Libro Quinto Título IV. Inventarios y avaluos consignacion y costas

Whoever administers property belonging to another or receives as their own any property that may be subject to liability has the obligation to make an inventory thereof, in accordance with the provisions of this Code and the Civil Code.

No one may exempt another from the obligation to make an inventory, in the cases in which the laws prescribe it.

Every inventory must be recorded in a notarial record and shall contain the ordered and descriptive list of all the property, rights, actions and obligations of a natural person or juridical entity, enumerated for the purpose of establishing their status and value at a specific time.

The judicial inventory is carried out by order of a competent judge, with summons to the person who is to administer the property and to those interested therein. When the property does not reach one thousand quetzales, a detail of property authorized by the executor of the tribunal shall suffice.

The extrajudicial inventory shall be carried out whenever neither the State nor minors, incapacitated persons, or absentees lacking a legal representative have an interest in the property.

The following persons may request the making of the inventory, sign it and oppose it:

1º.The surviving spouse.

2º.The legal or testamentary heirs, whose consent is required to prepare the extrajudicial inventory.

3º.The Public Prosecutor's Office.

4º.The creditors and legatees.

5º.The representatives of minors, incapacitated persons or absentees, and the protutors.

6º.The executor or the administrator of the property.

7º.Where applicable, the owner of the property.

8º.The members of the Review Commission, in the necessary insolvency proceeding.

The judge shall order, on its own initiative, that an inventory of the relict property be made in the case of vacant inheritance and in such other cases as established by the laws.

The notary shall set forth in the corresponding notarial record:

1.Place, day and time at which the proceeding begins and at which it ends.

2.The names, surnames and identification data of the persons who have requested it and of the other persons who participate in the act.

3.Circumstantial account of the facts giving rise to the making of the inventory and, where applicable, transcription of the judicial act ordering it.

4.The sworn statement of the persons in charge of the property, that they will disclose all the property in their possession and that they will give an account of any property of which they have knowledge.

5.The determination of the assets of the inventoried estate, describing the immovable property, its extent, location and boundaries and registration in the Property Register and in the tax offices; the movable property, indicating its number, class, condition, location, etc.; the livestock, alive or dead, shall be stated by number, species, brand and other individualizing marks corresponding to each class of cattle, herds, etc.; the rights, shares and active credits, indicating the class of guarantee; and the value of each item.

6.The determination of the liabilities of the inventoried estate, including the passive credits, indicating the date of their creation and expiry, class of guarantee, interest rate, name of the creditor and other circumstances identifying the obligation; the fees and costs, calculated in accordance with the respective fee schedules; and the other expenses whose inclusion is authorized by law.

7.Determination of the net capital, by comparison between the assets and the liabilities.

8.The nature of the property requiring special classification.

9.The enumeration of the documents, titles, accounts, accounting books and other useful papers, with their dates and details, which the notary has before him.

10.The statement of the interested parties as to whether or not they agree with what is recorded, and whether or not they know that other property exists.

The assets and the liabilities shall be divided into three columns; in the left-hand column the order number shall be placed; in the center column the description of the property and obligations; and in the right-hand column the corresponding values, expressed in figures.

The inventory shall include the litigated property, stating this circumstance, the type of trial being pursued, the judge hearing it, the person with whom litigation is ongoing and the cause of the proceedings.

In probate inventories, the property belonging separately to the decedent, the common property of the spouses, and the marital community property shall also be designated with precision, indicating the class to which they belong.

If there are donations or legacies of an indeterminate thing, it shall be included with a statement of its special quality.

If during the drawing up of the inventory a person should allege a right of ownership over any of the property and should claim it, proving that it belongs to him or her, delivery thereof shall be made, there being no opposition. But if there should be any opposition, even if verbal, this circumstance shall be stated in the inventory, reserving the claimant's action for him or her to assert it when he or she deems convenient.

The inventory shall be carried out as soon as the administrator of another person's property accepts the office.

The notary, or as the case may be the judge at his request, shall inform the interested parties of the place, date and time at which the proceeding shall begin, so that they may attend if they wish to do so.

Where any of the interested parties states that not all of the property appears, such claim shall not prevent the continuation of the inventory, which may be expanded subsequently if such property appears.

Once the inventory has been presented, the interested parties shall be granted five days to be heard, and if none of them objects to it within that term, the judge shall approve it, with reservation to supplement it with any other property that may appear.

In the event of opposition, it shall be processed and resolved through the procedure of the incidents, the judge also being required to summon a conciliation meeting. If an agreement is reached, the inventory shall be approved without further proceedings.

The notary shall add to the supporting documents of his protocol a duly signed carbon copy of the record of inventory, on the same class of stamped paper used in the original, or a photocopy with stamps of equal value. From this document he may issue certification, in case the original is lost.

Of the judicial inventory the corresponding Tribunal shall issue certification, including the order of approval; but in any case the form given to it by the notary shall be respected in all its parts, even if spaces have been left and it has not been written line after line continuously.

All property appearing in an inventory shall be valued, fixing prices for each one, making with respect thereto the necessary explanations to know its true value.

The appraisal shall preferably be made by experts whom the interested parties shall appoint in legal form; if they do not agree, the judge shall confirm the appointment made by those representing the greater interest and, this not being possible, shall appoint one of his own choice.

The intervention of experts shall not be necessary when the heirs and legatees, or their representatives, unanimously agree on the price of the property.

The appraisal of the property may be made at the same time as the inventory, with the experts attending the act.

When they need to give reasons for their opinion with respect to all or any of the items in which they participate, they shall do so at the end of the inventory, referring to the number that the objects in question have therein.

Property whose exclusion has been requested shall not be valued. In this case a note shall be placed in the inventory, expressing the cause of the lack of appraisal, which shall be carried out if the exclusion does not take effect.

If the appraisal has been carried out separately from the inventory, for its approval or disapproval, it shall be processed as provided for the inventory.

Once the decisions on inclusion or exclusion of property in the inventory have become final, the property ordered to be newly added, or declared to remain inventoried, shall be appraised in the prescribed manner.

Opposition to appraisals may be made only on two grounds:

1st. For error in the thing that is the subject of the appraisal, or in its essential conditions and circumstances.

2nd. For bribery of the experts or fraudulent collusion between them and any one or more of the interested parties, to increase or decrease the value of any property.

If it is established that there has been bribery or fraudulent collusion for the appraisal, criminal proceedings shall be ordered against those found guilty.

When payment by consignment is applicable pursuant to law, the judge shall order that a receipt be issued for the consigned thing and shall immediately order its deposit in the Treasury of Justice Funds or in the Bank of Guatemala, its branches or agencies, as applicable.

The petition shall be processed in the form of an incident.

For the consignment to be approved and produce its effects, it is necessary that all the requirements for the payment to be valid concur, as to persons, object, place, manner and time.

If the payment is declared well made, the cancellation of the guarantees and encumbrances shall be ordered in the same order, with such writs as may be necessary being issued to the corresponding registries. Otherwise, return of the deposited thing to the debtor shall be ordered.

If the creditor challenges the consignment and is unsuccessful in the opposition he makes, the expenses of the deposit and the court costs shall be borne by him. They shall be borne by the debtor, if he withdraws the deposit or if the consignment is declared inadmissible.

If the thing is located in a place other than that where it must be delivered, it shall be for the debtor to transport it at his own expense.

If the creditor is outside the place where payment is to be made and has no lawful representative, evidence with respect to these facts shall be received and, upon citation of the defender appointed for the creditor, the judge shall approve the consignment if warranted, reserving delivery of the thing until the creditor or his representative appears.

Each party shall be directly liable for the expenses occasioned by the acts it carries out and those it requests, having to advance them where the law so establishes. In case of condemnation in costs, the condemned party shall indemnify the other for all necessary expenses it has incurred.

The judge in the judgment terminating the proceedings conducted before him shall order the losing party to reimburse costs to the other party.

Notwithstanding what is stated in the preceding article, the judge may exempt the losing party from payment of costs, in whole or in part, when it has litigated with evident good faith; when the claim or counterclaim comprises exaggerated demands; when the judgment upholds only part of the fundamental requests of the claim or of the counterclaim, or admits significant defenses raised by the losing party; and when there is reciprocal partial defeat or acquiescence.

He may also exempt him from payment of those costs incurred in proceedings that the judge deems idle or unnecessary.

Good faith shall not be deemed to exist when the proceedings are conducted in default of the defendant; when it has been necessary to initiate enforcement against the debtor for satisfaction of the credit; if the unsuccessful party has denied evident demands of the claim or of the counterclaim that the proceedings indicate the unsuccessful party should have accepted when answering them; if a party has adduced false documents or false or suborned witnesses; and if no evidence is offered to support the claim or the defenses raised.

In incidents, costs shall be imposed on the unsuccessful party therein even if not requested, the judge being able to exempt them when doubtful questions of law are involved. Taxation of such costs shall be made at the end of the proceedings. If the party favored by the award of costs requests taxation before the end of the proceedings, it shall be processed in a separate record.

All those who represent the party in the proceedings may be personally condemned, for serious reasons which the judge must specify in the judgment, to the costs of the entire proceedings or of individual acts, on a joint and several basis with the represented party.

The following are reimbursable costs: the value of stamped paper and fiscal stamps, the fees of the directing lawyer, notaries, procurators, experts, depositaries and administrators-in-charge; those incurred for attachments, dispatches, edicts, publications, certifications, inventories; registrations in the registries; compensation to witnesses for the time they have spent and travel expenses.

Judicial proceedings shall not give rise to personal expenses, unless they are for travel, payment for vehicles, transportation, or communications; purchase of substances or other articles that may be necessary for the ascertainment of any fact.

If several persons are ordered to pay costs, all shall be liable jointly and severally for payment thereof. This joint and several liability extends to those who intervene in the proceedings in accordance with Article 56 of this Code, where applicable.

Persons entitled to collect costs, or their services or the expenses they have incurred in the proceedings, may do so by enforcement proceedings against the person who requested their services or against those ordered to pay costs. The person who requested their services and those ordered to pay costs are liable jointly and severally for payment thereof, as assessed in accordance with the tariff.

Whoever requests taxation of costs shall submit a proposed statement of costs in accordance with the fee schedule. The judge shall hear in an incidental proceeding the party who must pay them and, with or without his answer, shall decide as appropriate.

If the costs of Second Instance or Cassation are challenged, the judge shall request by note from the Superior Tribunal confirmation of the costs incurred.

The order approving the taxation shall state the amount thereof. The certification of this order constitutes sufficient enforceable title for the collection of the costs incurred.