EXPERIENCIAS DIDÁCTICAS

Croatian jurists, theorists and practitioners for decades used a special term to nominate so- called improper lifetime care agreement and often called it contract of care until death. In Croatian law theory there were numerous opinions suggesting legal regulation of this contract, because in Croatia, as well as all other countries of ex Yugoslavia, Succession Act regulated only lifetime care agreement, in which the transfer of the property is postponed until the recipient’s death. Finally, Croatian legislator decided, beside the lifetime care agreement,13 to regulate this contract in Obligations Act in 2005,14 and nominated it contract of care until death.

5

More: Marković, B. Zakon o nasleđivanju – sa objašnjenjima i napomenama (Succession Act – With Explanations and Notes), s. 142.

6

See: General Attitude of the Extended Session of the Federal Supreme Court, no. 8/57, from 11.01.1957. године. See the whole text of the decision at: Antić, O., Balinovac, Z. Komentar Zakona o nasleđivanju (A Commentary on the Succession Act), s. 513-514.

7

Succession Act (1955) stipulated strict form (ad solemnitatem) for the validity of the lifetime care agreement. The contract had to be concluded in written form, and certificated by the judge, which was obliged to read the contract to the parties and warn them about the legal effects of the contract (art. 122). Succession Act of the Republic of Sebia (Sl. glasnik RS - The Official Gazette of the Republic of Serbia, no. 46/95), which is in effect, has similar provision (art. 195).

8

Even than, in case law there were oppinions that for thiscontract written form is not necessary, if the contract was fully accomplished. See: The Decision of Croatian Supreme Court, Gž. no. 294/71. 9

See: The Decision of Serbian Supreme Court, Rev. no. 2195/93.

10 _{Konstantinović, M. Obligacije i ugovori, Skica za zakonik o obligacijama i ugovorima (Obligations} and Contracts, The Draft on Obligations and Contracts Code), art. 943.

11

Swiss Code on Obligations. See: art. 521. 12

See: The Coclusion of the Civil Law Part of the Serbian Supreme Court, set on 16th February 1994, as well as numerous decisions of the Suprem Courtк: Rev. no. 166/98, Rev. no. 3401/01 U. no. 3764/2003, Rev. no. 2175/2009, etc.

13

The Obligations Act derogated the norms of Succession Act (Narodne novine - The Official Gazette of the Republic of Croatia, no. 48/03), that regulated lifetime care agreement. More: Ivančić-

The approach of Croatian legislator differs from the position taken in the Draft on Obligations and Contracts Code. The intention of the Draft was to define lifetime care agreement as a contract in which care recipient transfers his property to the provider, without accentuation the time of property transfer. Croatian legislator decided to regulate separately the contract in which property is being transferred in the moment of recipient’s death (lifetime care agreement), and the contract in which property is being transferred during the recipient’s life, mostly immediately after the contract conclusion (contract of care until death). But, considering that those two contracts have many similar characteristics, Croatian Obligations Act devoted to contract of care until death only a few articles (art. 586-589). This Act defined a contract, regulated the way of recipient’s security claims, and the effects of previous death of the care provider. On all other issues, The Act prescribed application of the provisions that regulated lifetime care agreement (art. 579-585), „appropriately“,15

which enables the judges to elastically interpret those provisions applying them to different life situations.

Definition and legal nature. The Obligations Act defines the contract of care until death as a

contract in which the care provider is obliged to give the care and maintenance until the death of other party or the third party (care recipient), and care recipient is obliged to transfer the whole or the part of his property to the provider, during his life.16 The contract doesn't have translative effect, so for the acquisition of property modus acquirendi is required. The property of movable things is being acquired in the moment of the submission, and the property of immovable things is being acquired in the moment of the title registration in the Land Registry (for which clausula intabulandi is needed).

By its' characteristics the contract of care until death is similar to a lifetime maintenance agreement. It is double binding, onerous, strictly formal contract, which is permanent and intuitu

personae. As well as the lifetime care agreement, it has the elements of aleatory, but the difference

is that this contract is more aleatory for the care recipient. The main difference in the legal nature of those two contracts is that the contract of care until death is obligation contract, and the lifetime care agreement is a contract of significance for the succession law (because of that it was regulated, and in Serbia is still regulated in the Succession Act). This difference is significant, because those two contracts make many different legal effects in legal relations.

Subject of the contract. In Croatian law the subject of the contract of care until death is the

same as the subject of the lifetime care agreement. The difference is only in the moment of the property transfer from recipient to care provider. The Act doesn’t define the care provider obligations, nor stipulates the obligation of burying the recipient. Clarification of the provider’s obligations is left, therefore, to the parties.

The care recipient transfers part or all of his assets to care provider. The things and rights that are being transferred, do not have to be specified and individualized in the contract, nor is the condition for the validity of the contract for recipient to dispose by the assets which belong to him in the moment of the conclusion of contract. Although there are opinions that only assets that belong to the recipient can be disposed by the contract,17 the case law has taken the position that the subject of the contract may be a future asset.18

Legal protection of the care recipient. The recipient is entitled, as a security for the fulfillment

of contractual obligations, to constitute the real burden of the care on the real estate which is disposed by the contract.19 This solution protects care recipient, because care provider, as a new owner of the property, is entitled to dispose it and stop giving the maintenance. This rule obliges new owner of the property to give the maintenance to the care recipient.20

The form. Until The Obligations Act became effective, for the validity of the contract of care

until death, since it was out of legislation, was required only for the parties‘ signatures to be Kačer, B. Ugovori o darovanju, uzdržavanju, i ortaštvu, gdje im je mjesto? (The contracts of gift, care and partnerships – where is the place for them?), s. 357.

14

Narodne novine (The Official Gazette of the Republic of Croatia), no. 35/05. The Act became effective on 1st January 2006.

15

See: art. 589. 16

See: art. 586.

17 _{Klarić, P., Vedriš, M. Građansko pravo, opći dio, stvarno pravo, obvezno i nasljedno pravo (Civil} Law – Property Law, Obligations and Succession Law), s. 511.

18

See: The Decision of the Croatian Supreme Court, Rev. no. 2082/99. 19

See: art. 587.

certificated in the court clerk’s office (not in front of the judge), or by public notary, when The Law on Notary Public has been adopted,21 but only when the subject of the contract was immoveable property. The Obligations Act hasn’t stipulated the form of the conclusion of the contract of care until death. Therefore, the contentious issue was whether for the validity of this contract was enough the parties‘ signatures to be certificated in the court clerk’s office (or by public notary), or it must be concluded in the form stipulated for the lifetime care agreement. The Croatian Supreme Court, in order to protect legal position of the care recipient, and reduce the possibility of abuse, made a decision that this contract had to be concluded in a strict form proscribed for the lifetime care agreement.22

Therefore, the contract of care until death always has to be concluded in written form, and justified (certificated) by the judge, or public notary, which is obliged to read the contract to the parties and warn them about its legal effects, The failure of only one of the elements of such a strict form is sanctioned by nullity of the contract.

Legal effects of the care provider’s previous death. Croatian legislator has the different

approach regulating legal effects of care provider’s previous death at lifetime care agreement and contract of care until death. At lifetime care agreement, when care provider dies before care recipient, his obligations are being transferred only to his spouse and descendents, called to inherit him, if they agree. In the same case, at contract of care until death the obligations of care provider are being transferred to all his heirs.23 So, the circle of heirs on which the obligations could be transferred is much wider at the contract of care until death. This solution has its logical explanation in the fact that assets, acquired by the contract, became the part of provider’s hereditary property, which is not the case at lifetime care agreement, and heirs have already inherit it in the moment of a death. Also, this solution protects the interest of the heirs, because they are interested in continuing the contract, to prevent the breach of the contract and return of the property; and interests of the recipient, because it doesn’t lose the maintenance.

If provider’s heirs do not accept to keep the maintenance, the contract’s been automatically breached. In that case, they lose the right to ask for the compensation for the given support, but also they have to return all the assets that provider acquired on the basis of the contract. But, if they can prove that they can’t continue with providing a care, they should still have to return the assets, but they are allowed to ask for the compensation for the given support.24

4 IMPROPER LIFETIME CARE AGREEMENT (CONTRACT OF CARE UNTIL DEATH) IN