Short answer. As originally written, Article 388 required a wife appointed administratrix of her absent husband's property to obtain judicial authority before alienating or encumbering that property or conjugal assets. That gender-specific restriction is superseded, because the Family Code equalized both spouses' capacity to administer and dispose of property, so the article no longer applies as written today.
What the law says
The wife who is appointed as an administratrix of the husband's property cannot alienate or encumber the husband's property, or that of the conjugal partnership, without judicial authority.
Civil Code, Article 388 — Wife Administrator Needs Authority. Read the full provision →
What Article 388 originally said
Article 388 provided that a wife appointed administratrix of her husband's property could not alienate or encumber that property, or the property of the conjugal partnership, without judicial authority. She could administer the property, but she could not dispose of it or place a burden on it by herself, and the restriction applied even though she held the administrator's role in her own right.
What alienate and encumber meant here
Alienating property meant transferring ownership of it, for example by sale or donation. Encumbering it meant burdening it with a lien, mortgage, or similar charge. Read together, the restriction left the wife free to carry out ordinary acts of administration, such as collecting rents, paying taxes, and maintaining the property, while withholding authority over acts that would permanently reduce or burden the estate.
Why this restriction is superseded
This article is superseded because it assumes a marital incapacity the law no longer imposes. The Family Code equalized the capacity of both spouses to administer and dispose of property, so a restriction that singles out the wife for a judicial-authority requirement the husband would not face under the same circumstances does not survive that change, even though the text of article 388 itself has never been repealed outright. This shift did not only benefit wives; it also removed any assumption that a husband could freely alienate or encumber property without similar accountability, since the equalized standard runs in both directions.
What governs spousal property administration today
Today, questions about a spouse's authority to sell or mortgage property while the other spouse is absent are worked out under the Family Code's rules on spousal capacity and property administration, which apply the same standard regardless of which spouse is managing the property. The specific judicial-authority requirement article 388 once placed on the wife alone is no longer the operative rule.
What this means for a family in this situation
A spouse administering an absent husband's or wife's property today should look to the current Family Code rules, not article 388, to determine when court approval is needed for a sale, mortgage, or similar transaction. Because the requirements can turn on the couple's property regime and the specifics of the absence, a lawyer can confirm what is actually required before any transaction proceeds. Because these transactions often involve real property covered by a title, the requirements can also intersect with registration rules at the Registry of Deeds, which is another reason to confirm the current standard before signing anything.
Related provisions
- Civil Code, Article 388 — Wife Administrator Needs Authority
- Civil Code, Article 387 — Administrator of Absentee’s Property
- Civil Code, Article 389 — When Administration Ceases