Sources and Historical Antecedent of Article 803, Paragraph 2° of the Civil Code that Ratify the Consecration of a Right of Unenforceability in Favor of Creditors Defrauded by the Usufructuary

Abstract

The main objective of this paper is to ratify through the study of its sources and historical background, that article 803, paragraph 2 Chilean Civil Code establishes an autonomous right to request the declaration of unenforceability of the assignment or renunciation of the easement in favor of the bare owner that a debtor enters into with the owner, with the purpose of defrauding the creditors, taking advantage of the extinctive effect that consolidation produces. It is argued that the right enshrined in art. 803 has no relation whatsoever with the Pauliana action or the rescission action of art. 2468. This is a right created by Bello, based on the provisions of articles 622 and 618 of the French Civil Code, anticipating the development of the theory of unenforceability. The contribution is relevant because the strengthening of the interpretation in this sense of the legal nature of the right established in article 803, grants greater security to creditors. In particular, to admit easement mortgages, unusual due to the uncertainties about the protection provided by the legal system to the secured credit.