Libro Primero · Título I Capítulo IV. De la ausencia

The person who is outside the Republic and has or has had his domicile therein is absent.

The person who has disappeared from his domicile and whose whereabouts are unknown is also considered absent, for legal purposes.

Every person who has rights to exercise or obligations to fulfill in the Republic and absents himself from it, shall leave a legally constituted agent, with all special powers to answer for the obligations of the principal; and if such person fails to do so, such person shall be declared absent upon petition of a party.

The foregoing declaration shall have as its sole purpose the appointment of a judicial defender for the absent person, for cases in which the absent person must respond to a lawsuit or assert any right in judicial proceedings.

If the absent person has left an agent without sufficient powers for defense in judicial proceedings, the office of judicial defender shall fall preferentially upon such agent.

In the absence of an agent, the judge shall appoint a person of well-known honesty, rootedness and competence.

The office of Judicial Defender of the absent person terminates:

a)Upon termination of the litigation in which he was appointed;

b)Upon provision of a guardian of property to the absent person; and

c)Upon appearance of the absent person in person or through an agent with sufficient powers.

When the absentee has property that must be administered, any capable person or the Public Prosecutor's Office may report the absence and request the appointment of a guardian of their property.

If the absent person has left a mandatary, proceedings shall be as expressed in Article 45.

Absence must be declared judicially. Once the respective procedure is concluded and the definitive appointment of guardian has been made, the person designated from among those mentioned in the preceding article shall receive the property, having previously fulfilled the legal requirements, and shall assume representation of the absent person, the specific defender and the provisional depositary ceasing in their offices.

The representative of the absentee is the administrator of the absentee's property and has the same obligations, powers and prohibitions as guardians, insofar as they are applicable.

The guardian shall be entitled to an annual remuneration to be fixed by the competent First Instance judge, in accordance with the provisions for guardianship in Article 340.

When the guardian is removed for his fault, he shall have no right to any remuneration.

The office of guardian terminates:

1º.When the absent person appears in person or through an agent;

2º.When the property is extinguished or ceases to belong to the absent person;

3º.When the guardian dies, the resignation is accepted or the guardian is removed from office, in accordance with the rules established for the tutor insofar as they are applicable, in which cases the judge shall proceed on its own initiative to appoint a new guardian; and

4º.When administration is granted to the persons indicated in Article 55.

The Public Prosecutor's Office and the relatives of the absent person must report to the respective First Instance judge the grounds for removal of the guardian.

The administration of the property may be requested and exercised by the spouse and children of the absent person and, in their absence, by blood relatives in the order of succession established by law.

Before administration is granted to the relatives of the absentee, an inventory and appraisal of the property shall be made and liquidation or partition of those belonging to the marriage if the absentee is married.

The relatives who request the administration shall establish a mortgage or furnish a bond for the value of the property of the absentee. Until said security is provided, the administration of the guardian shall not cease.

Upon the designated administrator entering into possession of the property, the representation of the guardian shall cease, who shall render accounts of the administration to the administrator.

The relatives who hold the administration shall assume the legal representation of the absent person and shall make their own the natural and civil fruits of the property.

The administrator may not alienate or encumber the property of the absent person without fulfilling the formalities that the laws establish with regard to the property of minors or incapacitated persons.

The guardian or the administrator who acquire for the absentee property or rights by succession or other gratuitous title, must report them to the respective judge within fifteen days and shall extend, up to the value of such property or rights, the guarantee they have provided.

The absent person is deemed alive, for the purpose of acquiring by any title, while definitive possession of their property has not been decreed.

After five years have elapsed since the administration by the relatives was decreed or since the last news of the absent person was received, the presumed death thereof may be declared and, in such case, his testamentary or legal heirs may request possession of the inheritance.

Presumed death may also be declared:

a)Of a person who disappeared during a war in which he took part or was located in the zone of operations, when one year has elapsed since the termination of the war without news of such person having been received;

b)Of a person who was on board a shipwrecked vessel, or upon the occurrence of an aviation accident, when one year has elapsed since his disappearance; and

c)Of a person whose corpse has not been found and who disappeared by reason of explosion, fire, earthquake, collapse, flood or other disaster.

Where the date of the disaster in which a person is presumed deceased does not appear of record, the judge shall fix the day and time deemed to be those of the death, in view of the circumstances in which it may have occurred and of the evidence submitted by the interested parties.

In the absence of data regarding the time of death, the last hour of the presumptive day of death shall be fixed as such.

The inheritance shall correspond to those who are found to be heirs of the absent person on the date designated as the day of presumed death.

At any time when the exact date of death of the absent person is established, the succession shall be deemed opened on that date for the purpose of declaring who the heirs are.

The decision declaring presumed death as well as that granting definitive possession of the property shall be registered in the corresponding civil status and immovable property registries.

At any stage at which the will that gave rise to the definitive possession appears to have been revoked, or another later will of the absent person is presented, the inheritance shall be conferred on those who prove to be heirs according to the documents last appearing.

Once definitive possession has been decreed, the owners of property subject to usufruct, the legatees and, in general, all those who have rights subordinated to the condition of death of the absent person, may enforce them.

Definitive possession shall cease when there is proven notice that the absentee is alive; from then on, the heir shall remain in the capacity of guardian and subject to all the obligations thereof.

Those who by any title have the administration or custody of the property of the absent person, or have obtained definitive possession thereof, shall not retain it on any ground nor refuse its immediate delivery to the absent person who returns or to the person who legally represents him. The absent person, while living, retains civil possession of such property, under the protection of the law.

The possessors of the property shall provide maintenance to those entitled to receive it, on the terms established by law.

The legal effects of the declaration of absence and of presumed death, with respect to property, are determined by the law of the place in which they are situated.

All other legal relationships shall remain subject to the law that previously governed them.

If the absent person or person presumed dead appears or his existence is proved, even after definitive possession, he shall recover his property in the state in which it is found, the price of those sold and those derived from the use made of such price.

The heirs or legatees who have obtained definitive possession of the property may not acquire it by prescription.

If the spouse of the person declared dead contracts a new marriage, it shall be valid even if the absent person is alive, unless the spouses or one of them knew of the circumstance that the absent person was alive. In this case, the action of nullity corresponds to the absent person or to the spouse who, upon marrying, was unaware that the former was alive. This action prescribes six months counted, for the absent person, from the date on which he had knowledge of the new marriage; and for the spouse, from when he learned of the survival of the absent person.