When Spain achieved political unity towards the end of the 15th century, a multiplicity of regional or local civil laws was in force. These were known as foral laws (fueros) and had evolved rather autonomously in particular parts of the country, where the royal law—largely identical to the historical law of Castille—was applicable only as subsidiary law (derecho común). The royal law was usually being published in piecemeal collections of legislation from various sources (recopilaciones). For example, the Nueva Recopilación, proclaimed by Phillip II in 1567, relied on the Leyes del Toro (1505) which had originated under the reign of Isabella I of Castille and Ferdinand II of Aragon and on the Ordenamiento de Alcalá (1348) which had been proclaimed by Alfons XI and was based, in turn, largely on a translation of the Visigothic Liber Iudiciorum (654) and the Siete Partidas by Alfons the Learned (1252–84), of which one of the main sources was the Corpus Juris Civilis. Even the Novísima Recopilación (1805) was only a revised version of these sources. Despite their different political fate, many foral laws remained in existence within the Kingdom of Spain; however, due to the lack of legislative powers, in some territories they suffered from petrification.
In Spain, the thrust for legal unification by way of codification gained ground towards the beginning of the 19th century. Following the Constitution of Cádiz (1812), a commission was charged with drafting a civil code. Whereas the Código de comercio was passed as soon as 1829, a complete draft concerning civil law could be presented only in 1851. It relied on the comparative research of a single person and came to be known as the Proyecto de García Goyena. His draft followed a rather liberalistic approach, seeking unity on the basis of the historical law of Castille and by abolishing the (other) traditional foral laws. The project failed due to heavy resistance on behalf of the so-called foralists and was accused of following the French Code civil' 'too closely. At that time, only specific parts of the civil law concerning major economic and civic interests could be codified. In particular, important procedural laws were passed (1855), followed by the Ley Hipotecaria (1861), the Ley del Notariado (1862), the Ley del Matrimonio Civil and the Ley del Registro Civil (1870).
The work on a comprehensive codification was officially resumed in 1880. Debates between the foralists (who adopted many arguments going back to the German historical school) and the central government led to the compromise solution as laid down in the Ley del Base of 11 May 1888. A public commission was to draft a civil code that was to be based on the Proyecto García Goyena and to come in force in all parts of the country as Derecho común. However, the established legal institutions of foral origin were to be maintained with priority; the plan was to add them at a later stage as Apéndices to the Código. Yet what had been intended as an interim solution is still effective today; legal pluralism remains one of the characteristic features of Spanish civil law.
In its final provision (Art 1976) the Código civil as proclaimed by Royal Decree of 24 July 1889 repealed all statutes and customs previously in force as Derecho civil común. Apart from the foral laws, only those statutes prevailed that were mentioned explicitly in the Código. Customary law was kept in those instances where the Código contained no applicable provisions; the reference to principios generales del derecho as a source of law gave room for continuing the legal tradition. The code was concluded by a few transitional provisions and a single additional provision (that was never observed), according to which the Código ought to be revised every 10 years. By Royal Decree of 31 July 1889 the Código civil was also put in force for the colonies still pertaining to the kingdom—Cuba, Puerto Rico and the Philippines—where it remained in force until after their independence in 1898.
2. Territorial, substantive and personal scope of application
In most parts of Spain the Código civil is to be applied directly, nowadays subject to the framework set by the federal constitution of 1978. In most modern Comunidades Autónomas there are no overriding foral laws. Only in Aragon, on the Balearic Islands, in Galicia, in Catalonia, in Navarre, and in parts of the Basque country and Extremadura is the Código applied as subsidiary law vis-à-vis some prevailing foral laws. However, the Introductory Title of the code and the Title on Marriage (except for the law on property regimes) have priority in all parts of the country. The validity of the pertinent foral laws is provided in Art 149.1.8. of the Spanish Constitution and reinforced in the Estatutos de Autonomía of the autonomous communities concerned. Peculiarities of a foral nature are mostly found in the fields of family law, succession law and property law, and in some communities such as Catalonia and Navarre also in the law of obligations and in the general part. Contrary to the initial plan of the historical legislature, foral law was not laid down in appendices to the Código but in collections of legal rules (compilaciones) which were not published until between 1959 and 1973; an exception in this regard is Aragon which published an appendix in 1925.
According to the provisions in the Código’s Introductory Title the applicability of any pertinent partial legal system on Spanish territory is governed by the rules on private international law. Instead of nationality, affiliation with a particular autonomous community (vecindad civil) is the connecting factor for matters concerning personal status. It is determined by parentage or by minimum residence in the territory concerned. Foreigners who acquire Spanish nationality may also have to opt for a vecindad civil.
In the field of commercial law the Código de comercio of 1829/1885 and commercial usages have priority vis-à-vis the Código civil. Without regard to any particular status of merchants, the Código de comercio is applied to all transactions that are considered to have commercial nature. Specific commercial activities and company law are largely governed by more recent pieces of legislation.
3. Underlying principles and lines of development
Rather than reforming private law, the historical legislature intended to lay down the existing legal institutions in a single codification, thus hoping to ease the application of the law. To what extent this aim was reached is still being debated today. It is beyond question that the Código can be characterized as a product of the bourgeois era, resting on the principles of freedom of contract, testation and property, and seeking the promotion of marriage and family. With regard to the descriptiveness of the language used, the Código civil has more in common with the Code civil than with the German Bürgerliches Gesetzbuch (BGB); the same is true as far as lack of conceptual precision and detail are concerned. The composition of the code and considerable parts of it also mimic the French model, justifying the classification within the Romanistic legal family.
The first years of the Código are to be viewed as an exegetical period. Its interpretation and application by the courts were dominated by a certain legal formalism and were strongly influenced by French legal writing. Beginning in the 20th century, however, German and Italian legal science received increasing attention, which can be explained with the growing need to match the wording of the law with the ever-changing social and technological circumstances. In this context legal institutions such as abuse of law and the principle of good faith became more and more important, being gradually adopted as general principles of law. Soon they were recognized by Spanish legal writers and eventually became an integral part of Spanish law, first as valid arguments before the courts, later as a matter of legislative reform of the code itself (see 5. below). The years under the totalitarian regime of General Franco give testimony of ideological impact in the field of private law, but the wording of the Código itself was not affected.
On the other hand, great importance must be attributed to the Constitution of 1978 as the new primary source within the legal system. In addition to the jurisdiction of the ordinary courts (on the national level, warranting particular mention, is the Spanish Tribunal Supremo, acting since the 19th century as the court of cassation), the decisions of the new Tribunal Constitucional are having an increasing impact in the field of private law. Following the German model the court also has to decide if the written law and its interpretation by the courts meet the requirements of the Constitution, including its bill of rights which can be enforced by way of constitutional complaint.
4. Structure and main features
Subsequent to the Introductory Title (Título Preliminar, Arts 1–16) with rules on the application and effectiveness of legal norms in general (which were attributed a quasi-constitutional character even before the constitution came into force) and the provisions on conflicts of laws (private international law (PIL)), the Código civil dedicates a separate book to each of the following matters: persons, property, and acquisition of ownership. In addition to that and deviating from the model of the French Code civil as well as from the Proyecto, there is a separate book on the law of obligations and contracts. To this day the Código consists of four books that are divided into titles, chapters and paragraphs, comprising a total of 1,976 articles.
Book I De las personas (Arts 17–332) covers the law concerning persons and includes the law on nationality. Subsequent to the rules on legal personality and domicile, the core of family law can be found, most notably the law of marriage (except for the property regime, that is a subject matter of Book IV) which is the same in all parts of the country. Spanish law admits both civil and religious marriage; divorce is possible and its impediments have been relaxed over the last years. The law of parent and child is now governed by the principle of equality, regardless of whether the child was born in or outside marriage. Spouses, descendants in the direct line and under certain conditions also brothers and sisters owe each other financial support. Minors that have not been emancipated are subject to the joint care of their parents, who are their legal representatives and responsible for the person and the property of the children. As a matter of principle, the Código permits the full and irrevocable adoption of a child, which can only be granted by the court and must be to the benefit of the minor. Full legal capacity is acquired at the age of 18, or beforehand through emancipation by the parents or the court, or by marriage.
Book II De los bienes, de la propiedad y de sus modificaciones (Arts 333–608) contains mainly the law of property. The right of ownership can be enforced by way of the rei vindicatio and grants the exclusive right to deal with the object as he pleases. The legal prototype for the joint holding of rights and things is the community of goods, where several persons are entitled to the respective property which remains undivided. Intellectual property is regarded as a particular type of property and is governed by separate laws. Possession is the factual holding of a thing or of a right. The possession of movables acquired in good faith amounts to legal title, thus effectively allowing the acquisition of property a non domino, except for things of which the owner was unlawfully deprived or which he has lost. Subsequent to the provisions on uses and easements, the second book concludes with only a few rules as to land registers; many rules governing the law of immovables, such as the acquisition in good faith by virtue of the registration, are to be found in the Ley Hipotecaria.
Book III De los diferentes modos de adquirir la propiedad (Arts 609–1087) deals with the acquisition of assets. Property and similar rights concerning assets can be acquired by operation of law (primarily through appropriation or acquisitive prescription), by donation, by way of succession or by way of certain contracts through delivery. The law of succession is rather detailed but subject to specific provisions of the foral laws. The Código adopts the principle of universal succession (devolution of the inheritance/universal succession), but the heir has to accept the inheritance; legatees receive the respective assets by way of singular succession; the freedom of testation is limited by compulsory rights of inheritance for close family members; contracts of succession and joint wills are not admissible. The legal order of succession includes ascendants and descendants as well as collateral relatives up to the fourth degree. Alongside ascendants and descendants the spouse is considered a statutory heir with a beneficial interest; alongside collateral relatives the spouse has a proper title of inheritance.
Book IV De las obligaciones y contratos (Arts 1088–1975) contains general provisions on obligations as well as rules on specific types of contracts. The reason for the existence of a separate book on this matter is to be found in the traditional doctrine of título y modo which is deeply rooted in the Spanish law governing the transfer of property: property is not transferred by the contract of sale as such, but by delivery (the actual surrender of the goods is considered a separate act vis-à-vis the underlying contract giving rise to the obligation to transfer property). However, the fourth book also contains property law and family law, such as the property regime of spouses.
Title I of Book IV (De las obligaciones, Arts 1088–1253) starts with the general principles. Obligations consist in a duty to give, to act or not to act and can result from the law, from contracts or quasi-contracts, or from delict. Between the parties contracts have law-like effect (ley del contrato). Spanish law recognizes a uniform concept of non-performance (including defective performance) which leads to liability for damages. Liability based on intentional actions cannot be excluded; however, liability based on negligence can be moderated by the court. Finally, Title I deals with the different types of obligations and ways of termination.
Title II De los contratos (Arts 1254–1314) starts with general provisions regarding freedom of contract. That principle is limited only by the law, by morals and by public order, and it is subject to the standards of good faith (buena fe in the objective sense). Consensus, determination of the object and existence of a causa constitute fundamental prerequisites for the validity of a contract. Formal requirements concerning the conclusion of a contract are rare exceptions to a paramount rule of the Spanish legal tradition, whereby the law of contracts is governed by (informal) consensus (the so-called principio espiritualista). According to the Código, contracts have to be interpreted both by objective and by subjective standards; they can be rescinded only under strict conditions, unless they are void or voidable due to fraud, threat, force (duress) or misrepresentation.
Title III Del régimen económico matrimonial (Arts 1315–1444) regulates the property regime of spouses, which is subject to a large number of deviating foral laws. The Código stipulates the priority of marital agreements, which explains why the matrimonial property regime is treated subsequently to the ‘general’ law of obligations and before the particular types of contracts. The statutory property regime envisages the community of property acquired during marriage (sociedad de gananciales). Title IV Del contrato de compra y venta (Arts 1445–1537) contains rather extensive rules on the contract of sale and liability for breach of warranty. Those rules serve as a model for the remaining types of contracts, which are dealt with only briefly in the subsequent Titles V–XV of Book IV. Most notably, those are the ‘surrender’ (arrendamiento) of goods, work or services, civil partnership (enjoying legal personality), and mandate (with only one provision concerning the general law of agency, that has been applied by courts and legal writers to all types of transactions). Title XVI on obligations other than by agreement (Arts 1887–1910) provides rules on quasi-contracts, ie management of another’s affairs without a mandate (negotiorum gestio) and only a few cases of unjustified enrichment (cobro de lo indebido). This title also contains the notorious general clause of the law of delict, whereby a person is held liable for the damages caused by intention (dolo) or negligence; out of that rule, the courts have gradually established a system of comprehensive liability.
The fourth and last book of the Código concludes with Title XVIII (Arts 1930–1975) on the two different kinds of prescription: prescripción adquisitiva results in the acquisition of property rights where a particular legal ground and good faith are present (buena fe in the subjective sense); prescripción extintiva results in the loss of a right (in rem or in personam) after the expiry of a certain period of time. As a matter of principle, rights concerning movables prescribe six years after the loss of possession; concerning immovables the period is 30 years. Most contractual rights prescribe after 15 years; delictual rights after three years.
5. Reforms, decodification and European private law
Since the publication of the Código, the Spanish legislature has enacted about 50 amendments in order to cope with social changes, but the basic structure of the codification has not been affected. A major reform of the Introductory Title in 1974 attempted to make the code (and the legal system in general) more flexible by adopting a hierarchy of legal sources and by introducing new provisions such as the principle of good faith and similar institutions. The recognition of equal rights for men and women brought about modifications in the fields of family law and patrimonial law (1975, 1981, 1990); since 2005 civil marriage is open to same-sex couples. Following the new Law on Civil Procedure (2000), the Código contains hardly any procedural rules any longer. In contradiction to its initial concept as a unitary body of rules governing all private legal relations of a citizen, the code has been gradually deprived of many important features as separate laws were passed on matters such as labour relations (1938, 1980), residential tenancy (1964, 1994), and consumer protection (1984). The fact that the implementation of Community regulations in the field of consumer protection (consumers and consumer protection law) has always taken place through special acts, whereas the Código itself has remained basically untouched, sheds light on the code’s significance today.
It can be observed recently that the Comunidades Autónomas are increasingly making use of their power to preserve, modify and develop their foral laws; the scope of this power is frequently challenged before the courts. According to the Spanish constitution, the enactment of laws regarding the application and effectiveness of legal norms in general, marriage, the organization of public registers, the fundamentals of the law of contract, and private international law is a prerogative of the central state. On the other hand, towards the end of the 20th century most of the compilaciones have been replaced by Leyes de Derecho civil foral; since 2002 the Catalan legislature has even been working on a comprehensive Código civil de Cataluña, trying to preserve the specifically Catalonian legal tradition vis-à-vis central Spanish law. It is interesting to see that advocates of the foral laws, in particular, are eager to participate in the debates on a European private law, for they tend to regard European law as a useful impulse for a careful revision of the legal traditions within a greater framework.
Florencio García Goyena y Orobia, Concordancias, motivos y comentarios del Código civil español (1852, reprinted 1974); Henri Sabadie, Les Sources du droit civil espagnol (1926); Juan Francisco Lasso Gaite, Crónica de la codificación española, Codificación civil: Génesis e historia del Código, vols 4.1 and 4.2 (1979); Johannes-Michael Scholz, ‘Spanische Privatrechtsgesetzgebung des 19. Jahrhunderts’ in Helmut Coing (ed), Handbuch der Quellen und Literatur der neueren Europäischen Privatrechtsgeschichte, vol 3.1 (1982) 397; Asociación de Profesores de Derecho Civil (ed), Centenario del Código Civil, 2 vols (1990); Sandro Schipani, ‘Il Codice civile spagnolo come ponte fra il sistema latinoamericano e codici europei (Il rinvio ai principi generali del diritto)’ (1994) I, 2 Riv Dir Civ 359; Sjef van Erp and Antoni Vaquer (eds), Introduction to Spanish Patrimonial Law (2006); Federico de Castro y Bravo, Derecho civil de España, 3 vols (2008); Teresa Rodriguez de las Heras Ballell, Introduction to Spanish Private Law (2009).
The final version of the Código civil was proclaimed by Royal Decree of 24 July 1889 and published on the following day in the Gaceta de Madrid. Nowadays amendment acts are accompanied by detailed introductions and published in the Boletín Official del Estado (since 1 January 2009 only available electronically <http://www.boe.es>. Consolidated versions of the original text in Spanish: <http://noticias.juridicas.com/base_datos/Privado/cc.html> or <http://civil.udg.es/normacivil/estatal/CC/indexcc.htm>. English translations: Clifford S Walton and Nestor Ponce de Leon (tr), The Spanish Civil code in force in Spain, Cuba, Puerto Rico, and the Philippines (1899) <http://openlibrary.org/books/OL7183712M/The_Spanish_Civil_code_in_force_in_Spain_Cuba_Puerto_Rico_and_the_Philippines>; Ministerio de Justicia (ed), The Spanish Civil Code. Colección: Traducciones del derecho español (2009) <http://www.mjusticia.gob.es/cs/Satellite/es/12 88774502225/TextoPublicaciones.html>. French translations: Albert Levé, Code civil espagnol—Collection de codes étrangers (1890); Le Pelley, Code civil espagnol (1932); French translation of the full text of the original code (1889): <http://www.juristoria.com/20.html>. German translations: Witold Peuster, Código civil—Das Spanische Zivilgesetzbuch (2002); Wolfgang Sohst, Das spanische Bürgerliche Gesetzbuch: Código civil español und Spanisches Notargesetz, Text und Kommentar (4th edn, 2008).