Civil Code TITLE II CAPACITY OF PERSONS Chapter 3.- Insane persons and Infirm Persons

Chapter 3.- Insane persons and Infirm Persons

Art. 339.- Definition.

(1)    An insane person is one who, as a consequence of his being insufficiently developed or as a consequence of a mental disease or of his senility, is not capable to understand the importance of his actions.

(2)    Persons who are feeble-minded, drunkards or habitually intoxicated, and persons who are prodigals shall in appropriate cases be assimilated to insane persons.

Art. 340.- Infirm persons.

Deaf-mute, blind persons, and other person who, as  a consequence of a permanent infirmity are not capable to take care of themselves or to administer their property any invoke in their favour the provisions of the law which afford protection to those who are insane.

Section 1. Insane persons and infirm persons

Who are not interdicted

Art. 341.-  Notorious insanity. – 1. An insane person who is an inmate of an institution.

A person shall be deemed by law to be notoriously insane where by reason of his mental condition, he is an inmate of a hospital or of an institution for insane persons or of a nursing home, for the time for which he remains an inmate.

Art. 342.- 2. Rural communes.

In communes of less than two thousand inhabitants, the insanity of a person shall be deemed to be notorious, where the family of that person, or those whit whom he lives, keep over him a watch required by his mental condition, and where his liberty of moving about is, for that reason, restricted by those who are around him.

Art. 343.- Judicial acts of notoriously insane person.-1 Principle,

(1)    Juridical acts  performed by a person at the time and in a place in which his state of insanity was notorious, may be impugned by that person, by his representatives or by his heirs.

(2)    The same shall apply to juridical acts performed by a person where the infirmity which renders such person unfit to take care of himself and to administer his property is apparent.

Art. 344.- 2. Practices.

(1)    Unless the contrary is proved, the consent of such person shall be deemed to be affected by a defect which brings about its nullity.

(2)    The provisions of this Code relating to he annulment of contracts on the ground of error shall apply in such case (Art. 1696-1703)

Art. 345- Liability incurred. -1 Principle.

An insane person shall be liable for the damage caused to third parties in good faith by the nullity of contracts they have concluded with him.

Art. 346.- 2. Proof.

(1)    The good faith of third persons shall be presumed, saving proof to the country.

(2)    In the case provided in Art. 342 of this Code, a third person shall be deemed  to be in bad faith, notwithstanding any proof to the contrary, where he lives in the same commune as the insane person or in an adjacent commune.

Art. 347.- Persons whose insanity is not notorious.

(1)    Judicial acts performed by a person may not be impugned on the grounds of his insanity where his condition is not notorious.

(2)    The insane person may not obtain the annulment of such acts unless he can show that, at the time he performed them, he was not in a condition to give a consent free from defects.

Art. 348.-Heirs and creditors. -1. Principle.

The heirs and the creditors of a person whose  insanity is not notorious may not demand an annulment of an act performed by that person by alleging that, on account of his insanity, he could not give to such act a consent free from defects.

Art. 349.- 2. Exceptions.

(1)    The provisions of Art. 348 shall not apply where the mental infirmity of the person who performed the act results from the contents of the act itself.

(2)    They shall not apply where the interdiction of the person who performed the act been demanded, notwithstanding that the demand is made after the act in question, unless the person who performed the act dies before the application for interdiction is decided on.

Art. 350.- Extra-contractual liability.

(1)    A notoriously insane person shall be extra- contractually liable as though he were of sound mind (Art. 2027-2161).

(2)    An insane person shall be bound as though he were of sound mind, by obligations resulting form any unlawful enrichment derived by him (Art. 2162-2178).

Section 2. Judicial interdiction

Art. 351.- Judgment of interdiction.

(1)    The court may pronounce the interdiction of an insane person where his health and his interest so require.

(2)    The interdiction may also be pronounced in the interest of the presumptive heirs of the insane person.

(3)    It may  also be pronounced in the case of a person who is unable through permanent disability to govern himself or to administer his estate (Art. 340.)

Art. 352.- Declaration of notoriety of insanity.

(1)    Where the court pronounces the interdiction of a person, it may declare that the insanity of such person was publicly known since such date as may be fixed in the judgment.

(2)    The decision mentioned  din sub-art. (1) may be given after the judgment of interdiction.

(3)    The date fixed in the judgment may not precede that of the application for interdiction by more than two years.

Art. 353.- Application for interdiction.

(1)    An application for interdiction may be made by the insane or infirm person him self, or by his spouse, or by any of his relatives by consanguinity or affinity, or by the public prosecutor.

(2)    The judgment of interdiction may be given before the person whose interdiction is applied for attains his majority.

(3)    If may not be given after the death of the person whose interdiction is applied for.

Art. 354.- Procedure for interdiction.

(1)    Before pronouncing the interdiction of a person, the court shall be convinced that such measure is necessary.

(2)    It may not pronounce the interdiction without having seen the person whose interdiction is applied for.

(3)    Where the personal appearance of such person is not possible, the court shall proceed to his examination either by delegating one of its members or by appointing an expert.

Art.  355.- Appeal.

The insane or infirm person himself, his spouse, any of this relatives by consanguinity or affinity, or the public prosecutor may enter an appeal against a judgment of interdiction.

Art. 356.- Register of judicially interdicted persons.

(1)    A special register kept in the registry of each Teklay Guezat Court shall contain the list of every person, whose interdiction has been judicially declared, residing within the jurisdiction of the court.

(2)    The register shall contain only such details as are necessary to identify such persons and to identify the judgment or judgments relating to the interdiction.

(3)    It may be perused by any interested person.

Art. 357.- Notice of judgment.

(1)    The guardian of the interdicted person shall ensure that the judgment of interdiction  be brought to the notice of the registry of the court of the province or provinces where the interdicted person resides or is called upon to reside.

(2)    The same shall apply to any judgment modifying the effects of the interdiction.

Art. 358.- Protection of interdicted person.

Without prejudice to the provisions of the following Articles, a person who has been judicially interdicted shall be subject in respect of his person and of his property to the same rules of protection as a minor.

Art. 359. Guardian and tutor.

(1)    The guardian and tutor of an interdicted person shall in al cases be appointed by the court.

(2)    No person, other than the spouse, the ascendants and descendants of the interdicted person, shall be bound to retain the functions of guardian or tutor of an interdicted person for ore than five years.

Art. 360.- Family council. -1. Constitution.

(1)    The provisions of the Title relating to the constitution of the council of the family of a minor shall not apply to an interdicted person.

(2)    The council of the family of an interdicted person shall consist of his ascendants, his brothers and sisters who are of age, his spouse and his descendants who have attained majority.

(3)    Where the number of the members of the family council thus composed is less than   four, the court shall make up that number by calling on the persons, whether related to the interdicted person or not, who take interest in his condition.

Art. 361.- 2. Meeting place.

(1)    The family council shall meet in such place as may be fixed by the court.

(2)    In default of such place, it shall meet in the place where the interdicted person had his or her principal residence on the day the interdiction has been pronounced.

Art. 362.- Residence of interdicted person.

(1)    The guardian of the interdicted person shall ensure that the interdicted person live in the place where his disability has been given the publicity required by law.

(2)    Where the interdicted person changes his residence, his guardian shall ensure that the publicity required by law be made in the place of the new residence.

Art. 363.- Income of interdicted person.

(1)    The income of the interdicted person shall not become the property of his guardian.

(2)    It shall be used mainly for the maintenance and care of the interdicte4d person.

(3)    The guardian shall render an account of its use.

Art. 364.- Appeal against decisions of the guardian.

Any member of the family council may in all case appeal to such council against the decisions taken by the guardian of the interdicted person.

Art. 365.- Father and mother of interdicted person.

The provisions which place the tutor of a minor in a privileged position when such tutor is the father or the mother of the minor, shall not apply to the tutor of an interdicted person.

Art. 366.- Leases.

Leases granted by a tutor shall not be binding on the interdicted person for more than three years after the termination of his disability, unless they have been entered into with the authorization of the family council.

Art. 367.- Donations

(1)    Donations may be made by the tutor of an interdicted person on behalf of the latter, to the descendants of the interdicted person.

(2)    Such donations shall be of no effect unless they have been authorized by the family council.

Art. 368.- Will.

(1)    An interdicted person may not make a will after interdiction has been declared.

(2)    Any will made by him prior to being interdicted shall be valid.

(3)    The court may invalidate in whole or in part the will made by an interdicted person prior to being  interdicted where it is of opinion that the provisions contained in such will are contrary to equity or have been affected by the state of health of the testator.

Art. 369.- Marriage.

(1)    A person who has been judicially interdicted may not contract marriage unless he is authorized for that purpose by the court.

(2)    An application to this effect may be made by the interdicted person himself or by his guardian.

(3)    Any interested party may apply to the court to declare to nullity of a marriage which an interdicted person has contracted without having obtained the authorization of the court.

Art. 370.-  Divorce and disowning.

(1)    The personal consent of the interdicted person as well as that of his guardian shall be required for requesting a divorce or putting an end to an irregular union.

(2)    The child of an interdicted person may be disowned on the conditions laid down in the Book of this Code relating to Family Relationship (Art. 782-795)

Art. 371.- Limitation of effects of interdiction .- 1. Principle.

(1)    The court may, in pronouncing the interdiction or after such decision, limit the effects of the interdiction.

(2)    It may authorize the interdicted person to do certain acts himself.

(3)    It may also decide that the tutor of the interdicted person may not perform certain acts without the concurrence of the interdicted person.

Art. 372.- 2. Effects.

(1)    The limitations imposed by the court to the powers of the tutor of the interdicted person in accordance with Art. 371 may not be set up against third parties in good faith who have had dealings with the tutor.

(2)    Saving proof to the contrary, the good faith of third, parties shall be presumed.

Art. 373.- Nullity of the acts of an interdicted person.

(1)    Acts performed by an interdicted person in excess of his powers may be impugned in the same circumstances as if they had been performed by a minor.

(2)    The court may not uphold the effect of such acts on the ground that they could have been performed by the insane person during a lucid interval.

Art. 374.- Liability of guardian of interdicted person. -1. Principle.

Where the interdicted person enters into a contract with  a third party who, in good faith, is not aware of his disability, the guardian of the interdicted person shall be liable to such third party for the prejudice which the nullity of the act causes to the latter.

Art. 375.- 2.Good faith.

A person shall never be deemed to be in good faith where he has contracted with the interdicted person within a province where his interdiction has been given publicity in terms of the law.

Art. 376.- Liability of Registrar.

(1)    The registrar of the court shall be liable in lieu of the guardian, of the interdicted person where the registrar having received notice of the judgment of interdiction, has failed to enter the name of the interdicted person in the special register kept for this purpose.

(2)    The same shall apply where he has refused to make the registrar register accessible to a third person who has had dealings with the interdicted person.

Art. 377.- Withdrawal of interdiction. -1 Application.

(1)    The disability of the interdicted person shall cease where the withdrawal of the interdiction is pronounced.

(2)    The withdrawal of the interdiction may at any time be applied for to the court by the persons who may apply for the pronouncement of the interdiction, with the exception of the interdicted person himself.

(3)    It may also be applied for by the guardian or tutor of the interdicted person.

Art. 378.- 2. Pronouncement.

The withdrawal of the interdiction shall be pronounced by the court, where it appears that the causes of the interdicting have ceased and that the interdicted person is in a position to conduct himself and to administer his property by himself.

Art .379.- 3. Effects.

The withdrawal of the interdiction shall have the same effects as the emancipation of a minor.