Latin American Law

Last updated 14 Sep 11

Codification> French Code Civil

> Spread to Latin America

nemo jurista nisi bartolista

"nobody is a jurist unless he is a follower of Bartolus“

Bartolus de Sassoferrato

(1314–57)

4. Bartolus, Consilium 128

Franciscus had as his wife a certain Thoma, and he had a dowry of 200 florins. This Franciscus died and left some minor sons, with whom the said Thoma, the mother of the said sons, continued to live for three years. Then she entered a second marriage, and had stayed with that man for three years, when that second husband demanded his wife's alimony from those heirs of the said Franciscus.

The question is whether alimony is owed and for what time. In this question it must be examined why this alimony is demanded, whether it is demanded on behalf of the mother who should be supported by her sons, and then it is a question to be decided by the judge, and must be denied: For she is owed support by her husband, in whose service she is, as in Digest 13,6,18,2 ...

And this is my opinion. Bartolus.

Compare:

• Role of judges in formulating law in ius commune and judicial role in the US

• Role of scholarship in ius commune and in US law

• Ius commune on Continent and British common law

Sam Wellborn:Is statutory or judge-law more legitimate?

The life of the law has not been logic, it has been experience - OWH

Winslow Taylor: role of legislature in ius commune?

Development of national laws …

Roman-Dutch Law

• Dutch-Roman jurists– Elegant humanism– Cosmopolitan (Spanish

influence)– Look to court decisions

• Natural law

Grotius

“father of Roman –Dutch law”

“Law and Economics” and “Law and Society” … represent a higher level of abstraction because rather than being concerned with the internal consistency of the law system

Foment in France to replace ancien regime …

Roman-French Law

Parlements (ancien regime)

Judicial, hereditary office

Arrets de reglament

Midi – South(pays de droit ecrit)

Paris – North(pays de coutume)

Why study codification …

• Model for borrowing

• Gain perspective

• Discover truths

• Impose / power

Value of knowing other legal systems

French civil code …

Creed of enlightenment? Compare to early US law – borrowed British common law.

Alan Palmiter

Exercise in national sovereignty? What did code replace?

Keith Orgel

French Civil CodePreliminary Title: Publication, Effects and Application of the Laws in

General (arts. 1-6)

Book One: Persons (arts. 7-515, including civil status, marriage, divorce, adoption, parental authority, guardianship)

Book Two: Property and Different Types of Ownership (arts. 516-710, including ownership, usufruct, servitudes)

Book Three: Different Modes of Acquiring Ownership (arts. 711-2283, including – intestate succession, gifts inter vivos and wills (arts.718-1100),

– contracts in general (arts. 1101-1369),

– quasi-contracts, delicts and quasi-delicts (arts. 1371-1386),

– marriage contract, sales, exchanges, rental or hire, partnership, loan, deposit, agency, surety, pledge, mortgage, prescription and possession)

Preliminary title…

What is judicial role under French Civil Code?

Keith Orgel

How does French Civil Code compare to US Constitution?

Alan Palmiter

PRELIMINARY TITLE OF THE PUBLICATION, OPERATION AND APPLICATION OF STATUTES  

Art. 1  Statutes become in force throughout the French territory by

virtue of their being promulgated by the President of the Republic [Constitution of 4 Oct. 1958, art. 10].

 Art. 2

  Legislation provides only for the future; it has no retrospective operation.

 Art. 3 Statutes relating to the status and capacity of persons govern French persons, even those residing in  foreign countries.

PRELIMINARY TITLE OF THE PUBLICATION, OPERATION AND APPLICATION OF STATUTES  

Art. 4A judge who refuses to give judgment on the pretext of legislation being silent, obscure or insufficient, may be prosecuted for being guilty of a denial of justice.  

 Art. 5

Judges are forbidden to pronounce decisions by way of general and regulative disposition on causes which are submitted to them.

. Art. 6

     Statutes relating to public policy and morals may not be derogated from by private agreements .  

French civil code (separation of religion and state)

Is wearing a “hijab” or “burka” a religious symbol?

Keith Orgel

French tort law …

Does succinct create more or less judicial power/discretion? What about stare decisis?

Keith Orgel

“scholars realized that the school of exegesis was not helping judges in applying the Code Civil to changed circumstances.”

Lauren Connell

CHAPTER II  OF INTENTIONAL AND UNINTENTIONAL WRONGS

 Art. 1382 Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.

 Art. 1383 Everyone is liable for the damage he causes not only by his intentional act, but also by his negligent conduct or by his imprudence.

Art. 1384 A person is liable not only for the damages he causes by his own act, but also for that which is caused by the acts of persons for whom he is responsible, or by things which are  in his custody. … The father and mother, in so far as they exercise “parental authority” (Act n° 2002-305 of 4 March 2002), are jointly and severally liable for the damage caused by their minor children who live with them. … Masters and employers, for the damage caused by their servants and employees in the functions for which they have been employed;

 Art. 1385 The owner of an animal, or the person using it, during the period of usage, is liable for the damage the animal has caused, whether the animal was under his custody, or whether it had strayed or escaped .

Art. 1386 The owner of a building is liable for the damage caused by its collapse, where it happens as a result of lack of maintenance or of a defect in its construction .

Civilian-speak

• Code / statutes• Doctrine • Jurisprudence• Sentence• Legislator

Portalis

(1746-1807)

Pothier

(1699-1772)

"My true glory is not to have won 40 battles... Waterloo will erase the

memory of so many victories... But what nothing will destroy, what will

live forever, is my Civil Code”

“Mon code est perdu”

Napoleon, on hearing of the publication of first commentary on

Code Napoleon

“Whereas an English lawyer seeking to interpret a legal principle

will look first to its pedigree, a continental lawyer

will search for its policy.”

Genealogy of

Latin American codes …

Argentina Civil Code (1869)

Dalmacio Velez Sarsfield (1800-1875)

French “code civil”(1804)

Chile Civil Code (1852)Andres Bello (1791-1865)

Brazil draft civil code (1856)Augusto Teixeira de Freitas (1816-1883)

French “code civil”(1804)

Spanish Civil Code(1889)

German civil code Bürgerliches Gesetzbuch

(1900)

End