Chilean Civil Code: Difference between revisions
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Traditionally the [[Napoleonic Code]] has been considered the main source of inspiration to the Chilean Code. However, even if this is true relating the law of obligations and the law of things (with the important exception of the principle of abstraction), it is not true at all in the matters of family and successions. |
Traditionally the [[Napoleonic Code]] has been considered the main source of inspiration to the Chilean Code. However, even if this is true relating the law of obligations and the law of things (with the important exception of the principle of abstraction), it is not true at all in the matters of family and successions. |
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The indisputable main source of the Civil Code are the [[Siete Partidas]] (Seven-Part Code), of King [[Alfonso X]], perhaps the pinnacle of spanish [[ius commune]]. For instance, relating the aquisition of property the codes makes a clear distinction between the ''titles'' and the actual ''acquisiton'' of property, |
The indisputable main source of the Civil Code are the [[Siete Partidas]] (Seven-Part Code), of King [[Alfonso X]], perhaps the pinnacle of spanish [[ius commune]]. For instance, relating the aquisition of property the codes makes a clear distinction between the ''titles'' and the actual ''acquisiton'' of property, similay to the [[Roman Law]] and the German [[BGB]]. |
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The traditional spanish law is also manifested strongly in the matter of successions, notwithstanding the important modenisations made by the Code, such as eliminating the preference for the males in the adjudication of the estate, the end of ''mayorazgos'' (the adjudication of the whole estate to the elder male son), and the adoption of a rule against succesive [[Usufruct|ususfructs]]. |
The traditional spanish law is also manifested strongly in the matter of successions, notwithstanding the important modenisations made by the Code, such as eliminating the preference for the males in the adjudication of the estate, the end of ''mayorazgos'' (the adjudication of the whole estate to the elder male son), and the adoption of a rule against succesive [[Usufruct|ususfructs]]. |
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Revision as of 20:01, 10 September 2008
The Civil Code of the Republic of Chile (Código Civil de la República de Chile, also referred to as the Code of Bello) is the work of the chilean-venezuelan jurist and legislator Andrés Bello. After several years of individual work (though oficially presented as the work of multiple Congress comissions), Bello delivered a complete proyect of the Code on november 22th 1855, wich was sent to Congrees by President Manuel Montt, preceded by a foreword prepared by Bello himself. Congress passed the Civil Code into law on december 14th 1855, and became into force on january 1th 1857. The Code has kept in force since then though it has been the object of numerous alterations.
Sources
Traditionally the Napoleonic Code has been considered the main source of inspiration to the Chilean Code. However, even if this is true relating the law of obligations and the law of things (with the important exception of the principle of abstraction), it is not true at all in the matters of family and successions.
The indisputable main source of the Civil Code are the Siete Partidas (Seven-Part Code), of King Alfonso X, perhaps the pinnacle of spanish ius commune. For instance, relating the aquisition of property the codes makes a clear distinction between the titles and the actual acquisiton of property, similay to the Roman Law and the German BGB.
The traditional spanish law is also manifested strongly in the matter of successions, notwithstanding the important modenisations made by the Code, such as eliminating the preference for the males in the adjudication of the estate, the end of mayorazgos (the adjudication of the whole estate to the elder male son), and the adoption of a rule against succesive ususfructs.
Similaryly, it adopted the Canonical Law provisions regarding marriage.
The Code made important changes, inspired by the examples of European Codes in place or in preparation. Regarding the real estate, the Code was inspired by the old german registry system, adapting it to the necesities of the post colonial economy. It was the first Civil Code to make especific provisions regarding the legal persons systematicaly.
The Code based its method of interpretation in the Louisiana Code creating a system original to its era.
Although the Napoleonic Code influenced the Chilean Code largely redarding the law of obligations, this influencia is in no case a mere transcription. For instance, while the French Code final Book is entitled "On Contracts", the chilean Code's last book, second title, is named "On the declarations of will", comprising a general theory of contract.
The chilean Code is one of clear neoclassic inspiration. Each institution is first aborded from an axiom and then the articles or sections cite examples or consecuenses of the axiom, whith a didactic pourpuse.
Content of the Code
- Preliminary title (articles 1 to 53): The title deals with the law in general. Similar to the French Code it establishes that Laws could only be applied if they had been duly promulgated, and if they had been published officially (including provisions for publishing delays, given the means of communication available at the time); thus no secret laws were authorized. It prohibited ex post facto laws (i.e. laws that apply to events that occurred before them). It prohibits judges from passing general judgments of a legislative value, see above.. It also defines certain concepts general to the whole civil law.
- Book I: On persons (articles 54 to 564): The book deals with the birth and death of persons, marriage and paternity. It also deals with the creation and liability of legal persons. This section of the Code has been highly modificated in the last 20 years, alongo with the Book III, in order to eliminate discriminations between children born from married couples and unmarried couples.
- Book II: On goods, its property, posession, use and profit (articles 565 to 950): The book cotains the general dispositions relative to the distintc kinds of goods, the means of property acquisition, possession, the different rights different from property and the judicial remedies to protect them.
- Book III: On successions and donations (articles 951 to 1436): It makes provisions regarding the destin of the porperty after the death of a person, the formation and execution of wills, and, finally, it deals with donations.
- Book IV: On obligations in general and contracts (articules 1437 to 2524): The book regulates the general theory of contracts, the most important contracts in particular, the anullment and satisfaction of contracts. It also deals with torts.
- Final article: On the obediance of the Code: The title determines the date in wich the Code would become in force and the derogation of all laws relative to the matter of the Civil Code.
Influence
The chilean Code is an original work in confront with the French code both for the scheme and for the contents (similar to the Castillan law in force in that territory). This code was integrally adopted by Ecuador in 1858; El Salvador in 1859; Venezuela in 1862 (only during that year); Nicaragua in 1867; Honduras in 1880 (until 1899, and again since 1906); Colombia in 1887; and Panama (after its separation from Colombia in 1903).
According to other Latin American experts of its time, like Augusto Teixeira de Freitas (author of the Esboço de un Código Civil para Brasil) or Dalmacio Vélez Sársfield (main author of the argentinian Civil Code), its the most important legal accomplishment of Latin America.