Law 17/2021, of December 15, amending the Civil Code, the Mortgage Law and the Civil Procedure Law, on the legal regime for animals, published in the BOE on Thursday, December 16, 2021, and which came into effect force on January 5, introduces a very relevant modification in relation to the legal conception of pets, in that it begins to recognize them as “living beings endowed with sensitivity”, different from the nature of things or goods, as well as on the nature of the relationships of coexistence that are established between these and the people, in order to achieve the protection that they enjoy in other legal systems in our environment, including those of Austria, Germany, Switzerland, Portugal and France.
In the aforementioned legal systems, there are two different currents in terms of the conception of pets.
The first is the one that considers them from a negative perspective, that is, the one that qualifies animals as “not things”, and the second, the one that qualifies them from a positive perspective, that is, from the essence that they are beings and that It differentiates them, on the one hand, from people and, on the other, from things.
This last current is the one that our legislator has opted for, when qualifying domestic animals as “living beings endowed with sensitivity”.
The reform introduced by Law 17/2021, of December 15, affects such relevant regulations in our Legal System, such as the Civil Code, the Mortgage Law and the Civil prosecution law.
It has been in the Civil Code where the most relevant legal reform has been produced, due to the fact that a large number of its articles have been modified, and which can be summarized in the following points:
• It is established that animals are living beings endowed with sentience, and their owner must exercise their rights over them taking into account their quality as sentient beings, ensuring their well-being. Likewise, its owner must bear the necessary expenses for its cure and care, as well as be compensated in the event that they are injured or their death is caused.
• Precepts aimed at specifying the regime are introduced in the rules relating to matrimonial crises. of coexistence and care of the same. Thus, and in relation to the effects that occur in annulments, separations and divorces, pet animals are introduced, in the sense that both in the regulatory agreements, in the event that there is an agreement, and in the sentences in the event of that are contentious, the destination, length of coexistence and care of the pets must be established, as well as whether they are entrusted to one or both spouses.
It is even provided, among other issues, that in the event that what was agreed between the spouses was detrimental to them, the judge may adopt the measures he deems appropriate in this regard.
Likewise, it is established that shared guardianship and custody will not proceed in the event of mistreatment of domestic animals, and it regulates the way in which the spouse who has not been entrusted to him may have them in his company, as well as the distribution of charges related to your care.
• are introducedin addition, modifications in the articles that regulate the possessionin the sense of including among what can be the object of possession, animals, clearly differentiating them from things, and establishing forms of acquisition and loss.
• The difference between wild and domesticated animals is establishedbeing the latter the ones that are assimilated to the domestic ones, since they retain the custom of returning to the owner’s house or if they have been identified as such.
• Likewise, and in relation to the forms of occupation, the obligation of the person who finds a lost animal to return it to its owner or whoever is responsible for its care is introduced, an obligation that will disappear if there are well-founded indications that the animal is object of mistreatment or abandonment, having then the obligation to inform the competent authority.
• Inheritance provisions are incorporated, relating to the fate of the animals in the event of the death of their owner. Thus, and in relation to the provisions of the last will, in the event that there is no will, the pets must be delivered to the heirs, and if this cannot be done immediately, they must be delivered to the corresponding administrative body so that they can be take care of them, as long as it is not resolved who is responsible for delivering it, and if there is more than one heir who claims it, it will be decided to whom it is delivered, assessing the well-being of the animal.
• In relation to the community property, its character is established as exclusive if it belonged to one of the spouses at the beginning of it.
• The responsibility of the seller of a pet is established in relation to its duty of veterinary assistance and necessary care to guarantee its health and well-being, as well as its responsibility for hidden defects in relation to its sale.
• To conclude, and following the conception as living beings endowed with sensitivity, it is prohibited to pledge them, as occurs, as we will see below, in relation to their possibility of being mortgaged.
The modification introduced in the Law of Civil Procedure is not as relevant as that of the Civil Code in terms of its extension, since it only affects three articles, that is, article 605, introducing a new numeral 1, where the list of Absolutely unseizable property is increased by introducing pets as such in response to the special bond of affection that links them with the families they live with; in article 771 LEC, in relation to the provisional measures prior to the request for annulment, separation or divorce, where with the introduced reform they will have to provide what corresponds in relation to attribution, coexistence and needs of pet animals; and finally in article 774.4 LEC, in relation to the definitive measures in the indicated demands, if there is no agreement between the parties, in the sentence that is issued, the judge must refer to the measures that are adopted in relation to the attribution, coexistence and needs of companion animals.
For its part, the Mortgage Law is modified only its art. 111, where a new first section is introduced, which provides that, unless there is an express agreement or legal provision to the contrary, the mortgage will not include pets.
