by Dr. Fernando García Sais, notary public 210 of Sinaloa, bachelor of laws from ITAM and doctor of laws from UNAM.
Paper presented on March 19, 2022 for the Council of Notaries of the State of Sinaloa
The promise of a purchase agreement and its subsequent, not its substitute, the purchase agreement, are two instruments used in the generality of real estate operations, currently, in Mazatlan and in general throughout Mexico.
The relevance of knowing its regulation is evident not only for notaries but for the rest of the economic operators that are related to the promotion, sale and advice related to real estate.
Contracts, in general, are vehicles or instruments for people to achieve certain ends. In civil matters, there is a list of contracts that can be organized according to their effects, and thus we speak, for example, of contracts transferring use (such as the loan) or transferring contracts of ownership (such as the sale, exchange, donation, among others). others).
Along with the contracts provided for by the legislator, it is common that in practice contracts can be invented by the parties to regulate specific situations, in which case we will find ourselves in the presence of the so-called UNNOMINATED or ATYPICAL CONTRACTS, which are regulated based on the rules of the nominated contract with which they have the greatest similarity.
ARTICLE 1743. The contracts that are not specially regulated in this Code, will be governed by the general rules of the contracts; by the stipulations of the parties and, in what was omitted, by the provisions of the contract with which they have more analogy, of those regulated in this system.
Legal scholars maintain that the will of the parties is the supreme law of contracts. It is not the Civil Code, nor the Constitution. What the parties agreed to, as long as it does not go against mandatory provisions, is the maximum law applicable to that relationship and to any conflicts that may arise between them.
Hence the importance of adequately drafting the clause content and anticipating, as far as possible, all situations of non-compliance that may arise in order to resolve frictions in advance. There is no perfect contract, but there are contracts that are more complete than others, or better than others. There is no format or template that works uniformly for all situations, people and goods.
The contract is the suit tailored to the parties, by virtue of the autonomy of the will that is manifested in two aspects: FREEDOM TO CONTRACT (option to decide to contract or not and with whom and with respect to what) with CONTRACTUAL FREEDOM (possibility of influencing the substantive content of the contract) are designed to enhance the value of their contributions that will affect a specific contractual relationship.
An example of contractual freedom is the possibility of inserting into the contracts the clauses and conditions that the parties freely agree upon, such as when a CONVENTIONAL PENALTY or PENAL CLAUSE is included, or entering into these unnamed contracts or mixing rules chosen from among the contracts.
ARTICLE 1725. The contracting parties may stipulate a certain provision as a penalty in the event that the obligation is not fulfilled or is not fulfilled in the agreed manner. If such a stipulation is made, further damages may not be claimed.
This freedom is not absolute, for example, certain elements of the contracts that are known as essential clauses cannot be deleted. In the sale, neither the good to be sold nor the amount of the payment that must be made can be missing. Price and things are essential elements. In the promise of contract, the essential element is the indication of the future contract that is going to be concluded and the term for said celebration.
As we will see in due course, these freedoms can find limitations when the economy does not work properly and there are monopolies (and therefore, in the case of necessary consumer goods, the option to hire or not or to choose who is limited to what exists ) or when it comes to operations with consumers, insofar as they are final recipients of goods and services that, by virtue of contractual overcrowding, make it impractical or inconvenient for the entrepreneur to individually negotiate the content of the contract with each of the hundreds, thousands or millions of consumers with whom you have a daily relationship.
For now, it is worth noting that in the case of consumers, the law seeks to find a contractual balance with various figures and institutions, such as the declaration of abusive clauses that are understood as not set based on the application of certain principles and rules. That is, the legislator recognizes asymmetry and inequality and with the law intends to introduce remedies to minimize disadvantageous situations.
GENERALITIES ABOUT THE CONTRACT.
It is the source of obligations par excellence. Every day, even if we are not aware, we celebrate or participate in the effects of these contracts. Stopping at the Oxxo or the Kiosko or for a coffee at the Starbucks implies entering into sales contracts, which, although they are not material because they are not included in a document that the parties previously sign, exist and are fully effective with all the consequences that may arise. derived from the applicable law.
It would not occur to anyone to arrive at one of those places and pretend to sit down to sign a contract and then go to the checkout to pay, well I hope that no one would think of it! Those who got off the Sábalo-Cerritos or Cerritos-Juárez entered into a transportation contract and did not negotiate its terms either.
For the contract to exist, in general, any contract, not only the promise or the sale contract, two things are required: that there is the consent of the parties and that there is an object that may be the subject of the contract.
In order for the existing contract to be valid, it is necessary that this consent is given by people who have the capacity (of legal age/interdiction status); that such consent has not been obtained by mistake, fraud, bad faith, violence, or injury; that the object of the contract or the purpose of the contract are not unlawful or, very importantly, BECAUSE THE CONSENT HAS NOT BEEN MANIFESTED IN THE FORM ESTABLISHED BY LAW.
ARTICLE 2110. The lack of form established by the Law, if it is not about solemn acts, as well as the error, fraud, violence, injury and incapacity of any of the authors of the act, produces the relative nullity of the same. .
The form is the way something is externalized, in this case, consent. In our Law, consent can be expressed, when it is expressed verbally or by unequivocal signs; or tacit, by facts or acts that presuppose it or authorize it to be presumed.
Contracts, says the Civil Code, are perfected by mere consent, except those that must take a form established by law. Since they are perfected, they oblige the contracting parties not only to comply with what was expressly agreed but also to the consequences that, according to their nature, are in accordance with good faith, use or the law.
And the form established by law for promise contracts is the written form; but if the value of the property exceeds $500 pesos, it must be stated in a public deed. Regarding those of sale when they fall on real estate whose value is greater than 350 UMAS, it also requires a public deed.
It is vitally important to keep this regulation in mind because, as long as the expected form is not complied with, the contract is not valid, although any of the parties can demand before the judge that the contract be given the legal form (pro forma action).
This is a great tool to force the counterparty to comply with the agreement. Imagine that a private contract of sale was signed (omitting the deed) and that the buyer has settled the entire price and it is time that they do not go before a notary to formalize the contract. In that case, the buyer must go to demand the pro forma action and the judge will order, without any obstacle, that the deed be granted in the notary chosen by the parties or by the plaintiff in their demand.
ARTICLE 1718. When the law requires a certain form for a contract, while it does not have that form, it will not be valid, unless otherwise provided; but if the will of the parties to celebrate it is irrefutably recorded, any of them can demand that the contract be given legal form.
ARTICLE 2114. When the lack of form produces annulment of the act, if the will of the parties has remained unquestionably constant, and it is not a revocable act, any of the interested parties may demand that the act be granted in the form prescribed by law.
THE PROMISE OF SALE CONTRACT
This type of contract is undoubtedly the most used in practice, particularly when it comes to:
- the commercialization of goods in the construction process (future things),
- in which one of the parties needs to finance itself with the money that the promising buyers will deliver “on account of the price”,
- although of course they can be used in the case of goods already ready for delivery but in which the parties want to defer the transfer of ownership until a certain time in the future, be it for reasons of either party.
The regulation of the promise contract is very succinct. There are only 5 articles that clearly establish the elements and requirements that the promise must contain to be valid.
The promise contract is the genre that may be applicable to several contracts, as long as the law allows it, since promises cannot be made on promises or promises on mutual funds, deposits, loan or donation.
Special cases of promises.
Some special rules applicable to the promise are found in the regulation of the modalities of the sale.
- Pre-existing sale between the parties
Thus it is read that if there was a sale of a property, the parties to that contract cannot celebrate a “promise of sale” (leaving the doubt as to whether it refers to the unilateral promise to sell and not to the promise of sale contract). .
ARTICLE 2184. The sale with a repurchase agreement is prohibited, as well as the promise of sale of real estate that has been the object of a sale between the same contracting parties.
According to the most authoritative doctrine (Gonzalo Ortíz Blanco) the prohibition aims to prevent usury. A and B, instead of celebrating a mutual agreement, celebrate a sale. A pays B and B transfers the property to him. There they celebrate a promise. When B raises the money, A will sell the property back to him.
- Promise by a “non-owner”
The promise made is valid if the promising buyer is not yet the owner. In any case, if you do not acquire to be prepared and to be able to celebrate the promised sale, you must compensate the damages caused to your counterparty.
Here, once again, the inclusion of a conventional penalty supported by a pledge guarantee and an express rescission agreement, plus prudential actions to support non-compliance, has practical utility.
- Promise between spouses married by conjugal partnership
As we will mention at the time, spouses married under the conjugal partnership property regime cannot enter into purchases with each other regarding assets that make up said community. It would be like exchanging bag money in the same pants.
However, I consider it perfectly valid (GOB) if the promise is subject to the condition of modifying the patrimonial regime of the marriage, extinguishing the marital partnership, and liquidating it.
- Foreigner’s promise to buy in the restricted area (beach trust)
Foreigners do not have the full capacity to acquire direct ownership of real estate located on the beaches. However, despite not being able to buy, they can enter into a promise contract as long as it is subject to the condition of obtaining administrative authorization from the federal government.
- Assign the rights of the promise contract?
If the promisor buyer wishes to assign his rights and obligations in a promise, he must obtain the consent of the promisor seller.
The promise contract is also known as a preparatory or preliminary contract, to the extent that it is the negotiation antecedent of a future contract, the definitive one, the promised one.
Regardless of what the promised or future contract is, the promise contract MAY ONLY CONTAIN OBLIGATIONS TO ENTER INTO A FUTURE CONTRACT (obligation to do, not to give) by one or both parties (it can be unilateral or bilateral, depending on how many parties are bound). A “promise of sale” is not the same; a “promise to buy”, than a “promise to buy and sell”.
PROBLEMS WE CAN AVOID.
Promise contracts that are actually sales contracts.
The foregoing means that those promise contracts that are circulating in which the buyer is obliged to pay a price on account of the property and, in that act or later, pays it, or in which the seller is obliged to allow, from that moment or later, the use of the property from or after a certain date, all before the conclusion of the contract of sale, are wrong, because they contain obligations to give (PAY, ALLOW USE, GIVE POSSESSION).
ARTICLE 2127. The promise of a contract only gives rise to obligations to do, consisting of entering into the respective contract in accordance with what is offered.
And let us remember that as I commented at the beginning of this talk, the supreme law of contracts is the will of the parties and if the parties call a piece of paper a “promise” but the content of the clauses, of the obligations, says that they are already executing the sale, there is no doubt that there is a definitive contract of sale, with obligations to pay in installments, but of sale.
As stated in a precedent of the Judicial Power of the Federation,
“The legal nature of the contracts depends, not on the designation given by the parties, which could be wrong, but on the facts and acts consented by the contracting parties”
This has several far-reaching implications:
In the first place, since there is no promise but a sale, the risks of the thing are transferred to the buyer, so that if the thing is lost or damaged, the loss would be suffered by the buyer, by virtue of the principle that the thing perishes forever. your owner.
Secondly, since there has been a sale from that moment, the payment obligations in federal and local tax matters are fully triggered, so that at the time of raising a public deed it is spontaneously (by going to the notary’s office) or because one of the parties sue the promisor to refuse to do so, the judge must sign the public deed on their behalf, not as a representative but as a substitute, for which it is worth reading the following article carefully:
ARTICLE 2129. If the promisor refuses to sign the necessary documents to give legal form to the agreed contract, in his rebellion the Judge will sign them; except in the event that the thing offered has passed by valuable title to the property of a third party in good faith, because then the promise will be without effect , the person who made it being responsible for all damages that have been caused to the other party. .
The foregoing means that if the promissory seller, in violation of the agreement with the promissory buyer, has already sold to a third party and the third party was alive and went before a notary public and registered the first testimony, the promise is without effect. Of course, there will be the possibility of suing for damages. Good luck.
What is my recommendation? If you are going to use promise of sale contracts, you have to be careful and avoid:
- Deliver money on price account . Any amount delivered must be as a guarantee of compliance with the future contract, through a pledge that is left in the possession of the creditor and that will serve to collect it from there in the event that the promissory buyer repents (cuts out, back off). If you put that it is received on account of the price, you are lost. There is already a definitive contract and in addition to lacking form, tax effects are generated that if they did not duly advise their clients, they will claim them when they arrive at the notary’s office. It is valid that the seller asks for a remuneration, outside the definitive contract, for celebrating the promise. It’s like paying a price for an option.
- Surrender possession of the property . The only way to be able to do so would be to allow the future buyer to carry out some activities tending to measure in attention to what he will have to occupy said property in the future. But if you put that the promissory seller delivers the property in that act and you are not careful in the wording, the tax authority may think that there was already a purchase contract and they will not like to think that they omitted the payment of taxes and their updates and surcharges.
- Make private contracts . Professional and notarial advice in this area is essential to guarantee that there are no reasons that cause the nullity of the promise contract and the conclusion of the purchase contract is facilitated.
- Include conventional penalties . This is an issue that will depend on each negotiation, but if you decide to include a conventional penalty in the event that someone repents without just cause, remember that there is freedom to insert this type of agreement. The conventional penalty has its own regulation and must be drafted by the notary to avoid being disproportionate or invalid.
- Retain money pledged or collect conventional penalties . If your promise contract was not drawn up professionally and carefully, these behaviors can get you into serious trouble, including criminal matters. Remember that the Constitution prohibits taking justice into one’s own hands. Regarding this topic I will speak a little more when I touch on the point of rescission in the sale.
Is the promise contract in public deed registrable in the RPP?
No. As it is not a contract with real effects (domain transfers) but only personal (obligation to make a future contract) it has no place in the RPP.
What to do if the agreed day arrives and there is no compliance?
You always have to review the contract to see what the parties agreed to. Not all contracts are the same.
With rescission clause and conventional penalty.
If the contract is well done, the steps indicated therein regarding non-compliance must be followed. If the rescission clause allows the pledge to be terminated and retained, it is necessary to act with great caution and, before doing so, it is prudent to carry out a notarial interpellation to record the breach and the granting of a second chance.
If even so, the party does not go to execute the final contract before a notary public, the parties may choose to terminate the contract (applying the respective conventional penalty) or sue in court for forced compliance (this must necessarily be in court since it implies benefits of doing).
If you have another buyer client and the promissory buyer was the one who defaulted, carefully document the default and if you are sure that you can defend yourself if sued, you are free to promise to sell to someone else or to sell immediately.
If it is the seller who refuses to go before a notary to formalize the final contract, the buyer can also choose to terminate and retain the conventional penalty (which will hardly have been agreed, although not impossible) or sue for the granting of the contract. definitive.
Register demand in the RPP.
It is important that the lawsuit be registered preventively in the RPP so that it takes effect against third-party purchasers and, as we saw previously, the judge will sign in default of the seller, who will not even need to go to the notary’s office to sign, since the judge will have to replace him .
Letters of intent as the best tool.
Another recommendation is to USE THE INSTITUTION OF THE OFFER , through the letters of intent directed preferably from the future buyer to the future seller, in which the former makes a purchase offer under certain conditions and later he accepts it. . This document can be ratified before a Notary and with it the notary will also certify the identity of the parties. The ratified Document will have a certain date and may be enforceable in court.
The cost is lower than that of the public deed to formalize the promise, since it is a ratification of content and signatures.
THE PAYMENT OF THE ISAI IN THE PROMISE
ARTICLE 51.- In the acquisitions that are recorded in a public deed, the notaries, judges, brokers, and other notaries who by legal provision have notarial functions, will calculate the tax under their responsibility, and will find it out by means of a declaration before the corresponding Collection Office. . This declaration must be submitted even if there is no tax to be paid. Said declaration will be signed by the notary and will be presented accompanied by three copies of the deed and the respective commercial appraisal, stating the following information:
In the case of sales contracts with reservation of ownership or promise of sale referred to in sections II and III of article 47 of this Law, which are recorded in private documents and which are entered into in their capacity as sellers or promising sellers by companies land fractionators, real estate companies or any other type of companies that are dedicated to the sale and administration of real estate, the tax referred to in this chapter must be withheld by said companies and must be reported to the corresponding Collection Office no later than on the 15th day of the month following the month in which said contracts were concluded, by submitting a statement indicating the date of execution of each contract, the characteristics and location of the property, the name of the promissory buyer, the amount of the operation and the amount of the respective commercial appraisal.
The transfer or assignment of rights derived from contracts of those indicated in the preceding paragraph, will cause the tax again in the terms of this chapter.
The seller and the other contracting parties will be jointly and severally liable for the tax that the purchaser must pay.
ARTICLE 47.- For the purposes of this chapter, the acquisition is understood as that derived from:
III.- The promise to acquire, when the future buyer comes into possession of the goods, or the future seller receives the sale price or part of it, before the promised contract is signed or when any of these circumstances is agreed upon;
THE CONTRACT OF PURCHASE OF REAL ESTATE
The sale is the most common operation in the field of real estate transactions. It is the most natural way to transfer ownership, ownership, of real estate. Obviously, it is not the only one. There are other translational figures of domain such as the swap (exchange of one thing for another, or for money when this is less than half the value of the other good), donation or mutual.
By virtue of this contract, the seller is obliged to transfer the property and the buyer is obliged to pay him (certain price and in money). However, it is possible to identify more obligations for both parties, which will be pointed out in detail later.
What can be sold / bought?
Everything that is in the trade; that is, everything that is not prohibited by law. There cannot be a contract of sale sanctioned by the Law regarding goods that the law prohibits their commercialization.
ARTICLE 748. All things that are not excluded from trade may be subject to appropriation.
ARTICLE 749. Things may be out of commerce by their nature or by provision of the Law.
ARTICLE 750. Due to their nature, those that cannot be possessed exclusively by any individual, and by law, those that it declares irreducible to private property, are out of the trade.
The real estate as object of the contract of sale are the land and the constructions attached to it and also the real rights over real estate (ownership, usufruct and bare ownership, easement, use, habitation).
ARTICLE 751. The following are real estate:
- The ground and the constructions attached to it;
XII. The real rights on real estate;
Special sales cases.
- Properties belonging to MINORS SUBJECT TO PARENTAL AUTHORITY
From the age of 18, you have full capacity to dispose of your assets, without the need for a representative.
Minors need to be represented to buy or sell real estate.
The law distinguishes between the assets that minors have depending on whether they are the product of their work or for another reason (donation, inheritance, legacy). in this case the minor owner has half of the usufruct. the administration of it and the other 50% of the usufruct corresponds to those who exercise parental authority, unless the donor or testator has said otherwise.
RESTRICTION TO DISPOSE OF AND TAX.
Authorization from the judge is always required for those who exercise parental authority to sell or encumber a minor’s property.
Authorization is not automatic or easy to obtain. They must prove that there is an absolute need or an obvious benefit.
If you come across a deed in which a minor’s property left his estate and the judicial authorization does not appear, you must go calmly and go before a Notary to review the matter, as there may be a non-existence due to lack of consent. of the minor that is not validated with a subsequent deed.
- Properties belonging to DISABLED SUBJECT TO GUARDIANSHIP
This is the case of adults who have been declared in a state of interdiction. The same considerations mentioned in the previous section apply to dispose of / encumber the assets of the minor.
- Properties belonging to
They have free disposal of their assets, except real estate, for whose sale they require judicial authorization. the same as for encumbering and mortgaging.
- between spouses
Unless they are married by separation of property, they cannot enter into the contract of sale on property that is part of the marital partnership. Neither does the donation.
- Sale with the right of both
Between co-owners it is not possible to sell to a stranger without first offering it in a reliable manner and for a period of 8 days and in the same conditions that the stranger intends to acquire.
The violation of the right of both produces the nullity of the sale.
If there are several co-owners interested, who is preferred?
- The one that represents the largest part in the undivided percentage.
- if they are the same: the one designated by chance (a flip).
- selling abroad
- Inside the restricted area
- outside the restricted area
Foreigners have full capacity to acquire outside the coasts and borders, 50 and 100 km, respectively, they simply give notice to the SRE in which the so-called Calvo clause is signed, which is a commitment to consider themselves as Mexicans with respect to that asset and not invoke the protection of their countries, with the penalty that if they do so, the property in question is lost for the benefit of the Nation.
In the rest of the operations, the trust is mandatory, since it is the only legal vehicle to ensure the right of property and respect for the Constitution.
The usufruct is a real right and as such is considered as a property, so it is not valid for the foreigner to acquire it without a trust.
Special cases regarding payment.
pesos or foreign currency
partially in kind
Article 8 of the Monetary Law.
Exchange rate in force on the day of payment, according to Banxico’s publication in the DOF.
What are the parties bound to?
Experts and scholars have identified six obligations that arise from the sales contract by the seller:
- Keep the property in the state it had at the time the parties agreed (perfection of the contract) on the price and the thing;
- Make delivery to the buyer (giving and giving with the agreed price or in installments or with retention of title);
- Transfer the property (with its due registration in the Public Registry of Property);
- Guarantee for the personal fact (refrain from disturbances);
- Guarantee for hidden vices and, finally,
- Guarantee for eviction.
The buyer, for his part, is also obliged to do something: pay the agreed price (at the place and date) and receive the purchased item.
Deed and registration expenses.
ARTICLE 2145. The contracting parties shall pay half of the deed and registration expenses unless otherwise agreed.
If you do not register in the RPP, IT DOES NOT HAVE EFFECTS AGAINST THIRD PARTIES. It is not enforceable against anyone, only the seller.
When must benefits be delivered?
When should the seller pay and when should the seller deliver, and therefore, when should the buyer be ready to receive the property, is a question that in practice can give rise to controversy.
That is, the seller’s obligations depend on, or are linked to, the buyer’s obligations, and vice versa. That is why it is customary to say that it is fulfilled “giving and giving”, obviously with its exceptions that derive from what the parties agree, since the contract is the rule that governs between the parties and, in some cases, can modify what is provided in the law.
In certain cases, the will of the parties cannot exceed the legal minimum, for reasons of public order. The law resolves practically all possible points of friction. For example, in case of doubt as to who should comply first, the money and the real estate can be deposited with a third party, who will make the corresponding deliveries (it is similar to the Anglo-Saxon escrow ).
What types of purchases are there?
- Counted with own resources
- Counted with a loan with or without mortgage guarantee
On this subject, the Council of Notaries will have a speaker at the following scheduled conferences.
However, it is important to note that the loan can come directly from the
- In installments or payment
Both the seller’s obligation to deliver the property (not yet finished, for example) and the buyer’s obligation to pay the price can be subject to a term.
When the price is agreed in successive payments, it may be a sale with or without a rescission clause or a sale with retention of title.
- Without rescission clause
- With Rescission Clause registered in the RPP
- With Domain Reservation
- With Rescission Clause registered in the RPP
- With Reserve of Possession
- of existing thing
- of future thing
This classification is due to the way in which the risks derived from the object of the contract are assigned.
- of expected thing
Neither party bears the risks.
It falls on things that do not exist but that their existence is possible (the future fruits of a tree)
- sale of hope
The buyer bears the risks.
It is a random contract.
- Sale of future thing under order
The seller bears the risks.
The seller undertakes to deliver to the buyer things that do not exist at the time of signing the contract, but undertakes that they exist and therefore takes the construction of the property at his own risk.
- Sale subject to suspensive condition
- Mercantile sale
It is carried out between merchants or between companies with each other. One company sells a property and another company buys it. Companies can only carry out acts of commerce.
All sales in which one of the parties is a merchant are also mercantile, particularly in the case of personal property (self-service stores) although in these cases, because they are mixed acts, we are in the presence of consumer relations.
But when an entrepreneur sells to a consumer (not an entrepreneur or a natural person with a business activity) it is commercial sales.
- civil sale
This modality is the most common when the sales take place between non-merchants. These are natural persons selling to natural persons, when none of them has commercial activity or is carrying out the operation as an act of commerce with the direct intention of speculating.
But hey, my client bought a pre-sale and we all know that he wants to resell it to make some money. Even so, given that the purpose of speculating is supervened, it cannot go back to the previous operation and does not alter its civil nature. In addition, it will surely prove that it is his home and will even request the ISR exemption. Due to a principle of uniqueness of the act, it cannot have consequences of different legal natures. Either it proves that it is a home or it proves that it is a business asset.
By exclusion, any sale that is not commercial, is civil.
- Purchase and sale of consumption
The operations carried out with respect to goods destined for homes in which the counterparty of the civil buyer (consumer) is an entrepreneur are subject to the Federal Consumer Protection Law and the Official Mexican Standards (NOM 247 in the process of being published).
Regime of adhesion contracts and abusive clauses.
Advertising integration of contracts.
- Sale of assets by the executor (inheritance)
The general rule is that the executor, as long as he is an administrator (including an assistant to the administration of justice) in charge of finalizing an estate in liquidation, is prohibited from starting new businesses.
However, given that the succession procedure takes some time and there are objective reasons for having to take measures such as the sale of an asset, such as to meet expenses for the preservation of the estate or pay debts, the heirs are required to authorize the executor these operations.
The sale made by the executor of the succession regarding the real estate that makes up the hereditary estate, is regulated by law and requires:
- Consent of the heirs
- Emergency situation: possibility of deteriorating, difficult and expensive conservation
- Advantageous condition in the alienation of the fruits.
- Judicial authorization