Liberalitat i onerositat en les relacions entre cònjuges i convivents i acció de reintegrament del preu en adquisicions oneroses (a propòsit de les sentències del Tribunal Superior de Justícia de Catalunya 3/2020, de 30 de gener, i 5/2020, de 6 de febrer)

Abstract

It is clear the Catalan legislator’s will not to assimilate the regime of spouses and cohabitants while cohabitation lasts. The solutions provided for the spouses will not apply to stable partners, except in cases of express reference. This reference is not contained in the subject of acquisitions for consideration and presumption of gift of the consideration paid by the non-acquirer that is included in article 232-3.1 CCCat and this is stated in the Judicial Decision of the Supreme Court 5/2020 to make a reimbursement action prosper. However,we cannot avoid the affective relationship that contextualizes the contractual relationships between stable partners, nor can we treat them as strangers since they make up a family unit. This will be an important variable when it comes to assessing the liberal consideration that motivates the displacement and considering that the subsequent claim for reimbursement of the price paid by the non-acquirer is an expression, actually, of a regret for the free attribution made. Likewise, cohabitants conduct during the cohabitation will allow to observe the existence of tacit agreements, to which the Judicial Decision of the Supreme Court 3/2020 refers, and beyond these agreements, the behavior observed in relation to the non-claim of the paid price for the acquisition of an asset that occurred during cohabitation, it must be examined from the perspective of the doctrine of one’s own acts when this claim is finally submitted.