Federal Civil Code Mexico: Swap, Donations, Mutual, Lease | Althox
The Federal Civil Code of the United States of Mexico serves as the foundational legal framework governing civil relations and contracts within the nation. Book Four of this extensive code delves into various types of contracts, outlining the rights, obligations, and specific conditions that parties must adhere to. Understanding these provisions is crucial for anyone engaging in transactions involving property, goods, or services in Mexico, from individuals to businesses.
This comprehensive guide explores the core principles and specific articles related to four fundamental contract types: the swap (permuta), donation (donación), mutual (mutuo or loan), and lease (arrendamiento). We will dissect the legal nuances, formal requirements, and implications of each, providing a clear and detailed overview based directly on the authoritative text of the Civil Code.
The Federal Civil Code of Mexico provides the legal backbone for various contractual agreements, ensuring clarity and justice in civil transactions.
Navigating the complexities of civil law requires precision and a thorough understanding of each contractual element. This article aims to demystify these legal instruments, offering an in-depth analysis that goes beyond mere definitions to explore their practical application and legal consequences. Whether you are a legal professional, a student, or simply an interested citizen, this exploration will enhance your grasp of Mexican contract law.
Table of Contents
- Title Third: The Swap Contract (Permuta)
- Title Fourth: From Donations
- Title Five: The Mutual (Loan)
- Title Six: Lease (Arrendamiento)
Title Third: The Swap Contract (Permuta)
The swap contract, known as "permuta" in Spanish, is a fundamental agreement in civil law where parties exchange goods or property without the involvement of money as the primary consideration. This ancient form of transaction remains relevant today, particularly in scenarios where direct exchange of assets is preferred or necessary. The Mexican Civil Code provides clear guidelines for its execution and the rights and obligations of the parties involved.
Section 2327 .- The swap is a contract whereby each of the parties agrees to give one thing for another. Be observed if the provisions of Article 2250.
Section 2328 .- If one party has received the thing that is given in exchange, and proves that it was not of one who gave it can not be compelled to surrender he offered instead, and fulfilled with the return you received.
Section 2329 .- The permutante suffered eviction the thing received in exchange may claim that he gave, or is still held by the other permutante, or requiring its value or the value of the thing which he was given in return, with payment of damages.
Section 2330 .- The above article does not prejudice the rights acquired for consideration a third party in good faith on the matter claiming that suffered eviction.
Section 2331 .- Except with regard to price, are applicable to this contract the rules of the sale, they are not in conflict with previous articles.
Definition and Scope (Section 2327): A swap contract is defined by the reciprocal agreement of two parties to exchange one item for another. This section cross-references Article 2250, which typically pertains to the certainty of price in sales contracts. In the context of a swap, this implies that the value or nature of the items being exchanged must be clearly defined and agreed upon, even if no monetary price is involved. This ensures that both parties understand the equivalence of their exchange.
Protection Against Non-Ownership (Section 2328): This provision offers crucial protection to a party who has received an item in exchange, only to discover that the other party was not its rightful owner. If this non-ownership is proven, the receiving party cannot be forced to deliver the item they offered in return. Instead, their obligation is fulfilled by returning the item they initially received. This safeguards against fraudulent or invalid exchanges.
Remedies for Eviction (Section 2329): Eviction occurs when a party is deprived of the acquired item due to a prior right of a third party. If a permutor (party in a swap) suffers eviction from the item received, they have several legal remedies. They can demand the return of the item they originally gave, provided it is still held by the other permutor. Alternatively, they can claim the value of the item they received or the value of the item they gave, in both cases with compensation for damages. This ensures that the aggrieved party is made whole.
Third-Party Rights (Section 2330): This section clarifies that the remedies for eviction do not undermine the rights acquired by a third party in good faith and for consideration. If a third party has legitimately acquired the item that is subject to the eviction claim, their rights are protected. This principle upholds the security of transactions and protects innocent purchasers.
Applicability of Sales Rules (Section 2331): To fill any gaps not explicitly covered, the Civil Code stipulates that the rules governing sales contracts are applicable to swap contracts. The key exception is the "price" element, which is central to sales but not to swaps. This means general provisions regarding consent, capacity, object, and form of contracts, as well as specific rules on delivery and defects, will apply to swaps as long as they do not conflict with the specific swap provisions.
The interplay of legal provisions ensures fairness and protection in reciprocal agreements like the swap contract.
Key Aspects of a Swap Contract:
- Reciprocal Obligation: Both parties agree to give one thing for another.
- Object: Must be clearly defined and agreed upon.
- Eviction Protection: A party discovering non-ownership of the received item can refuse to deliver their own.
- Remedies for Eviction: Claim back the original item, its value, or the value of the received item, plus damages.
- Third-Party Rights: Good faith acquisitions by third parties are protected.
- Subsidiary Rules: Sales contract rules apply where not contradictory.
Title Fourth: From Donations
Donation, or "donación," is a gratuitous contract where a person transfers property to another without expecting anything in return. While seemingly straightforward, the Civil Code establishes detailed rules to ensure the validity, enforceability, and fairness of such transfers, particularly concerning the donor's capacity, the nature of the property, and the potential for revocation or reduction.
Chapter I: From General Donations
Section 2332 .- Donation is a contract whereby a person transfers to another, free of charge, part or all of their present.
Section 2333 .- The donation can not comprehend future property.
Section 2334 .- The donation can be pure, conditional, onerous or remunerative.
Section 2335 .- Pure is the gift that is given in absolute and conditional that depends on some uncertain event.
Section 2336 .- It is onerous donation is done by imposing some taxes and remunerative which is in consideration of services received by the donor and that it has no obligation to pay.
Section 2337 .- When the gift is expensive, just consider who has donated excess in the price of the thing, the charges deducted from it.
Section 2338 .- Donations can only take place between the living and can not be revoked except in cases stated by law.
Section 2339 .- Donations that are made for after the death of the donor shall be governed by the provisions of the Third Book, and those made between spouses, as provided in Chapter VIII, Title V, Book One.
Section 2340 .- The perfect gift is from the donee accepts and announces the acceptance to the donor.
Section 2341 .- The donation may be made orally or in writing.
Section 2342 .- It can be verbal rather than the donation of personal property.
Section 2343 .- The donation verbal legal effect only when the value of the furniture, not exceeding two hundred pesos.
Section 2344 .- If the value of the furniture exceeds two hundred dollars, but not five thousand, the donation must be in writing. If you exceed five thousand pesos, the donation will be reduced to deed.
Section 2345 .- The donation of real estate will be in the same way as for sale required by law.
Section 2346 .- Acceptance of donations made in the same way they should be, but is not effective if not made in donor's life.
Section 2347 .- It is no donation that includes the entire estate of the donor, if it does not reserve or beneficially owned by the necessities of life according to your circumstances.
Section 2348 .- Donations will be inofficious as impair the obligation of the donor of food to those who minister to those who must by law.
Section 2349 .- If that donates all of its assets generally reserves some for testing, no other statement, the term reserved half of the donated goods.
Section 2350 .- A donation made to several people together, not produced for them the right of accretion, if not the donor has expressly established a.
Section 2351 .- The donor is only responsible for the eviction of the thing given if expressly obliged to provide it.
Section 2352 .- Notwithstanding the preceding article, the donee is subrogated to all rights of the donor if the eviction takes place.
Section 2353 .- If the donation is done with the burden of paying the debts of the donor, including the only means which exist real date at the time of donation.
Section 2354 .- If the donation regardless of certain specific property, the donee shall not be liable for the debts of the donor, but where the property donated it was made any mortgage or pledge, or in case of fraud to the detriment of creditors.
Section 2355 .- If the donation regardless of all property, the donee shall be liable for all debts incurred before the donor, but only up to the amount concurrent with donated goods, provided that the debts are real time.
Section 2356 .- Unless otherwise provided by the donor, grants consisting of periodic benefits, are extinguished by the death of the donor.
Definition and Nature (Sections 2332-2333): A donation is a contract where a person gratuitously transfers part or all of their present property to another. Crucially, it cannot include future property, meaning only existing assets can be donated. This distinction is vital for legal certainty and to prevent speculative transfers.
Types of Donations (Sections 2334-2336): The Code categorizes donations into four types, each with distinct characteristics:
- Pure: Given absolutely, without conditions.
- Conditional: Depends on an uncertain future event.
- Onerous: Imposes certain burdens or charges on the donee.
- Remunerative: Made in consideration of services received by the donor, for which the donor had no legal obligation to pay.
Valuation of Onerous Donations (Section 2337): For onerous donations, only the value exceeding the charges imposed on the donee is considered as the actual donation. This is important for calculating taxes and for potential reduction or revocation processes.
Irrevocability and Exceptions (Section 2338): Donations are generally irrevocable, taking place only between living persons (inter vivos). However, the law specifies certain cases where revocation is permissible, which will be detailed later.
Special Cases: Mortis Causa and Inter-Spousal (Section 2339): Donations made to take effect after the donor's death (mortis causa) are governed by the rules of succession (Third Book). Donations between spouses are subject to specific provisions in Book One, Chapter VIII, Title V, reflecting the unique legal relationship between spouses.
Perfection of the Donation (Section 2340): A donation is perfected and legally binding once the donee accepts it and communicates this acceptance to the donor. This ensures mutual consent and awareness of the transfer.
Formalities of Donation (Sections 2341-2346): The form required for a donation depends on the type and value of the property:
- Verbal Donation (Personal Property): Only valid for personal property (furniture) not exceeding 200 pesos (Section 2343).
- Written Donation (Personal Property): If the value is between 200 and 5,000 pesos, it must be in writing (Section 2344).
- Public Deed (Personal Property): If the value exceeds 5,000 pesos, a public deed is required (Section 2344).
- Real Estate: Donations of real estate must follow the same formalities as sales, typically requiring a public deed (Section 2345).
- Acceptance: Acceptance must follow the same formalities as the donation itself and must occur during the donor's lifetime to be effective (Section 2346).
Different legal documents and symbols represent the diverse nature of contracts, from exchanges to gratuitous transfers.
Limitations on Donations (Sections 2347-2349): The Code imposes limits to protect the donor and their dependents:
- Entire Estate: A donation cannot encompass the donor's entire estate unless they reserve sufficient property or usufruct for their basic needs (Section 2347).
- Inofficious Donations: Donations that impair the donor's legal obligation to provide food/support to dependents are considered "inofficious" and can be reduced (Section 2348).
- Reservation for Testing: If a donor generally donates all assets but reserves some for "testing" without further specification, half of the donated goods are considered reserved (Section 2349).
Multiple Donees and Eviction (Sections 2350-2352): When a donation is made to multiple people, there is no right of accretion (where one donee's share increases if another cannot receive it) unless expressly stipulated by the donor (Section 2350). The donor is generally only responsible for eviction if expressly obliged to provide it (Section 2351), but the donee is subrogated to the donor's rights if eviction occurs (Section 2352).
Donee's Liability for Donor's Debts (Sections 2353-2355): The donee's responsibility for the donor's debts varies:
- Onerous Donation for Debts: If the donation includes the burden of paying the donor's debts, it only covers debts existing at the time of donation (Section 2353).
- Specific Property Donation: The donee is generally not liable for the donor's debts, unless the donated property was mortgaged/pledged, or if there was fraud against creditors (Section 2354).
- All Property Donation: If all property is donated, the donee is liable for all debts incurred before the donation, but only up to the value of the donated goods, provided the debts are real (Section 2355).
Periodic Benefits (Section 2356): Unless the donor specifies otherwise, donations consisting of periodic benefits (e.g., annuities) are extinguished upon the donor's death.
Table: Formalities for Donations in Mexico
| Property Type | Value Range | Required Formality |
|---|---|---|
| Personal Property | Up to 200 pesos | Verbal |
| Personal Property | 200 to 5,000 pesos | Written |
| Personal Property | Exceeding 5,000 pesos | Public Deed |
| Real Estate | Any Value | Same as for Sales (typically Public Deed) |
Chapter II: Of Those Who Can Receive Donations
Section 2357 .- The unborn may acquire by gift, provided they have been conceived at the time that it was feasible and in accordance with Article 337.
Section 2358 .- Donations made by simulating another contract to persons who by law can not receive, are void, whether made in a straightforward manner, and by proxy.
Donations to Unborn Persons (Section 2357): The Civil Code allows for donations to unborn individuals, provided they were conceived at the time the donation was made and meet the feasibility conditions outlined in Article 337. This ensures that future generations can benefit from such acts of generosity, recognizing their legal potential even before birth.
Void Donations (Section 2358): To prevent circumvention of legal restrictions, this section declares void any donations made by simulating another contract to individuals who are legally prohibited from receiving donations. This applies whether the donation is made directly or through a proxy, reinforcing the principle that legal prohibitions cannot be bypassed through deceptive contractual arrangements.
Chapter III: Revocation and Reduction of Grants
Section 2359 .- Donations made by a person legally at the time did not grant them children, may be revoked by the donor when they have come upon children who are born with all the conditions of feasibility required by Article 337. If after five years since he made the donation and the donor has not had children or had habiéndolos has not revoked the grant, it will become irrevocable. The same happens if the donor dies within this period of five years without having revoked the grant. If within that period a posthumous child born of the donor, the donation shall be revoked in its entirety.
Section 2360 .- If the first case of the preceding article, the father has not revoked the grant, must be reduced when it is covered by the provisions of section 2348, unless the donee takes upon himself the obligation to minister and ensure food properly.
Section 2361 .- The grant may not be revoked by supervenience of children: I. When less than two hundred pesos; II. Where antenuptial; III. Where between spouses; IV. When purely remunerative.
Section 2362 .- Supervenience rescinded the grant of children will be returned to the donor donated goods or their value if they have been sold before the birth of children.
Section 2363 .- If the grantee any mortgaged property donated shall remain the mortgage, but the donor is entitled to demand that he redeem it. This shall take place in the case of usufruct or servitude imposed by the grantee.
Section 2364 .- When goods can not be restituted in kind, the value will be required to have those at the time of donation.
Section 2365 .- The donee endorses the fruits of donated goods until the day he is notified of the revocation or until the day the child was born posthumously, in his case.
Section 2366 .- The donor can not renounce in advance the right of revocation supervenience of children.
Section 2367 .- The action of revocation supervenience of children solely for the donor and the posthumous son, but the reduction by way of maintenance are entitled to ask for all creditors to be fed.
Section 2368 .- The grantee is responsible only for compliance with the burdens imposed upon him the thing given, and is not personally liable with their property. You can evade the charge of leaving the thing given, and if it dies by accident, is free from any obligation.
Section 2369 .- In any case of termination or cancellation of the donation, will observe the provisions of Articles 2362 and 2363.
Section 2370 .- The donation may be revoked for ingratitude I. If the grantee commits a crime against the person, honor or property or the donor's ancestors, descendants or spouse thereof; II. If the donee refuses to help, according to the value of the donation, the donor has come to poverty.
Section 2371 .- It applies to the revocation of the donations made by ingratitude Articles 2361 to 2364.
Section 2372 .- The revocation action on account of ingratitude can not be waived in advance, and prescribes within one year, after he has knowledge of the fact the donor.
Section 2373 .- This action can not be brought against the heirs of the donee, unless during his lifetime had been attempted.
Section 2374 .- Nor can this action brought by the heirs of the donor if he, may, I would not have tried.
Section 2375 .- Donations will not be revoked or inofficious reduced when the donor died, the donee takes upon himself the obligation to minister foods due and guaranteed according to law.
Section 2376 .- The reduction of the donations will start by the last date that will be completely suppressed if the reduction not sufficient to complete food.
Section 2377 .- If the amount of the donation can not become less ancient, was taken in respect of the above, the terms of the preceding article, following the same order up to the oldest.
Section 2378 .- Having several grants made in the same act or on the same date, including the reduction will be prorated.
Section 2379 .- If the gift is property, it shall take to reduce their value while being donated.
Section 2380 .- When the grant is in real estate as may be easily divisible, the deduction shall be in kind.
Section 2381 .- When the property can not be divided and the amount of the reduction exceeds half the value of the former, the grantee will receive the rest in cash.
Section 2382 .- When the reduction does not exceed half the value of the property, the donee pays the rest.
Section 2383 .- Revoked or reduced inofficious a donation, the donee is only liable for the fruits from whatever defendant.
Revocation by Supervenience of Children (Sections 2359-2367): A significant ground for revocation is the subsequent birth of children to a donor who had none at the time of the donation. This right to revoke exists if the children are born meeting the feasibility conditions of Article 337. However, this right is time-limited: if five years pass without children or without revocation after having children, the donation becomes irrevocable. If the donor dies within these five years without revoking, it also becomes irrevocable. A posthumous child born within this period revokes the donation entirely (Section 2359).
If the donor does not revoke, the donation may still be reduced if it falls under the "inofficious" category (Section 2348), unless the donee assumes the obligation to provide proper support (Section 2360). Certain donations are exempt from revocation due to supervenience of children, such as those under 200 pesos, antenuptial, between spouses, or purely remunerative ones (Section 2361).
Upon revocation, the donated goods or their value (if sold) must be returned (Section 2362). If the property is mortgaged, the mortgage remains, but the donor can demand its redemption (Section 2363). If goods cannot be returned in kind, their value at the time of donation is required (Section 2364). The donee is liable for the fruits of the donated goods from the day they are notified of revocation or from the birth of a posthumous child (Section 2365). The right to revoke cannot be waived in advance (Section 2366), and the action belongs solely to the donor and the posthumous child, though creditors for support can request reduction (Section 2367).
Donee's Responsibility for Burdens (Sections 2368-2369): A donee is only responsible for the burdens imposed on the donated item and is not personally liable with their other property. They can evade the charge by relinquishing the donated item, and if the item is accidentally destroyed, they are freed from the obligation (Section 2368). In any case of termination or cancellation, Sections 2362 and 2363 (regarding restitution and mortgaged property) apply (Section 2369).
Revocation for Ingratitude (Sections 2370-2374): Donations can also be revoked due to the donee's ingratitude. This occurs if the donee commits a crime against the donor's person, honor, or property, or against their ancestors, descendants, or spouse. It also applies if the donee refuses to provide help to the donor who has fallen into poverty, proportionate to the value of the donation (Section 2370).
Sections 2361 to 2364 (regarding non-revocable donations, restitution, mortgaged property, and valuation) are applicable to revocations based on ingratitude (Section 2371). This right cannot be waived in advance and prescribes within one year of the donor becoming aware of the ingratitude (Section 2372). The action cannot be brought against the donee's heirs unless initiated during the donee's lifetime (Section 2373), nor can it be brought by the donor's heirs if the donor chose not to pursue it (Section 2374).
Reduction of Donations (Sections 2375-2383): Donations will not be revoked or reduced as inofficious if the donee, after the donor's death, assumes the legal obligation to provide and guarantee support (Section 2375). When reductions are necessary, they begin with the most recent donations, which are completely suppressed if needed to cover support obligations (Section 2376). If older donations must be reduced, the same order is followed, going back to the oldest (Section 2377). If multiple grants were made simultaneously, the reduction is prorated (Section 2378).
For property donations, the value at the time of donation is used for reduction (Section 2379). If real estate is easily divisible, the reduction is made in kind (Section 2380). If indivisible and the reduction exceeds half its value, the donee receives the remainder in cash (Section 2381). If the reduction does not exceed half, the donee pays the difference (Section 2382). After revocation or reduction, the donee is only liable for the fruits from the moment they are sued (Section 2383).
Table: Grounds for Revocation and Reduction of Donations
| Ground for Action | Conditions / Triggers | Key Provisions |
|---|---|---|
| Supervenience of Children | Donor had no children at time of donation, then has children (conceived/born). Timelines and irrevocability rules apply. | Sections 2359-2367 |
| Ingratitude of Donee | Donee commits crime against donor/family, or refuses support to impoverished donor. | Sections 2370-2374 |
| Inofficious Donation (Reduction) | Donation impairs donor's legal obligation to provide food/support. | Sections 2348, 2360, 2375-2383 |
Title Five: The Mutual (Loan)
The "mutuo," or loan contract, is a common agreement where one party (the lender) transfers ownership of money or other fungible goods to another (the borrower), who agrees to return an equivalent amount of the same kind and quality. The Civil Code distinguishes between simple loans and interest-bearing loans, each with specific regulations governing repayment, liability, and interest rates.
Chapter I: Mutual of Simple (Simple Loan)
Section 2384 .- Mutual is a contract whereby the lender agrees to transfer ownership of a sum of money or other fungible things the borrower, who agrees to return as much of the same kind and quality.
Section 2385 .- If the contract is not fixed term for repayment of loans, observe the following rules: I. If the borrower regardless of the farmer and the loan consists of cereals and other agricultural products, the refund will be made in the next crop of the same or similar fruits or products; II. The same was observed for the borrowers which are not farmers, like fruits are to perceive in any other capacity; III. In other cases, the obligation to repay is governed by Article 2080.
Section 2386 .- The delivery of the thing lent and paid restitution of what will be done in suitable place.
Section 2387 .- When there is no designated place, shall follow the following rules: I. The thing provided is delivered in the current location; II. Refunds will be made if the loan is in effect at the place where they were received. If money is in the debtor's home, observing the provisions in Article 2085.
Section 2388 .- If it is impossible to restore gender borrower will satisfy paying the value given was the thing in time and place at which the loan was made, according to experts, if there is no stipulation to the contrary.
Section 2389 .- Consisting of the loan money, the debtor will pay an amount equal returning to that received money under the law in effect at the time of making payment, without the requirement is waived. If it is agreed that payment must be made in foreign currency, the change in value that this experience will be in harm or benefit the borrower.
Section 2390 .- The lender is responsible for the damages suffered by the borrower for the poor quality or hidden defects of the thing lent, if he knew of the defects and did not give timely notice to the borrower.
Section 2391 .- In the case have agreed that restitution can be made when the debtor or have the means, observe the provisions of Article 2080.
Section 2392 .- There will be declared invalid debts incurred by the child to provide nutrients you need, when his legal representative is absent.
Definition (Section 2384): A simple loan involves the transfer of ownership of fungible goods (items that can be replaced by identical items, like money, grain, etc.) from lender to borrower, with the borrower promising to return an equal amount of the same kind and quality.
Repayment Term (Section 2385): If no specific repayment term is fixed, the Code provides rules:
- Farmers: If the loan is agricultural products, repayment is due at the next harvest of similar products.
- Non-Farmers: Similar rule applies for those who perceive fruits in other capacities.
- Other Cases: Repayment is governed by Article 2080, which generally refers to immediate repayment unless a term is implied by the nature of the obligation.
Place of Delivery and Restitution (Sections 2386-2387): Delivery of the loaned item and its restitution should occur at an agreed-upon place (Section 2386). If no place is designated, the loaned item is delivered at its current location. Restitution occurs where the items were received, or at the debtor's home for money, subject to Article 2085 (Section 2387).
Impossible Restitution (Section 2388): If it becomes impossible to return items of the same kind, the borrower must pay their value at the time and place the loan was made, as determined by experts, unless otherwise stipulated.
Money Loans (Section 2389): For money loans, the debtor must return an amount equal to what was received, based on the legal currency in effect at the time of payment. If foreign currency is agreed upon, the borrower bears the risk or benefit of exchange rate fluctuations.
Lender's Liability for Defects (Section 2390): The lender is liable for damages suffered by the borrower due to poor quality or hidden defects of the loaned item, but only if the lender knew of these defects and failed to inform the borrower in a timely manner.
Restitution When Debtor Has Means (Section 2391): If it is agreed that restitution can be made when the debtor "has the means," Article 2080 applies, implying a flexible term dependent on the debtor's financial capacity.
Invalid Debts for Child's Nutrients (Section 2392): Debts incurred by a child to obtain necessary nutrients are invalid if their legal representative is absent. This protects minors and ensures their basic needs are met without incurring undue financial burden.
Chapter II: Of Mutual Interest Bearing (Interest-Bearing Loan)
Section 2393 .- It is permitted to stipulate mutual interest, either through cash and in kind.
Section 2394 .- Interest is legal or conventional.
Section 2395 .- The legal interest is nine percent. The conventional interest is to set the contractors, and may be higher or lower than the legal interest, but when the interest is so disproportionate to do reasonably believe has been abused pecuniary trouble, inexperience or ignorance of the debtor, at his request the judge, taking into account the special circumstances, may reduce the interest equally to the statutory rate.
Section 2396 .- If you have agreed a higher interest rate than the legal one, the debtor, after six months since the contract was concluded, you can repay the capital, whatever the deadline set for it by giving notice to the creditor with two months in advance and paying the interest due.
Section 2397 .- The parties may not, under penalty of nullity, to agree in advance that the interest is capitalized and generate interest.
Permissibility of Interest (Section 2393): The Code explicitly permits the stipulation of interest in a loan contract, whether paid in cash or in kind. This acknowledges the economic reality of lending and the lender's right to compensation for the use of their capital.
Types of Interest (Section 2394): Interest can be either "legal" or "conventional."
- Legal Interest: A fixed rate established by law.
- Conventional Interest: Agreed upon by the contracting parties.
Legal and Conventional Interest Rates (Section 2395): The legal interest rate is set at nine percent. Conventional interest can be higher or lower. However, the Code includes an important protection against usury: if conventional interest is disproportionately high, leading to a reasonable belief of abuse due to the debtor's financial distress, inexperience, or ignorance, a judge can reduce it to the legal rate at the debtor's request, considering the specific circumstances. This provision aims to prevent predatory lending practices.
Early Repayment for High Interest (Section 2396): If a conventional interest rate higher than the legal rate has been agreed upon, the debtor has the right to repay the capital early, regardless of the agreed term. This can be done after six months from the contract's conclusion, by giving two months' advance notice to the creditor and paying the interest due up to that point. This offers an exit strategy for debtors burdened by high-interest loans.
Prohibition of Capitalized Interest (Section 2397): The parties are strictly prohibited from agreeing in advance that interest will be capitalized (i.e., added to the principal to generate more interest, also known as compound interest or "anatocismo"). Any such agreement is null and void. This rule protects borrowers from rapidly escalating debt due to compounding interest.
Table: Key Aspects of Mutual (Loan) Contracts
| Aspect | Simple Loan (Mutual of Simple) | Interest-Bearing Loan (Mutual of Interest Bearing) |
|---|---|---|
| Definition | Transfer of fungible goods, return equivalent. | Transfer of fungible goods + agreed interest. |
| Repayment Term (Undesignated) | Next harvest for farmers, Article 2080 for others. | N/A (Interest implies a term or specific repayment structure). |
| Place of Delivery/Restitution | Agreed place; if none, current location/where received. | Same as Simple Loan. |
| Lender's Liability | Damages for known hidden defects. | Same as Simple Loan. |
| Interest Types | None (by definition of "simple"). | Legal (9%) or Conventional (agreed). |
| Usury Protection | N/A | Judge can reduce disproportionate conventional interest. |
| Early Repayment (High Interest) | N/A | Debtor can repay after 6 months with 2 months' notice. |
| Capitalized Interest | N/A | Prohibited (null and void). |
Title Six: Lease (Arrendamiento)
The lease contract, or "arrendamiento," is a cornerstone of property law, allowing one party to grant the use or enjoyment of a thing to another in exchange for a certain price. The Mexican Civil Code provides comprehensive regulations for lease agreements, covering their definition, duration, eligible property, and the rights and responsibilities of lessors and lessees.
Chapter I: General Provisions
Section 2398 .- There lease when the two Contracting Parties undertake reciprocally, one to grant the use or enjoyment of a thing, and the other to pay for that use or enjoyment of a certain price. The lease can not exceed ten years for land used for room and twenty years of commercial farms or industry.
Section 2399 .- The rent or lease price may consist of a sum of money or anything else equivalent, provided it is certain and determined.
Section 2400 .- They are susceptible to lease all goods that can be used without being consumed, except those prohibited by law rights to lease and strictly personal.
Section 2401 .- The owner who is not the thing you can lease it if you have power to enter into this contract, under authorization of the owner, and by operation of law.
Section 2402 .- In the first case the previous article, the constitution of the lease is subject to the limits in the permit, and the second, which the law has attached to the outside asset managers.
Section 2403 .- You can not rent the owner of an undivided thing without the consent of the other co-owners.
Section 2404 .- It is forbidden to the judges, the judges and any other public employees, take on lease, in person or by proxy, the goods to be leased businesses involved.
Section 2405 .- Managers are prohibited in both public and public officials and employees, take on lease the property with the expressed characters manage.
Section 2406 .- The lease must be in writing. The absence of this formality is charged to the landlord.
Section 2407 .- (Repealed).
Section 2408 .- The lease is not terminated by the death of the lessor or the lessee, unless otherwise agreed otherwise.
Section 2409 .- If during the term of the lease for any reason verifies the transfer of ownership of the property leased, the lease shall continue under the terms of the contract. Regarding the payment of rent, the tenant shall be required to pay the new owner the rent stipulated in the contract, the date to be notified or out of court before a notary or two witnesses have been granted the appropriate title, though alleged to have paid the first owner, unless the advancement of expressly stipulated rents appear in the same lease.
Section 2410 ...."
Definition and Duration (Section 2398): A lease contract is established when two parties reciprocally agree: one to grant the use or enjoyment of a thing, and the other to pay a certain price for that use or enjoyment. The Code sets maximum durations: ten years for residential properties and twenty years for commercial or industrial properties. These limits are crucial for long-term planning and property management.
Rent Price (Section 2399): The rent, or lease price, can be a sum of money or any other equivalent, provided it is certain and determined. This ensures clarity and avoids disputes regarding the consideration for the lease.
Leaseable Goods (Section 2400): Any goods that can be used without being consumed are susceptible to lease. Exceptions include those prohibited by law from being leased and strictly personal rights. This generally means durable goods and real estate are eligible for lease agreements.
Who Can Lease (Sections 2401-2402): The owner of a thing can lease it. Non-owners can also lease if they have the power to enter into such a contract, either through authorization from the owner or by operation of law (e.g., a legal administrator). The constitution of such leases is subject to the limits of the authorization or legal provisions (Section 2402).
Co-owner Consent (Section 2403): An owner of an undivided thing (co-owner) cannot lease it without the consent of the other co-owners. This protects the collective rights of all owners over shared property.
Prohibitions on Leasing (Sections 2404-2405): To prevent conflicts of interest and abuse of power, judges, magistrates, and other public employees are prohibited from leasing, in person or by proxy, goods involved in businesses they oversee (Section 2404). Similarly, public managers and officials are prohibited from leasing property they manage (Section 2405).
Written Form (Section 2406): Lease agreements must be in writing. The responsibility for ensuring this formality lies with the landlord. Failure to comply can have legal consequences.
Repealed Section (Section 2407): This section has been repealed, indicating a legislative change that removed its provisions from the current Code.
Effect of Death (Section 2408): A lease is generally not terminated by the death of either the lessor or the lessee, unless the contract specifically states otherwise. This ensures the continuity of the agreement for the heirs.
Transfer of Ownership (Section 2409): If the ownership of the leased property is transferred during the lease term, the lease continues under its original terms. The tenant is then obligated to pay rent to the new owner from the date they are notified (judicially or extrajudicially before a notary or two witnesses). Any prior payments to the original owner are not valid against the new owner, unless advance rent payments were expressly stipulated in the lease itself.
Section 2410: The provided text ends here, indicating that further provisions of the Lease chapter would continue from this point in the full Civil Code.
Table: Key Elements of a Lease Agreement in Mexico
| Element | Description / Provision |
|---|---|
| Definition | Reciprocal agreement for use/enjoyment of a thing for a price. |
| Maximum Duration | 10 years (residential), 20 years (commercial/industrial). |
| Rent Price | Must be certain and determined (money or equivalent). |
| Leaseable Goods | Non-consumable goods, not prohibited by law or strictly personal rights. |
| Who Can Lease | Owner, authorized non-owner, or by operation of law. |
| Co-owner Consent | Required for undivided property. |
| Prohibited Lessors | Judges, public employees, public managers over managed property. |
| Formality | Must be in writing (landlord's responsibility). |
| Effect of Death | Does not terminate lease, unless otherwise agreed. |
| Transfer of Ownership | Lease continues; tenant pays new owner after notification. |
The provisions concerning lease agreements in the Mexican Civil Code are designed to provide a clear and equitable framework for both lessors and lessees. They address common scenarios such as property transfer, the death of parties, and the formal requirements for validity, ensuring that these contracts are robust and legally sound. Adherence to these rules is essential for protecting the rights and interests of all involved parties.
In conclusion, Book Four of the Federal Civil Code of Mexico offers a meticulous and comprehensive set of regulations for various contractual agreements. From the reciprocal exchange of goods in a swap to the gratuitous transfer of property in a donation, the lending of fungible assets in a mutual, and the temporary grant of use in a lease, each contract type is defined with precision. These legal provisions are vital for maintaining order, protecting rights, and ensuring fairness in civil transactions across Mexico.
Fuente: Contenido híbrido asistido por IAs y supervisión editorial humana.
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