Chapter 4. Absence
Section 1. Declaration of absence
Art. 154.- Application.
(1) Where a person has disappeared and has given no news of himself for two years, any interested party may apply to the court to declare his absence.
(2) The court having jurisdiction shall be the court of the place in which the absentee had his principal residence.
Art. 155.- Publication of application.
The application shall be published in the manner prescribed by the court, in the place of the last principal residence of the absentee and in any other place where the court considers such publication to be useful.
Art. 156. Inquiry.
The court may order that an inquiry be made, with the assistance of the public prosecutor, in places where it considers it useful, and in particular in the place of the last principal residence of the absentee and in the place where his presence has been noticed for the last time.
Art. 157.- Principle of decision.
(1) The court shall declare the absence where the death of the absentee appears to it to be probable.
(2) In making its decision, it shall have regard to all the circumstance of the case.
(3) It shall in particular take into consideration the fact whether the person whose absence is invoked has or has not appointed an attorney to administer his property and the causes which may have impeded the receipt of his news.
Art. 158.- Postponement of judgment.
The court may postpone its judgment for a year or decide that the judgment declaring the absence will only have effect a year after its delivery.
Art. 159.- Duty to declare absence.
The court shall declare the absence a year after the date of the application where the absentee has disappeared for give years prior to the date of such application and be has not been heard from following the publicity prescribed by the court upon the application having been made.
Art. 160. Day of last news.
The court shall establish in its judgment the day when the last news of the absentee was received.
Art. 161.- Judgment declaring death.
If the evidences collated by the court establish in a manner which may be considered certain that the absentee is dead, the court to which the application for the declaration of absence was made, may deliver a judgment declaring the death of the absentee.
Art. 162.- Costs of proceedings.
(1) The costs of the proceedings by which the absence is declared shall be chargeable to the absentee.
(2) They shall be borne by the person making the application, where the application is dismissed.
Section 2. Effects of absence
Art. 163.- Marriage.
(1) The marriage of the absentee shall be dissolved on the day on which the judgment declaring the absence has become final.
(2) The marriage contracted by the spouse after the day on which the last news of the absentee was received may be impugned only by the absentee.
(3) Notwithstanding the provisions of sub-art, (2) it may also be impugned by the public prosecutor if the proves in an indisputable manner that the absentee is alive on the day on which the action is instituted.
Art. 164.- Succession devolving on absentee.
(1) Where, after the date of the last news, a succession opens to which the absentee would have been called if he were alive, such succession shall devolve without taking into account the portion which may eventually be assigned to the absentee.
(2) The heirs of legatees may be obliged by the court to furnish a guarantee or other security for safeguarding the rights of the absentee.
Art. 165.- Rights depending on death of absentee.
(1) The persons who have rights dependent on the death of the absentee may enforce them after the judgment declaring the absence has become final as though the absentee were dead.
(2) Such persons may be obliged by the court to give, before commencing to enjoy the rights which appertain to them, a guarantee or other security for the things subject to restitution.
Art. 166.- Obligations depending on life of absentee.
(1) The persons who have obligations depending on the condition that the absentee is alive shall no longer be bound to fulfill such obligations.
(2) Such persons may be obliged by the court to furnish a guarantee or other security, in case the absentee should still be alive.
Art. 167.- Property of absentee. -1 Placing in possession.
(1) The will of the absentee, if any, shall be opened at the request of any interested party.
(2) The persons who would have been called to succeed to the property of the absentee in case he had died on the day of the last news may be place din possession and the property the partitioned.
Art. 168.- 2. Obligations.
(1) The heir or legatee shall enjoy the property as a good “paterfamilias”
(2) He may be obliged by the court to give, before commencing his enjoyment, a guarantee or other security for the things subject to restitution.
Art. 169.- 36. Restriction to powers.
(1) He shall invest the sums received by him within three months from the day on which the received them.
(2) The may not transfer the property by a gratuitous title, save for establishing the children of the absentee
Section 3. Termination of absence
Art. 170- Causes. – 1. Principle
The declaration of absence shall cease to have effect where:
(a) the absentee reappears; or
(b) it is proved that he was alive on a date subsequent to that of the judgment declaring the absence; or
(c) it is proved that he died on a date different from that established in such judgment as being the date of the last news.
Art. 171.- 2. Return of absentee.
(1) When the absentee reappears he shall recover his property in the condition in which it is, as well as the proceeds of such part of it as has been transferred and the property acquired through the investment of his capitals.
(2) The income deriving from the property of the absentee shall remain the property of the heirs or legatees who have received such income.
(3) The absentee shall retain the right to claim damages from the heirs or legatees and their guarantors, where they failed to comply with their legal obligations or committed a fraud.
Art. 172. – Presumption of death.-1 Condition.
When ten years have elapsed since the date of the last news, established by the judgment of declaration of absence, the proof that the absentee did not die on the day of the last news may not longer be made except by the absentee himself or by his special attorney appointed after the date of the judgment declaring the absence.
Art. 173.- 2. Effects.
(1) The persons who have been placed in possession of the property of the absentee may henceforth act as having the right which has justified their being placed possession.
(2) The guarantees or securities furnished in case the absentee should return shall be extinguished.