on capacity
arising from the registry as recognised by Article 38, shall always
require the registrar’s certification that the corresponding entry is in
force without any contradiction whatsoever.”

2. Article 86:
“Caveats, whatever their cause may be, shall expire four years from
the date of the entry, except for any with a shorter term of validity as
set forth by the law. They may, nonetheless, be extended for a period
of four years at the request of the interested party or by the authorities
that mandated them, as long as the mandate ordering such extension
is filed before the entry expires. Extended entries shall expire four
years from the date of the entry of such extension. Successive
subsequent entries may be made under the same terms.
The expiry of caveats shall be recorded at the registry at the request
the owner of the real property or right in rem thus affected.”

3. Article 107.12:
“12. Successful bidder’s right over real property auctioned in court
proceedings. Once the price of the successful bid has been satisfied
and ownership registered in favour of the successful bidder, the
mortgage shall persist directly on the assets adjudicated.”

4. Article 129:
“Mortgage repossession proceedings may be exercised directly
against the mortgaged goods subject to the provisions set forth in
Title IV, Book III of the Civil Procedure Act with the specificities laid
down in Chapter IV thereof. Furthermore, the out-of-court sale of the
mortgaged asset may be agreed upon in the mortgage deed in
accordance with Article 1,858 of the Civil code in the event of a failure
to fulfil the guaranteed obligation. The out-of-court sale shall be
made through a notary public, complying with all the formalities laid
down in the Mortgage Regulations.”

5. Article 130:

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“The procedure of direct enforcement against mortgaged assets may

only be exercised as the realisation of a registered mortgage and,
given its establishing nature, on the basis of the details contained in
the relevant entry.”

6. Article 131:
“Any caveats of a claim for nullity of the mortgage itself or any others
which are not grounded on any of the circumstances that may
determine a stay of enforcement shall be cancelled by virtue of a
mandate of cancellation as referred to in Article 133, as long as they
are subsequent to the marginal note on the issuance of a certification
of encumbrances. A deed of receipt for full payment of the mortgage
may not be registered as long as the aforementioned marginal note
has not been cancelled through a court mandate for such a purpose.”

7. Article 132: “The registrar’s classification shall include the details set
forth below for the purposes of any entries and cancellations arising from
direct enforcement proceedings on mortgaged assets:
(i). That a claim has be brought against and payment claimed from the
debtor, non-debtor mortgagor and third-party owners who have had
their rights duly registered at the registry at the moment the certification
of encumbrances is issued in the proceedings.
(ii). That notice of the existence of the proceedings has been given to
any creditors and third parties whose rights have been entered or
registered subsequent to the mortgage, apart from any which are
subsequent to the marginal note on the issuance of encumbrances,
regarding which the marginal note shall serve the purposes of giving
notice.
(iii). That whatever may have been handed over to the creditor as
payment for the loan’s principal, any interest accrued and any costs
caused does not exceed the limit of the relevant mortgage coverage.
(iv). That the value of what has been sold or adjudicated was equivalent
to or less than the full amount of the claimant’s loan, or in the event of
having exceeded it, that such excess was deposited in a public
establishment for the purposes of placing it at the disposal of
subsequent creditors.”

8. Article 133:
“The certification issued by the Court Clerk of the court order on the
successful bid or adjudication and the certification resulting from the

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deposit of the price, as appropriate, shall be sufficient title to register

the property or right adjudicated in favour of the successful bidder, as
long as the mandate of cancellation of the encumbrances referred to in
Article 674 of the Civil Procedure Act is attached thereto.
The court mandate on the cancellation of encumbrances and the
certification of the court order on the successful bid or adjudication
may appear in a single document, which shall, in any event, set forth
the fulfilment of the requirements laid down in the preceding Article
and any other circumstances which may be necessary to perform the
registration and cancellation.”

9. Article 134:
“The certification of the court order on adjudication and the mandate of
cancellation of encumbrances shall lead to the registration of the
property or right in favour of the successful bidder and the cancellation
of the mortgage which led to enforcement, as well as of all charges,
encumbrances and entries of third-party holders which are subsequent
to them without exception, including any that have been verified
subsequent to the marginal note on the issuance of the certification of
encumbrances in the relevant proceedings.
Solely subsequent declarations of new works and condominium
divisions shall persist, where the mortgage entry states that the
mortgage should also extend to the new buildings by law or through an
agreement.”

10. Article 135:

“The registrar shall give notice of the performance of any subsequent
entries that may affect enforcement, even where they may fall directly
on the mortgaged assets, to the Judge before whom the enforcement
proceedings are being conducted.”

Ten. Amendment of the Negotiable Instruments and Cheques Act.

1. The last paragraph of Article 67 of Act 19/1985 of 16 July on Negotiable

Instruments and Cheques has been amended, which shall be worded as
follows:
“Solely the exceptions set forth in this Article shall be admissible
against an action on negotiable instruments.”

2. The second paragraph of Article 49 of Act 19/1985 of 16 July on

Negotiable Instruments and Cheques has been amended by replacing the

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expression: “... as in the enforcement...” for the following expression: “...

through special negotiable instrument proceedings...”.

3. Article 66 of Act 19/1985 of 16 July on Negotiable Instruments and

Cheques has been amended, which shall be worded as follows:
“The bill of exchange shall entail enforcement through the negotiable
instrument trial governed by the Civil Procedure Act in chapter II, Title
III, Book IV for the amount set forth in the title and for any other
amounts in accordance with Articles 58, 59 and 62 contained herein
without the need for the court examining the signatures. »

4. Article 68 of Act 19/1985 of 16 July on Negotiable Instruments and

Cheques has been amended, which shall be worded as follows:
“The exercising of actions on negotiable instruments through the
special negotiable instrument trial shall be subject to the procedure set
forth in the Civil Procedure Act.”

Eleven. Reform of the Employment Procedural Act.

Articles 2, 15, 47, 50, 18 3, 186, 234, 235 and 261 of the Royal Legislative
Decree 2/1995, of April 7, whereby the revised text of the Employment
Procedural Act was approved, and is worded in the following terms:

1. Article 2:
«d) Between the associates and the Mutual Associations, except for
those established by the Professional Associations, in the terms
stipulated in articles 64 et seq. and in the additional fifteenth provision
of Act 30/1 995, of November 8, on the Organisation and Supervision
of Private Insurance, as well as between employment foundations or
between these and their beneficiaries, on the compliance with,
existence or declaration of their specific obligations and rights of their
estate, related to the objectives and obligations of these institutions.»

2. Article 15:
“1. As regards their causes, abstention and challenging shall be
governed by the Organic Act on the Judiciary Branch, and, as regards
procedure, by the stipulations in the Civil Procedure Act.
Notwithstanding the above, the challenge shall have to be proposed at
an instance previous to the acts of reconciliation and proceedings and,

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in appeals, before the day appointed for the vote and ruling or, possibly,
for the hearing.
In any case, the proposal for a challenge shall not suspend the
enforcement.
2. The following shall examine challenges:
a) When the party challenged is the President or one or more of
the Senior Judges of the Labour Chamber of the High Court, of
the Labour Chamber of the Higher Courts of Justice, or of the
Labour Chamber of the National Court, a Senior judge of the
Chamber the party challenged belongs to, designated due to a
rota established by order of seniority.
b) When all the Senior Judges of a Court of Justice are challenged,
the Senior Judge from the corresponding court due to rota by
seniority, on condition that he is not affected by a challenge, and if
all the Senior Judges who make up the chamber involved are
challenged, a Senior Labour Law Judge of the Contentious-
Administrative Chamber shall be designated by drawing lots
among all the Judges of this Chamber.
c) When the party challenged is Judge of the Labour Court, a
Senior Judge of the Labour Court of the High Court of Justice,
designated due to the rota established by seniority.
Seniority shall be regulated by order of the ranking in the judicial
career.
In the cases in which it is not possible to comply with what is
stipulated in the foregoing paragraphs, the governing Chamber of
the corresponding court shall designate the examining magistrate,
endeavouring that he be of a higher category or, at least, with
seniority over the party or parties challenged.
3. Challenging incidents shall be decided on by the following:
a) The Chamber stipulated in article 61 of the Organic Act on the
Judiciary when the party challenged is the President of the Labour
Chamber or two or more of the Senior Judges of this Chamber.
b) When a judge of the Labour Chamber of the High Court is
challenged.
c) The Chamber referred to in article 77 of the Organic Act on the
Judiciary, when the President of the Labour Chamber of this High
Court has been challenged.

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d) The Chamber referred to in article 69 of the Organic Act on the

Judiciary when the President of the Labour Chamber, of the
National Court or more than two Senior Judges of a Section of this
Chamber have been challenged.
e) When one or two Senior Judges of the Labour Chamber of the
National Court are challenged, The section in which the party
challenged is not included or the section which follows in
numerical order to the one the party challenged belongs to.
f) When one or two Senior Judges of the Labour Chamber of the
Higher Courts of Justice are challenged, the Chamber in a plenary
meeting if it is not divided into sections or, otherwise, the section
the challenged party is not a part of or the section which follows
the section the party challenged forms part of in numerical order.
g) When the party challenged is a Judge of the Labour Court, the
corresponding Labour Chamber of the corresponding High Court of
Justice, at a plenary meeting, if it is not divided into sections or,
otherwise, the First Section.»

3. Article 47.2:
“2. All the persons concerned can have access to the judgement book
referred to in article 213 of the Law on Civil Procedure.»

4. Article 50.1:
“1. On the termination of the proceedings, the Judge can issue a
decision viva voce, and this shall be consigned to the minutes with the
content and requirements set out in the Civil Procedure Act . He can
also restrict himself to the ruling, which shall be documented in the
minutes through the witnessing of the Court Clerk, without prejudice to
the subsequent drafting of the decision within the time limit and in the
legally stipulated form.»

5. First paragraph of article 183:

«As regards the proceedings followed when the defendant has not
appeared, the rules contained in Part V of Book II of the Civil Procedure
Act shall apply, with the following specialities:»

6. Rule 3 of article 183:

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«The time limit for applying for a hearing shall be three months from
notification of the decision in the corresponding “Official Gazette” in the
cases and conditions stipulated in article 501 of the Civil Procedure Act.»

7. Article 186:
«The appeals for reversal and for reconsideration shall be substantiated
in accordance with the stipulations for the appeal for reversal in the
Civil Procedure Act.»

8. Article 234:
«The appeal for judicial review stipulated in the Civil Procedure Act
shall be applicable against any decision issued by the organisms in the
labour jurisdictional order. The appeal shall be lodged before the
Labour Chamber of the High Court, which shall have to decide on this
in accordance with the provisions in the Civil Procedure Act although
the deposit in order to appeal shall be the same amount as the one
stated herein for appeals in cassation.»

9. Article 235.1:
“1. The definitive decisions shall be put into effect in the form laid down
in the Civil Procedure Act for the enforcement of decisions, with the
specialities stipulated herein.»

10. Article 261.2:

“2. If the assets embargoed are securities, these shall be sold in the
form set out for this in the Civil Procedure Act.»

Twelve. Reform of the Criminal Procedure Act.

Articles 54, 56, 63, 68, 201 and 852 of the Criminal Procedure Act are
modified, as promulgated by the Royal Decree of September 14, 1882,
and these shall be worded in the following terms:

1. Article 54:
«As regards the reasons for abstention and challenging, these shall be
regulated by the Organic Law on the Judiciary, and as concerns
procedure, by the stipulations in the Civil Procedure Act.»

2. Article 56:

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«The challenge must be proposed as soon as the reason on which this

is grounded becomes known, otherwise, it shall not be admitted to
processing. Specifically, challenges shall not be admitted in the
following cases:
(i). When they are not proposed on appearing or intervening for
the first time in the proceedings or in any of its phases if the reason
for the challenge is known previous to the appearance.
(ii). When these are proposed when the proceedings have begun
if the reason for the challenge is known previous to the procedural
time when the challenge is proposed.»

3. Article 63:
«The incidents of the challenge shall be examined:
a) When the party challenged is the President or one or more of
the Senior Judges of the Criminal Chamber of the High Court of
Justice, of the Criminal Chamber of the Higher Courts of Justice,
or of the Criminal Chamber of the National Court, a Senior Judge
of the Chamber to which the party challenged belongs, designated
by virtue of a rota established by seniority.
b) When the party challenged is the President or one or more
Senior Judges of a Provincial Court, a Senior Judge of a Section
other than the one to which the party challenged belongs,
designated by virtue of a rota established by seniority. If there is
only one Section, procedure shall be as set out in the second
paragraph of article 107 of the Civil Procedure Act.
c) When all the Senior Judges of a Court of Justice are challenged, the
judge responsible shall be the Senior Judge by seniority from among
those who make up the corresponding Court on condition that he is not
affected by the challenge, and if all the Senior Judges who make up
the corresponding Court of Justice, a Senior Judge designated by
drawing lots among those who make up the Courts of the same
territorial scope belonging to the rest of the jurisdictional orders.
d) When a Central Criminal Court Judge or a Central Examining
Magistrate, a Senior Judge of the Criminal Chamber of the
National Court shall be designated by virtue of a rota established
by order of seniority.

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e) When the party challenged is an Examining Magistrate or a

Criminal Court Judge, the judge responsible shall be a Senior
Judge of the corresponding Provincial Court, designated by virtue
of a rota established by order of seniority.
f) When the party challenged is a Justice of the Peace, the Judge
responsible shall be the Examining Magistrate of the corresponding
district or, if the district has several Examining Courts, the Judge
responsible shall be the Judge holding the post designated by
virtue of a rota established by order of seniority.»

4. Article 68:
«The following shall decide on the incidents regarding the challenge:
a) The court stipulated in article 61 of the Organic Law on the
Judiciary when the party challenged is the President of the High
Court or the President of the Criminal Chamber or two or more
Senior Judges of this Chamber.
b) The Criminal Chamber of the High Court when one of the
Senior Judges who form this Chamber is challenged.
c) The Chamber referred to in article 77 of the Organic Law on the
Judiciary when the President of the High Court of Justice is
challenged, the President of the Civil and Criminal Chamber of the
High Court or the President of the Provincial Court in the
Autonomous Community or two or more Senior Judges of a
Chamber or a Section or a Provincial Court.
d) The Chamber referred to in article 69 of the Organic Law on the
Judiciary, when the President of the National Court, the President
of the Criminal Bench or more than two Senior Judges of a Section
of this Bench.
e) The Criminal Bench of the National Court, when one or two
Senior Judges are challenged.
f) The Civil and Criminal Bench of the High Courts of Justice when
one of its Senior judges is challenged.
g) When the party challenged is a Senior Judge of a Provincial
Court, a plenary meeting of the Provincial Court or, if this is
composed of two or more Sections, the Section the challenged
part does not belong to or the Section which follows the one the
party challenged belongs to, in numerical order.

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h) When a Central Judge is challenged, the Section of the Criminal

bench of the National Court corresponding by rota by the
Governing Chamber of this court, excluding the Section
responsible for dealing with the appeals issued by the Court where
the party challenged holds a post.
i) When the party challenged is a Criminal Court Judge or an
Examining Magistrate, the Provincial Court or, if this is composed
of two or more sections, the Second Section.
j) When the party challenged is a Justice of the Peace, the
Examining Magistrate of the incident challenged shall decide.»

5. Article 201:
«All the days and times of the year shall be working times for the
examination of criminal cases, with no need for a special authorisation.»

6. Article 852:
«in any case, the appeal in cassation can be lodged on the grounds of
an infringement of a constitutional precept.»

Thirteen. Reform of the Act on Civil Liability and Motor Vehicle insurance.

Repealed

Fourteen. Reform of the Act Regulating Contentious-Administrative

jurisdiction.

1. A sub-paragraph is added to the fifth paragraph of article 8 of Act

29/1998, of July 13, Regulating the Contentious-Administrative Jurisdiction,
with the following wording:
«In addition, the authorisation or judicial ratification of the measures
which the health care authorities consider to be urgent and necessary
for public health shall correspond to the Contentious-Administrative
Courts and imply the privation or restriction of freedom or of another
fundamental right.»

2. Paragraph 3 of article 87 of Act 29/1998, of July 13, Regulating the

Contentious-Administrative Jurisdiction, shall be worded in the following
terms:

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“3. In order to be able to prepare the appeal in cassation in the cases

stipulated in the foregoing paragraphs, it is necessary to previously
lodge the appeal for reconsideration.»

Fifteen. Reform of the Act on Free Legal Assistance.

Number 6 of article 6 of Act 1/1996, of January 10, on Free Legal

Assistance, is modified and shall be worded in the following terms:
«6. Free expert assistance in the proceedings under the responsibility
of technical personnel ascribed to the jurisdictional organisms, or, in
their absence, under the responsibility of civil servants, technical
organisms or services dependent on the Public Administration.
Exceptionally and due to the non-existence of technicians in the matter
in question, when it is not possible to have the expert assistance of
experts dependent on jurisdictional organisms or on the Public
Administration, if the Judge or the Court considers it to be appropriate, in
a decision with the grounds, this assistance shall be provided under the
responsibility of experts designated in accordance with what is laid down
in procedural laws from among the corresponding private technicians.»

Sixteen. Transitional rules regarding extraordinary appeals500.

1. As long as the High Courts of Justice are not granted jurisdiction to deal
with extraordinary appeals for an infringement of procedure, such appeals
shall proceed in accordance with the provisions set forth in article 477
regarding decisions which are subject to appeals in cassation due to the
reasons laid down in Article 469.

The following rules shall be followed regarding lodging and decision-

making regarding extraordinary appeals for infringement of procedure:
(i). The Civil Chamber of the Supreme Court shall hold jurisdiction to
deal with extraordinary appeals for infringement of procedure.
However, in cases in which jurisdiction for the appeal in cassation
corresponds to the Civil and Criminal Chamber of the High Courts of
Justice, the decisions appealed against may also be challenged due to
the reasons set forth in Article 469 herein.
(ii). Extraordinary appeals for infringement of procedure may only be
lodged without making appeals in cassation against decisions subject

500
Amended by Article 4.38 of Act 37/2011 of 10 October

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to appeals in cassation among those referred to in items (i) and (ii),

paragraph 2, Article 477 herein.
(iii). Where a litigant intends to appeal against a decision due to an
infringement of procedure and in cassation, both appeals must be
lodged in the same document. The time limits set forth in Articles 479
and 482 shall apply to the lodging of such appeals and the forwarding
of the proceedings, respectively.
(iv). When an appeal for infringement of procedure and an appeal in
cassation are lodged against the same decision, the two shall be
conducted in the same proceedings. When the appeals are submitted
by different litigants, a joinder shall be formed.
(v). If an appeal for infringement of procedure and an appeal in
cassation are jointly conducted, the Chamber shall first examine
whether the decision appealed against is susceptible to an appeal in
cassation and, should this not be the case, it shall dismiss the appeal
for infringement of procedure.
Where the appeal for an infringement of procedure has been solely
grounded on item (iii), paragraph 2 of Article 477, the Chamber shall
decide whether or not the appeal in cassation should be given leave to
proceed. Should it be deemed inadmissible, the appeal for infringement
of procedure shall be dismissed without further ado. Only if the appeal
in cassation is given leave to proceed, shall a decision be taken on
giving the appeal for infringement of procedure leave to proceed.
(vi). Once the appeals referred to in the foregoing rule have been
given leave to proceed, the extraordinary appeal for infringement of
procedure shall be decided in the first place, and only when it is
dismissed, shall the appeal in cassation be examined and decided
upon. In such case, the dismissal of the appeal for infringement of
procedure and the decision on the appeal in cassation shall be
contained in one judgment.
(vii). Where an appeal is lodged against a decision for an infringement
of procedure pursuant to reason (ii), paragraph 1, Article 469, should
the Chamber uphold the appeal for this reason, it shall issue another
judgment taking into account, as appropriate, what was alleged as the
grounds for the appeal in cassation. The Chamber shall likewise
resolve if it is alleged and deemed that article 24 of the Constitution
has been infringed and that the infringement only affects the judgment.

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(viii). No appeals may be lodged against decisions issued to resolve

extraordinary appeals for infringement of procedure and appeals in
cassation.

2. As long as the Civil and Criminal Chambers of the High Courts of Justice
lack the jurisdiction to deal with extraordinary appeals for infringement of
procedure, Articles 466, 468, 472, as well as Articles 488 to 493 and
paragraph 4, Article 476 shall not apply. The provisions set forth in the last
subparagraph of paragraph 2, Article 476 shall not apply in cases where
extraordinary appeals have been upheld for infringements of procedure
grounded on reason (ii) of paragraph 1, Article 469 or on infringements of
Article 24 of the Constitution which only affect the decision against which
the appeal has been lodged.

The references to the High Courts of Justice contained in Article 472 shall
be construed to mean the Chambers holding jurisdiction to deal with
appeals in cassation.

Seventeen. Transitory regime as regards abstention, challenging, and

nullity of proceedings and the clarification and correction of decisions.

Until the Organic Act on the Judiciary is not reformed as regards the matters
cited below, articles 101 to 119 of this Act shall not apply, as regards
abstention and challenging of Judges, Senior Judges and Court Clerks, nor
paragraph 2 of the eleventh final provision, nor paragraphs 1, 2, 3 and 4 of
the twelfth final provision. Articles 225 to 230 and 214 of this Act on the
nullity of proceedings and the clarification and correction of decisions,
respectively, shall not apply until the aforementioned Organic Act is reformed.

Eighteen. Bill on voluntary jurisdiction.

Within the time limit of one year counting from the date of entry into force of this
Act, the Government shall send a bill on voluntary jurisdiction to the Parliament.

Nineteen. Insolvency Bill. Within a period of six months counting from the
date of entry into force of this Act, the government shall forward an
Insolvency Bill to the Government.

Twenty. Bill on international judicial co-operation in civil matters.

Within a time limit of six months counting from the date of entry into force
of this Act, the Government shall forward a bill on international co-operation
as regards civil matters to the Parliament.

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Twenty-one. Measures to facilitate the application of Regulations *EC in

Spain No. 805/2004 of the European Parliament and of the Council, of
April 21, 2004, whereby a European executive entitlement for unchallenged
credits is established.501

1. The judicial certification of a European executive entitlement shall be

adopted separately and through a procedural court order, in the form
stipulated in Annex I of Regulation (EC) No. 805&2004.

Competence for certifying a European executive entitlement corresponds

to the same court which issued the decision.

The procedure for the rectification of errors in a European Executive

entitlement stipulated in article 10.1.a) of regulation (EC) No. 805/2004
shall be decided in the form stipulated in the first three paragraphs of
article 267 of Organic Act 6/1985, of July 1, on the Judiciary.

The procedure for the revocation of the issue of a certificate of a European

executive entitlement referred to in article 10.1.b) of Regulation (EC)
No.805/2004 shall be processed and decided on in accordance with what
is stipulated for the appeal for reversal regulated in Act 1&2000, of January
7, on Civil Procedure regardless of the jurisdictional order to which the
court belongs.

The refusal to issue a European executive entitlement certificate shall be

adopted separately and through a procedural court order, and these may
be challenged through an appeal for reversal.

2. In order to certify the judicial decisions which approve or ratify

transactions as European executive entitlements of judicial decisions, the
foregoing paragraph shall be applied, and shall be put into effect in the
manner stipulated in Annex II of Regulations (EC) No. 805/2004.

3. The authorising notary, or the person who legally substitutes the notary
or succeeds him as regards his registry, is responsible for the issue of the
certificate stipulated in Article 25.1 and in Annex III of Regulation (EC) No.
805/2004. A record shall be made of this despatch through a note in the
original or in the policy, and the original shall be filed and a copy circulated.

The notary whose protocol contains the certified European executive

entitlement shall be responsible for issuing the certificate concerning its

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rectification due to material errors and the revocation stipulated in article

10.1 of Regulation (EC) No. 805/2004, as well as what is derived from the
lack or limitation of executive power, as established in article 6.2 and in
Annex IV of the same regulations.

The enforcement deriving from a judicial decision is excepted, when its

certification depends on paragraph 1 of this additional provision.

In any case, the rectification, revocation lack or limitation of enforcement must

be recorded in the original or in the policy.

The refusal of the notary to issue the certificates required my be challenged

by the person concerned or before the Department of Registries and Notary
Offices through appeals of complaint stipulated in notary legislation. An
appeal, in a single instance, may be lodged against the decision of this
non-directive organism before the first instance judge of the capital city of
the province where the notary has his address, and this shall be resolved
through oral proceedings.

4. The certification referred to in Annex V of Regulation (EC) No. 805/2004

shall be issued by the administrative or jurisdictional organism which
issued the decision.

5. The territorial competence for the enforcement of resolutions, judicial

transactions and certified public documents such as European executive
entitlements shall correspond to the Court of First Instance of the address
of the defendant or the place of enforcement.

6. The Government shall adopt the rules required for the implementation
of this additional provision.

Twenty-second. Measures to facilitate the application in Spain of (EC)

Council Regulation No 2201/2003, of 27 November 2003, concerning
jurisdiction and the recognition and enforcement of judgments in
matrimonial matters and the matters of parental responsibility.502

1. Judicial certification concerning judicial decisions regarding matrimonial

matters and parental responsibility, provided for in article 39 of (EC)
Regulation No. 2201/2003, shall be issued by the Clerk of the Court
separately and through a legal measure, by filling in the corresponding
form included in Annexes I and II of that regulation.

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Amended by final provision 3.19 of Law 15/2015 of 2 July.

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2. Judicial certification concerning judicial decisions on visiting rights,

provided for in paragraph 1 of article 41 of (EC) Regulation No. 2201/2003,
shall be issued separately by the Judge through a procedural court order,
by filling in the form included in Annex III of that regulation.

3. Judicial certification concerning judicial decisions on the reinstatement

of minors, provided for in paragraph 1 of article 42 of (EC) Regulation No.
2201/2003, shall be issued separately by the Judge through a procedural
court order, by filling in the form included in Annex IV of that regulation.

4. The procedure for the rectification of errors in the judicial certification,

provided for in article 43.1 of (EC) Regulation No. 2001/2003, shall be
resolved in the manner established in the first three paragraphs of article
267 of Organic Law 6/1985, of 1 July, on the Judiciary. No appeal shall be
possible against the resolution on the clarification or rectification of the
judicial certification referred to in the previous two paragraphs.

5. Refusal to issue the certification referred to in paragraphs 1, 2 and 3 of

this article will be adopted separately, by decree in the case of paragraph
1 and by order in the case of paragraphs 2 and 3, which may be challenged
by a direct appeal for judicial review in the case of paragraph 1 and by
appeal for reversal procedures in the case of paragraphs 2 and 3.

6. The transfer referred to in article 11.6 of (EC) Regulation No 2201/2003

will include a copy of the judicial decision not to reinstate in accordance
with article 13 of The Hague Convention of 25 October 1980, and a copy
of the original recording of the hearing on media that is suitable for
recording and reproducing sound and vision, in addition to such documents
as the court deems fit to attach in each case as proving compliance with
the demands of articles 10 and 11 of the Regulation.

7. The claim referred to in article 11.7 of (EC) Regulation No 2201/2003,

will be substantiated in accordance with the procedure provided for in the
current Civil Procedure Act for proceedings which exclusively deal with the
guardianship and custody of minor children, although court jurisdiction to
hear this will be decided in accordance with the provisions for the
proceedings regulating measures concerning the reinstatement of minors
in cases of international abduction.

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Twenty-third. Measures to facilitate the application of Regulation (EC)

No. 1896/2006 of the European Parliament and of the Council of 12
December 2006 creating a European order for payment procedure503.

1. The Court of First Instance shall hold sole and exclusive jurisdiction to
deal with the European order for payment procedure, as governed by
Regulation (EC) No. 1896/2006 of the European Parliament and of the
Council of 12 December 2006.

Territorial jurisdiction shall be determined in accordance with the provisions

set forth in Regulation (EC) No. 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters and, for matters not contemplated therein, in
accordance with Spanish procedural legislation.

2. The claim for a European order for payment shall be filed through standard
form A which appears in Annex I of Regulation (EC) No. 1896/2006, without
the need for attaching any documents, which shall not be admitted, should
they exist.

3. Once a claim for a European order for payment has been brought, the
court clerk may, by means of a procedural order, request the claimant to
complete or rectify his claim in the manner laid down in standard form B of
Annex II of Regulation (EC) No. 1896/2006, except where the claim is
clearly groundless or inadmissible in accordance with Article 9 of said
Regulation, in which case the judge shall issue a ruling by means of a
court order.

4. Should the requirements stipulated in Articles 2, 3, 4, 6 and 7 of

Regulation (EC) No. 1896/2006 be met for only a part of the claim, the
court clerk shall notify the judge thereof, who shall send an order to the
claimant asking him or her to accept or reject a European order for payment
of a specified amount, as stipulated in standard form C of Annex III and in
Article 10 of the aforementioned Regulation.

The claimant shall be informed in the proposal that if he fails to reply or

rejects it, the claim for a European order for payment shall be fully
dismissed, without prejudice to the possibility of bringing a claim for the
debt through the appropriate proceedings in accordance with national or
EU procedural rules.

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The claimant shall respond by returning the standard form C sent to him
within the specified time limit. Should the proposal for a European order for
partial payment be accepted, a claim for the remaining initial amount owed
may be conducted through the corresponding proceedings in accordance
with national or EU procedural rules.

5. The dismissal of a claim for a European order for payment shall be

adopted by means of an order in accordance with Article 11. The claimant
shall furthermore be informed of the reasons for the dismissal in the
manner stipulated in standard form D of Annex IV of Regulation (EC) No.
1896/2006. No appeal may be lodged against such order.

6. The decision to issue a European order for payment shall be adopted

by means of a procedural order within the maximum time limit of thirty
days from the date the claim is filed and as stipulated in standard form E
of Annex V of Regulation (EC) No. 1896/2006, pursuant to the provisions
set forth in Article 12 of the aforementioned Regulation.

The thirty-day time limit shall not include the time spent by the claimant to
complete, rectify or amend the claim.

7. Pursuant to Article 16 of Regulation (EC) No. 1896/2006, the defendant

may use the standard form F of Annex VI of the Regulation to file a
statement of opposition to the claim within the time limit of thirty days from
the date notice of the order is served.

The defendant shall be informed in the notice of the order that the
calculation of time limits shall be governed by Regulation 1182/71 of the
Council of 3 June 1971 determining the rules applicable to periods, dates
and time limits, holidays included.

8. Should a statement of opposition to the claim be filed within the time

limit set forth above, the court clerk shall give notice to the claimant that he
must continue the matter at issue through the corresponding proceedings
as stipulated in the Spanish procedural rules in the appropriate Court of
First Instance, Commercial Court or Social Affairs Court, unless the
claimant has expressly requested the termination of the procedure, in
which case the procedure would come to an end.

In the event that a statement of opposition is not filed or the debt is not
paid in due time, the court clerk shall bring the proceedings to an end by
declaring the European order for payment enforceable by means of a
procedural order and in the manner stipulated in standard form G of Annex

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VII of Regulation (EC) No. 1896/2006 pursuant to the provisions set forth
in Article 18 of the aforementioned Regulation.

The European order for payment shall be served on the defendant and
duly certified by the court clerk, either on the original or on a copy thereof,
recording such circumstance.

9. The jurisdiction to review a European order for payment shall be held by the
jurisdictional body which has issued it. The procedure to review a European
order for payment due to the causes stipulated in Article 20.1 of Regulation
(EC) No. 1896/2006 shall be conducted and resolved according to the
rescission of definitive judgments at the request of litigants who have failed to
appear in court, as stipulated in Article 501 and related articles herein.

The review set forth in Article 20.2 of Regulation (EC) No. 1896/2006 shall
be conducted by means of the application for dismissal of judicial actions set
forth in Article 241 of Organic Act 6/1985 of 1 July on the Judiciary Branch.

10. Any notices served by the court for European small claims procedures
and European orders for payment shall be performed in keeping with the
provisions herein, provided they involve the means of communication
stipulated in Regulation (EC) No. 1896/2006, namely by computerised or
electronic means and, in their absence, by any other means which also
allow a record of service of notice on the defendant to be kept.

11. Any procedural matters not stipulated in Regulation (EC) No. 1896/2006
on the sending of a European order for payment shall be governed by the
provisions contained herein for the small claims procedure.

12. The originals of the standard forms contained in the annexes of

Regulation (EC) No. 1896/2006 shall form part of the proceedings for both
cases in which Spain is the state issuing the European order for payment, as
well as for cases in which Spain is state where it is enforced. The necessary
certified copies shall be issued for the appropriate purposes.

13. The jurisdiction to enforce a European order for payment in Spain

which has become enforceable shall lie with the Court of First Instance of
the defendant’s place of residence.

The court shall also be responsible for dismissing enforcement of European

orders for payment at the defendant’s request, and for limiting the scope of
enforcement, as well as posting guarantees and stays of the enforcement

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procedure as stipulated in Articles 22 and 23 of Regulation (EC) No.

1896/2006.

14. Without prejudice to the rules in Regulation (EC) No. 1896/2006, the
enforcement in Spain of European orders of payment issued by other
Member States shall be governed by the provisions set forth herein.

The processing of a refusal to enforce European orders for payment, as

well as the limitation of enforcement, stays and the posting of guarantees
shall be carried out in accordance with the provisions set forth in Articles
556 and the following herein, and shall be decided in proceedings that are
not subject to appeal.

15. Where a European order for payment has to be enforced in Spain, the
claimant shall submit to the court an official translation of the order into
Spanish or into the official language of the Autonomous Region in whose
territory the judicial actions are taking place, which shall be certified as
stipulated in Article 21 of Regulation (EC) No. 1896/2006.

Twenty-Fourth. Measures to facilitate the application in Spain of

Regulation (EC) No. 861/2007 of the European Parliament and of the
Council of 11 July 2007 establishing a European Small Claims Procedure.504

1. The Court of First Instance or the Commercial Court shall solely and
exclusively hold jurisdiction to deal with the European small claims
procedure in the first instance, as governed by Regulation (EC) No.
861/2007 of the European Parliament and of the Council of 11 July 2007.

Territorial jurisdiction shall be determined in accordance with the provisions

set forth in Regulation (EC) No. 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters and, for matters not contemplated therein, in
accordance with Spanish procedural legislation.

2. The European small claims procedure shall be brought and conducted

in the manner stipulated in Regulation (EC) No. 861/2007 and in keeping
with the standard forms contained in its annexes.

Any procedural matters not stipulated in Regulation (EC) No. 861/2007

shall be governed by the provisions for oral trials contained herein.

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Added by Article 1.8 of Act 4/2011 of 24 March.

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The calculation of time limits shall be governed by Regulation 1182/71 of

the Council of 3 June 1971 determining the rules applicable to periods,
dates and time limits, without excluding holidays.

3. The questions referred to in paragraphs 3 and 4, Article 4 of Regulation

(EC) No. 861/2007 shall be decided upon through a procedural order of
the court clerk, except where they involve the dismissal of the claim, in
which case the judge shall rule on them through a court order. In both
cases, the claimant shall have ten days in which to state whatever he may
deem appropriate regarding said article.

4. Should the defendant allege the procedure’s inappropriateness due to

the non-monetary claim exceeding the value set forth in Article 2(1) of
Regulation (EC) No. 861/2007, the judge shall have thirty days, counted
from the date on which notice is served to the claimant so he can make his
pleas, in which to decide whether the claim should be conducted through
this procedure or must be transformed into the appropriate procedure in
accordance with Spanish procedural rules. No appeals may be lodged
against such order, without prejudice to adducing these pleas in the appeal
against the judgment issued in another procedure.

If a counterclaim is filed by the defendant and it exceeds the limit set forth
in Article 2(1) of Regulation No. 861/2007, the judge shall decide by means
of an order whether the matter should be conducted through the
corresponding proceedings in accordance with Spanish procedural rules.

5. Any notices served by the court arising from the processing of a

European small claims procedure shall be performed in keeping with the
provisions herein, providing they involve the means of communication
stipulated in Regulation (EC) No. 861/2007, namely by computerised or
electronic means and, in their absence, by any other means which also
allow a record of service of notice on the defendant to be kept.

6. Appeals may be lodged in accordance with this Act against any judgment
which brings the European small claims procedure to an end.

7. The jurisdiction to enforce a judgment in Spain issued in another

Member State of the European Union which brings a European small
claims procedure to an end shall lie with the Court of First Instance of the
defendant’s place of residence.

The court shall also be responsible for refusing to enforce the judgment
upon the defendant’s application, as well as limiting the scope of enforcement,

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the posting of guarantees and stays of the enforcement procedure as

stipulated in Articles 22 and 23 of Regulation (EC) No. 861/2007.

8. The enforcement procedures in Spain of judgments issued in other Member

States of the European Union which bring a European small claims procedure
to an end shall be governed by the provisions contained herein.

The processing of a refusal to enforce judgments, as well as the limitation of

enforcement, stays or the posting of guarantees shall be carried out in
accordance with the stipulations in Articles 556 and the following herein, which
shall under no circumstances may be subject to review with regard to the
grounds, and shall be resolved through a court order not subject to appeal.

9. Where a judgment issued by another Member State of the European

Union which brings a European small claims procedure to an end has to
enforced in Spain, the claimant shall file before the competent court an
official translation of a certification of the judgment into Spanish or into the
official language of the Autonomous Region in whose territory the judicial
actions are taking place, which shall be certified in accordance with
paragraph 2, Article 21 of Regulation (EC) No. 861/2007.

10. The originals of the standard forms contained in the Annexes of

Regulation (EC) No. 861/2007 shall be included in the records in the cases
in which a Spanish court rules on the small claim proceedings and in the
cases in which Spain is the State that enforces them. The necessary
certified copies shall be issued for the appropriate purposes.

Twenty-Fifth Final Provision. Measures to facilitate the application in

Spain of (EU) Council and Parliament Regulation No 1215/2012, of 12
December 2012, concerning jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters.505

1. Rules on recognition of decisions of a European Union member State

under (EU) Regulation No 1215/2012.
(i) Judgment included with the scope of application of (EU) Regulation
No 1215/2012 and passed by a European Union member State will be
recognised in Spain without the need for recourse to any procedure.
(ii) If refusal of recognition is invoked as an incidental matter before a
judicial body, such body will have jurisdiction to hear it, following the
procedure provided for in articles 388 et seq of this act, with the

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Amended by final provision 2 of Law 29/2015 of 30 July.

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effectiveness of such recognition being limited to the decision in the

main proceedings giving rise to it, without this preventing recognition
of the judgment being decided on as the main matter in separate
proceedings.
(iii) A party wishing to invoke a judgment in Spain passed in another
member State must submit the documents provided for in article 37 of
(EU) Regulation No 1215/2012, and the judicial body or authority
before which it is invoked may request the translations or transcriptions
provided for in paragraph 2 of that article.
(iv) The judicial body or authority before which a judgment passed in
another member State is invoked may stay the proceedings on the
grounds provided for in article 38 of (EU) Regulation No 1215/2012.
(v) At the request of any interested party recognition of the judgment
will be refused on any of the grounds in article 45 of (EU) Regulation
No 1215/2012 and in accordance with the procedure provided for in
paragraph 4 of this final provision. The relevant Court of First Instance
will have jurisdiction in accordance with articles 50 and 51 of this act.
(vi) The procedure provided for in paragraph 4 of this provision must
also be followed where the applicant requests a declaration that the
foreign judgment does not incur in the grounds for refusal of recognition
contained in article 45 of the Regulation. The relevant Court of First
Instance will have jurisdiction in accordance with articles 50 and 51 of
this act.

2. Rules on execution of enforceable judgments of a European Union

member State under (EU) Regulation No 1215/2012.
(i) Judgments passed in a Member State which are enforceable within
it will also have that status in Spain without the need for a declaration
of enforceability and will be enforced under the same terms as if they
had been passed in Spain, in accordance with the provisions of articles
39 to 44 of (EU) Regulation No 1215/2012 and this provision.
Nevertheless, and without prejudice to the provisions of the second
paragraph of article 2.a), of (EU) Regulation No 1215/2012, if it is a
judgment ordering a provisional or precautionary measure, it will only
be enforce in Spain if the court passing the judgment has certified that
it has jurisdiction as to the substance of the matter.
(ii) For the purposes of enforcing an enforceable judgment, the
applicant will provide the documents provided for in article 42.1 of (EU)
Regulation No 1215/2012 or those provided for in article 42.2 of the

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same Regulation if dealing with a judgment which orders a provisional

or precautionary measure, along with the translation of the certificate
provided for in article 42.3 of such Regulation, if requested by the
competent judicial body. A translation of the judgment may only be
required from the applicant if the proceedings cannot continue without
it.
(iii) Enforcement of enforceable judgments in a Member State will be
carried out in Spain, in all cases, in accordance with the provisions of
this act.
(iv) All enforceable judgments in a Member State will have the power
to apply the precautionary measures provided for in this act, in
accordance with the proceedings provided for in it.

3. No proof of notification of the certificate and translation of the foreign

judgment.
(i) For the purposes of applying article 43.1 of (EU) Regulation No
1215/2012, prior to the first enforcement, where the enforcer cannot
prove that the certificate provided for in article 53 and the foreign
judgment have been notified to the person against whom the
enforcement is sought, one or the other or, as appropriate, both must
be notified to the latter along with the order dispatching the enforcement.
(ii) For the purposes of applying 43.2 of (EU) Regulation No 1215/2012,
the person against whom enforcement is sought will have a period of
five days from notification of the dispatch of the enforcement to request
translation of the foreign judgment, if they have not been previously
notified or if a translation of such judgment was not attached to the
enforcement order.
(iii) Until such translation is delivered the period provided for in article
556.1 of this act will be stayed, as will the time limit for the response
provided for in the following paragraph, so that enforcement may be
challenged. The judge will dismiss the enforcement if, within a time
limit of one month, the person seeking enforcement does not provide
such a translation.
(iv) This section will not apply to enforcement of precautionary
measures in a judgment or where a person seeking enforcement
requests precautionary measures in accordance with paragraph 2,
rule (iv) of this provision.

4. Rules on refusal to enforce judgments of a European Union member

State under (EU) Regulation No 1215/2012.

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Without prejudice to the grounds for challenging enforcement provided for

in this act, at the request of the person against whom it is sought,
enforcement of an enforceable judgment will be refused where one or
several of the reasons for refusal of recognition included in article 45 of
(EU) Regulation No 1215/2012 occur, via an oral hearing, with the following
particulars:
(i) The Court of First Instance hearing the enforcement will have
jurisdiction.
(ii) The claim must be lodged in accordance with the provisions of
article 437 of this act, as appropriate, within a period of ten days from
the date the defendant was notified of the dispatch of the enforcement,
accompanied by the documents referred to in article 47.3 of (EU)
Regulation No 1215/2012 and any other justifying their claim and, as
appropriate, will contain a proposal for the means of evidence that the
claimant is interested in being taken.
(iii) The claimant may apply for the measures provided for in article
44.1 of (EU) Regulation No 1215/2012. Also at the request of the
claimant, in the case of article 44.2 of that Regulation, suspend the
proceedings without further delay.
(iv) The Clerk of the Court will send the claim to the defendant so that
they may respond within a time limit of 10 days. The response, with
documents justifying the challenge attached, must propose all the
means of proof which they will avail of. This writ, and the documents
attached to it, will be sent to the claimant.
(v) Once the claim has been responded to or the relevant time limit has
ended, the Clerk of the Court will summon the parties to the hearing, if
they request this in their writs of claim and response. If, in their writs,
they did not request a hearing to be held, or where the sole proposed
evidence is documentary and these have already been provided in the
proceedings without being contested, or ratification is not necessary in
the case of expert reports, the judge will pass an order, without further
proceedings.
(vi) An appeal may be lodged against such an order. An extraordinary
appeal due to breach of procedure and an appeal for judicial review,
as appropriate, may be lodged against the judgment passed in the
second instance under the terms provided for in this act. The judicial
body hearing either of these appeals may stay proceedings if an
ordinary appeal is lodged against the judgment in the Member State of
origin or if the time limit for lodging it has not yet expired, in accordance
with article 51 of (EU) Regulation No 1215/2012. For these purposes,

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where the judgment was passed in Ireland, Cyprus or the United

Kingdom, any appeal available in any of these Member States of origin
will be considered to be an ordinary appeal.

5. Issue of the certificate.

(i) For the purposes of application of article 53 of (EU) Regulation No
1215/2012, issue of the certificate provided for in that precept may be
applied for by an addition to the claim requesting its issue at the same
time as the judgment. In all cases, the issue will be made separately
and by procedural court order, using the form referred to in that article.
Where court settlements are concerned, the certificate will be issued in
the same way, for the purposes of article 60 of (EU) Regulation No
1215/2012, using the form provided for it.
(ii) In the case of enforceable public documents, the form referred to in
article 60 of (EU) Regulation No 1215/2012 will be issued by the
attesting notary, or whoever legally replaces or succeeds them on their
document register. Such issue will be recorded in a marginal note on
the original or policy into which a certified copy will be included with the
original certificate being the document in circulation.

6. Adaptation.

For the purposes of application of article 54 of (EU) Regulation No

1215/2012, the authority passing judgment on the recognition or
enforcement of a foreign judgment will adapt it under the terms provided
for in that article. Appeals provided for under procedural legislation may be
lodged against the decision on the adaptation of the foreign measure or
order depending on the type of judgment and proceedings in question.

7. Enforceability of public documents.

(i) Public documents which are enforceable in the Member State of
origin will have the same force in Spain with the need for a declaration
of enforceability. Their enforcement may only be refused in the case
that they are manifestly contrary to public interest. The public document
submitted must meet the requirements needed for it to be considered
authentic in the Member State of origin.
(ii) The person against whom enforcement is sought may apply for the
enforcement to be refused in accordance with the procedure provided
for in paragraph 4 of this provision.

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(iii) Enforcement of public documents issued in a Member State will be

carried out in Spain, in all cases, in accordance with the provisions of
this act in application of the rules of this provision.

8. Enforceability of court settlements.

Court settlements which are enforceable in the Member State of origin will
be enforced in Spain under the same terms provided for public document
in the previous section.

Twenty-Sixth Final Provision. Measures to facilitate the application in

Spain of (EU) Regulation No 650/2012 of the European Parliament and
Council, of 4 July 2012, relating to jurisdiction, applicable law and
recognition and enforcement of decisions and acceptance and enforcement
of public documents in matters of succession mortis causa and the creation
of a European Certificate of Succession.506

1. Rules on enforcement and recognition of decisions of a European Union

Member State under (EU) Regulation No 650/2012.
(i) Any interested party may request the enforceability in Spain of a
decision included within the scope of application of (EU) Regulation
No 650/2012 and passed in a European Union Member State which is
enforceable in that State, in accordance with the procedure provided
for in paragraphs 2 to 7 of this provision.
(ii) Decisions passed in a European Union Member States will be
recognised in Spain without the need to resort to any proceedings.
Nevertheless, if there is a challenge, any interested party seeking
recognition as principal in a decision of this type may apply, by the
same proceedings provided for in section 1, that the decision be
recognised
(ii) If refusal of recognition is sought as an incidental matter before a
judicial body, such body will have jurisdiction to hear it, following the
procedure provided for in articles 388 et seq of this act, with the
effectiveness of such recognition being limited to the decision in the
main proceedings giving rise to it, without this preventing recognition
of the judgment being decided on as the main matter in separate
proceedings.

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Added by final provision 2 of Law 29/2015 of 30 July.

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At any event, the judicial body before which recognition is applied for
may stay proceedings if such decision is the subject of an ordinary
appeal in the Member State of origin.

2. Jurisdiction.

Jurisdiction to hear the enforcement proceedings will correspond to the

Courts of First Instance of the domicile of the party before whom recognition
or enforcement is requested, or the place of enforcement where the
decision must have effect.

3. Free legal aid.

(i) Free legal aid in this procedure will be in line with the general rules
applicable in Spain.
(ii) Without prejudice to the provisions of the preceding paragraph,
applicants who have obtained the benefit of free legal aid, in whole or
in part, or an exemption from costs and expenses in the Member State
of origin, will benefit, in these proceedings, from the most favourable
legal aid or the widest possible exemption in accordance with the
general rules applicable in Spain.

4. Procedure for declaring a decision enforceable.

(i) Application for a declaration of enforceability will be submitted by a
claim which will be in line with the requirements of article 437 of this
act and must have the following documents attached:
a) A true copy of the decision.
b) The attestation provided for in article 46.3.b) of (EU) Regulation
No 650/2012.
(ii) If the attestation provided for in the preceding paragraph is not
submitted, the judicial body may set a time limit for its submission,
accept an equivalent document or dispense with them if it considers
that it has sufficient information available.
The judicial body may also request a translation of the documents
carried out by a person qualified to do translations in one of the
Member States.
(iii) The applicant is not under the obligation to have a postal address
in Spain or to be represented by a procurator or assisted by a lawyer.

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(iv) The applicant may request the adoption of provisional or

precautionary measures in accordance with the provisions of this act.
The declaration of enforceability will include authorisation to take any
precautionary measures.
(v) Once the formalities provided for in rules (i) and (ii) have been
fulfilled, the judge will immediately pass an order declaring the
enforceability of the judgment, without it being sent to the party against
whom the declaration is applied for and without examining the grounds
for non-recognition provided for in article 40 of (EU) Regulation No
650/2012.
If the decision subject to the declaration contains various claims and
cannot be declared enforceable for all of them, the order will declare
enforceability for those which are appropriate.
(vi) Notification to the party against whom the declaration was applied
for will have the documents referred to in rules (i) and (ii) of this
paragraph attached.

5. Appeals against the decision on the application for the declaration of

enforceability.
(i) The decision on the application for the declaration of enforceability
may be appealed by any of the parties within a period of thirty calendar
days. If the party against whom the declaration was applied for lives
outside Spain, they will have a period of sixty calendar days to lodge
the appeal. This time limit may not be extended on the grounds of the
distance to Spain from their residence.
The Provincial Courts will have jurisdiction to hear the appeal.
(ii) During the period of appeal against the declaration of enforceability,
and until this is decided upon, only precautionary measures may be
taken over the assets of the party against who the enforcement was
applied for.
(iii) An extraordinary appeal due to breach of procedure and an appeal
for judicial review, as appropriate, may be lodged against the judgment
passed in the second instance under the terms provided for in this act.

6. Procedure for appeals against the decision on the application for the
declaration of enforceability.

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The appeal provided for in rule (i) of the preceding paragraph will be held
through appeal channels, including the rules on procedural representation
and technical defence, with the following particulars:
a) Without prejudice to the allegation of breach of procedural rules and
guarantees in the first instance, the appeal may only be based on one
or some of the grounds provided for in article 40 of (EU) Regulation No
650/2012. The appellant will attach the documents which they deem
necessary to justify their claim to the writ of appeal and, as appropriate,
it will contain the proposal for the evidence to be heard in their interest.
b) The Clerk of the Court will send the writ of appeal and the documents
attached to it to the other parties, summoning them, within twenty
calendar days, to submit writs of challenge or objection to which such
documents will be attached as they deem fir and, if appropriate will
contain the proposal for the evidence to be heard in their interest.
c) In the event that the party against whom the declaration of
enforceability is applied for does not appear, if they habitually reside
outside Spain, the provisions of article 16 of (EU) Regulation No
650/2012 will apply.

7. Stay of appeals.

The court at which any of the appeals provided for in paragraph 5 are
lodged will stay proceedings, at the request of the party against whom the
declaration of enforceability is applied for, if such enforceability has been
stayed in the Member State of origin as an appeal has been lodged.

8. Enforceability of public documents.

Public documents which are enforceable in the Member State of origin will,
at the request of any of the interested parties, be declared as enforceable
in Spain in accordance with the procedure regulated in paragraphs 2 to 7
of this final provision, and the certificate provided for in paragraph 4.(i).b)
must be submitted in accordance with the provisions of article 60.2 of (EU)
Regulation No 650/2012.

The court at which any of the appeals provided for in paragraph 16 of this
provision are lodged will solely dismiss or revoke the declaration of enforceability
of a public document where it is manifestly contrary to public policy.

9. Enforceability of court settlements.

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Court settlements which are enforceable in the Member State of origin will,
at the request of any of the interested parties, be declared as enforceable
in Spain in accordance with the procedure regulated in paragraphs 2 to 7
of this final provision, and the certificate provided for in paragraph 4.(i). b)
must be submitted in accordance with the provisions of article 61.2 of (EU)
Regulation No 650/2012.

The court at which any of the appeals provided for in paragraph 5 of this
provision are lodged will solely dismiss or revoke the declaration of enforceability
of a court settlement where it is manifestly contrary to public policy.

10. Issue of the attestation of a decision, public document or court settlement

for the purposes of their enforceability in another Member State.
(i) For the purposes of applying article 46.3 of the Regulation, issue of
the attestation provided for in that Regulation will be the responsibility
of the judicial body which passed the decision and will be done
separately by a procedural court order using the form provided for in
that article.
The same will be done, for the purposes of applying article 61 of the
Regulation, when dealing with a court settlement, using the form
provided for in that article to issue the attestation.
(ii) In the case of public documents, the attestation referred to in article
60 of the Regulation will be issued by the attesting notary, or whoever
legally replaces or succeeds them on their document register, using
the form provided for in that article. Such issue will be recorded in a
marginal note on the original into which a certified copy will be included
with the original certificate being the document in circulation. If it is not
possible to include it with the original, a record will be made, by a note,
of the later act that it should be incorporated into.

11. Issue of the European Certificate of Succession by the judicial body.

(i) The issue of the European certificate of succession by a judicial
body will be made separately and by a procedural court order, in the
form provided for in article 67 of (EU) Regulation No 650/2012, upon
application which may be submitted using the form provided for in
article 65.2 of that Regulation.
(ii) The same court substantiating, or that has substantiated, the
succession will have jurisdiction to issue a European certificate of
succession judicially. A certified copy of the certificate will be issued
and given to the applicant.

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(iii) Any person who has the right to apply for a certificate may appeal
the decisions passed by the relevant judicial body.

12. Rectification, modification or withdrawal of the European certificate of

succession issued by a judicial body.
(i) The procedure for rectification of a European certificate of
succession, as provided for in article 71.1 of (EU) Regulation No
650/2012 shall be decided in the form provided for in paragraphs 1 to
4 of article 267 of the Judiciary Act 6/1985, of 1 July.
(ii) The procedure for modification or withdrawal of the issue of a
European certificate of succession as referred to in article 71.1 of (EU)
Regulation No 650/2012 will be processed and decided on, in sole
instance, in accordance with the provisions for an appeal for reversal
regulated in this act.
(iii) In all cases, in accordance with article 71.3 of (EU) Regulation No
650/2012, the court will notify, without delay, any rectification,
modification or withdrawal of the certificate to all the persons who
received certified copies of the certificate by virtue of article 70.1 of
that Regulation.

13. Refusal by a judicial body to issue the European certificate of

succession.

The refusal to issue a European certificate of succession shall be adopted

separately through an order and this may be challenged, in sole instance,
via the procedures for an appeal for reversal.

14. Issue of the European Certificate of Succession by a notary.

(i) On application, the notary who declared succession or any of its
elements, or whoever legally replaces or succeeds them on their
document register, has jurisdiction to issue the certificate provided for
in article 62 of (EU) Regulation No 650/2012 and for this purpose must
use the form referred to in article 67 of that Regulation. The application
for the issue of a certificate of succession may be submitted using the
form provided for in article 65.2 of that Regulation.
(ii) Such issue of a European certificate of succession, which will
considered to be a public document in accordance with article 17 of
the Notaries Act of 28 May 1862, will be recorded with a note on the
original of the deed substantiating the act or transaction into which the

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original certificate is incorporated, with a certified copy being given to

the applicant.
If it is not possible to include it with the original, a record will be made,
by a note, of the later act that the original certificate should be
incorporated into.

15. Rectification, modification or withdrawal of the European certificate of

succession issued by a notary.

(i) In the event that a material error is observed, rectification, modification

or withdrawal of the European certificate of succession provided for in
article 71.1 of (EU) Regulation No 650/2012 will be the responsibility of the
notary on whose document register it is to be found.

(ii) In all cases, in accordance with article 71.3 of (EU) Regulation No

650/2012, the notary will notify, without delay, any rectification, modification
or withdrawal of the certificate to all the persons who received certified
copies of the certificate by virtue of article 70.1 of that Regulation.

16. Appeal.
(i) Decisions passed by a notary in relation to a European certificate of
succession may be appealed by whoever has legitimate interest in
accordance with articles 63.1 and 65 of (EU) Regulation No 650/2012.
(ii) Refusal by a notary to rectify, modify, withdraw or issue a European
certificate of succession may be appealed by whoever has legitimate
interest in accordance with articles 71 and 73 paragraph 1, letter a) of
(EU) Regulation No 650/2012.
(iii) The appeal, in sole instance, against the decisions referred to in
rules (i) and (ii) of this paragraph may be lodged directly with the judge
of First Instance in the notary’s official place of residence and will
follow the procedures for verbal hearings.

17. Effects of the appeal.

(i) If, as a result of the appeal provided for in the preceding paragraph,
it is proven that the European certificate of succession does not reflect
the facts, the relevant judicial body will order the issuing notary to
rectify, modify or withdraw it according to the judicial decision passed.
(ii) If, as a result of the appeal, it is proven that the refusal to issue the
European certificate of succession was unjustified, the relevant judicial
body will issue the certificate or ensure that the issuing notary examines

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the case once again and makes a decision in accordance with the
judicial decision passed.
(iii) In all cases, a note of the rectification, modification or withdrawal
carried out must be recorded on the original of the deed substantiating
the act or transaction and on the deed recording the issue of the
European certificate of succession, as must the appeal lodged and the
judicial decision passed on it.

Twenty-seventh Final Provision. Standard forms or procedural

instruments governed by European Union rules.507

The Public Administrations holding responsibility for the provision of the

material resources placed at the service of the Justice Administration shall
make the standard procedural forms contained in European Union rules
available to jurisdictional bodies and the general public.

Twenty-Eighth Final Provision. 508

Without content

Twenty-Ninth Final Provision. Entry into force.509

This Act shall enter into force in the year of its publication in the “Official
State Gazette” (Boletín Oficial del Estado).

507
Renumbered by final provision 2 of Law 29/2015 of 30 July.
Its previous number was final provision 25.
508
Renumbered by final provision 2 of Law 29/2015 of 30 July.
Its previous number was final provision 26.
509
Renumbered by final provision 2 of Law 29/2015 of 30 July.
Its previous number was final provision 27.

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 § 2 Royal Decree of 3 february 1881, enacting the civil procedure act

§ 2 ROYAL DECREE OF 3 FEBRUARY 1881, ENACTING

THE CIVIL PROCEDURE ACT
(Gazettes Nos 36 to 53, from 5 to 22 February 1881; correction of errors in Gazettes Nos 53
and 64, of 23 February and 5 March)

CIVIL PROCEDURE ACT [1]

BOOK I
PROVISIONS COMMON TO CONTENTIOUS AND NON-
CONTENTIOUS PROCEEDINGS

TITLE I
ON APPEARANCE IN COURT

.....................................................................................................................
..................................

Section 1 - Litigants and Legal Representatives

.....................................................................................................................
...............................................................

Article 4.

The provisions of the previous article notwithstanding, interested parties

may represent themselves, but they may not use anyone other than a
qualified court representative in towns where there are such:

1. In conciliation proceedings

.....................................................................................................................
................................................................

5. In non-contentious proceedings.

.....................................................................................................................
................................................................

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Article 10.

Litigants shall be directed by an attorney who is legally qualified to practise

in the Court that hears the case. No applications may be filed without the
attorney’s signature.

With the sole exception of the following:

1. Conciliation proceedings.

.....................................................................................................................
................................................................

3. Non-contentious proceedings for a particular amount not exceeding

400,000 pesetas, as well as those which seek the adoption of urgent
measures or measures that must be commenced within a peremptory term
[2]

.....................................................................................................................
..............................................

Article 11.

Both court representatives and attorneys may, either as representatives or

assistants of the interested parties, attend conciliation proceedings and
the hearings referred to as exceptions under number 2 of the second
paragraph of the previous article, when the parties spontaneously wish
them to[3].

In these cases, as in all those in which their participation is not mandatory,

if there is an order to pay costs in favour of an individual who has used a
court representative or attorney, the fees of neither the former nor the
latter shall be included, unless the usual residence of the party being
represented and defended is different from the place in which the hearing
is conducted [4].

.....................................................................................................................
................................................................

Article 63.

To determine jurisdiction in cases other than those expressly stated in the

preceding articles, the following rules shall be followed:

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 § 2 Royal Decree of 3 february 1881, enacting the civil procedure act

.....................................................................................................................
................................................................

16. In court procedures on fostering or adoption, or in those related to

functions of protection entrusted to the relevant public bodies, the
Judge in the place where the public entity has its domicile shall have
jurisdiction and, failing that, the Judge in the place where the adopter
resides. In the court procedures referred to in articles 179 and 180 of
the Civil Code, the Judge in the place where the adopter resides shall
have jurisdiction [5].

17. For the appointment and awarding of guardianships, trusteeships of

property and exemptions from these responsibilities, jurisdiction shall be
that of the Judge in the place of residence of the father or mother whose
death occasioned the appointment, and, failing that, the Judge in the place
of residence of the minor or individual with disabilities, or the Judge in any
place where they have property [6].

18. In appointing and awarding guardianships, jurisdiction over lawsuits

shall be that of the Judge in the place of residence of the minors or
incapacitated persons, or of the Judge in the place where they may need
to appear in court.

19. In proceedings in which actions are brought relating to the handling of

the guardianship, in exemptions from these responsibilities after their
exercise has commenced, and in proceedings to remove guardians that
are considered suspect, jurisdiction shall be that of the Judge in the place
where the guardianship was administered initially or the Judge in the
minor’s place of residence.

.....................................................................................................................
................................................................

22. In procedures to convert wills, codicils or memoranda executed

verbally, as well as documents that have not been witnessed by a
notary public, into public deeds, and in those which have to be carried
out to open closed wills and codicils, the Judge in the place where the
respective documents were executed shall have jurisdiction [7].

23. In authorisations to sell the property of minors or incapacitated persons,

the Judge in the place where the property is located, or in the place of
residence of the property owner, shall have jurisdiction [8].

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24. In the procedures pursuant to the Book I, Title VIII of the Civil Code, on
absence, jurisdiction shall be that of the Judge in the last place in Spanish
territory in which the absentee resided for one year, and failing that, the
Judge in the place where the absentee last resided [9].

25. In inquiries for legal exemptions and in authorisations to appear in court

when required by law, the Judge in the place of residence of the individual
requesting them shall have jurisdiction.

26. In inquiries for perpetuation of testimony, jurisdiction shall be that of the

Judge in the place in which the events have occurred or the place in which,
albeit accidentally, the witnesses have to testify.

When these inquiries refer to the current state of immovable objects, the
Judge in the place where these are located shall have jurisdiction.

27. In surveying and apportioning foros (emphyteutic rents) and possession

of property through non-contentious proceedings, the Judge in the place
where the greater part of the property lies shall have jurisdiction.

.....................................................................................................................
..............................................
BOOK II
ON CONTENTIOUS PROCEEDINGS

TITLE II

ON CONCILIATION PROCEEDINGS [10]

Article 460.

Before bringing a civil action, an attempt may be made to reach a

settlement before the appropriate Clerk of the Court of First Instance or
Justice of the Peace.

Conciliation requests shall not be admitted where filed in relation to:

1. Cases in which the State, the Autonomous Regions and other public
authorities, corporations or institutions of a similar nature have an interest
[11].

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 § 2 Royal Decree of 3 february 1881, enacting the civil procedure act

2. Cases in which minors and incapacitated persons have an interest in

the free administration of their property.

3. Civil liability cases against Judges and Magistrates [12].

4. In general, those actions that are brought on matters that do not admit
of either settlement or compromise [13].

Articles 461 and 462.

Repealed by Act 34/1984 of 6 August.

Article 463.

The Courts of First Instance or Magistrates’ Courts in the defendant’s

place of residence resides shall be the only courts authorised to conduct
conciliation proceedings. If the defendant is a legal person, the competent
courts shall likewise be those in the place where the defendant is domiciled,
provided that there is a delegation, branch or office that is open to the
public, without prejudice to the proper jurisdiction that results in the case of
subsequent litigation[14].

In towns where there is more than one Judge of First Instance, jurisdiction
shall be divided between them [15].

Article 464.

If conflicts of jurisdiction arise [16] in relation to the Court or there is a

recusal [17] of the Court Clerk or the Justice of the Peace before whom the
conciliation proceedings are held, the appearance is held to have been
attempted without further proceedings [18].

Article 465.

The party attempting conciliation shall present their application in writing,

indicating the identifying particulars and circumstances of the claimant and
the defendant and the address or addresses where they can be summoned,
and clearly and precisely specifying the claim. The claimant may equally
file their application for conciliation by completing standard forms, which
the relevant court shall make available to them for the purpose.

The application shall be submitted with as many copies as were requested

and one more [19].

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Article 466.

On the day that the application for conciliation is submitted, or on the next
working day, the Clerk of the Court of First Instance or the Justice of the Peace
shall order the parties to be summoned, indicating the date and time that they
must appear, with the intention of it being confirmed as soon as possible.

At least twenty-four hours must elapse between the summons and the
appearance, though this period may be reduced if there is just cause for
doing so.

Under no circumstances may the appearance be postponed for longer

than eight days following submission of the application for conciliation [20].

Article 467.

The Court Clerk shall notify the defendant or defendants of the summons,
in accordance with the general provisions for notifications in the Civil
Procedure Act. However, instead of a copy of the summons, the defendant
or defendants shall be given one of the copies of the application that the
claimant has submitted, on which the Clerk shall make a note of the Court
of First Instance or Magistrates’ Court at which the conciliation hearing is
to be held and the date, time and place of the appearance. The summoned
party shall sign the original application, which shall subsequently be filed, to
acknowledge receipt of the copy; this may be done by a witness, at the
request of the defendant, if they do not know how or are unable to sign [21].

Article 468.

Parties that are absent from the town in which the conciliation is requested
shall be called by means of an official letter addressed to the Court of First
Instance or Magistrates’ Court in their place of residence.

The official letter shall be accompanied by the application or applications

submitted by the claimant, which must be delivered to the defendants.

The Clerk of the Court of First Instance or Magistrates’ Court of the town
where the defendants reside shall ensure, under their responsibility, that
the summons is carried out in the manner indicated in the preceding
articles, on the first working day after that on which the official letter is
received, and shall return the letter on the day of the summons, or on the
following day at the latest. This letter shall be filed with the application
under the terms indicated in the preceding article [22].

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 § 2 Royal Decree of 3 february 1881, enacting the civil procedure act

Article 469.

The claimants and defendants are obliged to appear on the date and at the
time indicated. If any party does not do so and does not show just cause
for not attending, the proceeding shall be deemed to have been attempted
without effect, and the absentee shall be ordered to pay costs.

Article 470.

Repealed by Act 34/1984 of 6 August.

Article 471.

Conciliation proceedings shall be conducted in the following manner:

The claimant shall be begin by setting out their claim and stating the
grounds on which they base it.

The defendant shall respond as they consider appropriate and may also
produce any documents on which they base their objections.

After the response, the parties may challenge and counter-challenge, if

they wish.

If there is no agreement between them, the Court Clerk or Justice of the

Peace shall endeavour to mediate.

If they cannot achieve this, the hearing shall be deemed to have concluded
without agreement.

If the parties do reach an agreement, the Court Clerk shall issue a decree
or the Justice of the Peace shall issue an order approving it and also
staying the proceedings [23].

Article 472.

The conciliation hearing shall be recorded succinctly in a book kept by the

Court Clerk. This record shall be signed by all those attending; and, in the
case of those that do not know how or are not able to sign, at their request,
a witness shall do so on their behalf.

The written record stating the agreement reached at the conciliation

hearing shall be signed by all those in attendance [24].

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Article 473.

In the book referred to in the preceding article, it shall be officially recorded,

undersigned by the Judge and those in attendance, that the conciliation
hearing not attended by the defendants is deemed to have been attempted.

If there are several defendants and one of them attends, the hearing shall
be held with that individual and it shall be deemed to have been attempted
without effect with regard to the others [25].

Article 474.

The interested party or parties that request it shall be given certification of the
official record of the conciliation hearing or, in the event that any or all of the
defendants do not appear, of it having been deemed attempted without effect.

Article 475.

The costs occasioned by the conciliation proceedings shall be met by the

party that requested it; those of certifications by those that request them.

Article 476.

For the purposes envisaged under Article 517. 2. 9. of the Civil Procedure
Act, the judgment approving the agreement by the parties shall be duly
implemented.

In terms of issues regarding the jurisdiction of the Court, the agreement

between the parties at the conciliation hearing shall be put into effect by
the same Court that conducted the hearing.

In all other cases, the Court that would have heard the claim shall have
jurisdiction with regard to enforcement [26].

Article 477.

Annulment proceedings may be issued against what is agreed in the

conciliation hearing on the same grounds as those that invalidate contracts.

The claim issuing such proceedings must be brought before the competent
Judge within fifteen days following the hearing and it shall be conducted
according to the declaratory judgment action corresponding to the amount
involved [27].

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 § 2 Royal Decree of 3 february 1881, enacting the civil procedure act

Article 478.

Repealed by Act 34/1984 of 6 August.

Article 479.

The presentation and subsequent admission of the request for conciliation shall
interrupt prescription, both acquisitive and extinctive, under the terms and with
the effects laid down by law, from the moment of said presentation [28].

Article 480.

Justices of the Peace shall send half-yearly accounts of the conciliation

hearings concluded to the Judges of First Instance of their respective
judicial districts, to be filed there [29].

.....................................................................................................................
..............................................

TITLE VIII
ON ENFORCING JUDGMENTS

.....................................................................................................................
..............................................

Section 2. On judgments handed down by foreign courts [30]

Article 951.

In Spain, final judgments issued in foreign countries shall have the force
established by the respective treaties [31].

Article 952.

If there are no special treaties with the nation in which they are issued,
they shall have the same force as is given in that nation to final judgments
handed down in Spain.

Article 953.

If the final judgment is issued by a nation in which there is no legal

precedent for compliance with those handed down by Spanish courts, it
shall have no force in Spain.

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Article 954.

If they are not covered by any of the cases described in the preceding
three articles, final judgments shall have force in Spain if they combine the
following circumstances:

1. The final judgment must have been issued as a consequence of an

action in personam being brought.

2. It must not have been entered in default.

3. The obligation that the judgment is intended to enforce must be lawful in

Spain.

4. The judgment document must meet the necessary requirements in the

nation in which it was issued to be considered authentic, as well as those
required by Spanish law for it to be considered authentic in Spain.

Article 955.

Without prejudice to the provisions of the treaties and other international

standards, jurisdiction to hear requests for the recognition and enforcement
of foreign judgments and other judicial decisions, as well as foreign
mediation agreements, falls to the Courts of First Instance in the place of
residence or domicile of the party that is the subject of the request for
recognition or enforcement, or the place of residence or domicile of the
person to whom the effects of such requests refer; subsidiarily, territorial
jurisdiction shall be determined by the place of enforcement or where such
judgments and rulings must take effect.

In accordance with the criteria indicated in the preceding paragraph, it

shall fall to the Commercial Courts to hear requests for the recognition and
enforcement of foreign judgments and other judicial decisions that deal
with matters within their jurisdiction.

Jurisdiction to recognise foreign arbitration awards or decisions falls, in

accordance with the criteria set forth in the first paragraph of this article, to
the civil and criminal divisions of the High Courts of Justice, without the
possibility of a subsequent appeal against their decision. Jurisdiction for
the enforcement of foreign arbitration awards or decisions falls to the
Courts of First Instance, in accordance with the same criteria [32].

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 § 2 Royal Decree of 3 february 1881, enacting the civil procedure act

Article 956.

On translation of the final judgment as prescribed by law, after hearing, for

a period of nine days, the party against whom it is directed and the
Prosecutor, the Court shall declare whether or not the judgment must be
complied with.

It shall be possible to appeal against this ruling [33].

Article 957.

To summon the party that must be heard, according to the preceding

article, an attestation shall be issued to the Provincial Court in the territory
where they reside.

The party must appear in court within a period of 30 days.

Once this period has elapsed, the Court shall continue to hear the
proceedings, even if the summoned party has not appeared in Court.

Article 958.

If compliance with the judgment is rejected, it shall be returned to party

that presented it.

If it is granted, the ruling shall be communicated by certification to the

Provincial Court, so it can issue the relevant order to the Judge of First
Instance of the judicial district in which the party sentenced in the judgment
is domiciled, or of the district in which it must be enforced, so that the
provisions of the judgment may be put into effect, using the means of
enforcement established in the preceding section [34].

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..............................................

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TITLE IX
ON INTESTATE SUCCESSION

.....................................................................................................................
..............................................

Section 2. On the declaration of intestate successors [35]

Article 977.

Once the essential measures for securing the property have been taken, as
set forth in the preceding section, and once, without prejudice to the further
step of making of an inventory, separate proceedings shall begin to declare
the intestate successors.

Article 978.

This declaration may also be made at the request of the interested parties,
without these proceedings taking place beforehand, in those cases in which
prevention of the intestate succession is neither necessary nor requested.

Article 979.

The declaration that certain individuals, if they are descendants, relatives in

the ascending line or the spouse of the deceased, are the only intestate
successors shall be obtained by means of an attested deed executed in
accordance with notarial legislation by a notary qualified to practise in the
place in which the deceased last resided in Spain and to whom the required
testimonial and documentary evidence shall be given [36].

Article 980.

Other intestate successors may obtain the declaration by judicial means,

duly providing evidence of the death of the person whose succession is at
issue and their relationship with them and, with the certification of the
General Register of Last Wills and Testaments and with the testimony of
witnesses, that said person died without leaving a will and that they, or that
they along with those that they designate, are the sole heirs.

To bring this claim they shall not need to use a court representative, but they
shall need to use a lawyer when the value of the estate is greater than
400,000 pesetas.

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 § 2 Royal Decree of 3 february 1881, enacting the civil procedure act

This proceeding shall be carried out in the presence of the Public Prosecution
Service, who shall subsequently be passed the file for six days to make their
decision. If they find the justification to be incomplete, the interested parties
shall be given a hearing to remedy the deficiencies.

When the Public Prosecution Service requests it or the Judge deems it

necessary, the presented documents shall also be compared against their
originals [37].

Article 981.

Once the formalities referred to in Article 980 and, where appropriate, Article
984 have been carried out by the Court Clerk, then the Judge, at the Clerk’s
behest, shall issue an order declaring the intestate successors, if they deem
it appropriate, or declining to do so, reserving the right of those that claimed
it to an ordinary hearing. This order shall be appealable for both review and
suspension of execution [38].

Articles 982 and 983.

No content on account of Act 10/1992 of 30 April.

Article 984.

If, in the opinion of the Public Prosecution Service or the Judge, there are
well-founded grounds to believe that there may be other relatives that are
as close or closer, the Judge shall order notices to be put up in public
places in the location of the court and in the towns where the deceased
lived and died, announcing that they have died intestate, along with the
names of those that are claiming the inheritance and their relationship to
the deceased, and calling on those who believe themselves to be equally
or more entitled to bring their claim before the Court within thirty days.

The Judge shall be able to extend this period for as long as they deem
necessary, when, owing to where the deceased was from or to other
circumstances, it is presumed that there could be relatives outside
Spanish territory.

The public notices shall be placed in the “Official Gazette” of the province or
Autonomous Region where the case is being handled. The public notices
shall also be placed in one of the most widely read newspapers in the
province, at the Judge’s discretion.

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They shall also be placed in the national Official State Gazette if, in the
Judge’s opinion, the circumstances of the case require it [39].

Article 985 to 995.

No content on account of Act 10/1992 of 30 April.

Article 996.

Once the judicial decision declaring the successors is final, the involvement of
the Public Prosecution Service in these cases shall cease and all the remaining
matters, or matters that may be brought, shall be heard and conducted with the
successor or successors that have been recognised by the decision.

Article 997.

Those who believe themselves to be entitled to the inheritance but who do

not make their presence known to the Court during the public-notice period
may do so before the announcement of the meeting, enclosing the
documents supporting their right, though under no circumstances may the
procedure be reversed.

Those that present themselves after the meeting has been announced shall be
not be accepted; but their right to pursue the matter in ordinary proceedings
against those who were declared the successors shall remain intact.

Article 998.

If no candidate for the inheritance comes forward, or if none of those that

come forward is recognised to be entitled to it, a third call shall be issued
through public notices, for a period of two months, in the manner indicated
for the preceding calls, and containing a warning that the inheritance shall
be considered unclaimed if no one requests it.

Article 999.

Once the period of the third call has elapsed without anyone coming forward, or
if those that come forward claiming the inheritance are found not to be entitled
to it, the inheritance shall be considered unclaimed and, at the behest of the
Public Prosecution Service, it shall be disposed of as the law dictates [40].

Article 1000.

In the case of the preceding article, the assets, along with all books and
papers in relation to them, shall be handed over to the State.

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With regard to other papers, the Judge hearing the matter for the Public
Prosecution Service, shall order those that could be of some interest to be
kept, with the remainder being deemed useless. Those that must be kept
shall be filed with the records of the intestacy proceedings, in a closed and
sealed folder. A note of its contents shall be placed on the cover, signed by
the Judge, the Public Prosecutor and the Court Clerk [41].

.......................................................................................................................
............................................

TITLE XII
ON BANKRUPTCY PROCEEDINGS [42]

.....................................................................................................................
..............................................

TITLE XIII
ON THE ORDER OF PROCEDURE IN BANKRUPTCIES [43]

.....................................................................................................................
..............................................
BOOK III
NON-CONTENTIOUS PROCEEDINGS [44]
PART I

TITLE I
GENERAL PROVISIONS

Article 1811.

All those proceedings in which the involvement of a Judge is necessary, or

requested without being insisted upon, and in which no matter is being
brought between known and particular parties, shall be considered non-
contentious proceedings.

Article 1812.

For non-contentious proceedings, all days and times count as working

days, without exception.

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Article 1813.

If the party bringing the proceedings asks for some other person to be
heard, or some other person that has a legitimate interest in the
proceedings requests it, or the Judge deems it appropriate, the hearing
shall be granted, with the proceedings being highlighted in the office of the
Court Clerk for a short time, to be decided by the Judge according to the
circumstances of the case.

Article 1814.

In those cases in which a hearing is appropriate, the party that has brought
the proceedings may also be heard, in the manner indicated in the
preceding article.

Article 1815.

When the application filed affects the public interest, a hearing must be
held with the Public Prosecution Service; and likewise when it refers to a
person or thing the defence or protection of which is incumbent upon that
body.

The Public Prosecution Service shall issue their decision in writing, for
which purpose they shall be handed the file relating to the case.

Article 1816.

The documents presented and the justifications offered shall be accepted

without the need for an application or any other formality.

Article 1817.

If the application filed is opposed by any party that has an interest in the
matter, the proceedings shall become contentious, without altering the
situation of the interested parties and whatever the object of the
proceedings was at the time that they were issued, and they shall be
subject to the procedures established for the relevant hearing, according
to the amount involved [45].

Article 1818.

The Judge may change or amend issued rulings, without being subject to
the terms and forms established for contentious proceedings.

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Rulings that have definitive force and against which no appeal has been
lodged are not included in this provision.

Article 1819.

The party that issued the proceedings shall always be allowed to appeal
for both review and suspension of execution.

Article 1820.

Appeals lodged by those who have come to the proceedings, either

called by the Judge or to oppose the application that provided the
grounds for the case, shall only be admitted but without suspension of
review of sentence.

Article 1821.

The appeals referred to in the preceding articles shall be conducted in line

with the procedures established for those concerning incidental issues
[46].

Article 1822.

No content on account of Act 10/1992 of 30 April.

Article 1823.

Non-contentious proceedings may not be joined with any contentious

proceedings.

Article 1824.

The provisions contained in the preceding articles are applicable to non-

contentious proceedings, special mention of which is made in the following
titles, so long as they do not contradict what is set forth with regard to each
kind of proceedings.

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TITLE II [47]
ON FOSTERING AND ADOPTION

Section 1. Common rules

Article 1825.

The procedures regulated by this title shall all be carried out with the
involvement of the Public Prosecution Service. Interested parties may act
under the direction of an attorney.

Article 1826.

The Judge may order as many formalities as they deem appropriate to be

carried out to ensure that the adoption, fosterage or termination thereof,
are beneficial for the minor.

All procedures shall be carried out with the appropriate discretion, in

particular to avoid the birth family learning the identity of the adoptive family.

The ruling that brings the proceedings to an end may only be appealed.

Article 1827.

In the event of opposition from an interested party, the provisions of Article

1817 shall not apply, except in the event that parents summoned only to attend
the hearing appear claiming that their consent is necessary, in which case the
proceedings shall be interrupted and the objection shall be resolved before the
same Judge through fast-track proceedings [48].

Section 2. On fostering

Article 1828.

Fostering arrangements, when requiring a judicial decision, shall be brought

by the Public Prosecution Service or by the relevant public entity [49].

Once consent has been obtained from the public entity, if it did not issue
the proceedings, and from the persons receiving the minor and from the
minor themselves, if they are twelve or more, the Judge shall hear the
parents, if they have not been deprived of parental authority or had it
suspended, or the guardian, if appropriate, and the minor, if they are twelve
or more and have sufficient judgement. The Judge shall then issue an

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order within a period of five days, deciding what is appropriate in the

interests of the minor.

When it has not been possible to learn the domicile or whereabouts of the
parents or guardians, or if these do not appear when summoned, the
procedure shall be dispensed with and the Judge may approve the
fosterage.

Proceedings for the judicial termination of the fosterage may be issued by

operation of law or at the request of the minor, their legal representative,
the public entity, the Public Prosecution Service, or the foster parents.

The Judge may approve the termination of the fosterage after hearing the
public entity, the minor, their legal representative and the foster parents.

The order that approves the fostering arrangement or its termination shall
be appealable but without suspension of review of sentence [50].

Section 3. On adoption

Article 1829.

In the adoption proposal submitted to the Judge by the public entity, the
following shall be expressly stated:
a) The personal, family and social conditions and the resources of the
chosen adopter or adopters [51] and their relations with the adoptee,
detailing the reasons that justify the exclusion of other interested
parties.
b) Where appropriate, the last known address of the spouse of the
prospective adoptive parent, when they have to give their consent, and
of the parents or guardians of the adoptee.
c) If both sides have formalised their consent before the public entity or
in a notarised document. The consent may be revoked if the body is
notified of the revocation before the proposal is presented to the Court.

In circumstances in which a prior proposal by the public entity is not

required pursuant to the provisions of Article 176 of the Civil Code [52], the
application submitted to the Judge by the adoptive parent shall expressly
state the information contained in the preceding articles, insofar as they
are applicable, and the argument and evidence to demonstrate that the

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adoptee is subject to one or more the circumstances required under this

Article.

The documents referred to in the preceding sections, reports from the

collaborating body, if any, and as many reports and documents as are
deemed appropriate, shall be submitted with the proposal.

Article 1830.

Consent to the adoption, which must be given by the spouse of the

adoptive parent [53] and the parents of the adoptee, must either be
formalised prior to the proposal, before the relevant entity, or in a public
document, or by appearing before the Judge.

If, when the adoption proposal or application is presented, more than six
months have passed since the consent was given, it shall need to be
renewed before the Judge.

In those adoptions that require a prior proposal, at no point shall the

consent of the parents be allowed to refer to specific adoptive parents.

Article 1831.

If the address of those that must be summoned does not appear in the
adoption proposal or application, the Judge, in a period of no more than
thirty days from when the document is presented, shall take the appropriate
steps to find out the address.

In the summons to the parents, the circumstances shall be specified in

which their simple attendance is sufficient. If the parents of the adoptee or
the spouse of the adoptive parent do not respond to the first summons, they
shall be summoned again after fifteen calendar days have elapsed from the
date on which they should have attended Court.

Where learning the address or whereabouts of one or more of those that

must be summoned is not possible, or they do not appear when summons,
the procedure shall be dispensed with and the approved adoption shall be
valid, with the right granted to the parents under Article 180 of the Civil
Code remaining intact, where appropriate.

The order approving the adoption shall be appealable for both review and
suspension of execution [54].

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Article 1832.

The judicial procedures referred to in Articles 179 and 180 of the Civil Code
shall be carried out according to the relevant ordinary declaratory action.

In the course of the procedure, the Judge shall take the appropriate
measures to protect the person and property of adopted minor or
incapacitated person.

TITLE III
ON THE APPOINTMENT OF GUARDIANS AND AWARD OF SUCH
POSITIONS

Section 1. On the appointment of guardians [55]

Article 1833.

Once the appointment of the guardian has be authorised, done in

testamentary disposition by the mother or father of the minor, the Judge
shall order that the position be awarded without demanding sureties form
the guardian, if they have been exempted from providing them.

Article 1834.

Any person that has made the minor their heir, leaving them a significant
legacy or bequest, shall also be ordered to award the position of guardian
to the person appointed; but the exemption from sureties, where
appropriate, shall only be extended to the property that makes up the
inheritance or legacy.

Article 1835.

The provisions of the two preceding articles notwithstanding, when well-

founded reasons present themselves, which the Judge shall appraise in view
of the particular circumstances of the case, the guardian appointed by the
father or mother, or by some other person who has left the minor a significant
bequest or legacy, may be required to file a surety bond.

Article 1836.

If no guardian has been appointed by the father, the mother or some other
person who has made the minor their heir or left them a significant bequest,

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the Judge shall designate the relative with whom this responsibility lies as
prescribed by law.

Article 1837.

The designate person shall be awarded the position, subject to their

acceptance and, where appropriate, the provision of a surety bond.

Article 1838.

In the absence of a relative to designate, of if there is no relative that

meets the requirements prescribed by law, a record of which shall be
made in the case file, the Judge shall name a trustworthy individual to
perform the role.

Article 1839.

If there is any objection to the appointment, it shall be discussed and

resolved through procedures for incidental matters, the party bringing the
objection and the appointed guardian, with the Public Prosecution Service
representing the interests of the minor.

While the hearing is being conducted, the custody of the minor and the
administration of their estate shall be the responsibility of the guardian-
elect, with such guarantees as appear sufficient to the Judge.

Article 1840.

If the chosen guardian objects to accepting the position, the Public

Prosecution Service shall be heard; if the Public Prosecution Service
agrees, the Judge shall appoint a new guardian.

If the Public Prosecution Service does not agree, the objection shall be
discussed and resolved through procedures for incidental matters,
observing the provisions of the preceding article, second paragraph.

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Section 2. On the appointment of guardians for property [56]

Article 1841.

Upon approval of the appointment of the guardian, done in testamentary

disposition by the minor’s mother or father, or by some other unrelated
person who has made the minor their heir or left them a significant bequest,
the Judge shall approve the award of the position.

In the same ruling, the Judge shall order the filing or exemption from filing
a surety bond, as the case may be, in the manner envisaged for guardians
under Articles 1833, 1834 and 1835.

Article 1842.

The minor may object to the guardian appointed by any person that, being
neither their father nor their mother, has made them their heir or left them
a significant bequest.

If the minor lodges such an objection, the Judge shall give a hearing to the
Public Prosecution Service in the manner stated under Article 1815; if the
minor’s objection is upheld, the Judge shall refuse to award the position to
the individual in question, ordering the appointment of someone else, with
an official warning that they shall be appointed by operation of law for the
property that makes up the legacy or bequest.

Article 1843.

In the event that any question persists regarding any of the particulars
indicated in the preceding articles, it shall be dealt with in procedures for
incidental matters, with the minor being represented in the matter, in the
first instance, by their guardian, if they have one; then, by the person that
has been their guardian for legal proceedings; and, in the absence of
either of these, by the Public Prosecutor of the Court.

Article 1844.

If no guardian has been appointed by the father, mother or person that has
made the minor their heir or left them a significant bequest, the appointment
shall be the responsibility of the minor themselves.

Article 1845.

The guardian must be appointed in the presence of the Judge, approved

at the behest of the minor.

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Article 1846.

If the appointed person does not fulfil the necessary conditions to perform
the role, the Judge may refuse to award them the position, inviting the
minor to appoint someone else in their place.

Section 3. On the appointment of exemplary

guardians [57]

Article 1847.

The competent Judge, learning that someone has been declared, in a

final judgment, to be incapable of administering their property, shall
appoint an exemplary guardian for them, heading the file with testimony
from the judgment.

Article 1848.

When incapacity as a result of dementia is not declared in a final judgment,

it shall be summarily approved in a pre-hearing and an interim exemplary
guardian shall be appointed, reserving any right that the parties may have
in the relevant proceedings.

Article 1849.

The appointment of the exemplary guardian must go to the following

individuals, in the order stated, if they have the necessary capacity to
perform the role: father, wife, children, mother, grandparents and siblings
of the incapacitated person.

Article 1850.

If there are various children or siblings, males shall be given preference over
females and the eldest individuals shall be given preference over the youngest.

If there are both paternal and maternal grandparents, males shall also be
given preference over females; and, in the event that they are of the same
sex, those on the father’s side shall be given preference over those on the
mother’s side.

Article 1851.

If there are none of the individuals stated in the preceding article, or if they
are not fit for the guardianship, the Judge may appoint someone they

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deem more suitable to perform the role, preferring, if they have the
necessary capacity, that this be a relative or friend of the incapacitated
person or of their parents.

Section 4. On the appointment of guardians ad litem [58]

Article 1852.

Individuals under 25 years old that are subject to parental authority shall be
represented in court by the individuals that exercise that authority over them.

Those that are not subject to parental authority shall be represented by

guardians [59].

Article 1853.

In the event that the minor subject to parental authority cannot be

represented in court by their parents or guardian, a guardian shall be
appointed for litigation purposes.

This shall also be the case if the minor or incapacitated person has no
appointed guardian.

Article 1854.

The Judge is responsible for appointing the guardian ad litem for those
under 14 and 12 years old, depending on their sex, and for legally
incapacitated persons [60].

Article 1855.

The Judge shall appoint a close relative of the minor, if there is one, as
the guardian ad litem; failing that, they shall appoint a person close to
them or to their parents; and if there are no such individuals, or they
do not have the necessary legal capacity, the Judge shall appoint
someone they trust and who has the necessary aptitude.

Article 1856.

Individuals under 25 years old, but older than 14 and 12, depending on
their respective sexes, may designate the person that they think advisable
to be their guardian ad litem, provided that they have the necessary legal
aptitude to represent them in court. The designation shall be carried out in
the presence of the Judge.

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Article 1857.

The Judge may refuse to award the guardianship if the person proposed
by the minor does not have the necessary legal aptitude, in which case
they shall invite the minor to propose someone else who does, with an
official warning that if they do not do so, the guardian shall be appointed
for them by operation of law.

Article 1858.

If any question persists regarding the award of the position, it shall be dealt
with in procedures for incidental matters, with the Public Prosecution
Service representing the minor.

Article 1859.

Once the guardian ad litem has been appointed, they shall be awarded the
position in the ordinary way.

Article 1860.

The guardian ad litem shall cease to represent the minor or incapacitated

person after a guardian of property or exemplary guardian has been
appointed for them, or the incapacity has disappeared.

Section 5. On awarding the position of guardian

Article 1861.

Once the guardian of property or exemplary guardian has been appointed,

if the value of the estate of the minor or incapacitated person is known, the
Judge shall issue an order for the appointed guardian and the Public
Prosecution Service to be heard regarding whether the guardian should
have access to the income from the estate for maintenance or whether a
specific amount should be indicated for that purpose.

If the value of the estate of the minor or incapacitated person is not

known, it shall be sufficient, for the purposes of this article, for the
appointed guardian to submit a simple inventory of the minor’s estate,
drawn up with a summons from the Public Prosecution Service and the
attendance of two of the minor’s closest relatives, one from each side;
and if there are no such relatives, two well-established neighbours
designated by the Judge [61].

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Article 1862.

In view of what the guardian and the Public Prosecution Service set out, the
Judge shall issue the appropriate order setting the maintenance allowance,
if they opt for this means, in which case he shall also determine the
percentage that has to be paid to the guardian for performing their role [62].

Article 1863.

The order referred to in the preceding article shall be enforced without

prejudice to the recourse of appeal, which shall be admitted but without
suspension of review of sentence.

Article 1864.

The provisions of the preceding articles shall only be applicable in the

event that the person who has named the minor as their heir has not
stipulated some other arrangement.

Article 1865.

If the appointed guardian has not be exempted from the obligation of filing
a surety bond, they shall be summoned to provide the surety that the
Judge deems necessary to guarantee the value of the moveable property
and the income or product of the immovable property that make up the
estate of the minor or incapacitated person [63].

Article 1866.

All kinds of surety shall be admissible, with the exception of personal surety.

Article 1867.

The surety shall be approved, subject to a hearing with the Public

Prosecution Service.

Depending on the circumstances, the approval order shall stipulate:

1. Registration with the land registry of the real property comprising the
surety, complying with the provisions of the Mortgages Act and its
Regulations [64].

2. The deposit of the amounts or effects that make up the surety bond.

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3. Any other formality that the Judge deems advisable for the surety bond to be
effective and to preserve the property of the minor or incapacitated individual.

Article 1868.

Once all the agreed formalities have been carried out and the guardian
has officially undertaken, in the presence of the Judge, to carry out the
duties of his position, in accordance with the law, the Judge shall award
the guardianship.

The order awarding the guardianship shall grant the guardian the power to
represent the minor or incapacitated individual as prescribed by law, and
to take care of their person and property; it shall also stipulate that the
testimony corresponding to the order be placed on the court record.

Article 1869.

If the surety bond becomes insufficient, the Judge, on his own initiative or at
the behest of any individual, may order it to be increased to the amount that,
in their considered opinion, is necessary to ensure the administration is
effective, with the formalities indicated in the preceding articles being observed.

Article 1870.

Once the guardianship has been awarded, the estate of the minor or
incapacitated person shall be handed over to the guardian, by inventory,
which, if it has not already been done, shall be added to the case file, at
the foot of which shall appear the receipt of the expressly stated guardian.

The deeds and documents that refer to the property shall also be handed
over with the same formality.

Article 1871.

Guardians ad litem, appointed in accordance with the provisions of this Act,

shall be awarded the position once they have officially fulfilled the obligation
stated under Article 1868, without requiring them to provide surety.

Article 1872.

If the guardian requests it, tenants, tenant farmers, lessees and other
relevant individuals shall be requested to recognise them in their capacity
as guardian.

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Section 6. Provisions common to the preceding

sections

Article 1873.

Any questions arising from the provisions set forth under this title, and
which must be resolved by adversarial proceedings, in accordance with
the procedure, shall be handled in the manner established for incidental
issues [65].

Article 1874.

When the income from the minor’s estate does not exceed the amount
established under Article 15 of these rules, granting the right to obtain free
justice administration, the preliminary guardianship pr1oceedings shall be
done on papel de pobres (paper that does not require the levying of duties)
and without charging fees [66].

For this purpose, the claim of poverty shall first be made, without prejudice
to the fact that if the Judge thinks it advisable to make an urgent decision,
they may of course do so, on their own initiative or at the behest of the
minor’s representative of or the Public Prosecution Service.

Article 1875.

No content on account of Act 10/1992 of 30 April.

Article 1876.

Within the first eight days of each year, the Judges shall examine the
register, request the necessary reports and approve, as the case may be,
the following [67]:

1. The replacement of guardians that have died.

2. That accounts are submitted by the guardians that have to do so.

3. The deposit, in the relevant establishment, of the surplus income or

returns from the property of minors or incapacitated individuals.

4. The taxation of existing funds, which does not require a special application.

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5. Other rulings needed to remedy or avoid abuses in the management of

the guardianship.

Article 1877.

The Public Prosecution Service shall always be given a hearing regarding

the accounts that the guardian submits in the discharge of their duties.

Article 1878.

If neither the minor nor the Public Prosecution Service raises any objection
to the accounts, they shall be approved, but without prejudice to the minor’s
legal right to claim for any grievance that may have suffered in said accounts.

Article 1879.

Guardians, whether guardians of property or ad litem, may not be removed

as a result of non-contentious proceedings, even when it is at the request
of the minors.

For guardians to be dismissed after the position has been awarded, they
must be heard and defeated in court.

TITLE IV
PROVISIONAL MEASURES IN CONNECTION WITH INDIVIDUALS [68]

[....................................................................................................................
...............................................................]

Section 2. Measures relating to the return of minors in

the event of their international abduction [69]

Article 1901.

In seeking the restitution of a minor that has been illegally removed or

retained, where an international convention is applicable, the procedure
shall be as envisaged in this section.

Article 1902.

The Judge of First Instance within whose judicial district the illegally
removed or retained minor is found, shall have jurisdiction.

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The procedure may be initiated by the person, institution or organisation

that has been awarded custody of the minor, the Spanish central authority
responsible for compliance with the obligations imposed by the relevant
convention, or the person appointed by said authority to represent them.

Proceedings shall be carried out with the involvement of the Public

Prosecution Service and the interested parties may act under the direction
of an attorney.

The procedure shall have preferential status and must be completed within
a period of six weeks from the date on which the restitution of the minor
was requested before the Judge.

Article 1903.

At the request of whoever initiates the procedure or of the Public Prosecution

Service, the Judge may adopt the provisional measure on the custody of
the minor envisaged in the following section, and adopt any other security
measures deemed appropriate.

Article 1904.

Once the proceedings have been issued by means of the application

accompanied by the documentation required by the relevant international
convention, the Judge shall issue an order, within 24 hours, in which the
person who has abducted or is retaining the minor is summoned, with the
due legal warnings, to appear before the court with the minor, on the date
given, which shall be no more than three days from the date of the order,
and declare:
a) That they agree to the voluntary restitution of the minor to the person,
institution or organisation that has the right of custody; or, alternatively,
b) That they oppose restitution owing to the grounds established in the
relevant convention, the text of which shall accompany the summons.

Article 1905.

Should the summoned individual fail to appear, the Judge shall then decide
on the procedure for their default, summoning the interested parties and
the Public Prosecution Service to appear in Court within a period of no
more than five days from that date, and shall order the provisional measures
that they deem appropriate in relation to the minor.

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The applicant and the Public Prosecution Service shall be heard in the
Court appearance and, where appropriate and separately, the minor shall
be heard regarding their return. The Judge shall decide in a court order,
within two days from the date of the appearance, whether or not the
restitution of the minor is appropriate, taking into account the interests of
the minor and the terms of the relevant convention.

Article 1906.

If the summoned individual appears and agrees to return the minor

voluntarily, it shall be placed on record and the Judge shall issue an order
concluding the proceedings and returning the minor to the person, institution
or organisation that has the right of custody, as well as taking the appropriate
steps as regards costs and expenses.

Article 1907.

If, at the first appearance, the summoned individual lodges an objection to

the restitution of the minor on the grounds established in the relevant
convention, the provisions of Article 1817 shall not apply and the objection
shall be resolved before the same Judge according to the procedures for
fast-track proceedings. To this end:

a) All interested parties and the Public Prosecution Service shall be called
to appear at the same time, to set out what they consider legitimate and,
where appropriate, to give evidence, at a subsequent appearance, which
shall be held in accordance with the provisions of Article 730 and those
concordant with it, within a non-extendable period of five days from the first
appearance [70].

Furthermore, after the first appearance, where appropriate, the Judge shall
hear the minor separately with regard to their return and may obtain such
reports as he deems relevant.

Article 1908.

Once the appearance has taken place and, where appropriate, the relevant
evidence has been heard within the six days that follow, the Judge shall
issue an order within the three following days, deciding, in the interests of
the minor and under the terms of the convention, if their return is appropriate
or not. Recourse to appeal against this order shall only be possible without
suspension of review of sentence. Appeals must be resolved within a non-
extendable period of twenty days.

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Article 1909.

If the Judge rules on the return of the minor, the order shall direct the person
that removed or retained the minor to pay the costs of the proceedings, as
well as any expenses that the applicant has incurred, including travel
expenses and those occasioned by returning the minor to their usual country
of residence prior to abduction. This shall be carried out according to the
procedures envisaged under Article 928 and those concordant with it [71].

In other cases, the costs of the procedure shall be declared by operation of law.

Section 3. Provisional measures in connection with children [72]

Article 1910.

To order provisional measures in the cases referred to under Article 1880,2

number 4, the following shall be required:

1. It must be requested in writing or verbally by the interested party, or if

they cannot do so, by some other person on their behalf, before the Judge
of First Instance in the place where the applicant is domiciled. This must
always be confirmed in the Judge’s presence, provided that they have the
capacity to do so.

2. The Judge must establish the certainty of the facts, either with the
information provided by the interested party, or with the information he
himself has been able to obtain [73].

Article 1911.

The provisions of the preceding article notwithstanding, Judges may order

a provisional measure on custody of the minor without the interested party
having filed an application, when they are satisfied that it is impossible for
the interested party to do so [74].

Article 1912.

If the Judge deems it appropriate to adopt the provisional measure, they shall
designate the person (or institution) that must take custody of the minor [75].

Article 1913.

The handover of clothes and bedding shall be done according to the

provisions of Article 1907 [76].

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Article 1914.

Once the provisional measure has been established, the court shall
appoint a guardian ad litem [77].

Article 1915.

Once appointed, the guardian shall be handed the record of the

proceedings, so that at the relevant hearing they can set out and ask for
whatever is required in defence of their ward [78].

Article 1916.

In the same order in which custody of an individual is decided in accordance

with the provisions of this section, the Judge shall indicate the amount that
they reasonably think necessary for provisional maintenance, taking into
account the capital of the individual or of the party that has to provide
maintenance, which shall be paid monthly in advance.

Claims that may be lodged regarding provisional maintenance, once these

measures have been adopted and while they are in effect, shall be dealt
with in the manner indicated in Title XVIII, Book II of this Act [79].

Article 1917.

To secure the payment of the maintenance, the Judge may approve

the measures referred to under Article 1892, at all times [80].

Article 1918.

In the third and fourth cases of Article 1880, maintenance shall be paid to
the person responsible for the custody of the children [81].

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TITLE V
ON SUPPLEMENTING THE CONSENT OF PARENTS,
GRANDPARENTS OR GUARDIANS TO ENTER INTO MARRIAGE

Articles 1919 to 1942.

No content on account of Act 10/1992 of 30 April.

TITLE VI
ON CONVERTING A WILL OR CODICIL MADE VERBALLY INTO A
PUBLIC DEED

Article 1943.

At the behest of a legitimate party, a will made verbally may be converted

into a public deed [82].

Article 1944.

For the purposes of the preceding article, a legitimate party is understood to be:

1. Any party having an interest in the will.

2. Any party that has been left anything by the testator in the will.

3. Any party that may represent any of parties that fall into above
categories, without power of attorney, in accordance with the law.

Article 1945.

If when the verbal will was executed, a note was made of the
testator’s provisions, said note or memorandum shall be submitted
with the application; the names of the witnesses that must be
examined shall be expressly stated, along with that of the notary, if
he attended the making of the will and for whatever reason did not
convert it into a public deed; the legitimate interest of the party
issuing the proceedings shall also be stated.

Article 1946.

The Judge shall issue a ruling directing the witnesses and, where
appropriate, the notary to appear on the date and at the time indicated,

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officially warning them that they shall be fined if they fail to attend and of
any other sanctions for disobedience.

Article 1947.

If any of those due for examination do not attend the hearing, without
giving just cause for failing to do so, the Judge shall adjourn it; he
shall indicate the date and time on which it has to take place; he shall
order the fine to be levied and shall warn the disobedient party of
more severe sanctions in the event of a repeat offence.

Article 1948.

When a witness does not appear on account of being ill or prevented from
doing so, the interested party may ask the Court to relocate to the home of
the ill person to receive their statement, immediately after the other
witnesses have been examined.

When a witness is absent from the judicial district, they may request to be
examined by means of a letter of request addressed to the Judge of the
town in which they currently reside.

Article 1949.

The witnesses and the notary, if any, shall be examined separately and
in such a way that they have no knowledge of what has been stated by
those that precede them.The Court Clerk shall attest that he knows the
witnesses.

If the Clerk does not know them, he shall require the presentation of two
witnesses that do know them.

Article 1950.

If it is not publicly known, the capacity of the notary, if present when the will
was made, must also be proved.

Article 1951.

It shall be the responsibility of the Judge to ensure that the age of the
witnesses and their residence when the will was made are expressly
stated in their statements.

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Article 1952.

When the will of the testator has been recorded in some private certificate
or document, this shall be made clear to the witnesses so that they can
say whether it is the same as that which was read to them and whether
they recognise their respective signatures, if they provided them.

Article 1953.

If it is clear and conclusive from the witnesses’ statements:

1. That the testator had the serious and deliberate intention of making their
last will and testament.

2. That the witnesses and, where appropriate, the notary simultaneously

heard all the provisions intended to be taken as the last will and testament,
from the mouth of the testator, either stated verbally or by reading a note
or memorandum containing them, or giving it to another to read.

3. That there were as many witnesses as the law requires, according to

the circumstances of the place and the time at which the will was made,
and that they satisfy the requirements for being witnesses to a will.

The Judge shall declare the outcome of these statements to be a will,

without prejudice to any third party, and shall order the file to be formally
registered.

Article 1954.

When there are discrepancies in the witnesses’ statements, the Judge

shall approve the content on which they all agree as a will.

If the last will and testament has been recorded in a certificate that was
presented or written at the time the will was made, the outcome thereof
shall be considered a will, provided that all the witnesses agree that it
is the same document that was written or presented at the time, even if
some of them do not remember certain provisions.

Article 1955.

It shall be formally registered with the notary of the district’s administrative

centre; and if there is more than one, with the one that the Judge
designates.

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TITLE VII
ON THE OPENING OF CLOSED WILLS AND THE FORMAL
REGISTRATION OF TESTAMENTARY MEMORANDA

Article 1956.

Any party that has a closed will in their power must present it to the
appropriate Judge, as soon as they learn of the death of the testator [83].

Article 1957.

Any party that is aware of the will having been made and being in the
power of a third party may also request that it be presented.

If the individual making the request is not a family member of the deceased,
they shall swear that they are not acting out of malice, but rather believing
that they may have an interest in the will for any reason.

Article 1958.

The Court Clerk shall examine the file containing the will there and then
and shall attach an official record of its condition, meticulously describing
the grounds, if there are any, for suspecting that it has been opened or
altered, amended or scratched in any way.

This record shall also be signed by the individual presenting the will, or, if
they do not know how to or do not want to, first by a witness of their
choosing and second by two witnesses chosen by the Court Clerk [84].

Article 1959.

Immediately afterwards, the Court Clerk shall give an account to the Judge, who,
once the death of the testator has been proved, shall approve the summons of the
authorising notary and the attesting witnesses for the following day, or sooner if
possible.

Article 1960.

When the witnesses appear, they shall be shown the sealed file to examine
it and declare under oath whether they recognise the legitimacy of the
signature and seal that appear on it with their name, and whether they find
it in the same condition as when they signed it.

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If any of the witnesses does not know how to sign and another did so on
their behalf, both shall be examined, with the individual that signed being
required to recognise their signature.

Article 1961.

The witnesses shall be examined in sequence, and asked about their age
on the day the will was made [85].

Article 1962.

If one or more of the witnesses has died or is absent, the others shall be
asked whether they saw the absentee place their signature and seal on
the will, and two other individuals that are familiar with the signature and
seal of the deceased or absent witness shall be asked about their similarity
to those on the file.

If the latter cannot take place, the witness shall be corroborated in the
ordinary way [86].

Article 1963.

In the event that the notary that authorised the execution of the will is deceased,
the Judge, assisted by two expert witnesses appointed exclusively at his
behest, shall compare the signature, stamp and seal on the file or folder with
those appearing on the copy that should exist in the special register of closed
wills, to which end the Judge shall travel to the place where it is located or, if
that is not possible, shall delegate the appropriate person to do so.

If the execution took place prior to the Notaries Act, the comparison shall
be made with other signatures and stamps known beyond any doubt to be
of the same notary.

Article 1964.

When the notary and all the witnesses have died, proceedings shall be
opened on the circumstances, on when they died, the public opinion of
them and whether they were in the town when the will was made [87].

Article 1965.

Relatives of the testator who may be presumed to have some interest,

may attend the opening of the file and reading of the will if they consider it

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expedient, without being allowed to object to the proceedings for any

reason, even if they present another, subsequent will.

Article 1966.

Once the indicated formalities have been carried out and, as a result of
them, the identity of the folder has been established and that the will was
executed with respect for the procedures prescribed by law, the Judge shall
open it and read to himself the testamentary disposition that it contains.

The opening shall be adjourned when, in the same folder or in an open

codicil, the testator has directed that it must not be opened until a certain
time, in which case the Judge shall adjourn the proceedings and order the
formalities carried out and the folder to be kept on file at court, until the
time designated by the testator.

Article 1967.

Once the reading of the will and codicil has been verified by the Judge, they
shall hand it to the Court Clerk to read aloud, unless in contains an instruction
from the testator that one or more of the clauses must be withheld or kept
secret until a certain time, in which case the reading shall be limited to the
remaining clauses of the testamentary disposition [88].

Article 1968.

Once the will has been read, the Judge shall issue an order for the will to be
formally registered, with all the original formalities of the opening, in the
records of the notary that authorised its execution and for a copy of said order
to be given to the individual that presented it, as a receipt, if they request it.

Article 1969.

Any party that has a testamentary memorandum in their possession must

present it to the competent Judge as soon as they learn of the death of the
testator, requesting that it be formally registered and stating the reason for
it being in their possession. Along with the text, they shall present a
document to provide evidence of the death and shall produce an irrefutable
copy of the will, in which its existence and the marks that it must bear to be
considered legitimate shall be indicated.

If these documents are not presented, the Judge shall order them to be
added to the court records [89].

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Article 1970.

The Court Clerk shall draw up a sufficiently detailed record of the condition
of the memorandum and of the circumstances by which it may be deemed
to be identical to that indicated in the will.

The party presenting the memorandum shall sign this record; and if they
do not know how or do not want to sign, it shall be done according to the
provisions of Article 1958, second paragraph.

The Court Clerk shall immediately draw up attestation of the clause or

clauses of the presented will that refer to the memorandum, returning it to
the presenting party, who shall sign to show that they have received it.

Article 1971.

The Judge shall order the reading of the memorandum and the comparison of
its marks with those expressly stated in the will, setting the date and time that
these formalities must take place. Parties with an interest in the will may
attend the reading, to which end they shall be informed of the date and
time set, with the fair warning that their failure to attend shall not prevent
the act from taking place, nor shall it be a reason for declaring it invalid,
whatever the justification is given.

Article 1972.

If the memorandum is contained in a sealed file, the Judge shall open it

and read it in secret; and if they do not find a stipulation by the testator that
orders certain clauses not to be revealed until a given date or time, they
shall hand it to the Court Clerk to read aloud.

If it does contain such a stipulation, the clauses that it refers to shall not be read
out and it shall not be possible to give attestation of them, with the memorandum
being sealed and filed until the date or time specified by the testator.

Article 1973.

Immediately afterwards, an inquiry and examination shall be carried out

regarding the marks required in the will for the memorandum to be
considered legitimate, as well as those contained in the memorandum.

An appropriate record shall be made of this formality, which the Judge and
the other interested parties in attendance shall sign.

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Article 1974.

Should the proceedings establish that the memorandum meets the

conditions required by the testator to be considered authentic, an order
shall be issued for it to be formally registered, without prejudice to the right
of the interested parties to challenge it in the relevant proceedings.

Article 1975.

Formal registration shall take place in the records of the notary that certified
the will, together with the latter. If this arrangement is not possible, the notary
shall place a marginal note in the record of the will, stating the existence of
the memorandum, along with the book and page where it is registered.

Article 1976.

When the testator refers to a memorandum produced in their own handwriting,

or only signed by them, without mentioning any other special mark to identify
it, if it is presented accompanied by the documents described under Article
1969, the Judge shall order that it must be recognised by three witnesses that
know the testator’s handwriting perfectly and may also designate relatives
that have not been favoured by the memorandum to do so.

The witnesses or relatives shall declare, under oath, that they harbour no
reasonable doubt that the document in question was written by the testator
and, if it is only signed, that the signature is theirs [90].

Article 1977.

Moreover, if the Judge thinks it advisable, assisted by two expert witnesses,

they may compare the handwriting, signature and seal of the memorandum
with others that are irrefutably those of the testator that appear on any
public document or in any registry office.

Article 1978.

If the memorandum is established to be authentic, the Judge shall order it

to be formally registered in the manner set forth under Article 1974.

Article 1979.

When the memorandum is presented before the conclusion of formalities

to convert a will made verbally into a deed, or to open the will if it is sealed,

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the memorandum shall be included in said proceedings and the stated

measures for formal registration shall be carried out [91].

TITLE VIII
ON INQUIRIES FOR LEGAL EXEMPTIONS

Article 1980.

Inquiries seeking legal exemption may not be received, except pursuant to

a royal order passed to the Judge by their immediate superior [92].

Article 1981.

Once the royal order has been received by the Court, it shall be carried out,
with the person that obtained it being ordered to provide the relevant
information on the facts stated in their application or about those indicated in
the royal order.

Article 1982.

If, during the proceedings, the interested party asks for the justification to
be extended to include other facts that they did not know when they signed
the application, or that they think are of interest, the Judge may grant it, if
he deems them significant.

Article 1983.

These inquiries shall be received in the presence of the Public Prosecution

Service. Those individuals that have a known and legitimate interest in the
matter shall also be summoned, provided that the royal order requires it or
the appellant requests it [93].

Article 1984.

The Court Clerk shall certify that he knows the witnesses. If the Clerk does
not know them, two other witnesses shall be required to answer for knowing
each of them, and to sign the statements of those to whom this applies.

Article 1985.

If it has been ordered that the inquiry be carried out in the presence of some
person, they shall be heard, if summoned, to request the handover of the file.

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Witnesses and documents that may be presented regarding the facts that are
the subject of the inquiry shall also be admitted.

Article 1986.

When a summoned party does not appear, once the designated period of
time has elapsed, the proceedings shall continue with only the involvement
of the Public Prosecution Service, unless the summoned party is a minor
or incapacitated person, in which case it is essential for them to be heard,
and therefore their lawful representative must be compelled to propose,
within the period of time indicated by the Judge, whatever suits the
interests of the minor or incapacitated person.

Article 1987.

Should any party appear during an ordered proceeding without being

summoned, objecting to the exemption for which the proceeding is being
received, they shall be heard if they have a known and legitimate interest
in opposing it.

Article 1988.

The attendance of the Public Prosecution Service shall be essential for

comparing and making a certified true copy of the documents.

If it is only necessary to make a certified true copy of part of the document,

or the copy that must be compared is incomplete, the Public Prosecution
Service shall advise, in the same proceedings, whether or not there is any
difference in the omitted part that alters or contradicts the attested part.

Article 1989.

Once the formalities agreed at the request of one of the parties, or ordered
in the royal order, have been carried out, the file shall be handed over to
the Public Prosecution Service to give their opinion in writing.

Article 1990.

If the Public Prosecution Service finds that it has not been proved that the
witnesses are known in the manner stated under Article 1984, or any other
notable defect, they shall ask for it to be rectified. They may also ask for
the execution of the formalities that they deem necessary for the correct
evaluation of the facts on which the request for grace is based, and for the

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summons of individuals having a legitimate interest in objecting to it being

granted, if these have not been duly summoned, but should have been in
accordance with the provisions of Article 1983.

Article 1991.

If the Public Prosecution Service finds the preliminary proceedings to be

complete, they shall issue an opinion on the merits of the case.

Article 1992.

Once the Public Prosecution Service has been heard, the Judge shall
issue his opinion, which he shall send with the case file to the higher court
in the customary manner.

Article 1993.

The Governing Chamber shall hear the Public Prosecution Service and,
once any defects in the proceedings have been rectified, shall approve the
report that must be referred to the Government, which shall be sent the
original case file with a certified copy of the Public Prosecution Service’s
opinion. If any Magistrate disagrees with the majority, he may issue his
opinion separately, which shall be included in the enquiry.

TITLE IX
ON AUTHORISATION TO APPEAR IN COURT [94]

Article 1994.

Non-emancipated children shall require authorisation to appear in court,

when not permitted to do so by law or by the father or mother who has
parental authority.

Article 1995.

The authorisation may only be granted when the non-emancipated minor,

either if they are the defendant or if they could be greatly harmed by not
bringing the action, finds themselves in one of the following situations:

1. The parents are absent, their whereabouts unknown, without there

being sufficient reason to believe that they shall return soon.

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2. The father and mother refuse to represent their child in court.

Article 1996.

In these proceedings the Public Prosecution Service shall always be heard.

Article 1997.

The order granting the authorisation to a non-emancipated child shall also

require them to be provided with a guardian ad litem.

Article 1998.

The child shall not need authorisation to litigate with their father or mother.

Article 1999.

All the issues raised by the authorisation of non-emancipated minors shall

be dealt with in procedures for incidental matters.

Article 2000.

Until a final judgment is handed down, the authorisation shall be effective

for all purposes.

Article 2001.

The effects of the authorisation shall cease as soon as the father or mother
offer to appear in court on behalf of the child.

TITLE X
ON INQUIRIES FOR PERPETUATION OF TESTIMONY

Article 2002.

Judges shall allow and hear proceedings that are brought before them, as
long as they do not refer to facts that may result in injury to a particular
individual [95].

Article 2003.

No inquiry of this kind shall be allowed without first hearing the Public
Prosecution Service.

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Article 2004.

Once the inquiry has been admitted, the witnesses produced by the
appellant shall be examined, in the presence of the Public Prosecution
Service, pursuant to the facts stated in their application.

The Court Clerk shall testify that he knows the witnesses.

If the Clerk does not know them, he shall require the presentation of two
witnesses that do know them.

Article 2005.

Once the inquiry has been carried out, the file shall be passed to the Public
Prosecution Service. If the Public Prosecution Service finds that mistakes
have been made or that the witnesses do not have the qualities required by
law or that their statements could result in injury to a particular individual, they
shall propose the measures they deem appropriate in each of these cases.

Article 2006.

If the Public Prosecution Service requests that a legal measure be carried out
and the Judge considers it appropriate, he shall issue an order that it be
implemented, and once completed shall return the record of the proceedings to
the Public Prosecution Service. If the Public Prosecution Service believes that
the inquiry could result in injury to a particular individual and the Judge finds their
opinion to be well-founded, he shall issue an order refusing its approval.

Article 2007.

If the Public Prosecution Service approves the inquiry and the Judge finds
it appropriate, he shall issue an order approving it, as appropriate under
the law. Additionally, if it refers to facts of recognised importance, he shall
direct that it be formally registered in the records of the Court Clerk, if the
latter is also a notary, or if not, in the records of another notary practising in
the main town of the judicial district, to be chosen by the interested party if
there is more than one.

If the facts to which the inquiry refers are not of recognised importance, the
Judge shall direct that it be filed in the office of the Court Clerk.

Article 2008.

The same order shall also direct that evidence of the inquiry be given to
the person that brought it, if they ask for it, and to any other party that

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requests it to challenge it in the relevant hearing, if it could cause them

injury.

Article 2009.

If, before the inquiry is approved, any party raises an objection to it on the
grounds that it could cause them injury, the Judge shall order that the
non-contentious proceedings be stayed, reserving the right of the parties
to deal with the matter in the relevant hearing.

Article 2010.

Possessory information for recording a right in rem over immovable

property shall be carried out subject to the rules set forth in the Mortgages
Act, its Regulations and other current provisions [96].

TITLE XI
ON THE DISPOSAL OF PROPERTY BELONGING TO MINORS AND
INCAPACITATED PERSONS AND SETTLEMENT REGARDING THEIR RIGHTS

Article 2011.

A court order shall be required to alienate or encumber the property of

minors or incapacitated persons in the circumstances set forth in the Civil
Code [97].

Article 2012.

To order the disposal or encumbrance, the following shall be required:

1. It must be requested by:

a) The father or mother that have parental authority over the minor. If
the child is over twelve years old, they shall also sign the request.

b) The father or mother that have extended parental authority over an

incapacitated child, who may or may not give their consent, according
to the provisions of the judgment declaring their incapacity.

c) The guardian of the minor. If the minor is over twelve years old, they
must also be heard.

d) The guardian of an incapacitated person, if the judgment declaring

their incapacity so permits it.

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e) An individual subject to guardianship, when they have not been

forbidden to do so or when they do so with the consent of their
guardian.

2. The reason for the disposal or encumbrance, and the purpose for which
the sum obtained shall be used, must be expressly stated.

3. The need for or usefulness of the disposal must be justified.

4. The Public Prosecution Service must be heard [98].

Article 2013.

When witnesses are required for the justification referred to under number
3 of the preceding article, there must be at least three of them, with the
Court Clerk certifying to knowing them. If the Clerk does not know them,
he shall require the presentation of two witnesses that do know them.

The justification shall be carried out in the presence of the Public

Prosecution Service [99].

Article 2014.

Once the justification has been given and the mandatory hearings have
been conducted, the Judge, without further formalities, shall issue an order
either granting or refusing the requested authorisation.

This order shall be appealable for both review and suspension of execution
[100].

Article 2015.

The authorisation shall always be granted on the condition that the sale
must be carried out at public auction and subsequent to valuation when
dealing with rights of all kinds, except the right of pre-emptive subscription
to shares, immovable property, commercial or industrial establishments,
precious objects and securities that are not listed on the stock exchange.

Sales made by the father or mother having parental authority are exempt
from this rule. To carry out such a sale, they need only to have previously
obtained a court order, with the Public Prosecution Service and the other
individuals designated under Article 205 of the Mortgages Act having been
heard [101].

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Article 2016.

The appointment of experts for the valuation shall always be done by the
Judge and the appointed experts may not be challenged. Neither may a
third expert be challenged, if it has been necessary to appoint one on
account of the first two having disagreed.

Article 2017.

Once the valuation has been carried out, the Judge shall order that the
auction be advertised for a period of thirty days, stating the date, time and
place that it must be held and requiring public notices to be put up in the
customary places and also, if the Judge thinks it advisable, placing them in
an official newspaper.

Article 2018.

No bid shall be accepted that does not cover the value given to the
property.

Article 2019.

If there is no acceptable bid, the guardian or, where appropriate, the

incapacitated person with the assistance of their guardian, may commence
any of the following courses of action:

1. That the sale be considered withdrawn and the proceedings be stayed.

2. That an extrajudicial sale be authorised for the price and with the
conditions used in the auction.

3. That a second auction be announced with the price reduced by 20 per

cent.

In the event that they opt for the second course of action, if within one year
of the first auction being held they are unable to make the extrajudicial
sale, they may request that another auction be advertised with the indicated
reduction in price [102].

Article 2020.

The auction shall be held with the same formalities as the first.

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If there is no suitable bidder at the second auction, the Judge shall

authorise the guardian to make an extrajudicial sale for the price indicated
at that auction.

Article 2021.

When the sale is requested to pay debts or to meet some other need, at the
request of the guardian or, where appropriate, the incapacitated person with
the assistance of their guardian, a third auction may be held with the price
reduced by a further 20 per cent on that indicated in the second auction.

If there is no acceptable bid at the third auction, an extrajudicial sale for

the price indicated at that auction may be authorised [103].

Article 2022.

The shares mentioned under the second point of Article 2011 [104] shall
always be disposed of using a stockbroker or agent appointed by the
Judge, and for the officially quoted price.

If they are not listed on the stock exchange, they shall be sold subject to
the formalities established in the preceding articles for the sale of property.

Article 2023.

Once the sale has been made, the Judge shall have responsibility for
making sure that the sum obtained is used for the purpose indicated when
authorisation was requested.

Article 2024.

Provided that it is used for the relevant purpose, the sum shall be handed
over to the incapacitated person, if they are authorised to receive it, or to
their guardian if they are exempt from filing a surety bond or if the surety
they have provided is sufficient to answer for it.

In any case, it shall be deposited in the public establishment in which

payments into court must be made [105].

Article 2025.

Authorisation for renouncing inheritances or legacies or for reaching a

settlement regarding the rights of minors or incapacitated persons shall be
requested by the same people as for the sale of property.

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In the document in which it is requested, the cause and purpose of the

settlement shall be expressly stated, along with the uncertainties and
difficulties of the business and the reasons for which they consider it useful
and advisable, and it shall be accompanied by the document in which the
basis for the settlement has been drawn up.

The documents and background information needed to be able to form an

accurate opinion on the matter shall be produced along with the request
[106].

Article 2026.

If there are proceedings pending regarding the settleable right, the request
shall be entered into the record for those proceedings.

Article 2027.

If it is necessary or advisable, in order to demonstrate the need for the

settlement, to justify some right or the execution of certain formalities, the
Judge shall approve them and they shall be put into effect in the presence
of the Public Prosecution Service.

Article 2028.

On completion of the proceedings described in the preceding articles, the

Public Prosecution Service shall set out the measures it considers
advisable.

Article 2029.

Once they have been returned by the Public Prosecution Service, the
Judge shall issue an order granting or refusing authorisation for the
settlement, as they deem advisable in the interests of the minor or
incapacitated person.

If the Judge grants it, he shall approve or modify the submitted basis,
ordering attestation, along with the necessary inserts, to be given to the
guardian for the relevant use.

These proceedings shall be appealable for both review and suspension of

execution.

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Article 2030.

To mortgage or encumber immovable property, or to terminate rights in rem

belonging to minors or incapacitated persons, the same formalities shall be
observed as are established for selling, with the exception of the auction.

TITLE XII
ON ABSENTEES [107]

Article 2031.

All the proceedings arising from Book I, Title VIII of the Civil Code are of a
non-contentious nature and the Judges that hear them are fully authorised to
adopt, on their own initiative and with the involvement of the Public Prosecution
Service, as many measures of inquiry and investigation as they see fit, as well
as any protection measures they deem useful for the absentee [108].

Article 2032.

Both the applications and any objections that are brought shall be resolved
following the procedures for fast-track proceedings, by an order which shall
admit of the recourse of appeal, to be conducted before the relevant high
court, in accordance with the provisions of Book II, Title VI, section 3 of the
Civil Procedure Act, but without a judicial report being drawn up [109].

Article 2033.

In cases in which a person has disappeared, if the appointment of an

advocate is requested by an interested party, once the requirements
stipulated by Article 181 [110] have been confirmed in a summary
proceeding, the Court shall appoint the spouse of the disappeared party, if
there is one and they are not legally separated, as advocate; failing that,
the oldest of their legitimate children shall be appointed, with males taking
preference over females, and if there are no legitimate children, the
closest, youngest relative in the ascending line shall be appointed, with
males likewise being preferred to females.

If the absentee does not have a spouse, children or relatives in the

ascending line, the court may appoint an advocate for them, this being
incumbent on the eldest of their siblings, with males being preferred, and,
failing that, a relative or friend that the Court deems suitable and worthy of
the appointment. Any action that the advocate carries out shall require the

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prior authorisation of the Court and, once carried out, they must given an
account of the action for the Court’s approval.

However, the Judge, taking the circumstances of cases and the individuals
into consideration, may waive or alter the preceding obligation [111].

Article 2034.

If a father that has disappeared has children who are minors, parental
authority shall pass to the mother, unless the Court finds that serious
reasons exist for not granting this request [112].

Article 2035.

If the individual that has disappeared is a widow with children who are
minors, the Court, at the behest of any relative or the Public Prosecution
Service, shall provide them with a guardian, who shall act on their own
behalf without needing a protutor or family council, judicial consent
replacing the authorisations that would correspond to such a council in the
relevant cases [113].

Article 2036.

The wife of an individual that has disappeared shall have to obtain the
Court’s consent for all actions requiring marital authorisation under the
Civil Code.

If it sees fit, the Court may grant the wife judicial consent of a general nature,
taking into account the circumstances of the person and the case [114].

Article 2037.

Once appointed and before commencing the discharge of his duties, the
advocate must carry out a judicial inventory, with the involvement of the
Public Prosecution Service, of the moveable and immovable property of
the disappeared person. However, they may be specially authorised by
the Court to carry out any particular action where delay could result in
serious injury, even if the inventory has not been completed [115].

Article 2038.

The legal declaration of absence, referred to in Articles 182 to 184 of the

Civil Code, with the consequent appointment of a representative for the

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absentee, shall be sought by an interested party or by the Public Prosecution

Service, providing the necessary evidence to confirm that all the requirements
stipulated by the Civil Code for such a declaration have been met.

The Judge may also decide to hear as much other evidence as he sees fit,
in order to ascertain of whether or not the declaration is legitimate.

It is an essential requirement for the declaration that the commencement

of proceedings is made public by means of two public notices, which shall
be published at an interval of fifteen days in the Official State Gazette, in a
widely read newspaper in Madrid and in another in the capital of the
province in which the absentee had their last residence or, failing that, their
last domicile. Furthermore, it shall be advertised twice on national radio,
with the same interval of fifteen days. The Court may also decide on other
means to publicise the matter even more, if it sees fit.

Once the evidence deemed necessary has been heard and the periods of
the public notices and announcements have elapsed, the Court, where
appropriate as a result of the proceedings, shall issue an order declaring
the individual absent for legal purposes, which shall be appealable but
without suspension of review of sentence [116].

Article 2039.

In the order declaring absence for legal purposes, the Judge shall appoint
a representative for the absentee in accordance with the provisions of
Article 184 of the Civil Code.

The appointment may be challenged, with such challenge being handled

in a fast-track procedure, without it being necessary to appeal against the
declaration of absence [117].

Article 2040.

If, prior to the commencement of the procedure to declare the absence of an

individual for legal purposes, the measures included under Articles 2033,
2034, 2035 and 2036 have been adopted, they shall remain in effect while
the declaration is made, unless the Court, at the request of an interested
party or the Public Prosecution Service, deems it advisable to modify them.

If they have not been adopted, the Judge may agree to them provisionally,
as long as the absence proceedings remain incomplete [118].

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Article 2041.

The order declaring the absence of the individual shall stipulate that
parental authority for children of the absentee passes to their mother, or it
shall order that a guardian be appointed for them in accordance with the
Civil Code, in keeping with the case at issue.

The Court may also grant the wife of the absentee consent of a general
nature for all actions which, according to the Civil Code, require her to
have the authorisation of her husband [119].

If the court does not grant her such general consent in view of the circumstances
of the individual and of the case, the wife of the absentee shall have to request
the Court’s consent in as many cases as necessary [120].

Article 2042.

The declaration of death referred to under Articles 193 and 194 of the Civil
Code do not require a prior legal declaration of absence. It may be requested
either by interested parties or by the Public Prosecution Service, providing
all evidence supporting the requirements described under said articles.

The Judge, on his own initiative, shall ask to hear as much evidence
as he sees fit and shall always order the publication of public notices,
making the existence of the proceedings known, at an interval of
fifteen days, in the Official State Gazette, in a widely read newspaper
in Madrid, in another newspaper in the capital of the province in which
the absentee had their last residence or, failing that their last domicile,
and also on national radio.

Once the evidence has been heard and the proceedings publicised as
stated, the Judge shall issue an order declaring the death, if it has been
confirmed that all the requirements stipulated for their respective cases by
Articles 193 and 194 of the Civil Code have been met [121].

Article 2043.

In the event that the person declared absent or dead appears, once fully
identified and once evidence has been heard, if proposed by the Public
Prosecution Service or the parties, their pertinence having been declared by
the Court, the declaration of absence or death shall be declared null and void.

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If they do not appear, but there is news of their supposed existence in a

known location, the presumed interested party shall be notified of the order
declaring them absent for legal purposes or presumed dead, summoning
them to provide proof of their identity. Regardless of whether they provide
it, the Judge, with the involvement of the Public Prosecution Service and
the parties, once the evidence that the latter propose and that is required
by operation of law has been heard, shall issue the appropriate ruling.

The order setting aside the legal declaration of absence or declaration of

death implies the immediate application of Article 197 of the Civil Code [122].

Without prejudice to the provisions of this article, the Public Prosecution

Service or any party that deems themselves to have been injured may,
within a non-extendable period of three months, challenge the order in the
relevant declaratory action [123].

Article 2044.

If the death of the missing person is proven during the course of the
proceedings referred to in Articles 2033, 2034 and 2035, or while the
procedure for the legal declaration of absence or declaration of death is
being carried out, the proceedings shall be stayed and the judgments that
may have been handed down during said proceedings shall have no
subsequent effect [124].

Article 2045.

The inventory of movable property and description of immovable property

referred to under Article 185 point 1 of the Civil Code must be carried out
judicially with the involvement of the Public Prosecution Service.

Once the inventory has been carried out, the representative of the
absentee shall be provided with certification to show that they are
representing them [125].

Article 2046.

If the representative is the spouse, a child or a relative in the ascending

line, they shall have extensive powers to administer property, without
needing to submit accounts, and shall only require court authorisation for
transfers and encumbrances, unless the Judge finds there to be unusual
circumstances that make it advisable to impose a limitation.

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If the representative is some other person, the Judge shall indicate the kind
of surety that must be provided, as well as the value of it, and shall instruct
them to submit accounts to the Court every six months. If, on examination of
these accounts with the involvement of the Public Prosecution Service, the
Judge decides that it is not appropriate to approve them, the representative
may be removed from their post and someone else appointed to replace
them, without prejudice to any liabilities that they may have incurred.

In the case referred to in the preceding paragraph, the Judge, on appointing

the representative, shall set the maximum amount they can spend in
lawfully carrying out the administration of the property without needing
judicial consent, taking into account the size of the estate, the nature of the
assets and the conventions for their effective protection [126].

Article 2047.

For the purposes of Article 198 of the Civil Code, the Court shall send the
Central Register of Absentees all the evidence necessary for what is
stipulated in that article to be recorded [127].

TITLE XIII
ON NON-CONTENTIOUS JUDICIAL AUCTIONS

Article 2048.

Any party requesting a judicial auction must prove the following, producing
the appropriate documents:

1. They have legal capacity for the contract they propose to enter into.

2. They are able to dispose of the item or object in the intended manner by
means of the auction.

Article 2049.

The schedule of conditions according to which the auction must be held

shall be submitted with the document requesting it.

Article 2050.

Once the points given in Article 2048 have been confirmed, the Judge
shall agree to the announcement of the auction, in the manner and under

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the conditions proposed by the party requesting it; he shall indicate the
date and time that it is to be held; he shall order public notices to be put up
in the customary places and in the town in which the property is located or
the contract has to be made, and that they be published in the newspapers
designated by the petitioner.

In the public notices it shall be expressly stated that the schedule of

conditions and title deeds may be viewed in the Court Clerk’s office for the
information of those interested in taking part in the auction.

Article 2051.

If an admissible proposition is presented, being in accordance with the schedule

of conditions, the Judge shall allow it, as well as those made subsequently
improving the bid. Once the proceedings are over, the sale shall be awarded to
the only or best bidder, unless the party that requested the auction has expressly
reserved the right to approve it, in which case they shall be allowed to see the
file so that they can request what suits them within three days.

They shall be informed in the same way in the event that a bidder offers to
accept the sale modifying one of the conditions.

Article 2052.

If the party that issued the proceedings accepts the proposition referred to
in the second paragraph of the preceding article, an order shall be issued
considering the sale concluded in favour of the individual that made the
proposition, and ordering it to be put into effect.

If they do not accept it, they shall declare whether they approve the sale or
want a new auction to be held under the same conditions, or whatever
conditions they think it appropriate, or whether they relinquish their intention.

Article 2053.

When a new auction must be held, the announcements shall advise that
any bids made must be accepted, provided that they meet the minimum
time set by the individual that instigated the auction.

Article 2054.

If there is no bidder at the second auction, the interested party shall be

free to do what they think advisable, without being able to hold a third

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auction until one year has elapsed, after which they may request the issue
of new proceedings with the same aim.

Article 2055.

Any issues that are raised in the course of the auction shall be dealt with in
procedures for incidental matters [128].

TITLE XIV
ON JUDICIAL POSSESSION IN CASES IN WHICH A PROVISIONAL
ACQUISITION ORDER IS NOT APPROPRIATE

Article 2056.

For judicial possession to be ordered for a property or properties that have

not been acquired by hereditary title, the party that hopes to obtain it shall
request it from the Judge, enclosing [129]:

1. The deed on which they base their claim, registered with the Land
Registry.

2. A certificate issued by the individual in charge of said office, showing

that on that date the applicant has the capacity to request the
possession of the property or properties included in the title deed they
have presented.

Article 2057.

The Judge shall examine the title deed presented and if he finds it to be
sufficient shall issue an order granting the possession, without prejudice to
a third party with a greater right.

Article 2058.

The possession shall be granted by a court official, assisted by the Court

Clerk, at any of the properties at issue, on behalf of the others.

Article 2059.

The party obtaining possession may designate the tenants, tenant farmers
or administrators that the Court Clerk must summon, so that they be
recognised as the holder.

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This official shall draw up a report of the possession proceedings and the
requirements that have been verified.

Article 2060.

If the party obtaining possession requests it, he shall be given attestation

of the order granting it to him and of the formalities carried out to comply
with it.

The deed that they presented shall be returned to them in all cases, with a
note and receipt remaining in the court record.

TITLE XV
ON THE SURVEY AND MARKING OF BOUNDARIES

Article 2061.

The survey and marking of the boundaries of a plot of land may be

requested not only by its owner, but also by any party that has a right in
rem to its use and enjoyment.

The claim shall state whether the survey has to be carried out for the whole
perimeter of the plot or only on a part that borders on a particular estate; and
it shall state the names and residences of the individuals that must be
summoned in proceedings or that these particulars are unknown [130].

Article 2062.

The Judge shall indicate the date and time on which proceedings must
commence, with sufficient advance notice for all the interested parties,
who shall be legally summoned beforehand, to be able to attend.

Unknown parties whose residence is unknown shall be summoned by means

of public notices, which shall be put up in the customary places in the main
town of the judicial district in which the property is located, and the judicial
district in which the individual being summoned recently resided [131].

Article 2063.

If the Judge is not able to attend the survey, they shall delegate the
Municipal Judge within whose jurisdiction the property is located.

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Article 2064.

The survey, or the marking of boundaries if that has also been requested,
shall not be cancelled due to the failure of any of the adjacent owners to
attend. They shall retain their right to bring the appropriate declaratory
action for any possession or ownership that they believe themselves to
have been deprived of by virtue of the survey.

Article 2065.

Both the individual that requested the survey and the others attending the
proceedings may produce the title deeds to their properties and make the
claims that they deem appropriate, on their own behalf or through a
representative that they appoint for this purpose.

Where requested by one or more of the interested parties, expert

witnesses, appointed by them or chosen by the Judge, that know the plot
of land and can provide information needed for the survey, may also attend
the proceedings [132].

Article 2066.

Once the boundary survey and marking, if any, has been carried out, a
record shall be issued, separately from the proceedings, stating all the
circumstances revealing the line dividing the properties, the markers
placed or ordered to be placed, their direction and distance one from
another and any important issues that have arisen and their resolution.
The record shall be signed by those in attendance.

Article 2067.

In the event that it is not possible to conclude the proceedings in one day,
they shall be suspended and continued on the next possible day, which
shall be reported in the record.

Article 2068.

The interested parties shall receive as many copies of the record as they
request, and it shall be formally registered at the office of the Court Clerk
who authorised it, if he is a Notary; otherwise in that of the town or notarial
district where the demarcated property is located. If there are several
notaries, one shall be assigned by the Judge.

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Article 2069.

The Court Clerk shall make a record in the case file stating that the
boundary survey and marking has taken effect, stating the notary’s office
where the document was formally registered, and the notary shall sign for
receipt in the same record.

Article 2070.

Should the owner of any adjacent property object to the boundary survey
prior to its commencement, the survey of the part of the property adjacent to
that of the opposing party shall be dismissed, with the parties reserving their
right so that they may exercise it in the corresponding declaratory action.

This shall also be the case in the event of an objection made during the
proceeding itself; if the interested parties are unable to reach an agreement
on the point of dispute at this time.

In both cases, the boundary survey may continue for the remainder of the
property, if so requested by the person that issued the proceedings and if
no objection is forthcoming from the other adjacent property owners.

TITLE XVI
ON SURVEYING AND APPORTIONMENT OF FOROS (EMPHYTEUTIC
RENTS) [133]

Section 1. On Surveying

Article 2071.

Both the legal owner and any beneficial owners, may request the surveying
of properties that may be subject to payment of foros[134].

Article 2072.

The survey application shall be accompanied by [135]:

1. Any public or private documents that may lead to the designation of the
properties comprising the levy.

2. A list of the properties, which shall state their location, approximate

size, their boundaries, the special name by which they are known in

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the district (if any), and the names of their legal and beneficial owners.
It shall also state what is paid for each one as rent or levy, indicating
whether this is paid in money, fruits, in other kinds or in services.

By means of secondary petition, an expert shall be appointed who must

verify the operation on behalf of the person presenting it, and it shall be
accompanied by as many copies on ordinary paper as there are persons
who must be summoned.

Article 2073.

Once the application has been submitted, the Judge shall summon all the
interested parties in the customary manner, handing over the copies
mentioned in the preceding article, so that within a period of twenty days,
or more if necessitated by the distances, the number of properties or
beneficial owners, they shall appear on the date and at the time indicated
to declare whether or not they agree to the survey being performed. They
shall be advised that they shall be considered to be in agreement if they do
not appear in person or through a representative.

There shall be a period of at least six days between the last summons and
the hearing.

Article 2074.

When one of the interested parties is unidentified, or his or her domicile is

unknown, a notice shall be published in the “Official Gazette” of the
province, and shall also be put up in the customary place or places, calling
him or her to appear within the double term indicated for those present.

Article 2075.

If those present or absent do not appear within the established period, the
proceedings shall continue, without them being summoned a second time.

Article 2076.

On the day of the hearing, should any of those persons summoned declare
their disagreement with the performance of the survey, the Judge shall
require them to indicate clearly and accurately the reasons for their
disagreement, with the warning that they shall otherwise be deemed in
agreement. He shall also require those declaring themselves to be in

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agreement to say whether they agree with the expert appointed by the
party requesting the survey, or to appoint another on their behalf.

All the parties may submit the documents they deem appropriate to
resolving their respective claims as effectively as possible.

Article 2077.

When those objecting to the survey base their opposition on not acknowledging
that the person who receives the rent as the legal owner, or on properties
subject to emphyteusis, the provisions of Article 2080 shall apply.

When their objection is based on the fact that not all the properties subject
to emphyteusis are included on the list mentioned under Article 2072, point
2, the Judge shall request that they designate the others that should be
included in the survey, stating their owners’ names; and he shall ask the
person who issued the proceedings to declare whether he extends his
claim to the newly designated properties.

Article 2078.

In the event that all the interested parties agree in appointing a single expert,
even though he or she may be different to the one designated by the person
who issued the proceedings, the Judge shall agree to the appointment of
the former.

If those summoned for the performance of the survey were the beneficial
owners and they were not in agreement on the appointment of the expert,
the expert shall be considered the one chosen by the majority, and in the
event of a tie, it shall be decided by tossing a coin.

Article 2079.

On the day following the hearing, the Judge shall issue an order declaring
those who have thus declared themselves, those who have not given clear
and accurate explanations for their disagreement, and those who did not
attend the hearing, to be in agreement with the performance of the survey.
He shall, furthermore, order the appointed expert or experts to proceed
with the survey operation.

Article 2080.

As regards those who may have objected for any of the reasons set forth
in Article 2077, paragraph 1, the Judge shall rule, in the same order, that

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the proceedings are considered stayed, reserving the right of the legal
owner and the beneficial owners who have given their consent to exercise
it in the corresponding hearing, according to the size of the claim.

As regards those included in paragraph 2 of the same article, if the person

who had requested the survey had extended it to the properties designated
by those opposing the survey, the Judge shall agree a new appearance
between the latter and the owners of the former. If the survey was not
extended, the proceedings as regards said opposing persons shall be
deemed concluded and all those interested parties shall retain their right to
be exercised in the corresponding declaratory action.

Article 2081.

The order referred to in the two preceding articles shall appealable but
without suspension of review of sentence.

Article 2082.

The summons for the second hearing and the holding thereof shall be
subject to the rules established for the first hearing.

Those in attendance who have not appointed an expert, may agree to the
one appointed by the others or appoint another one themselves.

Article 2083.

Once the experts have performed the survey of the properties, they shall issue
it on ordinary paper with their signatures. The Judge shall order that it be added
to the case file and displayed in the Court Clerk’s office for the period he deems
appropriate by virtue of the number of properties and of owners, this being not
less than 15 days and not more than 30 and without demanding rights.

Article 2084.

When two experts have been appointed and they do not reach an
agreement, the Judge shall select a third randomly to resolve the dispute.

The third expert shall randomly selected taking the provisions of Article
616 into account [136].

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Article 2085.

Within the term established in Article 2083, those in disagreement with the
survey performed by the experts may appear before the Judge and state the
grounds for their disagreement. The corresponding record shall be issued.

Article 2086.

Once the period for examining the contents of the case file has elapsed, if
none of the interested parties has declared their disagreement as per the
preceding article, the Judge shall issue an order approving the survey and
declaring that the designated properties as included in the emphyteusis.

If, by virtue of the provisions of Article 2080, the proceedings have been
considered closed for some of those who were not in agreement with the
survey, the Judge shall make said statement, notwithstanding the
outcomes of the proceedings that may be brought due to those challenges.

Article 2087.

Where one of the interested parties has made use of the right granted
under Article 2085, if his or her objection were based on the fact that the
expert or experts had included a property not appearing on the list
accompanying the survey request, or in the addition made pursuant to
Article 2077, paragraph 2, in the emphyteusis, the Judge shall examine
the background and shall issue the approval order within three days; if the
fact was proven correct, however, he shall separate the property or
properties that have given rise to the claim, reserving the rights of the
corresponding holder to exercise them in the relevant proceedings,
according to the size of the claim.

Article 2088.

If the objection were based on a bigger area of the property subject to

emphyteusis than should be the case, because the property subject to
emphyteutic rent is part of a larger property belonging to the same owner, or
it were based on any other founded reason, the Judge shall summon the
interested parties and the experts to appear before him; he shall attempt to
clarify the facts, accepting such pertinent supporting documents as are put
forward, and in the case of not being able to reconcile the interested parties
when issuing the order approving the survey, he shall issue a fair ruling on
that claim, ordering the liable party to pay the costs of the hearing.

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When duly summoned, those who do not attend in person or through a

representative cannot appeal against the ruling issued by the Judge by
virtue of the provisions of the previous paragraph.

Article 2089.

The order approving the survey shall be appealable for both review and
suspension of execution, with the limitation stated in the preceding article.

Article 2090.

When the order approving the survey is final, certification shall be provided
to the person who issued the proceedings and always to the legal owner of
the property.

This certification shall include the properties comprising the emphyteusis

and the names of the legal owner and the beneficial owners that possess
them.

Any of the other interested parties may request certification at their

expense.

Article 2091.

If those requesting the survey were the beneficial owners of the property,
and the legal owner were to declare at the hearing referred to in Article 2076
that he does not agree that the survey be performed, the Judge shall deem
the proceedings closed, reserving the rights of those so wishing to exercise
them in the corresponding hearing, depending on the size of the claim.

He shall hand down the same judgment when the survey is requested by
the legal owner, if the beneficial owners are not in agreement.

Section 2. On Apportionment

Article 2092.

When the apportionment of a ground rent is requested between the various

properties subject to emphyteusis, the provisions contained in Articles
2071, 2072, 2073, 2074, 2075, 2076, 2077, 2078, 2079, 2080, 2081, 2082
and 2084 concerning survey proceedings shall be applicable; but bearing
in mind that the documents that are submitted, if any, must refer to the
emphyteutic rent paid.

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If a survey has been previously performed on the properties, the original,

or at least the certification of the approval order, comprising the points
listed under Article 2090, shall also be submitted.

Article 2093.

The provisions of Article 2083 shall also be applicable to this type of

proceedings; but with the modification that the operation to be performed
by the experts shall be the appraisal of the properties subject to
emphyteusis and the subsequent apportionment of the ground rent paid
on said properties.

Article 2094.

Following the apportionment operation submitted by the experts as per

Article 2083, within the term set forth therein, those who believe themselves
to be injured parties as a result of either the appraisal or by the
apportionment of the ground rent, may appear before the Judge for the
purposes set forth under Article 2085.

Article 2095.

Once said term has elapsed and no objection is forthcoming, the Judge
shall issue an order approving the apportionment and naming the tenant
with the largest share as the person responsible for collecting the ground
rents. If two or more pay equal parts, it shall be decided by tossing a coin.

The following exceptions apply:

1. When all beneficial owners agree to appoint a rent collector from among
their number, if this person agrees and the legal owner has no objection.

2. When a clause in the deed governing the emphyteusis expressly states

that the appointment shall be made in some other way, in which case the
stipulations of this document shall be observed.

Article 2096.

In the event of an objection being raised as per Article 2094, the Judge
shall call all interested parties and experts to hear all the parties and shall
accept the pertinent supporting documents put forward, issuing the
corresponding record for these proceedings.

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Article 2097.

Within the three days following the hearing, the Judge shall issue an order
deciding whether to uphold the objection, in which case he shall order that
the operation be rectified and state the terms in which this should be done,
otherwise he shall approve the apportionment, also appointing the rent
collector in the manner indicated under Article 2095.

Those not attending the hearing shall be deemed in agreement and they
shall not be entitled to appeal against what has been agreed.

Article 2098.

If it is ruled that the apportionment does not require rectification, the party
whose unfounded claim gave rise to the hearing shall be liable for the
costs thereof. If the rectification is sustained, the expert or experts shall be
liable for the costs incurred in the hearing.

Article 2099.

An appeal may be lodged against the order approving the apportionment,

under the terms set forth in Article 2089 for the survey.

Article 2100.

When a survey and apportionment have been requested at the same time,
the Judge, when approving the survey, shall order the expert or experts who
performed it to proceed with the apportionment, after the case has been
heard in accordance with the procedures laid out in Article 2094 et seq.

Article 2101.

Certification of the order approving the apportionment shall be given to the

legal owner of the property and to the rent collector.

This certification shall comprise the properties subject to emphyteusis, the

ground rent paid on these, the share assigned to each one and the names
of the beneficial owners who must pay it.

Any other interested party requesting said certification shall be granted it

at their own expense.

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Section 3. On provisions common to the two

preceding sections

Article 2102.

The first notification of the survey and apportionment proceedings shall be sent
in person or by means of a writ, as per the stipulations of Articles 262 et seq. of
this Act [137]. To hear subsequent proceedings, the interested parties may
appoint another person to appear in the presence of the Judge, provided that he
or she is domiciled in the main town of the judicial district.

Article 2103.

Any appeal lodged in this type of procedure, other than the cases expressly
designated in this title, shall be accepted but without suspension of review of
sentence, and shall be dealt with according to procedures for incidental issues.

Appeals lodged in accordance with the provisions of Articles 2081, 2089

and 2099 shall be heard in the same way.

Article 2104.

When the legal ownership of a property is divided between two or more

persons, each and all of them shall be entitled to exercise the rights
referred to under this title.

Article 2105.

For the purposes of the provisions contained in this title, the beneficial
owner shall be understood as the person in possession of the property
subject to emphyteusis, while it is not duly accredited that another person
is the same.

Article 2106.

Both the legal owner and the beneficial owners, may exercise the right
they hold to request surveyance and apportionment of ground rents,
provided that more than ten years have elapsed since said actions were
last undertaken.

Owners of either type may request surveyance and apportionment, even

through said period may not have elapsed. In this case, the costs incurred
shall be at the expense of the requesting party, unless they are the outcome of

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rectifications which need to be made as a result of judgments handed down

declaring a property subject to emphyteusis, owing to the reservations referred
to in Article 2087, in which case the costs shall be determined as appropriate.

Article 2107.

For cases other than those envisaged in the preceding article, and those in
which, due to an appeal being lodged, second instance costs should be
imposed on whoever is liable by law, the costs resulting from surveyance
and apportionment proceedings shall be paid by the beneficial owners, in
the same proportion they pay the emphyteutic rent.

From this the costs referred to in Articles 2088 and 2098 shall be excepted,
and met solely by the person on whom they have been imposed.

Article 2108.

All those involved in these proceedings whose fees are indicated by tariffs,
shall collect them in full provided that the capital value of the emphyteutic
rent is more than 1,000 pesetas; they shall receive half, if this were
between 250 and 1,000 pesetas, and a quarter if not more than 250
pesetas.

PART TWO
NON-CONTENTIOUS PROCEEDINGS IN TRADE BUSINESS

TITLE ONE
GENERAL PROVISIONS

Article 2109.

Procedures for the recording of facts that may be interest to those who
issue proceedings regarding the same in trading businesses, shall be
brought before Courts of First Instance.

Article 2110.

The provisions of the previous article notwithstanding, the same procedures

described therein can be heard before Municipal Courts of towns which
are not the administrative centres of judicial districts, or before Spanish

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Consulates in foreign nations, when so required by the urgency of the

business, or the circumstance of existing evidence, or the merchandise or
securities, or when the events have taken place in the place or the judicial
district of the respective Courts or Consulates.

In this case, the Municipal Judge or Consul called upon in the procedure
shall issue a ruling in which he records the existing circumstance that
empowers him to investigate the business [138].

Article 2111.

If the procedures referred to in the previous two articles are instigated in

Spanish territory, they shall be governed by the provisions set forth in the
Commercial Code or in this Act, in each case.

When the no special rules have been laid down for the events in question,
the procedure shall be subject to the following rules, in addition to the
applicable general provisions from the first part of this book:

1. When the proceedings may be detrimental to third persons, the latter

must be summoned so they may, if they wish, attend the proceedings,
notwithstanding the fact that any persons believing themselves to have an
interest in the matter at issue may attend.

The Judge shall reject outright any claim by any person who clearly has no
interest in the business.

2. In cases in which legal measures may affect the public interest, or persons
who, present or absent, have special protection under the law, or who are as
yet unknown, the Public Prosecution Service shall be summoned in
administrative centres, and the Municipal Public Prosecutors in other towns.

3. Court Clerks in Courts of First Instance and Municipal Courts shall

certify the identity of the persons claiming the intervention of the respective
Judges and of the witnesses in proceedings that may be conducted.

When not known to them, the identities of these persons shall be verified
by documents or by persons who do know them. In the absence of any
means of identifying a person’s identity, this shall be reported in
proceedings.

4. The intervention of summoned third persons, that of the Public

Prosecution Service or of the Municipal Public Prosecutors, if applicable,

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shall be limited to learning the identity of those involved in the proceedings

and their legal capacity to act in their respective roles therein. For these
purposes, they shall receive the evidence attained before any court ruling
is handed down, so that they may make any statement they deem
appropriate. Any claim made other than in cases concerning the identity
and the legal capacity of the persons involved, shall only give rise to their
rights being reserved so that they may exercise them where and how they
deem it appropriate.

5. If the claims made by third persons, the Public Prosecution Service or

Municipal Public Prosecutors were in regard to correctable errors, the Judge
shall make the appropriate ruling to complete the legal measures as fully as
possible.

6. The Judge shall, in view of all the foregoing proceedings, issue an order with
the appropriate decision and shall order the legal actions be dismissed, providing
the interested parties with certification of the part they have requested.

7. When, by virtue of the provisions of Article 2110, the legal measures

have been carried out before a Municipal Judge, conducted in their most
special and urgent part, said Judge shall remit them to the Judge of First
Instance and the latter shall conclude them in the appropriate manner,
implementing the provisions of the previous rule.

Article 2112.

Appeals lodged by those who issued the proceedings, shall be admitted

for both review and suspension of execution; those lodged by other
persons involved therein, shall be admitted without suspension of review
of sentence.

Article 2113.

When an appeal is lodged and admitted, the orders shall be sent within two
days, subject to the summons of the interested parties for a term of eight days
if before a Court of First Instance, or of ten days if before a Provincial Court.

Article 2114.

In appeals against rulings issued by Municipal Judges, once the orders

have been received by the Court of First Instance, if the appellant
appears before the term of summons, the Judge shall order all
interested parties to appear before him within three days. A hearing

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shall be held and the statements of the interested parties shall be duly
recorded. The Judge shall issue the appropriate judgment within three
days following the hearing.

Appeals before the Provincial Courts shall carried out according to the
procedures for incidental matters. [139].

Article 2115.

If the appellant does not appear within the term of summons, the provisions
of Articles 840 et seq. shall be implemented [140].

Article 2116.

No appeal may be lodged against judgments issued in the second instance,

notwithstanding the rights of the interested parties which are reserved for
them to exercise in the corresponding proceedings, depending on the size
of the claim.

Article 2117.

Surveys and appraisals shall be performed by duly qualified experts,

provided that these are available in the place where the actions are
conducted, and in their absence by skilled technicians.

An exception applied in the event that the interested party at whose

request the surveys or appraisals are made, requests, at his own expense,
that they be performed by qualified experts.

In the event that the two experts disagree and a third is required to resolve
the dispute, the third expert shall be selected at random and in accordance
with the provisions of Article 616 [141].

Article 2118.

When Spanish Consuls act in non-contentious proceedings pursuant to

the provisions of Article 2110, they shall do so, insofar as possible, in
compliance with the provisions of this Act.

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TITLE II
DEPOSIT AND EXAMINATION OF TRADE ITEMS

Article 2119.

If, by virtue of the provisions of Articles 121, 122, 218, 222, 365, 674, 745,
777, 781 and 988 of the Commercial Code or due to any other similar
cause, it were necessary to deposit trade items, the person wishing to do
so must request it in writing to the Judge, giving a detailed list of the items
whose deposit he is requesting and designating the person who shall be
the depository. The person designated as such shall be a registered trader,
if available in the town, and if not, a taxpayer deemed by the Judge of
sufficient entity to guarantee the value of the deposit and the local
conditions.

The evaluation of the guarantees offered by the depository designated by

the person requesting the deposit shall, in any event, remain at the Judge’s
discretion; and if he deems another appointment should be made, he shall
do so in accordance with the provisions of this article [142].

Article 2120.

If the deposit is requested due to the contingency provided for in Article

777 of the aforementioned Code [143], the requester shall also apply for
an expert examination of the vessel, and shall provide information
regarding whether there are any other vessels to be chartered in the ports
within a distance of 160 kilometres.

This point may also be supported by documents.

Article 2121.

The Court Clerk shall record the constitution of the deposit, including the
number and status of the items deposited; in the event of there being any
difference with the list of items provided the request document, he shall
report the details of this difference.

Article 2122.

If the Court Clerk and the depository are in disagreement regarding the quantity
or quality of the items listed by the person requesting the deposit, and the latter
does not agree to a rectification, in the case of a difference in quantity, the Court

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Clerk shall make a thorough tally of the items in the presence of the depositor
and the depository; if the difference were in the quality, the Judge shall appoint
an expert to classify them, all of which shall be recorded appropriately.

This expert should be drawn from among the Professional Brokers

Association, if available, or otherwise, from among the traders registered for
the kind of commercial instrument in question, and no peremptory challenge
shall be admitted.

Article 2123.

Should the situation envisaged in the previous article occur, the Judge
shall provide for the temporary custody and safekeeping of the items to be
deposited.

Article 2124.

When it is appropriate for the Judge to order the sale of some of the
deposited items to cover the cost of their receipt and safekeeping, this sale
shall be by public auction, after their prior valuation by an expert appointed
by their owner, if present, or by the Public Prosecution Service if they are
absent, and another expert appointed by the Judge. The auction shall be
announced eight to fifteen days in advance, by public notices that shall be
posted on the Court notice board, and which may be published in the
“Official Gazette” of the province and in local newspapers, at the Judge’s
discretion, according to value of said items.

If the owner of said items is present and in agreement with the Judge
appointing only one expert, this shall be the case. If the owner opts to
name an expert who is not in agreement with the expert appointed by the
Judge, a third expert shall be appointed at random [144].

Article 2125.

If there is no bidder at the auction, or the bids do not cover two thirds of the
valuation figure, a second auction shall be held and if necessary a third,
and within a like period, with a 20% reduction in each amount that had
been the rate for the previous auction.

Article 2126.

In the event of the doubts and responses referred to in Article 218 of

the Code [145], if the interested parties do not reach an agreement on

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the appointment of the experts, they shall apply to the Judge to

designate them. This done, the experts shall issue their reports and if
they do not agree, the Judge shall appoint a third at random.

If, despite the expert examination, the interested parties do not accept their
differences, the deposit ordered in said Article shall proceed to take place.

Article 2127.

When a record is required indicating the state, quality and quantity of the
merchandise received or of the packages containing them, in accordance
with the provisions of Articles 219, 362 and 370 paragraph 2 of the Code,
and other similar cases, the interested party shall apply to the Judge to
order express measures in those circumstances, and if necessary to
appoint an expert to examine the merchandise or packages [146].

If the interested parties agree to each appoint an expert, they shall request
this, and in the event of a dispute, a third expert shall be appointed at random.

TITLE III
ON THE PROVISIONAL SEIZURE AND DEPOSIT OF THE VALUE OF
A BILL OF EXCHANGE

Articles 2128 to 2130.

No content on account of Act 10/1992 of 30 April.

TITLE IV
ON THE CLASSIFICATION OF AVERAGES, SETTLEMENT OF THE
GENERAL AVERAGE AND CONTRIBUTION THERETO

Article 2131.

When it is necessary to make the justification, mentioned under Article 945 of

the Code, of the losses and expenses that make up the general average, the
Captain of the vessel, within 24 hours of having reached the port of discharge,
as stated under Article 670 of said Code, shall submit the note of protest to the
Judge, making a short list of everything that happened during the voyage with
reference to the ship’s log, and he shall apply for the license to open hatches,
designating for these purposes the adjuster who has to be present thereat.

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Said note shall accompany the protests proceedings which may have
been requested at any other port, and the ship’s log. [147].

Article 2132.

Once the aforementioned note of protest has been submitted, the Judge, if
possible that same day, summoning and hearing all interested parties or
their consignees, shall take as many statements from the crew and
passengers as he deems necessary about the facts reported by the Captain.
Once his inquiries are complete, he shall grant the license to open hatches.

This proceeding shall be carried as out as per the provisions of Article

2171.

Article 2133.

Once the hatches have been opened and the state of the cargo has been
confirmed, in order to be able to proceed with the classification, inspection
and settlement of the averages and their amount, the Judge shall order the
Captain of the vessel, the interested parties or their consignees, to appoint
their adjusters within 24 hours; indicating that if they do not do so, they
shall be appointed by operation of law.

The Captain shall appoint an adjuster for each kind of merchandise that
shall be inspected; another shall be appointed by the interested parties or
consignees and the Judge shall select a third one at random, in the event
of disagreement between the first two.

Article 2134.

The adjusters having been appointed or designated by operation of law, as

applicable, they shall accept and swear to discharge their duties in the
manner established under Article 947 of the Code, and the Judge shall
give them a short deadline to submit their report.[148].

Article 2135.

The adjusters shall classify the averages, listing with the utmost possible
accuracy [149].

1. The simple or individual averages.

2. The gross or common averages.

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Article 2136.

When the experts submit their report, this shall be displayed in the Court
Clerk’s office for a period of three days, within which time the interested
parties may, by appearing before the Court Clerk, indicate any reason they
may have for not being in agreement [150].

Article 2137.

If there be any person in disagreement with the adjusters’ findings, the day
following the deadline set in the previous article, the Judge shall summons
the interested parties to an immediate hearing. In this hearing he shall
receive their justifications through inquiry, and the corresponding record
shall be issued [151].

Article 2138.

On the second day, the Judge shall issue an order approving the
appropriate decision.

This ruling shall be appealable but without suspension of review of

sentence.

Article 2139.

When the interested parties have given their agreement to the adjusters’
report concerning the settlement of the average, or an order has been
issued as per the preceding article, the Judge shall order the same
adjusters to make the calculation and settlement of the gross or common
averages[152].

Article 2140.

To make this calculation, the experts shall draw up four statements:

1. Of the damages and expenses considered common averages or mass

of averages.

2. Of the items subject to the contribution of the common averages, or

taxable mass.

3. Of the distribution of the taxable mass among the items subject to the
contribution.

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4. Of the effective contributions and effective reimbursements.

Article 2141.

Both in the case of the previous article and in that of Article 2134, if the
adjusters do not undertake their remit by the set deadline, the Judge shall
press them to do so.

Article 2142.

When the adjusters have submitted the four statements cited in Article
2140, these shall be displayed in the Court Clerk’s office for a period of six
days, for the purposes expressed in Articles 2136 et seq.

Article 2143.

If all the interested parties are in agreement, the Judge shall approve the
apportionment. In the case of having called a hearing as per Article 2137,
within three days the Judge shall issue an order approving the
apportionment as submitted by the adjusters, or with such modifications
as he deems fair.

This order shall be appealable for both review and suspension of execution
[153].

Article 2144.

When the Captain of the vessel does not comply with the duty imposed on
him by Article 962 of the Code, regarding implementation of the
apportionment, the owners of the averaged items may apply to the Judge
to oblige him to do so [154].

Article 2145.

In the event that the owners of the averaged items file a claim as per the
preceding, the Judge shall summon the Captain to implement the
apportionment within a given deadline, warning him that he shall be liable
for negligence or default.

Article 2146.

When the contributors do not effect settlement of their respective portion

by the third day, if, after approval of the apportionment, the Captain were

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to use the right he is granted under Article 963 of the Code [155], a public
auction of the necessary salvaged items shall take place at the Captain’s
request in order to effect this settlement.

This auction shall be held in the manner set forth under Articles 2124 and
2125.

TITLE V
ON THE UNLOADING, ABANDONMENT AND AUDIT OF TRADE
ITEMS AND ON THE CARGO BOND

Article 2147.

If the Captain of a vessel obliged to dock at a port believed it appropriate to

unload and subsequently load the cargo for the best conservation of all or part
of it, and he did not have or could not receive the consent of the consignors,
he shall apply to the Judge in writing, or in person if the case is very urgent, to
obtain the authorisation required under Article 775 of the Code [156].

Article 2148.

To obtain said authorisation, the Captain shall request that the cargo be
inspected by experts; one shall be appointed by him and the Public
Prosecution Service shall appoint the other on behalf of the absent
consignors. If these experts are in disagreement, the Judge shall select a
third at random [157].

Article 2149.

The Judge shall order that the inspection be carried out, and if the experts’
report deems it necessary for the cargo to be unloaded, he shall rule to
this effect.

Article 2150.

The ship’s Captain shall receive a certified copy of the proceedings.

Article 2151.

When in general freight charters, one of the consignors intends to unload

his goods and the other consignors wish to exercise their right under Article
765 of the Code, they shall go before the Judge and request him to take

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charge of the items intended to be unloaded, and they shall record its
value at the invoice price [158].

Article 2152.

If the intention referred to in the preceding article conforms to legal

requirements, the Judge shall uphold it, ordering the owner of the items to
be summoned to receive the amount consigned.

In the event that the owner of the items does not wish to receive the
amount thereof, it shall be made available to him per the provisions of
Article 2129, reserving his right to bring proceedings against the appropriate
party in the appropriate manner.

Article 2153.

To carry out the unloading due to an unscheduled stop as referred to in

Article 974 of the Code, the Captain of the vessel shall request that the
vessel and the cargo be inspected by experts, in order for them to declare
that putting into port was essential for the necessary repairs be made to
the vessel, or to avoid damage and averaging in the cargo. [159].

The experts shall be appointed in the manner described under Article

2148.

Article 2154.

If the experts find in favour of unloading, the Judge shall rule that this be
carried out, providing the necessary means for the preservation of the cargo.

Article 2155.

In the event that the Captain of the vessel makes the averaging statement
referred to in Article 976 of the Code, and once the merchandise has been
inspected by the adjusters, as per Article 977, if the latter are of the opinion,
in the interest of the absent consignor, that the merchandise should be sold,
then the sale shall be carried out in accordance with the following title [160].

Article 2156.

In the event of abandonment, for payment of freight charges referred to in

Article 790 of the Code, if the charterer were in disagreement, the
consignors shall apply to the Judge to proceed, with the involvement of the

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former, to weigh or measure vessels containing the liquids that are to be

abandoned [161].

Article 2157.

Once the weighing or measurement ordered by the Judge has been

performed, if the vessels have lost more than half of their contents, the
Judge shall order they be turned over to the charterer.

Article 2158.

To authorise the intervention mentioned in Article 794 of the Code, the

Captain of the vessel may submit the request in writing, and the Judge
shall apply it in the way that causes the least possible damage [162].

Article 2159.

When the bond of the value of the cargo is required, in keeping with the
provisions of Article 805 of the Code, the Captain shall apply to Judge for
such, his writ including the documentation in which said value is calculated
[163].

Article 2160.

In view of the writ and documents presented, the Judge shall rule whether
the bond is appropriate or not, and if so he shall establish it for the amount
and in the form claimed by the Captain of the vessel.

If in cash, it shall be deposited immediately in the manner set forth under

Article 2129.

TITLE VI

ON THE DISPOSAL AND SEIZURE OF TRADE ITEMS IN

EMERGENCIES AND ON THE REPAIR OF SHIPS

Article 2161.

In the cases provided for under Articles 151, 593, 608, 614, 644, 653, 798,
825, 978, 979, 985, 990 and 991 of the Code, the following rules shall be
observed [164]:

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One. Provided that in compliance with the provisions of Articles 151, 978
and 979 of the Code, it is necessary to sell trade items that have been
averaged or whose alteration requires their urgent disposal, the broker
responsible for them or the Captain of the vessel carrying them, shall
apply for this to the Judge, expressing the number and class of items that
have to be sold. The request shall also be accompanied by [165] a
statement signed by the Captain of the vessel, showing the cash on hand
and giving information on the steps he has taken to find someone to grant
a bottomry loan for the required sum, and the negative outcome thereof.

Two. Once the application has been submitted, notwithstanding the

provision of the information mentioned in the preceding rule, the Judge
shall appoint an expert to inspect the goods on that same day or the
following day at the latest.

Three. Once the expert has issued his statement concerned the state of
the goods, whether it is necessary to sell them, and once any applicable
proceeding has been carried out, the Judge shall order their appraisal and
sale by public auction, taking the necessary measures to advertise it as
widely as possible, bearing in mind not only the value of the items, but also
the urgency of the sale, depending on their state of conservation.

Four. The sale of items resulting from a shipwreck shall, depending on the
case, be governed by the procedures laid out in the previous rules. The
Judge who has ordered that they be deposited, shall order their sale by
operation of law, where appropriate.

Five. When the amount resulting from the sale does not have to be used
immediately, it shall be deposited in the manner described under Article
2129, at the disposal of the appropriate party, minus the sum of the all
costs.

Six. To justify the need to sell a vessel that has been found unseaworthy
while en route, and which cannot be repaired to continue its journey, its
Captain or Master shall apply to the Judge for it to be examined by experts.
The request document shall be accompanied by the audit report or
boarding inspection report, referred to in Article 648 of the Code [166],
and the Ship’s Log, so that the Court Clerk can issue certification thereof
during proceedings.

The experts shall be appointed in accordance with the provisions of Article

2148, and if the experts’ report supports both points, the Judge shall rule in
favour of the sale, following the formalities set forth under Article 608 of

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said Code. The sum resulting from the auction, minus all costs, shall be
deposited as in the case described in the preceding rule.

Seven. In all the cases referred to in the previous rules, when there is no
bidder at the first auction, or the bids placed do not cover two thirds of the
appraisal value, a second or successive auctions shall be readvertised,
with a 20% decrease each time.

Eight. When a vessel requires repair and one or more of the shareholders
does not agree to it or does not supply the necessary funds, the party that
regards it as essential shall apply to the Judge for experts to inspect the
vessel.

Once it has been inspected by those appointed by the claimant and the
opposing party, and a third inspector if the first two cannot reach an
agreement, if the repair is deemed necessary, the Judge shall require the
party who has not provided the funds to do so within eight days, subject to
the warning that if not so doing he shall be deprived of his part, his
co-shareholders paying him in consideration the appraisal value the vessel
had before being repaired.

This appraisal value shall be determined by the same experts who

inspected the vessel; and the sum established, if the co-owner of the
vessel did not wish to receive it, shall be deposited and available to him in
the manner described in the preceding rules, and without prejudice to his
right to bring proceedings in the appropriate hearing, depending on the
size of the claim.

Nine. According to the provisions of Articles 644 and 826 of the Code
[167], when a Captain of a vessel requires judicial consent to take out a
bottomry loan, he shall apply for it by drafting a report or presenting
documents justifying the urgency and his inability to find funds by the
means listed in the first of the aforementioned articles. Furthermore, he
shall petition the Judge to appoint an expert to inspect the vessel and
determine the sum required for repairs, renovation and provisioning.

In view of the expert’s statement, the Judge shall order announcements to

be published, which shall be displayed in the customary places and
published in the “Official Gazette” of the province and in the local
“Announcements Publication”, if there is one, which shall succinctly indicate
the aim of the ship’s Captain and the amount the expert has determined.

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Once the Judge has granted authorisation for the loan to be taken out, if
despite this loan the Captain were unable to find the required amount, he
may request the sale of part of the cargo to cover the deficiency.

The sale shall be preceded by an appraisal of the experts appointed in

accordance with the provisions of Article 2148, and by a public auction
announced and held as per the formalities ordered in the previous rules.

Ten. In the event that a ship’s Captain believes himself to have been
obliged to demand that those holding personal provisions hand them over
for the common consumption of all on board, and the owners of said
supplies did not agree that such a need existed or with the price that the
Captain was willing to pay for them, one or both parties may issue judicial
proceedings at the first port of refuge, in order to state the facts.

Once proceedings have been issued, the Judge shall hear the interested
parties in a single hearing and if no agreement is forthcoming concerning
the price that the Captain should pay for the provisions, the proceedings
shall be concluded, and the owners shall reserve the right to bring the
appropriate legal action in contentious proceedings.

If the interest of the litigant in question does not exceed 250 pesetas,
fast-track proceedings shall apply; if the amount exceeds said figure, it
shall be subject to procedures for incidental matters [168].

Eleven. If the charterer wishes to exercise the right he is granted under Article
798 of the Code [169], he shall request that the Judge require the consignee
to immediately pay the amount owed to him for freight charges, and if he does
not do so, that the judicial sale of the necessary part of the cargo proceed at
public auction, and by the means set forth in the preceding rules.

If the consignee does not settle the payment when required to do so, the
Judge shall order that the necessary part of the cargo, as designated by
the experts appointed by the interested parties (and the third expert
selected randomly by the Judge in the event of no agreement being
reached), be placed in deposit.

If, once the sale is made, the resultant sum does not cover the amount
owed, said deposit and subsequent sales may be extended at the
charterer’s request and subject to the same formalities.

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In the event that the consignee objects, the sale price shall be deposited in
the establishment intended for this purpose, until it is decided in the
corresponding hearing whether payment is appropriate or not.

The claim shall be submitted within a period of 20 days, the hearing taking
place in accordance with the provisions for incidental matters. Once this
term has elapsed and the claim has not been filed, by operation of law the
Judge shall lift the deposit and hand over the amount owed to the charterer.

TITLE VII

ON OTHER TRADING ACTS REQUIRING URGENT COURT ACTION

Article 2162.

In the case referred to under Article 307 of the Code, the partners who
believe that the person responsible for administering and running the firm
is misusing their authority and they wish to appoint a co-administrator, they
shall apply in writing to the Judge, requesting that he receive information
on the case, and that once said misuse has been proven, that the person
they designate be appointed co-administrator [170].

The aforementioned document shall be accompanied by a duplicate,

which shall be served on the managing partner together with the summons.

Article 2163.

The managing partner can, in the same proceedings, present the counter-
information he sees fit and present the documents that testify to his good
business management.

Article 2164.

Having received the information, the Judge shall hear the interested parties
in a hearing, and according to the outcome of these proceedings he shall
issue a ruling to appoint or refuse the appointment of a co-administrator.

Article 2165.

If such an appointment is approved, the Judge shall rule in favour of the

person designated by the partners who had so requested.

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If the managing partner puts forward well-founded reasons for objecting to

the person proposed, the interested parties shall be summoned to a new
hearing, and if no agreement is reached therein, another person shall be
appointed by the same partners.

Article 2166.

Any partner wishing to exercise the right granted to them by Articles 308
and 310 of the Code, or those of a similar nature arising from the contact
or company regulations, where the administrator does not consent to this,
may apply to the Judge in writing and the latter shall order that the company
books and documents he wishes to examine be displayed in proceedings.

If the managing partner resists the exhibition of said documents in any way,
the Judge shall take the necessary measures to oblige him to comply. [171].

Article 2167.

When any shareholder in the ownership of a ship wishes to exercise the pre-
emptive right referred to in Article 612 of the Code, or attempts to prevent it as
per the provisions of Article 613, he shall only be required to petition the seller
or his co-shareholders within the legal term, by means of a notarial certificate,
consigning the sale price to the Notary’s possession in the first case [172].

Article 2168.

In any of the cases provided for under Articles 751, 752, 753, 754, 760 and
761 of the Code, whatever the complaint brought before the Judge, after a
summary investigation, he shall hand down the appropriate judgment, ordering
the Captain of the vessel and the other necessary persons to comply. [173].

Article 2169.

If, to avoid being held accountable in the event of an accident, the Captain
of the vessel wishes to open the hatches to verify the cargo had been
correctly loaded, he shall apply for judicial consent to do and he shall
appoint an expert who shall attend said act.

Article 2170.

Once the application has been submitted, the Judge shall summon the
consignors and consignees, if in the same town, and if not, the Public

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Prosecution Service, to appoint another expert. Once the experts have

been appointed, the requested consent shall be granted.

Article 2171.

The hatches shall be opened before the Court Clerk, the experts and the
ship’s Captain; consignors and consignees may also attend. Once the
cargo has been inspected by the experts, the corresponding record shall
be drawn up and signed by all those present.

If the experts are not in agreement, the Judge shall randomly select a third.

Article 2172.

Once the procedures are concluded, the Captain shall be handed original
documents in the event that he needs to use them in another port.

Article 2173.

In cases in which the ship’s Captain has to state the causes of the
averaging, emergency docking, shipwreck or any other event for which he
may be held liable for not acting in line with the Code of Commerce, he
shall apply to the Judge in writing, asking him to take statements from the
passengers and crew on the veracity of the facts he has laid out.

Said application shall be accompanied by the ship’s log.

Article 2174.

In his hearing, the Judge shall receive the information provided and order
that the part of the log testifying to the event and its causes be copied and
officially certified, subsequently returning the original proceedings to the
Captain.

TITLE VIII
ON THE APPOINTMENT OF ARBITRATORS AND EXPERTS IN
INSURANCE CONTRACTS

Articles 2175 to 2181.

No content on account of Act 10/1992 of 30 April.

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FINAL PROVISION

Article 2182.

All Acts, Royal Decrees, Regulations, Orders and Jurisdictions in which

Civil Procedure rules have been issued are hereby revoked.

The civil procedure rules set forth in the Mortgages Act and other special
laws are exempt from this provision.

[1] This paragraph covers the precepts of the Act of 1881, expressly
declared in force by Act 1/2000 of 7 January on Civil Procedure, for as
long as the stipulations of its single revocation provision are met.

[2] Section worded in accordance with Act 10/1992 of 30 April on

Urgent Procedural Reform Measures.

[3] Paragraph worded in accordance with Act 10/1992 of 30 April.

[4] This paragraph is worded in accordance with Act 78/1961 of 23

December (“Official State Gazette” No 309, of 27 December).

As stated by the single revocation provision 1.2 of Act 1/2000 of 7 January

on Civil Procedure, this article shall only be valid (until the regulation on
this matter comes into force through the Voluntary Jurisdiction Act) with
regard to conciliation proceedings.

[5] Rule worded according to Article 6 of Act 21/1987 of 11 November

(“Official State Gazette” No 275 of 17 July) amending certain articles of the
Civil Code and of the Civil Procedure Act.

[6] See Articles 239, 240 and 249 of the Civil Code.

[7] See Article 712 of the Civil Code.

[8] See Article 166 of the Civil Code, transcribed in the note to Article
2011.

[9] This rule is worded in accordance with the Act of 30 December

1939 (“Official State Gazette” No 6, of 6 January 1940).

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[10] As set forth in single revocation provision 1.2 of Act 1/2000 of 7

January on Civil Procedure, this title shall only be valid until the regulation
on this matter comes into force through the Voluntary Jurisdiction Act.

[11] Article 120 of Act 30/1992 of 26 November (“Official State Gazette”

No 285, of 27 November; correction of errors in Official State Gazettes
Nos 311, dated 28 December, and 23, of 27 January 1993, on the Judicial
Regime of the Public Administration and Common Administrative
Procedure, sets forth:
“Article 120. Nature.-1. Prior to exercising actions grounded in private
or labour law against any public administration, claims must have been
filed through an administrative process, except for cases in which said
requirement is exempted by a disposition with the force of law.
2. Such claims shall be processed and a ruling issued according to the
regulations contained in this title and those that are applicable in each
case, and in their absence by the general rules of this Act.”

[12] On the civil liability of Judges and Magistrates, see Articles 411 to
413, inclusive, of Organic Act 6/1985 of 1 July, on the Judiciary.

[13] Article worded in accordance with Act 34/1984 of 6 August, except

paragraph 1 which is worded in accordance with Act 13/2009 of 3
November (“Official State Gazette” No 266 of 4 November), on the reform
of procedural legislation for the implementation of the new Judicial Office.

[14] Paragraph worded in accordance with Act 13/2009 of 3 November

(“Official State Gazette” No 266 of 4 November), on the reform of
procedural legislation for the implementation of the new Judicial Office.

[15] Paragraph worded in accordance with Act 34/1984 of 6 August,

except the expression “First Instance” which was introduced by Act
10/1992 of 30 April.

With regard to the jurisdiction of the Civil Law Courts, see Article 22 of the
Organic Act on the Judiciary (§ 3).

On the allocation of matters between Courts, see Article 167 of the Organic
Act on the Judiciary (§ 3).

[16] See Articles 51 and 52 of the Organic Act on the Judiciary, which
appears as paragraph 3.

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[17] Articles 217 to 228 of the Organic Act on the Judiciary (§ 3).

[18] Article worded in accordance with Act 13/2009 of 3 of November

(“Official State Gazette” No 266 of 4 November), on the reform of
procedural legislation for the implementation of the new Court Office.

[19] Article worded in accordance with Act 13/2009 of 3 November, on

the reform of procedural legislation for the implementation of the new
Judicial Office.

[20] Article worded in accordance with Act 13/2009 of 3 November

(“Official State Gazette” No 266 of 4 November).

[21] Article worded in accordance with Act 13/2009 of 3 November on

the reform of procedural legislation for the implementation of the new
Judicial Office.

[22] Article worded in accordance with Act 13/2009 of 3 November

(“Official State Gazette” No 266 of 4 November).

[23] Article worded in accordance with Act 13/2009 of 3 November, on

the reform of procedural legislation for the implementation of the new
Judicial Office.

[24] Paragraph added in accordance with Act 13/2009 of 3 November

(“Official State Gazette” No 266 of 4 November).

[25] Act 10/1992 of 30 April, has deleted the expression “Municipal”

which appeared before “Judge”.

[26] Article worded in accordance with Act 13/2009 of 3 of November

(“Official State Gazette” No 266 of 4 November), on the reform of
procedural legislation for the implementation of the new Judicial Office.

[27] Article worded in accordance with Act 34/1984 of 6 April.

[28] Article worded in accordance with Act 34/1984 of 6 April.

See Articles 1945, 1947 and 1973 of the Civil Code, and Article 944 of the
Commercial Code.

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[29] Article worded in accordance with Act 34/1984 of 6 August; Act

10/1992 of 30 April, has deleted the expression “District” which appeared
before “Judges”.

[30] As set forth in single revocation provision 1.3 of Act 1/2000 of 7

January on Civil Procedure, Articles 951 to 958 shall only be valid while
the International Cooperation (Civil Matters) Act is in force.

For international jurisdictional co-operation, see Articles 276 to 278 of the

Organic Act on the Judiciary (§ 3).

[31] See the Lugano Convention of 16 September 1988, ratified by

Instrument of 9 August 1994 (“Official State Gazette” No 251 of 20 October;
correction of errors in “Official State Gazette” No 8 of 10 January 1995),
and Council Regulation (EC) No 44/2001, of 22 December 2000 (“Official
Journal of the European Community” No 12 of 16 January 2001; correction
of errors in “Official Journal of the European Community” Nos 307 of 24
November 2001 and 176 of 5 July 2002), which was amended in various
places by Regulation (EC) No 2201/2003 of 27 November (“Official Journal
of the European Community” No 367 of 14 December), concerning legal
jurisdiction and the enforcement of judicial decisions on civil and
commercial matters.

[32] Article worded in accordance with Act 11/2011 of 20 May (“Official

State Gazette” No 121 of 21 May), reforming Act 60/2003 of 23 December,
on Arbitration and regulation of institutional arbitration in the General
Central Government Administration.

[33] Article worded in accordance with Act 13/2009 of 3 November

(“Official State Gazette” No 266 of 4 November).

[34] Paragraph revoked by Organic Act 19/2003 of 23 December

(“Official State Gazette” No 309 of 26 December), amending Organic Act
6/1985 of 1 July, on the Judiciary.

[35] As set forth in single revocation provision 1.2. of Act 1/2000 of 7

January, on Civil Procedure, this section shall only be valid until the
regulation on this matter comes into force through the Voluntary Jurisdiction
Act.

[36] Article worded in accordance with Act 10/1992 of 30 November

(“Official State Gazette” No 108 of 5 November), on Urgent Procedural
Reform Measures.

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Article 209 bis of the Notarial Regulations, introduced by Royal Decree

1368/1992 of 13 November and amended by Royal Decree 45/2007 of 19
January, sets forth:
“In proceedings of public knowledge referred to under Article 979 of
the Civil Procedure Act, the following rules shall be observed:
1. The competent authorising notary shall be any that has legal
capacity to act in the town where the deceased had his last domicile in
Spain. For these purposes, said domicile shall be preferably accredited
by the deceased’s National Identity Card (DNI), other means of proof
notwithstanding.
If the deceased was never domiciled in Spain, the competent notary
shall be the one corresponding to the place of death. If the place of
death is outside Spain, the corresponding notary shall be the one in
the place where the deceased had the majority of his property or bank
accounts.
2. Any person with a legitimate interest is authorised to file the initial
petition.
3. Once a competent notary has been petitioned, the jurisdiction of the
others shall be excluded. The petitioned notary shall inform the Dean’s
Office of the respective Notaries Society, on the same day the petition
is received, of the commencement of the proceedings, specifying the
name of the deceased and other identification details indicated in
Appendix 2, Article 4 of the Notarial Regulations, in order for said
commencement to be recorded in the Private Register of the Dean’s
Office and in the General Register of Last Wills and Testaments, in
accordance with the provisions of Appendix 2, Articles 12 and 13.
If, having received a notification, others are received regarding the
succession of the same deceased person, the Dean, or the Registrar if
the notaries belong to different Societies, shall immediately notify the
notaries who have begun proceedings in the second or other places,
to suspend said proceedings.
The notary cannot issue any type of copies of the deed until at least 20
working days have elapsed after the Dean’s Office has been notified.
4. The interested party must ascertain the veracity of the positive and
negative facts on which the proceedings are grounded and accredit
these with documents:

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a) The opening of intestate succession through the presentation

of a death certificate and a certificate from the General Register of
Last Wills and Testaments in relation to the deceased and, if
applicable, an authentic document whereby it is proven beyond all
doubt that despite the will or inheritance contract, “intestate”
succession or the final decision declaring the establishment of
heirs invalid, is sustained.
b) The relationship of the persons that the claimant designates as
heirs of the deceased.
The family record book of the deceased, or certificates from the Civil
Registry accrediting marriage or kinship must be presented. The
presented documents or testimony thereof shall be included in the
deed.
5. The deed must include the statements of at least two witnesses
who attest to their awareness of the positive or negative facts through
science or through common knowledge, evidence of which is
required. Said witnesses may be relatives of the deceased, either by
blood or by marriage, when they do not have a direct interest in the
statement. The evidence requested by the claimant shall also be
required, together with others that may be deemed appropriate,
particularly those intended to accredit nationality and legal residence
and, if required, the applicable foreign law.
6. Once the aforementioned formalities have been carried out and the
period stipulated in rule 3 has elapsed, the notary shall issue his overall
finding regarding whether the facts on which the declaration of heirs is
grounded are accredited by common knowledge.
If so, he shall declare the relatives of the deceased to be “intestate”
heirs, provided that they are all those in the declaration corresponding
to the Notary. The declaration shall state the identity of each one and
the rights to which they entitled by law in the inheritance.”

[37] Article worded in accordance with Act 10/1992 of 30 April.

[38] This article is worded in accordance with Act 10/1992 of 30 April.

[39] Article worded in accordance with Act 10/1992 of 30 April.

[40] See Articles 956 to 958 of the Civil Code, Articles 20 and 21 of Act
33/2003 of 3 November (“Official State Gazette” No 264 of 4 November),
on the Assets of Public Administrations, and Articles 4 to 15 of Royal

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Decree 1373/2009 of 28 August (“Official State Gazette” No 226 of 18

September), approving the Regulations of the aforementioned Act.

[41] Article 3 of Act 15/1989 of 29 May (“Official State Gazette” No 130

of 1 June), on amendments of certain articles of this Act, states:
“In Articles 101, 128, 975, 980, 989, 990, 992, 994, 999, 1000, 1004,
1028, 1031, 1059, 1060, 1065, 1113 to 1116, 1120, 1296 to 1298,
1305, 1383 to 1385, 1388, 1815, 1828 to 1830, 1839, 1840, 1842,
1843, 1858, 1861, 1867, 1874, 1877, 1878, 1920, 1983, 1986, 1988 to
1992, 2003 to 2007, 2027 to 2029 and 2111 of the Civil Procedure Act,
the expression “prosecutor” is replaced by “Public Prosecution
Service”.”

[42] As set forth in single revocation provision 1.1 of Act 1/2000 of 7

January on Civil Procedure, this title was revoked by the entry into force of
Act 22/2003 of 9 July, on Bankruptcy.

[43] As set forth in single revocation provision 1.1 of Act 1/2000 of 7

January, on Civil Procedure, this title was revoked by the entry into force of
Act 22/2003 of 9 July, on Bankruptcy.

[44] As set forth in single revocation provision 1.1 of Act 1/2000 of 7

January, on Civil Procedure, this title shall be valid until the entry into force
of the Voluntary Jurisdiction Act

[45] See Articles 2070, 2080, 2091, 2111 and 2168 of this Act and
single revocation provision 1.1, paragraph 4 of Act 1/2000 of 7 January.

[46] Articles 387 et seq. of Act 1/2000 of 7 January.

[47] The heading and articles of this title are worded in accordance
with Act 21/1987 of 11 November (“Official State Gazette” No 275 of 17
November).

[48] Article revoked by Act 1/2000 of 7 January, on Civil Procedure.

[49] The public entities mentioned in this article are national, regional
or local organisations which, in compliance with the law, are responsible
for the protection of minors within their geographical scope, as per the first
additional provision of Act 21/1987 of 11 November (“Official State Gazette”
No 275 of 17 November).

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[50] See Article 173 of the Civil Code, worded in accordance with
Organic Act 1/1996 of 15 January.

[51] Article 175.1 of the Civil Code requires that the adoptive parent be
over 25 years of age. In adoption by both spouses, it is sufficient that one
of them has reached said age.

The adoptive parent has to be at least fourteen years older than the
adoptee.

[52] Article 176 of the Civil Code, in accordance with the wording given by
Organic Act 1/1996 of 15 January, specifies:
“1. The adoption shall be constituted by judicial resolution, which shall take
into account always the interests of the prospective adoptee and the
suitability of the prospective adoptive parent or parents for the exercise
of parental authority.
2. To initiate the adoption proceedings, a prior proposal of the public
entity shall be required in favour of the prospective adoptive parent or
parents who have been declared suitable to exercise parental authority
by the public entity. The declaration of suitability may be prior to the
proposal.
Notwithstanding the foregoing, no proposal shall be required when the
prospective adoptee meets any of the following circumstances:
1. Being an orphan and a relative of the prospective adoptive
parent in the third degree by consanguinity or affinity.
2. Being a child of the consort of the prospective adoptive parent.
3. Having been under a measure of a pre-adoptive foster care for
more than one year, or having been under guardianship for the
same time.
4. Being of legal age or an emancipated minor.
3. In the first three cases of the preceding section, the adoption may be
constituted even if the prospective adoptive parent should have
deceased, if the latter should already have given his consent before
the Judge. In this case, the judicial resolution shall have retroactive
effect to the date of such consent.”

[53] The capacity of spouses to adopt a minor simultaneously shall

also be applicable to a man and a woman who form a stable couple in a
loving relationship, similar to that of a married couple, in accordance with

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the third additional disposition of Act 21/1987 of 11 November (“Official

State Gazette” No 275 of 17 November).

[54] Article 180 of the Civil Code, in accordance with the wording given
in Act 21/1987 of 11 November (“Official State Gazette” No 275 of 17
November), stipulates that:
“1. Adoption is irrevocable.
2. The Judge shall resolve the termination of adoption at the request of
the father or the mother who, without fault on their part, should not
have taken part in the proceedings under the terms expressed in
Article 177. It shall also be necessary that the claim be filed within two
years following the adoption, and that the requested termination does
not cause serious harm to the minor.
3. Termination of the adoption shall not be a cause of loss of nationality
or legal residence acquired, nor shall it affect assets previously
acquired.
4. Determination of the kinship corresponding to the adoptee by birth
shall not affect adoption.

[55] See Articles 234 and 258 of the Civil Code.

[56] See Articles 286 and 297 of the Civil Code.

[57] See Articles 199 to 201, 222 and 291 of the Civil Code.

[58] Article 163 of the Civil Code, worded in accordance with Organic
Act 1/1996 of 15 January, stipulates that:
“Whenever, in any affair, the father’s and mother’s interest should be
opposed to that of their non-emancipated children, a guardian ad litem
shall be appointed to represent said children in court and out of court.
This appointment shall also take place when the parents’ interest is
opposed to that of the underage emancipated child whose capacity
they are required to supplement.
If the conflict of interest should exist only in respect of one of the
parents, the other shall be entitled to represent the minor or supplement
his capacity by operation of law and without the need for a specific
appointment.”

See Articles 299 to 302 of the Civil Code on the guardian ad litem of
minors and incapacitated persons.

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[59] Article 12 of the Spanish Constitution of 27 December 1978

(“Official State Gazette” No 311 of 29 December), sets forth that Spanish
citizens are legally of age at eighteen.

Also see Article 315 of the Civil Code.

[60] See Article 63.18 of this Act.

[61] See Articles 262 to 264, 269.1 and 270 to 275 of the Civil Code.

[62] See Article 274 of the Civil Code.

[63] See Articles 261 and 262 of the Civil Code.

[64] See Articles 168.4 and 192 of the Mortgages Act of 8 February
1946, and Articles 268 and 269 of its Regulations of 14 February 1947.

[65] Articles 387 et seq. of Act 1/2000 of 7 January (§ 1).

[66] See the Act and Regulations on Free Legal Aid, which are included
in paragraphs 5 and 6 herein.

[67] See Articles 269.4, 270 and 279 to 285 of the Civil Code.

[68] Articles 1880 to 1900 have been expressly revoked by Act 1/2000,
on Civil Procedure.

[69] The name and articles of this Section are worded in accordance
with Organic Act 1/1996 of 15 January (“Official State Gazette” No 15 of 17
January), on Legal Protection of Minors, partially amending the Civil Code
and of the Civil Procedure Act.

[70] Currently Articles 443 et seq. of Act 1/2000 of 7 January (§ 1).

[71] Currently Articles 712 et seq. of Act 1/2000 of 7 January (§ 1).

[72] Organic Act 1/1996 of 15 January, and its nineteenth final

provision, section 1, stipulates that: “Articles 1910 to 1918 of the Civil
Procedure Act shall become part of Book III, Title IV, section 3, entitled
“Provisional measures concerning the family children”.”

[73] Article worded in accordance with the Act of 24 April 1958.

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Bear in mind that Article 1880 has been expressly revoked by Act 1/2000,
on Civil Procedure (§ 1).

Article 170 of the Civil Code, worded in accordance with Act 11/1981 of 13
November (“Official State Gazette” No 119 of 19 November), stipulates
that:
“The father or the mother may be deprived in whole or in part of their
authority pursuant to a judgment on grounds of the breach of the duties
inherent thereto, or issued in criminal or matrimonial proceedings.
The Courts may, for the benefit and in the interest of the child, agree to
the recovery of parental authority when the cause which motivated the
deprivation should have ceased.”

[74] This article is worded in accordance with the Act of 24 April 1958
(“Official State Gazette” No 99 of 25 April).

[75] Article worded in accordance with the Act of 24 April 1958.

[76] This article is worded in accordance with the Act of 24 April 1958.

[77] Article worded in accordance with the Act of 24 April 1958.

[78] This article is worded in accordance with the Act of 24 April 1958.

[79] Article worded in accordance with the Act of 24 April (“Official

State Gazette” No 99 of 25 April). Bear in mind that Book II, Title XVIII of
the Civil Procedure Act of 1881 has been revoked under the single
revocation provision of Act 1/2000 of 7 January (§ 1). The provisions of
Articles 250.1.8, 266.2, 269.2, 439.5 and 455.3 of said Act are now
applicable.

[80] This article is worded in accordance with the Act of 24 April 1958
(“Official State Gazette” No 99 of 25 April).

[81] Article worded in accordance with the Act of 24 April 1958 (“Official
State Gazette” No 99 of 25 April).

[82] Articles 700 to 705 of the Civil Code stipulate the following:

Article 700. If the testator should be in imminent danger of death, the will
may be executed before five suitable witnesses, without the need for a
notary.

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Article 701. In the event of an epidemic, the will may also be executed
without the intervention of a notary, before three witnesses older than
sixteen.

Article 702. the cases of the two preceding articles, the will shall be written
down, if possible; if not, the will shall be valid even if the witnesses do not
know how to write.

Article 703. Wills made in accordance with the provisions of the three
preceding articles shall be ineffective if two months should elapse from the
time when the testator is no longer in danger of death, or the epidemic has
ceased.

Where the testator should die within such period, the will shall also be
ineffective if, within three months following the death, the interested parties
do not appear before the competent Court to convert it to a public deed,
irrespective of whether it was executed in writing, or orally.

Article 704. Wills made without the authorisation of a notary shall be

ineffective if not converted to a public deed and formally registered as
provided in the Civil Procedural Act.

Article 705. Upon an open will’s being declared null and void as a result of
not observing the procedures set forth for each specific case, the notary
who authorised it shall be liable for any damages incurred, if the fault
should result from his malice, or from his inexcusable negligence or
ignorance.

Also see Articles 716, 718, 722 and 727 of the Code.

[83] Articles 711 to 715 of the Civil Code state the following:

Article 711. The testator may keep the closed will in his possession, entrust
it to the care of a trusted person, or consign it in the possession of the
authorising notary, to be kept in his files.

In this last case, the notary shall give the testator a receipt and shall enter
in his ordinary files, in the margin or below the copy of the deed of
execution, that the will is in his possession. If the testator should
subsequently withdraw it, he shall sign a receipt below such note.

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Article 712. The notary or the person who holds a closed will in his
possession must submit it to the competent Judge when he becomes
aware of the death of the testator.

If he should fail to do so within ten days, he shall be liable for any damages
resulting from his negligence.

Article 713. A person who, by wilful misconduct, should fail to submit the
closed will in his possession within the period provided in the second
paragraph of the preceding article, as well as the liability provided therein,
shall lose any right to the inheritance, if he should have any as intestate
heir or as testamentary heir or legatee.

This same penalty shall be incurred by any person who by wilful misconduct
should remove the closed will from the testator’s domicile or that of the
person in whose custody or deposit it has been left, and any person who
hides it, breaks it or otherwise renders it useless, without prejudice to any
applicable criminal liability.

Article 714. The provisions of the Civil Procedure Act shall be observed for
the opening and formal registration of the closed will.

Article 715. A closed will shall be null and void if the formalities set forth in
this section should not have been observed in its execution; and the notary
who authorises it shall be liable for any damages incurred, should it be
proved that the fault resulted from his malice, inexcusable negligence or
ignorance. However, it shall be valid as a holographic will if it should be
entirely written and signed by the testator and if it should meet the
remaining conditions inherent to this kind of will.

Also see Articles 689 to 693, 704 and 718 of said Code.

[84] See Article 713 of the Civil Code, which is transcribed in the note
to Article 1956 of this Act.

[85] Articles 681 to 693 of the Civil Code.

[86] See Articles 1984 and 2004 of this Act.

[87] See Articles 209 and 210 of the Notarial Regulations of 2 June
1944.

[88] Article 672 of the Civil Code sets forth the following:

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“Any disposition made by the testator relating to the appointment of an

heir, bequests or legacies, with reference to private instruments or
papers which after his death should appear within or outside his
domicile, shall be null and void if such instruments or papers do not
meet the requirements provided for holographic wills.”

[89] See Article 672 of the Civil Code, transcribed in the note to Article
1967.

Also see Article 1976 of this Act.

[90] See Article 672 of the Civil Code, transcribed in the note to Article
1967.

[91] See Articles 689 to 693 of the Civil Code.

[92] See Article 63.25 of this Act.

[93] See Article 1990 of this Act.

[94] Title worded in accordance with Act 15/1989 of 29 May (“Official

State Gazette” No 130 of 1 June), amending certain articles of this Act.

[95] See Article 63.26 of this Act.

[96] Article 5 of the Mortgages Act stipulates that deeds referring to the
mere or simple fact of possessing shall not be admitted for registration.

[97] Article worded in accordance with Act 15/1989 of 29 May (“Official

State Gazette” No 130 of 1 June).

Article 166 of the Civil Code, worded in accordance with Organic Act
1/1996 of 15 January, states that: “Parents may not waive the rights held
by the children, nor dispose of or encumber any real estate properties,
commercial or industrial establishments, precious objects and securities,
except for preferred subscription right over shares, save for a just cause of
utility or necessity, prior authorisation of the Judge of their domicile, after
hearing the Public Prosecutor.

Parents must obtain judicial authorisation to reject an inheritance or legacy

left to the child. If the Judge should refuse the authorisation, the inheritance
may only be accepted under the benefit of inventory.

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No judicial authorisation shall be required if the minor should be sixteen

years of age and should consent in a public document, nor to dispose of
securities, provided that the proceeds are reinvested in safe goods or
securities.”

[98] Article worded in accordance with Act 15/1989 of 29 May.

[99] Worded in accordance with Act 15/1989 of 29 May.

[99] This article is worded in accordance with Act 15/1989 of 29 May.

[100] Article worded in accordance with Act 15/1989 of 29 May.

Text refers to the former Mortgages Act of 1909. These matters are
currently governed by the provisions of Article 166 of the Civil Code, which
is transcribed in the note to Article 2011 of this Act.

Also see Articles 190 and 191 of the current Mortgages Act, and Articles
266 and 267 of its Regulations.

[101] Article worded in accordance with Act 15/1989 of 29 May.

[102] Article worded in accordance with Act 15/1989 of 29 May.

[103] The article cited, in its new wording, consists of only one paragraph.

The second point referred to public bonds and securities of all kinds,
bearer and nominative.

[99] Article worded in accordance with Act 15/1989 of 29 May.

[104] This article is worded in accordance with Act 15/1989 of 29 May.

[105] This title and its heading are worded entirely in accordance with
the Act of 30 December 1939 (“Official State Gazette” No 6 of 6 January
1940), which was passed to adapt this matter to the Act of 8 September
1939 (“Official State Gazette” No 274 of 1 October), which amended the
regulation of absence in the Civil Code.

[108] This article is worded in accordance with the Act of 30 of 1939

(“Official State Gazette” No 6 of 6 January 1940).

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[109] Article worded in accordance with the Act of 30 December 1939.

Bear in mind that Articles 887 to 902 of this Act were revoked by the single
revocation provision of Act 1/2000 of 7 January (§ 1), this matter being
henceforth governed by the provisions of Articles 455 to 465 of this latter
Act.

[110] The text refers to Article 181 of the Civil Code, which sets forth the
following:
“In any event, upon the disappearance of the person from his domicile
or from his last place of residence, without having any further news of
him, the Judge may, at the request of the interested party or of the
Public Prosecution Service, appoint a defender to protect and
represent the disappeared person in court or in any business which
does not admit delay without serious detriment. Those cases where
the former should already have legal or voluntary representation in
accordance with Article 183 shall be excepted.
The present spouse who is of legal age and not legally separated shall
be the ex officio defender and representative of the disappeared
person; and, in the absence thereof, the nearest relative up to the
fourth degree, also of legal age. In the absence of relatives, lack of
presence thereof or notorious urgency, the Judge shall appoint a
solvent person with good background, after hearing the Public
Prosecution Service.
He may also adopt, at his prudent discretion, any necessary
precautions for the preservation of assets.”

[111] This article is worded in accordance with the Act of 30 of 1939

(“Official State Gazette” No 6 of 6 January 1940).

[112] Article worded in accordance with the Act of 30 December 1939.

[113] Note that the concept of protutor and family council was removed
by Act 13/1983 of 24 October (“Official State Gazette” No 256 of 26
October), leaving Articles 305 and 307 to 313 of the Civil Code without
content.

[114] Article worded in accordance with the Act of 30 December 1939.

Article 189 of the Civil Code sets forth: “The spouse of the absentee shall
be entitled to separation of estates.”

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Also see Articles 2033 and 2040 of this Act.

[115] Article worded in accordance with the Act of 30 December 1939.

Article 185 of the Civil Code states that:

“The representative of the person declared an absentee shall be
subject to the following obligations:
1. To make an inventory of movable property and to describe any
immovable property of his principal.
2. To provide the bond prudentially set by the Judge; representatives
described under numbers 1, 2 and 3 of the preceding article shall be
exempt.
3. To preserve and defend the assets of the absentee and obtain from
his property any normal returns of which it is capable.
4. To comply with the rules provided in the Civil Procedure Act relating
to possession and administration of the absentee’s property.
The provisions governing the exercise of guardianship and grounds for
ineligibility, removal and excuse of guardians shall apply to the court-
appointed representatives of the absentee, insofar as they are adapted
to their special representation.”

[116] This article is worded in accordance with the Act of 30 December

1939.

Article 184 of the Civil Code, worded in accordance with Act 11/1981 of 13
November (“Official State Gazette” No 119 of 19 November) sets forth
that:
“Unless the Judge perceives a serious impediment, the representation
of the person declared an absentee, the investigation of his
whereabouts, the protection and administration of his property and the
performance of his obligations shall correspond to:
1. The present spouse of legal age not legally or de facto separated
from him.
2. His child of legal age; if there should be several, those who lived
with the absentee shall be preferred, and an older child shall be
preferred over a younger child.
3. The nearest youngest ascendant of either line.

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4. Siblings of legal age who have cohabited as a family with the

absentee, with preference of older siblings over younger ones.
In the absence of the aforementioned persons, such representation
shall correspond, in all its scope, to the solvent person of good
background designated by the Judge at his prudent discretion, after
hearing the Public Prosecution Service.”

[117] This article is worded in accordance with the Act of 30 of 1939

(“Official State Gazette” No 6 of 6 January 1940).

[118] Article worded in accordance with the Act of 30 December 1939.

[119] See Articles 66 and 1375 to 1391 of the Civil Code.

[120] This article is worded in accordance with the Act of 30 of 1939

(“Official State Gazette” No 6 of 6 January 1940).

[121] Article worded in accordance with the Act of 30 December 1939.

[122] Article 197 of the Civil Code, worded in accordance with the Act of
8 September 1939 stipulates:
“If, after the declaration of death, the absentee should appear or his
existence should be proved, he shall recover his property in its current
condition, and shall be entitled to the price of any properties sold, or to
any properties acquired with such price, but may not claim from his
successors any rents, fruits or products obtained from the properties of
his estate, until the day of his presence or of the declaration of not
having died.”

[123] Article worded in accordance with the Act of 30 December 1939.

[124] This article is worded in accordance with the Act of 30 December

1939.

[125] Article worded in accordance with the Act of 30 December 1939.

[126] Article worded in accordance with the Act of 30 December 1939.

[127] Worded in accordance with the Act of 30 December 1939.

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 § 2 Royal Decree of 3 february 1881, enacting the civil procedure act

The Central Register of Absentees was included in the Civil Register by

the Civil Register Act of 8 June 1957 (“Official State Gazette” No 151 of 10
June). See its first final provision in this regard.

[128] Articles 387 et seq. of Act 1/2000 of 7 January (§ 1).

[129] See Article 63.27 of this Act.

[130] Articles 384 to 387 of the Civil Code are as follows:

“Article 384. Every owner shall be entitled to mark the boundaries of
his property, summoning the owners of the adjoining plots.
Holders of rights in rem shall have the same entitlement.
Article 385. The marking of boundaries shall be performed in
accordance with the deeds held by each owner and, in the absence of
sufficient deeds, as results from the possession of the adjoining
owners.
Article 386. If the deeds should fail to determine the limits or area
belonged to each owner, and the matter cannot be resolved in
reference to possession or by another means of evidence, the marking
of boundaries shall be performed by distributing the land subject to
dispute in equal parts.
Article 387. If the deeds of the adjoining owners should indicate a
greater or lower area than that which comprises the whole of the land,
the excess or shortfall shall be distributed proportionally.”

Bear in mind the provisions of Article 1965 of this Code.

Regarding the boundary markings of State assets, see Articles 50 to 54 of

Act 33/2003 of 3 November (“Official State Gazette” No 264 of 4
November), on the Assets of Public Administrations.

Regarding the boundary markings of property belonging to Local

Administrations, see Article 82.b) of Act 7/1985 of 2 April (“Official State
Gazette” No 80 of 3 April; correction of errors in “Official State Gazette” No
139 of 11 June), regulating Local Government Procedures; Article 10 of
Royal Legislative Decree 781/1986 of 18 April (“Official State Gazette” No
96 of 22 April), consolidated text on matters related to Local Government,
and Articles 56 to 69 of Royal Decree 1372/1986 of 13 June (“Official State
Gazette” No 161 of 7 July), which passes the Rules affecting the Assets of
Local Communities.

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On the boundary definition of mountains, see Article 21 of Act 43/2003 of

21 November (“Official State Gazette” No 280 of 22 November), on
Mountains, amended by Act 10/2006 of 28 April (“Official State Gazette”
No 102 of 29 April); Articles 79 to 148 of the Regulations approved by
Decree 485/1962 of 22 February (“Official State Gazette” Nos 61 and 62,
of 12 and 13 March; correction of errors in “Official State Gazette” Nos 67
and 121, of 19 March and 21 May), and Article 14 of Act 55/1980 of 11
November (“Official State Gazette” No 280 of 21 November), on communal
mountain land.

Also see:

Act 8/1975 of 12 March (“Official State Gazette” No 63 of 14 March), and

the Regulations approved by Royal Decree 689/1978 of 10 February
(“Official State Gazette” No 89 of 14 April), on areas and facilities of interest
for national defence, bearing in mind that they have been the object of
several amendments.

Articles 16 and 23 of Royal Decree 2362/1976 of 30 July (“Official State

Gazette” No 247 of 14 October), which approves the Regulations of the
Hydrocarbons Research and Exploitation Act, on the delimitation of
exploration permits.

Article 70 of Royal Decree 2857/1978 of 25 August (“Official State Gazette”

No 295 of 11 December), which approves the General Regulations for the
Mining Industry, on demarcations.

Article 95 of Royal Legislative Decree 1/2001 of 20 July (“Official State

Gazette” No 176 of 24 July; correction of errors in “Official State Gazette”
No 287 of 30 November), which approves the consolidated text of the
Water Act, and Articles 240 to 242 of the Regulations on Public Water
Resources, passed by Royal Decree 849/1986 of 11 April (“Official State
Gazette” No 103 of 30 April; correction of errors in “Official State Gazette”
No 157 of 2 July), on the boundary definition of watercourses in the public
domain, amended by Royal Decree 606/2003 of 6 May (“Official State
Gazette” No 135 of 6 June).

Articles 11 to 16 and the first and second transitory provisions of Act

22/1988 of 28 July (“Official State Gazette” No 181 of 29 July), on Coasts,
on the boundary definition of the terrestrial maritime public domain, Article
12 of which was amended by Act 53/2002 of 30 December (“Official State
Gazette” No 313 of 31 December), and Articles 18 to 35 and the first to
fourth transitory provisions of its Regulations, approved by Royal Decree

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 § 2 Royal Decree of 3 february 1881, enacting the civil procedure act

1471/1989 of 1 December (“Official State Gazette” No 297 of 12 December;

with corrections in Official State Gazette No 20 of 23 February 1990)

[131] On communication via public notices, see Article 164 of Act 1/2000
(§ 1).

[132] See Articles 384 to 387 of the Civil Code, which are transcribed in
the note to Article 2061 of this Act.

[133] Article 1655 of the Civil Code states that:

“Foros and any other analogous encumbrances established after the
enactment of the present Code, for an indefinite term, shall be
governed by the provisions set forth for emphyteutic ground rents in
the preceding section.
If they should be temporary or for a limited term, they shall be deemed
to be leases, and shall be governed by the provisions relating to such
contracts.”

[134] See Articles 63.27, 2092 and 2102 of this Act.

[135] See Articles 2077 and 2092 of this Act.

[136] Currently, Article 341 of Act 1/2000 of 7 January (§ 1).

[137] Currently, Articles 152 et seq. of the new Civil Procedure Act (§ 1).

[138] See Articles 2111.7 and 2118 of this Act.

[139] The procedures established for incidental matters are regulated in

Articles 387 et seq. of Act 1/2000 of 7 January (§ 1).

[140] Currently, Articles 455 et seq. of Act 1/2000 of 7 January (§ 1).

[141] Currently, Article 341 of Act 1/2000 of 7 January (§ 1).

[142] The cited articles refer to the Commercial Code of 1829 and
correspond to those of the Commercial Code currently in force as follows:
Articles 121 and 122 coincide with Article 248, 218 with 367, 222 with 369,
365 with 332, 674 with 625 and 668, 745 with 656, 777 with 657, 781 with
678 and 988 with 844.

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[143] Article 777 of the Commercial Code of 1829 corresponds with

Article 657 of the Code currently in force.

[134] See Article 2146 of this Act.

[145] Article 218 of the Commercial Code of 1829 corresponds to Article

367 of the Code currently in force.

[146] The articles cited from the Commercial Code of 1829 correspond
to Articles 366, 327 and 336, final paragraph, of the Code currently in
force.

[147] Articles 670 and 945 of the Code of 1829 correspond to Article
624 of the Code currently in force.

[148] Article 947 of the Commercial Code of 1829 corresponds to Article

853 of the Code currently in force, although the latter provision does not
require adjusters to take an oath.

See Article 2141 of this Act.

[149] See Articles 806 et seq. of the current Commercial Code.

[150] See Article 2142 of this Act.

[151] See Article 2143 of this Act.

[152] See Article 858 of the current Commercial Code.

[153] Bear in mind the provisions of Articles 865 and 867 of the current
Commercial Code.

[154] Article 962 of the Commercial Code of 1829 corresponds to Article

866 of the Code currently in force.

[155] The cited article corresponds to Article 867 of the current

Commercial Code.

[156] Article 775 of the Commercial Code of 1829 corresponds to Article

822 of the Code currently in force.

[157] See Articles 2153 and 2161.9 of this Act.

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 § 2 Royal Decree of 3 february 1881, enacting the civil procedure act

[158] The cited Article 765 of the Commercial Code of 1829 corresponds
to Article 685 of the Code currently in force.

[159] Article 974 of the Commercial Code of 1829 corresponds to Article

822 of the Code currently in force.

[160] Currently, see Article 822 of the Commercial Code in force.

[161] Article 790 of the Commercial Code of 1829 corresponds to Article

687 of the Code currently in force.

[162] Article 794 of the Commercial Code of 1829 corresponds to Article

665 of the Code currently in force.

[163] Article 805 of the Commercial Code of 1829 corresponds, with

some variations, to Articles 712 and 713 of the Code currently in force.

[164] The cited articles from the Commercial Code of 1829 correspond
to Articles 269, 578, 579, 611, 667, 728, 824, 842, 845 and 925 et seq. of
the Code currently in force. Article 614 of the Commercial Code of 1829
has no corresponding article in the current Code; nevertheless, see Article
591.

[165] The Colección Legislativa de España, volume CXXVI,

corresponding to the first quarter of 1881, says: “it shall be accompanied
where appropriate.”

[166] Article 248 of the Commercial Code of 1829 corresponds to Article

612.4 of the Code currently in force.

[167] Articles 644 and 826 of the Commercial Code of 1829 correspond
to Article 611 of the Code currently in force.

[168] Articles 387 et seq. of Act 1/2000 of 7 January (§ 1).

[169] Article 798 of the Commercial Code of 1829 corresponds to Article

667 of the Code currently in force.

[170] Article 307 of the Commercial Code of 1829 is equivalent to Article

132 of the Code currently in force.

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[171] Article 308 of the Commercial Code of 1829 corresponds to Article

133 of the Code currently in force. Article 310 of the Code of 1829
corresponds to Articles 150, 158 and 173.

[172] Articles 612 and 613 of the Commercial Code of 1829 correspond
to Article 575 of the Code currently in force.

[172] The precepts cited from the Commercial Code of 1829 correspond
to Articles 669 et seq. of the Code currently in force.

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 MAQUETACIÓN
Ministerio de Justicia. Secretaría General Técnica
Subdirección General de Documentación y Publicaciones
tienda.publicaciones@mjusticia.es
San Bernardo 62
28015, Madrid