Private Autonomy in Spanish Civil Law
ITEM 8: PRIVATE AUTONOMY
PRIVATE AUTONOMY IN GENERAL
We start with the concept of subjective rights: the power to act in legal life attributed to an individual to satisfy their own interests.
This action of individuals in legal life requires an area twice free of autonomy to the government and against the rights of other subjects.
The problem is how to reconcile the rights of all, and usually, the solution is not in one system like that in another.
(In the previous lesson, we said that collisions with the rights of others neither mark the outer limits of our rights nor extrinsic)
When there is a collision between individual rights, we will have to determine who sets the limits, and this depends largely on the ideology that the State has.
In liberal ideology, it is thought that the limits are established by individuals, and private autonomy is regulated by the daily struggle.
So to understand the extent of private autonomy of the will in a country, it is necessary to apply to its Constitution and within the Constitution to regulate economic activity (the individual rights that create more collisions are those that regulate economic activity).
Private Autonomy and “Economic Constitution” – The Limits of Private Autonomy
The part of the Constitution that regulates economic activity and the scope of freedom of individuals in this field is called the “Economic Constitution.”
In the Spanish Constitution, vital arts are: 33, 53, 128, 131. They are the result of the negotiation and the “consensus” that marked the Spanish transition to democracy.
At that time, the trading parties had very different ideologies, so it marked a beginning full of limitations and balances to try to avoid that the constitution clearly prefer a liberal or socialist system.
Charting the best, we say that these 4 items lay down four principles:
Recognition of Private Property and its Transmission Through Inheritance.
However, this private property has limits in our Constitution.
- The social function of property so that even if one owns it, it is considered that all private property has a social function.
- One may be deprived of private property through expropriation, although that yes, by an award and in accordance with the laws.
- All the country’s wealth in its various forms is subject to interest.
Along with private property, it also recognizes the existence of public property where instrumental (and in that sense may be a limit on private property).
Recognition of the Economic Freedom of Individuals.
That is, it recognizes free enterprise and the market system, although according to the requirements of the general economy and, where appropriate, of planning.
Recognition of the Public Initiative in Economic Activity
Where to obtain essential resources or services by law.
Recognition of the Power of the State Planner.
With the limits of Article 131.1 of the Constitution: “To meet the collective needs, balance and harmonize regional development and stimulate the growth of income and wealth and its fair distribution.”
These constitutional principles are developed and materialized in practice in many articles of the CC that affect autonomy.
For example, articles that talk about private property (349 CC), the form of a will, how to perform the contract, or the possibility of creating legal entities (companies, organizations of all types, etc.).
These and other acts of the Freedom of choice are largely governed by our civil law.
FACTS, EVENTS, AND LEGAL BUSINESS: THE DOCTRINE OF BUSINESS LEGAL
Spanish for a fundamental doctrine of the autonomy is the ability to conduct legal business, but the concept of legal transaction is the result of a mental abstraction. To reach it, you have to go gradually.
Fact: is any occurrence, anything that can happen is a fact. There is a legal concept.
However, within the concept “fact,” we can distinguish between:
Simple fact: that is irrelevant to the D. For example, a lightning strike to the ground.
Legal fact: that the Ord. Legal connects legal consequences. Ex: Lightning kills someone (opens his succession among other things …)
Within the category of legal facts, we must distinguish between:
- Acts natural are not dependent on anyone’s will (e.g., the fall of lightning).
- Acts volunteers (events) are a consequence of an wanted by someone (e.g., shooting a gun).
Within the category of acts, we have two types:
Simple instruments: irrelevant to the law (if a shot in the air).
Acts: when the legal system connects them to legal consequences (e.g., to kill someone with a gun).
Finally, within the category of legal acts, we have to distinguish between strictly legal acts and declarations of will.
A legal act in the strict sense: those in which the legal consequences imposed by ord. Legal, but those consequences were not seeking the spot. (e.g., go to jail for killing someone with a shot).
Declarations of intent: the characteristic is that the legal effects that occur are virtually seeking the author. (e.g., when performing a contract that is a voluntary legal act, i.e., a declaration of intent and effect is set up a company, buying something, etc. … that is the intended effect).
However, these statements will be called legal transactions. We can say that legal business is: One or more statements of intention that under the provisions of law produces the effect intended by its author or authors.
It is an abstract category that encompasses a multitude of legal institutions, like marriage, testament, adoption, the contract … etc.
As such an abstract category is not recognized in our Civil Code, it is common talk that the doctrine of legal transactions.
At present, this category has been called into question because it is practically impossible to generalize the characteristics of these businesses.
The differences between them are such that anything that can be said of a legal transaction will be many exceptions when you move to another.
You should learn each of the specific legal transactions recognized in law.