The Regulatory and Enforcement Potential of a Maintenance Payment Agreement

The paper provides a theoretical and practical analysis of a maintenance payment agreement, a distinctive type of contract with a complex legal nature that serves to fulfill one of the most important family obligation: the duty of family members to support other family members who are in need and unable to work. The author substantiates the conclusion that, by its legal nature, a maintenance payment agreement is a family-law transaction giving rise to both private-law and public-law consequences. Specifically, it creates a maintenance obligation in which the subjective right of minor and incapacitated family members to receive maintenance is secured through compulsory enforcement by virtue of the agreement's notarization. At the same time, the statutory right to receive support — financial support or maintenance — constitutes only an element of an individual's legal capacity, which may be characterized as special legal capacity because it arises for family members only upon the existence or acquisition of specific legal characteristics established by law. The transformation of this abstract legal possibility into a subjective family-law right requires either a judicial decision or the conclusion of an agreement on the payment of maintenance.