Civil Law 1: Fundamentals of the Civil Code

• The module focuses on the fundamentals of civil law.
• Civil Law 1 corresponds to Module 1, Theme 1.

Código Civil (Civil Code)

• Consists of a preliminary title with four books.
• The preliminary title addresses legal standards, application, and effectiveness.
• The first book covers people.
• The second book covers property, ownership, and modifications.
• The third book discusses different ways of acquiring property.
• The fourth book addresses obligations and contracts.
• Each section is divided into titles, which contain different chapters grouped into sections and each section possesses several articles.
• The Spanish Civil Code contains 1,976 articles.
• The preliminary title of the Civil Code addresses the sources of law in Chapter 1, legal standards in Chapter 2 and the general effectiveness of legal standards in Chapter 3.

Sources of Law

• Mechanisms used to create, modify, or extinguish legal norms.
• Within Civil Law, sources are hierarchical and regulated by Article 1 of the Civil Code.

Hierarchy of Norms

• The Constitution is superior to any other legal norm.
• A lower-ranking norm cannot contradict a higher-ranking norm.
• A later norm repeals an earlier norm with the same rank.
• A special law prevails over a general law.
• In order of hiearchy: Constitutions, International Treaties, Organic and Regular Laws, Legislative Decrees, Government Regulations, CCAA Laws, CCAA Regulations.

Article 1 of the Civil Code

• The sources of the Spanish legal system are law, custom, and general principles of law.
• Provisions contradicting a higher-ranking one will lack validity.
• Custom shall only govern in the absence of applicable law, as long as it is not contrary to moral or public order and is proven.
• Legal usages that are not merely interpretative of a declaration of will, shall be considered as custom.
• The general principles of law are applied when there is no law or custom, this does not affect its informing role in the legal system.
• Legal standards contained in international treaties are not directly applicable in Spain until they become part of the domestic system through full publication in the Official State Gazette.
• Case law will complement the legal system with the doctrine consistently established by the Supreme Court when interpreting and applying the law, custom, and the general principles of law.
• Judges and Courts have the unavoidable duty to resolve all cases that they are familiar with, abiding by the established system of sources.
• General principles of law are a set of concepts and values used by judges and lawyers to support and guide legal reasoning and decisions.

Article 2 of the Civil Code

• Laws come into force twenty days after complete publication in the Official State Gazette, unless otherwise provided.
• Laws are only repealed by subsequent ones.
• The abrogation will extend to all that in the new law, on the same subject matter, is incompatible with the previous one.
• Laws do not have retroactive effect, unless they provide otherwise.

Introduction to Civil Law

• Civil Law is characterized as general and common, applying to all relationships between individuals except those regulated by special norms.
• It regulates essential aspects of private life, from birth to death, including property, family relations, and the capacity to act.
• The basis lies in the principles of autonomy and equity, ensuring parties can act freely within a regulatory framework that protects individual and collective rights.
• Civil Law is dynamic and constantly evolving, adapting to social, political, and economic changes throughout history.

Sources of Law: La Ley (The Law)

• A written norm issued by a competent state body, and can be of two types:
  • Mandatory rules, ius cogens, which must be complied with and cannot be modified by the will of the parties and norms regarding marriage or inheritance.
  • Default rules, ius dispositivum, which apply only if the parties have not agreed otherwise and supplementary rules in contracts are an example.

Sources of Law: La Costumbre (Custom)

• An unwritten norm based on continued use and the belief that it is obligatory.
• According to Article 1.3 of the Civil Code, it only applies as long as it is not contrary to moral or public order and has been proven.
• Classifications of customs include:
  • Custom Contra Legem: contrary to the law.
  • Custom Secundum Legem: complements the law.
  • Custom Praeter Legem: applies in the absence of law.

Sources of Law: Los Principios Generales del Derecho (General Principles of Law)

• These are fundamental norms that inform the entire legal system, applied when there is no law or custom.
• Examples in Spain: -Good faith (art. 7 CC). -Equity and justice. -Autonomy of will (art. 1255 CC).

Sources of Law: Jurisprudence

• Defined as the set of criteria for interpreting the law established by the Supreme Court.
• For an interpretation to be considered jurisprudence: -Two or more Supreme Court judgments in the same sense are required. -Continuity in the application of the criterion is also required.
• Jurisprudence complements the legal system, but is not a source of law in the strict sense..

Concept of Law

• Defined as a set of socially decreed and sanctioned rules of conduct imposed on the members of a society.
• Concerns the individuals of a society.
• The statutes of a community of neighbors are conduct rules for the community of owners.
• A sanction refers to the act by which a public authority approves a state legal norm, or law.
• To decree, refers to what has been stated by a person that has the authority and power to do so.
• Concerns a set of rules of external conduct of an individual, in relations with others, issued by the competent bodies and imposed coercively on citizens.
• The foundation lies in practical considerations directed at ensuring the rights and projects of each individual and to prevent collision of conducts.
• Is presented as the realization of the value of justice. Justice implies equality, and also proportionality.
• The legal phenomenon is only observed within society.
• The organization of coexistence is not limited to establishing norms that limit the powers and duties of each individual, both in relation to life in common and in the private sphere.
• At the same time, an authority is needed to enforce these norms, safeguard general interests -executive power- and resolve disputes between members of the group -judicial power-, preventing them from taking justice into their own hands and protecting their rights violently.
• Objective Law: a set of conduct standards that, in a particular society, govern the relations among its members. for example the Constitution of each country or its penal, civil and merchant codes.
• Subjective Law: powers that allow individuals to demand compliance to the law or what has been agreed in a contract. for example, freedom of speech or religion and the right to property.

System of Law

• Term used to highlight an important property of the legal order, the close connection of all the norms and principles that conform it, offering an organic character where all its elements relate to each other.

Legal Standards

• Public order maintains the legal standard but it must be specified that not every legal norm comes from a legislative body or bodies endowed with regulatory powers. Also born from customs and the general principles of the Law.
• Legal standards come from:
  • The Law -Customs -The general principles of the Law
• Which can be summarized as: -The Spanish Constitution -The Law -Customs -The general principles of the Law

Divisions Within the Legal System

• International Law/National Law
• Public Law/Private Law
• Objective Law/Subjective Law
• European Union Law, consisting of binding norms such as Regulations, Directives and Decisions

Derecho Civil (Civil Law)

• Originated from Roman Law.
• Rooted in Corpus luris Civilis
• Civil Law is centered in the person.
• Centers around autonomy of will and familial relations.
• Includes general sections, obligations and contracts, real estate, and family and successions.

Competencies

• Autonomic Competencies are within article 148 of the Spanish Constitution.
• State Competencies are within article 149 of the Spanish Constitution.

Conclusions

• Civil Law has gone through constant evolution, originating in Roman Law, adapting to the social and economic changes without losing its essence as a regulator of private relations.
• One of the distinctive traits of Spanish Civil Law is its juridical plurality, derived from the coexistence of the common Law and the foral Rights in some Autonomic Communities.
• The system of fountains of the Law, ruled in article 1 of the Civil Code, establishes a juridical hierarchy that assures security and coherence in the application of the norms.
• Nowadays, the Civil Law is confronted with new challenges, such as the influence of the European Law, the digitalization and the proliferation of special laws that regulate materials that used to be included in the Civil Code, in a fragmentary way.
• Despite these changes, Civil Law remains essential to guarantee the individual rights and the stability in the private relationships.