Spanish Civil Law: A Comprehensive Study

Posted on Dec 5, 2024 in Law & Jurisprudence

Civil Law

1. The Spanish Civil Law

1.1 Institutional Assumptions and Historical Forms

The historical approach to civil law considers institutional assumptions as factual cases: problems, conflicts, and disputes that have shaped the development of civil law institutions. It’s crucial to emphasize the material problems that civil law addresses outside prevailing dogmatic valuation guidelines.

1.2 The Field of Civil Law

Codification seems the most appropriate way to use history to determine civil matters. The central core is the person, considered individually, within the family, and in economic relations. The individual, family, and heritage constitute the “institutional assumptions” of civil law. Our Civil Code follows the Roman-French plan proposed by Gaius and later adopted in Justinian’s Institutes, which inspired the French Civil Code.

1.3 Civil Law and Common Law

The technical characterization of common law today generally refers to private law, which regulates all civil institutions. Common law still possesses extensive capacity from a technical standpoint.

2. Codification and Regional Law

2.1 General Codification: The Historical and Ideological Movement

Iusnaturalist and liberal philosophical movements in the mid-18th century sought a new systematization of law. The codification period is considered to begin with the 1804 French Civil Code and end with the 1900 German Civil Code. Codification supported the dogma of the state as the key political organization by promoting legal unity or at least uniformity.

2.2 Spanish Civil Consolidation

The starting point of codification in Spain is the 1851 Civil Code project, known as the Elizabethan Code, recognized for its pro-French character and its aim to unify Spanish civil law.

2.3 Regional Councils and Statutory Law

During the 18th and 19th centuries, Spain had diverse civil regulations. Aragon, Navarra, Mallorca, Catalonia, and the Basque Provinces maintained their own civil laws. Codification required legislative harmonization. The initial Elizabethan Project (1851) aimed to eliminate provincial laws, causing tension with provincial lawyers who opposed it. This led to the “statutory law” issue, indicating that the Civil Code applied to most of the country, while provincial areas (Basque Country, Navarra, Aragon, Catalonia, Mallorca, and unjustly, Galicia in 1880) retained their own civil regulations.

2.4 Statutory Solutions: From Basic Law to Constitution

In the late 19th century, the statutory law issue remained unresolved to avoid further conflict and delays in publishing the Civil Code due to provincial resistance. Compilations were approved by Parliament due to the absence of regional legislatures in a centralized state, except for Navarra’s Compilation, approved under Franco’s authority.

3. Legal Order and Sources of Law

3.1 Sources of Spanish Law

Legal sources can be material or formal. Formal sources are divided into direct (found in legal texts) and indirect (contributing to their production and understanding). According to Article 1.1 of the Civil Code, Spanish legal sources are law, custom, and general legal principles.

3.2 The 1978 Spanish Constitution

3.3 Customs and Habits

3.4 General Principles of Law

4. Implementation of Legal Norms

4.1 Problems of Law Enforcement

4.2 Search for Applicable Norms: Evaluation

4.3 The Principle of Jura Novit Curia

4.4 Absence of Specific Legal Norms

4.5 System Integration: Analogy

4.6 Other Integration Methods: Jurisprudence and Equity

4.7 Interpretation of Legal Norms

5. Effectiveness and Efficiency of Norms

5.1 Effect of Regulations

5.2 Principle of Non-Retroactivity of Laws

5.3 Transitional Provisions of the Civil Code and Common Transitional Law

5.4 Spatial Scope of Rules

5.5 General Duty of Compliance

5.6 Violation of Rules and Punishment

6. Subjective Rights

6.1 The Legal Relationship

6.2 Legal Duty

6.3 Subjective Right

6.4 Classification of Subjective Rights

6.5 Birth and Acquisition of Subjective Rights

7. Exercise of Rights

7.1 Exercise of Rights

7.2 Extrinsic Limits on the Exercise of Rights

7.3 Intrinsic Limits on the Exercise of Rights

7.4 Good Faith in the Exercise of Rights

7.5 The Doctrine of One’s Actions

7.6 Abuse of Rights

7.7 Temporary Limits: Deferral

8. Prescription and Expiration

8.1 Time and Legal Relations

8.2 Prescription

8.3 Calculation of Limitation Period

8.4 Termination of Limitation Period

8.5 Claims and Disclaimers

8.6 Key Prescription Milestones

8.7 Expiration

8.8 Expiration and Limitations as Legislative Options

9. The Person

9.1 Status and Rights of the Individual

9.2 Personality

9.3 Vital Statistics Office

9.4 Birth

9.5 Death

10. Rights of Personality

10.1 Classification of Instrumental Personality Rights

10.2 Right to Life

10.3 Freedoms

10.4 Moral Integrity and Personal Privacy

10.5 Individuality

10.6 General Description of Personality Rights

10.7 Personality Rights and Subjective Rights

10.8 Guarantee and Protection of Fundamental Rights

10.9 Injury to Personal Rights and Damage Repair

11. Capacity to Act: Age and Sex

11.1 Age of Majority and Full Capacity

11.2 Minority

11.3 Emancipation

12. Capacity to Act: Disability

12.1 Disability

12.2 Prodigality

13. Absence and Declaration of Death

13.1 Basis of Institutions for Absence

13.2 Interim Measures for Missing Persons

13.3 Legal Declaration of Absence

13.4 Declaration of Death

14. Nationality

14.1 Nationality

14.2 Nationality of Origin

14.3 Derivative Citizenship

15. Civil Neighborhood and Address

15.1 Meaning of Civil Neighborhood

15.2 Allocation of Civil Neighborhood

15.3 Neighborhood Coinciding with Parent(s): Ius Sanguinis

15.4 Different Neighborhood of Parents

15.5 Acquisition by Option

15.6 Acquisition by Residence

15.7 Address: Concept and Meaning

16. Civil Registry

16.1 Fundamentals: Registered Data, First and Last Name

16.2 Civil Registry Organization

16.3 Registry Entries

16.4 Specific Registry Entries

16.5 Formal Advertising

17. Legal Persons

17.1 Background and Admissibility

17.2 Legal Persons under the Civil Code

17.3 Basic System of Legal Persons

18. Associations

18.1 Associations and Partnership Law

18.2 Types of Associations

18.3 Constitution of Associations

18.4 Membership

18.5 Social Equity and Economic Management

18.6 Suspension of Activities

18.7 Dissolution or Termination

19. Foundations

19.1 Types of Foundations

19.2 Constitution of Foundations

19.3 Governance: Board of Trustees

19.4 Foundation Activities

19.5 Protectorate

19.6 Termination of Foundations

20. Property and Things

20.1 Purpose of the Legal Relationship

20.2 Distinction between Real Estate

20.3 Public Goods

20.4 Fruits

21. Legal Business

21.1 Legal Business

21.2 Elements of Legal Business

21.3 Classifying Legal Business

22. Will and Bargaining

22.1 Will, Bargaining, and Externalization

22.2 Means and Types of Expressing Intent

22.3 Interpretation of Legal Business

22.4 Flawed Will

22.5 Discrepancy between Will and Declaration

23. Representation

23.1 Direct Representation and Budgets

23.2 Power and Legitimacy of Representatives

23.3 Mismatch between Action and Empowerment

23.4 Ratification of False Representation

23.5 Acting for Others

23.6 Indirect Representation

23.7 Legal Representation