Article 11 of Law 25 of 1995 establishes that foundation assets are non-seizable and non-attachable, except for those that meet the conditions specified in the regulation.
Despite the clarity of the law, this is a topic that constantly sparks debate.
Article 11 of Law 25 of 1995 expressly states the following:
“For all legal purposes, the assets of the foundation will constitute a separate estate from the personal assets of the founder. Therefore, they may not be seized, attached, or subject to action or precautionary measures, except for obligations incurred, or damages caused in the execution of the purposes or objectives of the foundation, or for the legitimate rights of its beneficiaries. In no case will they be liable for the personal obligations of the founder or the beneficiaries.”
The cited article establishes that foundation assets are non-seizable and non-attachable, except for those that meet the conditions specified in the regulation. In general terms, foundation assets are not subject to precautionary or attachment measures, thereby entering the list of non-seizable and non-attachable assets mentioned in articles 564 and 1650 of the Judicial Code.
Article 11 broadly states that foundation assets are non-seizable, non-attachable, and also broadly indicates that they cannot be the object of action or precautionary measures (which could include conservatory measures or unnamed precautionary measures, etc.). The essence of this rule is to exclude foundation assets from precautionary measures, proposing as an exception the possibility of seizing or attaching such assets.
The exceptions specified in Article 11 regarding the non-seizability and non-attachability of foundation assets are as follows:
When the seizure is requested due to an incurred obligation;
When the seizure is requested due to damages caused in the execution of the foundation’s purposes;
When the seizure is requested for the legitimate rights of its beneficiaries.
To establish the scope of each of the referred exceptions, we must be clear that the rule protected by the regulation is non-seizability and generally the non-affectation of foundation assets. Therefore, for the seizure to proceed, it is necessary that the factual circumstances contained in each of the exceptions are fully demonstrated. Otherwise, the susceptibility of foundation assets to being affected by precautionary measures would depend exclusively on the mere statement of the seizer to proceed in that sense. For example, merely indicating in the lawsuit that damages have been caused or that an obligation exists cannot be sufficient for the seizure of foundation assets. Under that criterion, anyone could request precautionary measures against them, even if in the end, the process to which the measure is attached declares in a ruling that there are no damages or no obligation claimed against the foundation.
In light of the considerations we have put forward, the exception to the non-seizability of assets would only apply in the following way:
INCURRED OBLIGATIONS: From our point of view, incurred obligations are those that must be fulfilled because there is no term or condition that suspends them. That is, for the seizure to proceed, it is necessary that the incurred obligation, which does not need to be declared by a Court, is fully demonstrated (see THE EXECUTIVE PROCESS, by JORGE FABREGA P., p. 11).
We believe that when it comes to foundation assets, the Judge must conduct an examination beyond what is established in the second paragraph of article 533 of the Judicial Code in conjunction with ordinal 3 of article 531 of the same Code.
This is so, considering that the purpose of the Process, according to article 469 of the Judicial Code, is the recognition of the rights enshrined in the substantive law. Therefore, since the non-seizability of foundation assets is a right granted by the substantive law, the Judge must start from the general prohibition enshrined in the rule and request summary proof (full proof without contradiction, see HERNAN FABIO LOPEZ BLANCO, CIVIL PROCEDURE, EVIDENCE, 2001, p. 69) that generates in the Judge the conviction regarding the existence of the obligation that will be required through the process intended to be guaranteed with the precaution of foundation assets.
When the law says INCURRED OBLIGATIONS, it refers to those that must already produce their effect, that is, they are enforceable and are not subject to being declared by a Court, as in the case of enforceable titles (see Art. 1612 of the Judicial Code).
The notion of obligation has been opposed to the real right, with the name of credit right. Let us remember that it consists of a legal relationship between two persons, one of whom is the creditor and the other the debtor. The entire relationship is called an obligation; considered especially, from the passive side, it is called a debt and credit if considered from the active side. But the word obligation is often taken in its restricted sense as synonymous with debt (see ELEMENTARY TREATISE OF CIVIL LAW, Marcel Planiol and Georges Ripert, Volume IV, p. 110).
As we see, when referring to the concept of obligation, we start from a pre-existing relationship between debtor and creditor. Therefore, when article 11 of Law 25 of 1995 under examination refers to incurred obligations, the interpreter must start from the basis of the pre-existence of an obligatory relationship, which must inevitably be verified for the seizure of foundation assets to proceed. To understand the above, from a procedural point of view, we must refer to the classification of claims indicated by the doctrine, specifically Dr. HERNAN FABIO LOPEZ BLANCO (Civil Procedure Volume I, 2005):
Declarative and Condemnatory Claims: Declarative. Its purpose is to request a judgment declaring or denying the existence of a specific legal relationship regarding which there is uncertainty, and whose lack of certainty ends, precisely, with the declaration made by the State through the judgment. Condemnatory. Through the condemnatory claim, it is pursued to declare against the defendant the existence of a specific obligation, or, in other terms, to condemn the defendant to comply with an obligation to give, do, or not do.
Executive Claims: Their purpose is to impose in the judgment the fulfillment of an obligation, to thus give effect to the provision already declared in a judicial ruling or arose from a declaration of will of the associate, in such a way that when exercised, it is not sought to declare or condemn but only to fulfill, which evidences the different character they have since in these cases it is not requested that the Judge imposes but orders compliance.
Therefore, we estimate that regarding the exception under analysis, foundation assets can only be precautionarily attached when the precautionary measure is accessory to a judicial process where the intention is not to declare a right or a condemnation but simply to enforce a right derived from a pre-existing relationship, that is, an incurred obligation as provided by article 11 of Law 25 of 1995.
2. DAMAGES CAUSED IN THE EXECUTION OF THE FOUNDATION’S PURPOSES:
When the rule establishes as an exception to seize foundation assets that “damages have been caused in the execution of the foundation’s purposes,” the factual circumstance offered by the precept must be fully demonstrated in the Process. Otherwise, the exception would not apply.
The exception of seizability under analysis is based on a fact that must be proven, meaning the damages caused in the execution of the foundation’s purposes must be certain and demonstrated for the seizure or attachment of such assets to proceed.
This is so if we consider the following. If to decree the precautionary measure against foundation assets it were sufficient to state that what is intended to be guaranteed with the measure are the results of a process where damages caused in the execution of the foundation’s purposes must be recognized, by decreeing the seizure, an unproven fact would be anticipated, which is the circumstance specified by the rule for the seizure to be viable.
The damages caused can only be determined through an express acknowledgment by the person who caused them or through a ruling issued in that sense. If neither of these two assumptions is present, the damages would be mere expectations of an unrecognized or undeclared right. Considering a declaration by the seizer in that sense sufficient would anticipate the recognition of a right, which, without being recognized by the person who caused the damage, can only be determined through a resolution by the competent authority.
In addition, the other fact that must be demonstrated is that those damages were caused in the execution of the foundation’s purposes, which can only be recognized by the person who caused the damages or through a ruling declaring that fact.
When the Law establishes as a requirement for the precautionary measure to proceed, that it is requested due to damages caused in the execution of the foundation’s purposes, it refers to an existing and certain fact that in no way can be understood that those alleged damages are those that are sub judice or pending recognition in the Process where the precautionary measure is requested. If so, the Court would be recognizing the existence of a fact (damages caused and execution of foundation purposes), anticipating the ruling that is where the claim should be resolved.
As we mentioned when referring to incurred obligations, regarding the damages caused, a precautionary measure or attachment should only be allowed when the damages are already recognized. Otherwise, the claimed damages in a lawsuit, which are subject to being recognized definitively in a RULING, cannot be considered as caused damages. The plaintiff’s argument about the existence of damages cannot be the proof of those damages.
We reiterate what the doctrine says regarding declaratory claims, as their purpose is “to request a judgment declaring or denying the existence of a specific legal relationship regarding which there is uncertainty, and whose lack of certainty ends precisely with the declaration made by the State through the judgment.”
3. WHEN THE SEIZURE IS REQUESTED FOR LEGITIMATE RIGHTS OF THE BENEFICIARIES.
Regarding this last exception, the precept provides clarity in that the seizure request must necessarily be based on the rights of the beneficiaries, as derived from the founding act or the law. For the seizure to proceed, as with the other exceptions, the petitioner must demonstrate the existence of the factual basis required by the norm in order for the foundational assets to be seized.
CONCLUSION
Item 18 of Article 1650 of the Judicial Code states the following:
“Except as provided in special laws, all alienable assets of the debtor may be subject to seizure with the following exceptions:
Any other asset that the law deems non-seizable”
Given the transcribed precept and what is stipulated in Article 564 regarding its application to seizures, we would have the foundational assets as non-seizable and non-attachable as established by Article 11 of Law 25 of 1995.
As an exception to the non-seizability of foundational assets, they would only be subject to precautionary measures when the petition meets, even if not concurrently, the demonstration of the factual basis outlined in the norm. This means establishing the existence of the obligation that is intended to be secured with the decree of the measure; the damages caused during the execution of the foundational purposes, which can only be demonstrated by a firm resolution from a competent authority; or when the measure is requested by a beneficiary exercising a right derived from the law or the founding act.
This norm should be interpreted from a substantive rather than a procedural perspective. If we analyze the norm considering the essence of the seizure, we might conclude that what is sought is to guarantee the judgment where such damages or the right to demand payment of the obligation could be recognized. However, considering that the norm generally proposes the non-seizability of foundational assets, its restrictive application would only permit the seizure of foundational assets when the pre-established conditions in the norm are met.
Article 11 of Law 25 of 1995 forms part of the catalog established in Article 1650 of the Judicial Code, and foundational assets can only be subject to seizure or attachment when the indicated conditions are met, namely: INCURRED OBLIGATIONS (clear, liquid, and enforceable); DAMAGES CAUSED OR PRODUCED, which can only be determined through a resolution or judgment from a competent authority or an agreement between both parties recognized and authenticated according to the law, whereby the damages are clearly determined, and that they occurred during the execution of the foundational purposes; and the exercise of LEGITIMATE RIGHTS of the BENEFICIARIES, as derived from the founding act or the law.
The idea of the norm is to protect the foundational assets; hence, it states their non-seizability in absolute terms initially, and then restrictively proposes when these assets can be seized.
