SIMILARITIES AND DIFFERENCES BETWEEN THE OLD LEGISLATION AND THE NEW CIVIL CODE REGARDING MAINTENANCE
SIMILARITIES AND DIFFERENCES BETWEEN THE OLD LEGISLATION AND THE NEW CIVIL CODE REGARDING MAINTENANCE

Summary/Abstract: The maintenance contract can be concluded regardless of the kinship relationship between them, based on the agreement of the parties and the observance of the legal requirements of validity. Like the maintenance contract, the right to legal maintenance cannot be assigned or pursued. Both the contractual maintenance obligation and the legal maintenance obligation are usually provided in kind. The legal maintenance obligation can be transformed into the payment of a sum of money necessary for living, called the maintenance pension. "Through the maintenance contact, a party undertakes to perform for the benefit of the other party or a certain third party the services necessary for maintenance and care for a certain period." Regarding the duration of the maintenance "if the contract did not provide for the duration of the maintenance or provided only its lifetime, then the maintenance is due for the entire life of the original creditor." There are no radical changes compared to the maintenance contract regulated by the old code, except that it provided as a general rule the duration of the contract during the life of the creditor. "Through the maintenance contract, one of the parties (called the maintainer) undertakes to ensure the maintenance of the other party (called the maintenance party) throughout his life, in exchange for a sum of money or the alienation of something." In practice, it would also be possible to conclude a maintenance contract for the life of several persons (dependents). In principle, the maintenance obligation is performed on a daily basis but the parties may derogate from this rule by convention. The place of execution is the one provided by the agreement, and in the absence of an express stipulation, at the creditor's domicile, the payment being portable. Although the current provisions are quite clear regarding these aspects that are taken from the practice prior to the entry into force of the New Civil Code, there have been many cases that have left room for interpretation. The maintenance being indivisible, any of the creditors can request the full execution from any of the debtors. The maintainer has the obligation to bury the maintenance according to the custom of the place. The maintainer may be obliged to pay a sum of money to the maintenance party in case of replacement of the maintenance by rent. The replacement of the maintenance is done through the court "if the provision or receipt of the maintenance in kind can no longer continue for objective reasons or if the maintenance debtor dies and no agreement is reached between the parties" (art. 2261 NCC). Once the maintenance is replaced with an annuity, the rules governing the life annuity contract will apply.

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