Aaron Misa's Flowchart of Balane's Spanish Antecedents

Created by Aaron Misa

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History of Spain

Evolution of Civil Law in Spain

Legal development of Spain occured alongside its history

Early Iberians

• First major settlers of Spain
• Intermarriage between the Iberians and the Celts produced the Celtiberians

Celitiberian Social Structure

Had the basic social structures of tribes

Fairly well-developed concepts of property; both private and communal

Roman Era

210 B.C- Fall of Carthage saw Spain fall under Roman sovereignty

• Divided into Hispania Ulterior and Hispania Citerior
  • While it was under the Roman Empire, the history of Hispanic law is the history of Roman law

Roman and Visigothic Influences

• Spain was conqured by the Visigoths, who already had considerable exposure to Roman ways and culture
• However,  Visigothic law was predominantly Germanic, reflecting their own tribal customs and traditions

Visgothic Customs and Traditions

1. Marriage was highly regarded and  monogamy was universal
2. Adultery was severly punished
3. Wills were unknown to them, as well as the taking and interest of loans
4. Mutual aid and protection w/in the famil
5. Wife had a right to share in property after marriage
6. Parental authority over the children did NOT include jus vitae ac necis 

Visigothic Era

• 400 AD onwards, Spain became a Visigothic kingdom.
• In 416, they established their capital in Barcelona, then in Toulouse, and then in Toledo
• The VIsigoths eventually desired to put their customary laws into a more permanent form
  • King Euric formed a collection of Germanic Laws known today as the Code of Euric
  • Euric's son, Alaric II, formulated his own body of laws based on Roman laws through the Breviary of Alaric

The Codes of the Visigoths

• Code of Euric
  • Code compiled by King Euric of Spain governing the Visigoths
  • Predominantly Germanic, but with Roman elements in their provisions on purchase and sale, loans, deposts etc
  • Meant to apply to conquerers
    • Aka personal rather than territorial law
• Breviary of Alaric
  • Formulation of a body of laws for conqured subjects, on the basis of known Roman Law
• Thus, the conqureror Goth's had predominantly Germanic laws, while the conqured Romano-Iberians had predominantly Roman laws

Era of Justinian

• 527 AD: Justinian ascended to the imperial throne 
• Recivered the lost Western provinces including southern Spain
• Rule achieved 2 enduring structures: the Haga Sophia of Istanbul and great work of codification: The Code of Justinian
• However, Spain was no longer part of the Empire politically. Code of Justinian would influence Spain much later

Code of Justinian

• Commission on 12/15/530
• Digest was published on 12/16/530, followed by the Institutes, and then the Codex
• Corpus Juris Civillis contains a fourth part, the Novellae
  • New laws enacted subsequent to the first three parts
• Modern Civil Code owes much to the institutes created by Justinian

The Moors and the Reconquista

• 711 AD The Moors conqured Spain and brought about Muslim influence
• The historic Battle of Tours stopped Muslim expansion and brought forth the campaign of Reconquista or reconquest
• History of Spanish Law developed in the context of the Christian kingdoms emerging from reconquered territory
  • Late 13th century: Spain consists of 2 Christian kingdosm (which maintain some degree of autonomy) with the Moors confined to Granada

Fuero Juzgo

• Law common to both Visigoths and Hispano-Roman 
• Regarded as the moat regular and complete body of law, formed after the fall of the Roman Empire
• Parent law of the modern laws of Spain and the Philippines

Salient Provisions of Fuego Juzgo

• On laws on persons and family:
  • Work towards unity; inntermarriage between Goths and Hipano-Romans allowed
  • Establishment of NATURAl and JURIDICIAL persons
  • Definitions of legal birth and age of majority
  • Impediments to valid marriage
  • Common/ conjugal property
  • Patria potestas aka power of the father 

• On Property:
  • Modes of aquiring property:
    • Occupation
    • Accession
    • Prescription
    • Succession
  • Recognition of co-ownership
  • Peronal and real servituteds

• On Descent
  • Succession was either testemantary or intestate
  • Minimum age for wills
  • Provisions on inheritance
  • Intestate successions established

• On Obligations and Contracts
  • Contractual capacity acquired at 14
  • Minority, insanity, slavery etc may vitiate a contract

The Fueros

• The seperate and autonomous kingdoms gave rise to a system of fragmented legal jurisdictions
  • Even the Fuero Juzgo became supplementary to the local laws of king and parliament
• This local period become known as the period of fueros

Mayorazgo

• The breakdown of the Roman Empire, the threat of Islam,  and the period of local dominance gave rise to the institution of promegeniture (mayorazgo)
  • Local powers provided for their own defense by creating relationships of vassalage and military service
• System of primogentiure persisted long after the Fueros, as could be seen in its prevalence in Europe and even in the Philippines
• Only in October 11 1820 were mayorazgos abolished in Spain

The Universities

• Reconquista also gave rise to great Spanish universities during its time of great legal diversity
• One particular university, Valladolid, became the center of Roman law studies, which sought to keep the traditions of Roman law by influencing the codes that were to come. 
  • First of which was the Fuero Viejo, then the Fuero Real

Civil Law of the Fuero Real (Book 3)

 General provisions:

1.  Ignorance of the law is not allowed as an excuse
2. Custom is not recognized as a source of law

On Persons and Family

1. Civil personality is acquired upon baptism
2. Women over 30 no longer needed parental consent to marry
3. Regulations on conjugal partnerships
4. Provisions on legitimization

On Property:

1. Accesion natural is recognized and regulated
2. Enumerated the elements of prescription
3. Provisions governing governing part walls

On Laws of Descent

1. Age of will-making is still 14
2. Provisions for passing down estates to decendants
3. Provisions on illegitimate children

On Laws of Obligations and Contracts:

1. Regulates contracts of sales, barter, lease etc
2. Either party may withdraw as long as nothing has been paid 
3. Individuals with descendants can only donate 1/5 of their estate

The Fuero Real

• The first Code to be heavily influenced by Roman Law was the Fuero Viejo, but it was not promulgated by the king 
• The more important one, the Fuero Real, came about around 1254-1255
  • Completed and enacted by Alfonso of Castile
  • Intended to be a law rather than a code
  • Divided into 4 books, 72 titles, and 545 laws
• The Fuero Real was only primary in towns without a fuero

Leyes de Estilo

• A short compilation written by Oldrado de Ponte
• Collection of explnatory notes and comments on the Fuero Real

The Partidas

• The last, and arguably the greatest, of Alfono's codes
• Influenced by local laws and customs of Castile, but its foundation lies on canon law and the Code of Justinian
• Most probably intended by Alfonso to supplant the Fuero Juzgo, but it failed to acquire the force of law
• Regarded by legal historians as the most notable and complete treatise of jurisprudence developed at that age.
• The Partidas lies at the basis of the modern Spanish Civil Code

Books 5 and 6 of the Partidas (and parts of 3 and 4)

General provisions:

• The principle of territoriality is preserved-all juridical acts done within the realm, whether by natives or by foreigners, are to be governed by the law of the land.
• Ignorance of the law is admitted as an excuse for peasants, soldiers, and women.

On persons and family

• Sets a minimum age for marriage (puberty)
• Modes of legitimization (subsequent marraige, will of the king and performance of service to the king)
• Provisions on adoption
• Partidas potestas is granted to the highest ascendant rather than the mother

On Property:

• Ownership is acquired by occupation, accession, prescription, tradition and gereditary succession
• Reproduces the Roman-law rules on possession and servitudes

On Descent:

• Borrows heavily on Roman laws on succession
• Capacity to inherit is denied to fornecinos (children born under sacrilegious, incestous or adulterous circumstances)
• Reduction to number of ligitimes of descendants
• Succession in the collateral line is allowed to the 4th degree

On Obligations and Contracts

• Emphasised form in its law on contracts
• Contracts are either real or consensual

Ordenamiento De Alcala

• Passed by the Cortes in 1348
• Gave legal recognition and force to the Partidas
• Primarily a collectionn of laws with reference to civil law

Provisions of the Ordenamiento De Alcala

• Emphasized spiritual aspect of contracts and ignoring the element of form, which was stressed by the Partidas
• Provided for lesion in sales
• Taking of interest was prohibited, in some case leading to forfeiture of debt
• Two prominent provisions in successional law:
  1. A will may be executed with a certain number of clerks and witnesses
  2. Wills no longer needed heirs to be valid, mixed succession was allwed

Marriage of Isabel and Fernando and the Unification of Spain

• 1496 -Sovereign of Castile Isabella and future-sovereign of Aragon Ferdinand were wed
  • Wedding essentially unified the once seperate kingdoms
• 1491-The couple completed the Reconquista and drove the Moors out of Granada
• 1492- After consolidating power, Spain began their overseas expansion
• 1484- Legal evolution of Spain manifested into the Ordenamiento de Montalvo of Dr. Montalvo

The Ordenamiento de Montalvo

• Collection of ordinaces and royal decrees of the Castilian Cortes
• Divided into 8 books, subdivided into 115 titles, with a total of 1,133 laws
• Book 5 contains 14 titles and relates to civil law provisions

Book 5 of the Oredenamiento

On Persons and Family

• Allows widow to contract a marriage a year after husband’s death 
• Declaring conjugal the fruits of separate property 
• Authorizing the husband to dispose of conjugal property even w/o wife’s consent, provided no intent to prejudice her

On Obligations and Contracts

• Multiple or collective obligations are presumed juris tantum to be joint rather than solidary

Rule of Juana La Loca

• 1504 Isabella of Castile was succeeded by her eldest: Juana de Loca
• The Castilian Cortes published and promulgated a piece of legislation passed by Toledo: the Leyes de Toro

Leyes De Toro

• Consists of 83 laws, with little evidence of structural organization
  • No divisons, sections, books etc
• Free-wheeling enumeration but still has its salient features
• Enacted in order to clarfiy and reconcile existing legislation
• Would eventually be incorporated in both the Nueva  and the Novisima Recopliaction

Salient Provisions of Leyes de Toro

On Persons and Family

• Juridical capacity is possessed by the naturalmente nacido with the following requisites:
  • Child must be born alive 
  • It must survive 24 hours
  • It must be baptized 
  • If any of these requisites were absent, the child was abortivo
• Marriage was recognized as a cause of emancipation from parental authority, and the usufruct of any adventitious property passed to the child from the time of the marriage
• "Ley de Osculo": if the marriage did not materialize, the woman hadthe right to retain one-half of whateVer the man had given her, ifhe had already kissed her.

On Persons and Family (part 2)

• The wife could not renounce any inheritance without thehusband's consent.
• The wife could neither contract nor go to court withoutthe husband's consent.
• The conjugal regime was more minutely regulated, variousprovisions being devoted thereto.
• Natural children were defined as those born of parents who, at the time of the child's conception or birth, could have married lawfully and without dispensation.

On Property

• Provisions govern interruption of prescriptive periods
•  

On Descent:

• Persons under the death penalty may still make wills
• Minimum age for wills were 14 for males and 12 for females
• Legitimate descendants were made compulsory heirs in default of children or descendants
• Descendants and ascendants, brothers and sisters inherited by intestacy are held in default
• All kinds of illegitimate children were excluded by legitimate descendants from the succession of the mother, but in the absence of legitimate descendants, illegitimates succeeded to the mother's estate to the exclusion of legitimate ascendants; on the other hand, the father and the mother could each give illegitimate children of all kinds legacies for support not exceeding one-fifth of their respective estates, but a man without legitimate children could give a natural child any amount he wished.
• Mejoras could be given either by will or by contract
• Mayorazgos were regulated

Rule of King Philip II

1555- Juana de Loca was succeeded by Charles of Ghent, who became the Holy Roman Emperor Charles the Fifth

1556- Charles the Fifth abidicated the throne to his son, Felipe II

• The king sought to reform the law

1567- The Nueva Recopilacion de las Leyes de Espana was compiled and promulgated 

Nueva Recoplacion

• Sought to unify the diverse strands of the Fuero Real, the Partidas, the Ordinance of Montalvo, the Laws of Toro, and other laws
• Composed of 9 books, 214 titles, 3391 laws
  • Fifth book deals with civil law
• However, the Nueva was considered a failure in clarifying the law. But it did mark the first effort in unifying the laws of Spain

Salient Provisions of Nueva Recoplacion

(1) Husbands, at least 18 years of age, could administer their property and that of their wives.

(2) All assets existing at the time of the disolution of the marriage were presumed conjugal.

The Bourbons

1598- The death of King Philip saw the decline of Spain's power

• Spain experienced 3 weaks kings after Philip

Late 1600s- France became the new power of Europe under Louis XIV

18th century- Crown of Spain passed from Habsburg to Bourbon under Philip V

Late 18th century- Emperor Charles V commissioned Juan de la Reguera Veldelomar to revise the Nueva Recopilacion

1805- Law was promulgated under the title: Novisima Recopilacion de lasLeyes de Espania

Novisima Recopilacion

• Consisted of 12 books, 340 titles, 402 laws
• However,  its overall influence is debatable as most historians still regard it as a mere rehash of the Nueva

Salient Provisions of Novisima Recopilacion

(1) Provision renewing a lease for one year if no notice tovacate had been given prior to expiry date

(2) the prohibition of subleases

(3) the adoption, as the law on marriage, of the Tridentinedecree on this subject

(4) the requirement of paternal consent to marriages of boys below 25 and girls below 23 (requisito necesario)

In the Philippines

1493- Pope Alexander VI set the Line of Demarcation

• Marks all land east of the line as Portugals; All lands to the west Spains

1529- Charles V also renounced all Spanish claims to the Moluccas, but not the islands to the north (aka: the Philippines)

Spanish Law in the Philippines

• By 1529, Philippines fell under Spanish sovereignty
• Colonial government was handled by the Board of Trade, but subject to the decrees issued by the King/ Consejo
  • Decreed were compiled under the Recopilacion de Leyes de los Reinos de las Indias
• 1530- Royal Ordinance was made
  • Established an order of preference of the laws governing colonies
• Again, the fragmentation of Spanish law created legal chaos in the Philippines

Order of Application of Spanish Law in the Philippines

Order of Application in the Philippines:

• The latest laws enacted for the colonies and decreed therein
• The Recopilacion de las Indias
• The Novisima;
• The Nueva;
• The Leyes de Toro;
• The royal ordinances of Castile
• The Ordenamiento de Alcali
• The Fuero Juzgo
• The Partidas

The Final Stage: Spain Finally has a Civil Law

1792- The French Revolution passed a law directing codification

• • 1799- Codification was finally achieved under Napoleon Bonaparte
  • 1805- The Civil Code of the French was promulgated, which heavily influenced Spain

1812- Constitution of Cadiz brought about a period of constitutionalism and recognized the need for legal reform

1851- Commission submitted draft of a civil code

1888- After numerous efforts to codify the law, the drafts were finally approved and published

1889- Codigo Civil was promulgated on July 24

The Codigo Civil

• First draft in 1851
  • Divided into preliminary title and 3 books, totaling 1992 articles
  • Book 1 was on persons, 2 on property and ownership, 3 on modes of acquiring ownership
• 1889- New Civil Code promulgated on July 24
• Codigo Civil:
  • Composed of preliminary titles, 16 articles
  • 4 books subdivided into 41 titles:
    • Book 1 on persons, 2 on property and ownership, 3 on modes of acquiring ownership, and 4 on oblicon

The New Civil Code in the Philippines

July 31, 1889- Queen Regent Maria Cristia extended the Code to Cuba, Puerto Rice and the Philippines

November 17, 1889- Code was published in the Philippines

December 7, 1889- Code became effective in the Philippines

March 20 1947- President Roxas called for the framing of the Philippine Civil Code, 57% of which was adapted or translated verbatim from the Spanish Code