Civil CodesChile

Last updated 02 Nov 11

Latin American Law

Today’s topics

• Meaning of civil code• Origin of civil codes in Latin America• Chilean civil code

– History, sources (Andres Bello)– Structure: compilation vs. codification– Content: persons, property, successions, contracts

French “code civil”(1804)

Spanish Civil Code

(1889)

Haiti(1825)

Chile(1852)

Brazil draft(1856)

Argentina(1869)

Bolivia(1831)

Portuguese Civil Code

(1867)

Oaxaca(1827)

Louisiana(1804)

Andres Bello (1791-1865)

Chile’s civil code (1857)

Southern Patagonia

• Structure• Sources• Innovations

Santiago, Chile

Message to Congress (1855)

Muchos de los pueblos modernos más civilizados han sentido la necesidad de codificar sus leyes. Se puede decir que ésta es una necesidad periódica de las sociedades. Por completo y perfecto que se suponga un cuerpo de legislación, la mudanza de costumbres, el progreso mismo de la civilización, las vicisitudes políticas, la inmigración de ideas nuevas, precursora de nuevas instituciones, los descubrimientos científicos y sus aplicaciones a las artes y a la vida práctica, los abusos que introduce la mala fe, fecunda en arbitrios para eludir las precauciones legales, provocan sin cesar providencias, que se acumulan a las anteriores, interpretándolas, adicionándolas, modificándolas, derogándolas, hasta que por fin se hace necesario refundir esta masa confusa de elementos diversos, incoherentes y contradictorios, dándoles consistencia y armonía y poniéndoles en relación con las formas vivientes del orden social.  

Andres Bello

Compare translation at CB 418

Andres Bello“humanist”“scientist”

“scavenger”

Bello “helped to institute respect for the law, giving the country that political stability without which all other action is enfeebled or comes to an end.”

Sam Wellborn

 

Chilean Civil Code 

French Civil Code 

German Civil Code 

Siete Partidas 

Preliminary Title 

Preliminary Title 

I. General Part I. Sources of Law

I. People  

I. Persons II. Obligations II. Public Law

II. Property 

II. Property III. Property III. Civil Procedure and property rights

III. Succession 

III. Ways one acquires property

IV. Family Law IV. Family law

IV. Contracts 

  V. Succession V. Private law

Final Title 

    VI. Inheritance, guardianship, minors

      VII. Criminal Law

Chile Civil Code(persons, property, succession, obligations)

Chile – on persons (arts. 1-564)

Identify which rules appear in Chile Civil Code (1857)

__ 1. Persons missing for a long time are presumed dead or to have severed their ties with family

__ 2. Mutually accepted marital promises do not produce legal obligations, but only ones of honor and conscience.

__ 3. Even though the Church may recognize a marriage, the civil law does not unless validated by a notary.

__ 4. A husband does not have a right to wife’s dowry/paraphernalia; though Chilean women gain right to vote only in 1949.

__ 5. Illegitimate children can be legitimated by the consent of the father, through sworn affidavit (but not the mother).

__ 6. The age of majority is fixed at 21; before this age, minors cannot enter into binding contractual obligations.

1-Y / 2-Y / 3-N / 4-Y / 5-Y / 6-N

“How could merely carnal, dubious, and random intercourse which can in no way guarantee the faithfulness of the degraded woman, establish legitimacy without the corroboration of the father?”

Where do illegitimate children stand today?

Taryn Kadar

Women in Chile

• 1880s: University of Chile graduated first female lawyers and physicians

• 1930s: women significant among lawyers, physicians and dentists.

• 1932: the University of Chile had 124 women (17% of total enrollment) enrolled in law, 96 (9.5%) in medicine, and 108 (38%) in dentistry.

• 2007 survey: 64% prof women (science/technology) say being a woman is “negative influence” on career (respondents 57% PhD, 28% Master’s, 10% grad studies)

• 2004: divorce was legalized, though with lengthy waiting periods and no provision for joint custody of children.

• Domestic violence– 1986: infraction under the

Civil Code – 2001 study: half of all

Chilean women have been abused by their partners

– 2006: DV fully criminalized.

• 2006: judges can issue protective orders and police can arrest men suspected of threatening or abusing their partners

Chile – on property (arts. 565-950)

Identify which rules appear in Chile Civil Code (1857)

__ 1. Mortgages must be notarized and filed in the land registry, or they do not have legal effect under any circumstances.

__ 2. Leases, which are treated as conveyances of real property, must be notarized and registered in the land registry.

__ 3. A contract to sell real estate cannot transfer ownership, but it creates rights between the parties.

__ 4. Property rights may be acquired by prescription (adverse possession) only by regular possession.

__ 5. Easements need not be registered, since these are viewed as minor encumbrances, the same as the French Civil Code.

__ 6. The number of successive usufructs or testamentary trusts is limited to one, for the purpose of conserving “industry.”

1-N / 2-N / 3-Y / 4-Y / 5-N / 6-Y

“Among the shortcomings, [one author] mentions the failure of the Code to anticipate future needs, such as copyright, ownership of correspondence, etc.”

How has Chilean Code survived?

Sam Wellborn

Chile – on succession (arts. 951-1436)

Identify which rules appear in Chile Civil Code (1857)

__ 1. Only legitimate descendants have a right of representation – that is, to take under the laws of intestacy.

__ 2. The widow and widower are treated equally – each is entitled to an obligatory distribution of at least 50% of the estate.

__ 3. The right to disinherit, recognized in the French Civil Code, exists with respect to spouses and children.

__ 4. ¼ Legitime goes to spouse; ¼ Legitime goes to natural children or, if none, spouse; up to ¼ improvements go to children/ grandchildren; Testator may dispose of remainder as sees fit

__ 5. Persons have the power to use their property during their lifetime as they see fit – effectively permitting disinheritance.

1-Y / 2-N / 3-N / 4-Y / 5-N

Legal socialization “Piaget reported that moral decisions about law and

justice are early learned or socialized in . . . systems of home, school, and community.”

Sam Wellborn

Family in Chile

• (Extended) family occupies a central role in Chilean life - custom, culture and etiquette

• Family and business are intertwined - nepotism is seen as a positive concept. Many small firms 100% family run

• drastic decline in marriage of 45% with 104,700 marriages in 1990 and 57,500 in 2003.

• extramarital births has increased from 15.9% in 1960 to 34.3% in 1990.

• women with more education are increasingly choosing to have children outside of marriage

• Children born out of wedlock– 30% in late 19th Century

– 40% in early 20th Century

• Orphans in Chile– Casa de Huérfanos of Santiago -

largest welfare institution in 1867

– 9% of all children born in Santiago, mostly illegitimate infants

– from 1853 to 1924, Casa received over 50,000 children

• Orphanages preferred girls over boys– boys turned away or released at

age 7-8

– girls “distributed” later as domestics Taryn Kadar

Chile – on obligations (arts. 1437-2524)

Identify which rules appear in Chile Civil Code (1857)

__ 1. The Civil Code abolishes the privilege of minors, who are made responsible for their act and contracts.

__ 2. Notarization is required for all contracts whose value exceeds a certain amount.

__ 3. The Civil Code imposes a statute of limitations of 30 years on contract and property rights, which must be affirmatively pled.

__ 4. The Civil Code bans the subleasing of things, since the lessee is said to acquire no property interest, but a mere contract right.

__ 5. Business associations are regulated in the Civil Code; for example, partners are liable for the partnership’s debts

1-Y / 2-Y / 3-Y / 4-Y / 5-Y

In Chile a contract with a minor may be rescinded, it is not null. This idea is also seen within United States contract law.

US law allows some protection for those who contract with minors.

Taryn Kadar

What we can learn from rules of construction in Bello’s code …

Comparison – rules of construction

CCC Article 1560 – If clearly known, the intention of the contracting parties shall carry more weight than the contract’s literal words.

CCC Article 1561 – No matter how general, the terms of a contract shall only apply to the contract’s specific subject matter

CCC Article 1564 – Contractual clauses shall be interpreted jointly, in the sense that best suits the contract as a whole. They may also be interpreted in the light of the clauses of other contracts between the same parties …

CCC Article 1566 – … ambiguous clauses shall be interpreted in favor of the debtor. Nevertheless, ambiguous clauses that one of the parties… has included or dictated shall be interpreted against that party….

Restatement (Second) of Contracts §202(3) – Unless a different intention is manifested where language has a generally prevailing meaning, it is interpreted in accordance with that meaning.

Restatement (Second) of Contracts §203(c) – In the interpretation of a promise or agreement or a term thereof specific terms and exact terms are given greater weight than general language

Restatement (Second) of Contracts §202(2) – A writing is interpreted as a whole, and all writings that are part of the same transaction are interpreted together

Restatement (Second) of Contracts §206 - In choosing among the reasonable meanings … that meaning is generally preferred which operates against the party who supplies the words or from whom a writing otherwise proceeds.

End

Is Chile Civil Code capitalist or socialist …

Compare Chile and Norway

Article 1924The lessor has a duty to deliver the leased thing to the lessee, to upkeep the thing to that it may serve the purpose of the lease and to liberate the lessee from any impediment to the enjoyment of the leased thing.

Section 2-2The property shall when made available to the tenant comply with the requirements ensuing from the tenancy agreement. Unless otherwise agreed, the property and appurtenances shall when made available to the tenant be tidy, clean and in normal good condition.

It seems the Norwegian Act focuses more on what is stated in the agreement between the parties, and then lets the parties fill in with statutes if the agreement does not mention anything on the upkeep and etc. of the leased property/thing.

Article 1934The lessee does not have a right to damages under the preceding Article if he entered into the contract knowing of the defect and if the lessor did not commit to repairing it

Section 2-10The tenant may demand that the landlord at his own expense shall repair a defect of the property if this can be done without causing the landlord unreasonable expense or inconvenience.

Here one might see a difference in how the “consumer” or “little guy” is treated. In Norway, even if you went into the agreement with open eyes, you can still make the lessor repair defects, unless unreasonable expense or inconvenience.

Is “a good family father” (“bonus pater familias”)

the same as “reasonable man” …

Hernando De Soto questioned what prevents people in “third world” countries from obtaining the benefits of capitalism that exist in areas like western Europe and the United States.

De Soto’s answer to his question was capital – “the major stumbling block that keeps the rest of the world from benefiting from capitalism is its inability to produce capital.”

Jay Frantz

US law balances the rights of minors and merchants. General rule is that minors on the hood, unless minor brings an action.

The Chilean rule does not adequately protect orphans.

Robbie Samuel