Latin America, Influence of European Private Law

From Max-EuP 2012

by Jan Kleinheisterkamp

1. The Colonial Period under Spanish and Portuguese rule

The law of the Old World claimed its influence over that of the New World even before the latter was actually discovered. Prior to Columbus’ uncertain maiden voyage, the Catholic Monarchs of Castile had already decreed in the Capitulaciones de Santa Fe of 17 February 1492 that Spanish law would apply in all new territories of the ‘West Indies’. When the Conquistadores formally took possession of the lands for the Spanish crown, Spanish law poured into the new continent, in which a multitude of legal systems were already in place. The Aztecs, but probably also the Incas, Mayas and other dominant civilizations, had highly sophisticated legal structures. The Spanish did not wipe out these ‘Indian’ laws (unlike large parts of the population) but—at least on paper—left them in force to the extent they did not conflict with the Catholic faith or the laws of Spain and were helpful in consolidating their rule.

Spanish royal law itself was rather chaotic and lacked consolidation. Its effective application was further undermined as lawyers and courts, over centuries, preferred to rely on the much more systematic Roman law, despite recurrent royal orders to the contrary. This legal jumble, paired with abusive and corrupt practices in court, also marked the early legal structures of the Americas under Spanish rule. Furthermore, the special royal decrees for the Indias coming from Madrid were conceived in the Americas as being so much out of touch with reality that they were often simply ignored. The proverbial la ley se acata pero no se cumple (the law is acknowledged but not given effect) is still used today to describe the legal reality in Latin America. In line with their legal education in Spain, the practitioners of civil law continued to rely primarily on the Roman-canon ius commune.

The picture was similar in Brazil as part of the Portuguese empire. Here, the confusion regarding the legal sources and methods was aggravated by the Lei da Boa Razão (1769) which allowed the application of Roman law rules only to the degree that they stood the test of ‘sound reason’. This shift away from the ratio scripta required Portuguese lawyers in Brazil to refer to the usus modernus as developed by contemporaneous Dutch and German scholars and led to a tradition of frequent—but sometimes also excessive—use of comparative law arguments.

2. Codification in Latin America

Following the independence wars in the early 19th century, the Spanish laws initially remained in force in the young republics to the extent that they were compatible with the orden público of the new constitutions. Most constitutions, often due to the influence of Jeremy Bentham, explicitly ordered the comprehensive codification of criminal and private law. Bentham’s efforts in 1822 to be appointed as the draftsman of a general code for all of South America eventually failed, and the hopes of maintaining the unity of South American private law were scattered together with Simon Bolivar’s failed political dream of a unified South America.

The first codification efforts in some countries were limited to copying French law. These efforts were not—as is often assumed—driven by a wish to get rid of the hated Spanish rule in favour of legislation carrying the ideals of the French Revolution. Spanish law that was found incompatible with the liberal spirit of the new constitutions had already been declared ineffective, and the young Catholic republics had little sympathy for liberal solutions in family and succession matters with the result that these areas were left under the rule of canon law. The passion for French law rather seems to stem from the former independence leaders—and by now mostly autocratic rulers—emulating their personal idol Napoléon Bonaparte and his attempt to immortalize himself through the Code Napoléon. Only Bolivia’s Supremo Protector Andrés Santa Cruz managed to enact a literal translation of the Code civil (1804) in Bolivia (1830) and, following its conquest, in Peru (1836) as the Código Santa Cruz, which was later copied by Costa Rica (1841). The Code civil also remained in force in the Dominican Republic after a temporary occupation by the former French colony Haiti (1844). A Spanish translation of the Code civil had also been enacted in the Mexican state Oaxaca in an effort to underline its autonomy within the Mexican federation (1827). As for commercial law, Ecuador (1831), Columbia and Peru (both in 1834) had adopted the Spanish commercial code of 1829, which was essentially based on the French Code de commerce of 1807. The Spanish and French commercial codes, together with a Portuguese statute of 1833 (which was modelled after the two former codes) were also the basis for the Brazilian commercial code (1850).

The codification efforts in the rest of Latin America were marked by a strong general resistance among local lawyers against the simplistic adoption of foreign law. The prevailing logic was that of an inverted version of the Lei da Boa Razão: foreign law should only be copied where it provided the best reformulation of the Roman law rules on which the Spanish private law tradition was based. Very similar to Julián Visa in Venezuela, the Uruguayan draftsman Eduardo Acevedo commented on his draft: ‘If it were to come into force tomorrow … nobody other than the lawyers would notice that our legislation had changed. It would seem to the general public as if we had never left the Fuero Juzgo [681], the Siete Partidas [1256] and Roman law.’ This Roman law based approach dominated the first Peruvian Civil Code (1852) and especially the works of Andrés Bello, whose Código civil entered into force in 1855 in Chile; of Augusto Teixeira de Freitas in Brazil, whose Esboço (1860–65) was the foundation for the Brazilian Civil Code of 1916; and of Dalmacio Vélez Sarsfield, whose Código civil was enacted in Argentina in 1871.

As shown convincingly by Guzmán Brito, Bello relied on French law only where it re-formulated Roman law (which he taught as a professor) better than the Spanish sources. Bello primarily relied on the Spanish Siete Partidas (which built upon the Corpus Juris Civilis) but also used the comparative sources of Saint-Joseph’s Concordance entre les Codes civiles étrangers et le Code Napoléon and consulted the works of Pothier and Savigny. Similarly, Teixeira de Freitas first elaborated a comprehensive Consolidação of the existing Brazilian-Portuguese private law (1858) and, rejecting contemporaneous codification efforts in Portugal as being too much influenced by French law, started his own ‘sketch’ of a civil code. Freitas relied on very similar sources as Bello did, but was much more influenced by German pandectist writings, which led him to include a general part in his draft. Argentina’s Vélez Sarsfield proceeded in a much more eclectic manner. It has been estimated that 1,200 provisions of the Argentine Civil Code were taken from Freitas’ Esboço, 800 from the Corpus Juris Civilis, 300 from the Spanish draft for a Civil Code by Florencio Garcia Goyena (1851), 170 from Bello’s Código civil, 145 from the French Code civil (even though eventually about half of all provisions of the Argentine Civil Code were to coincide with French law due to common Roman law roots), 70 from Zachariae’s (German) work on the French code, 52 from Demolombe’s commentary on the Code civil, 52 from the Civil Code of Louisiana, 50 from Troplong’s treatise on French law, 27 from Acevedo’s draft code for Uruguay (1851), 13 from the Russian Civil Code, 11 from a treatise by the Belgian Molitor, and four from the laws of the state of New York.

3. Developments in the 20th century

By the end of the 19th century, European private law lost much of its influence in Latin America due to the rising political and economic hegemony of the United States. In line with the Monroe Doctrine, the United States have since tried to secure their growing influence in the western Hemisphere in the field of law. Examples for this are the mission of experts sent to numerous central and south American countries between 1919 and 1934 in order to help (with little success) to reform banking laws along the lines of US law, or the much more successful influence of the ‘Chicago Boys’ on the company and financial law of Pinochet’s Chile in the early 1970s. More sweeping efforts at legal harmonization stem from the Pan-American Union (1911), a product of US diplomatic efforts, and its successor since 1945, the Organization of American States (OAS). The Inter-American Specialized Conferences for Private International Law (CIDIP) organized in this context have been increasingly used for designing rules that would enhance commerce ‘from Alaska to Tierra del Fuego’ in a (hitherto unsuccessful) Free Trade Area of the Americas (FTAA). Even soft law instruments such as the Inter-American Model Law on Secured Transactions (2002)—which is essentially based on Art 9 of the Uniform Commercial Code (UCC)—may prove to be much more binding than originally assumed by the representatives of the Latin American governments because of the dependence of many Latin American countries on financial aid by the World Bank and the Inter-American Bank for Development, whose credits are increasingly tied to the improvement of the legal framework for business transactions.

Despite the far-reaching predominance of the US model in Latin America, some European influence remains. The new civil codes of Bolivia (1975), Peru (1984) and Paraguay (1985) have been strongly influenced by the Italian Codice civile of 1942. Some chapters of the Peruvian code have also taken provisions from German (Bürgerliches Gesetzbuch (BGB)), Dutch (Burgerlijk Wetboek), Portuguese and Swiss law (Swiss Civil Code (ZGB); Swiss Code of Obligations (OR)). This copying was, however, not always done in a very sophisticated manner; this is shown, for example, by the chapter on juridical acts, the meaning of which still seems to be rather unclear to most Peruvian practitioners. Furthermore, the importance of these European influences has to be seen in light of the fact that the Peruvian Code also draws from a host of Latin American civil codes, as well as those of Ethiopia, Lebanon and the Philippines. Indeed, the degree of influence of foreign laws on the development of the law in Latin America usually depends somewhat randomly on the linguistic capacities, the contacts abroad, and the personal library of the respective draftsmen. References to foreign law for the sake of supporting or developing arguments are very frequent, often without any attempt to analyse the national law actually applicable or the existing case law (which until recently was very difficult to access). On the other hand, solid and well-founded comparative law arguments can be found, for example, in the case law of the Argentine and Brazilian supreme courts, where references to US and European laws, depending on the respective background of the judges writing the judgment, are more or less equally represented. One of the (admittedly rather rare) recent instances where European private law has influenced the direction of the case law in Latin America has been the recognition of the ex nunc effect in cases of invalidity of employment contracts in Brazil, which has been justified with detailed references to the German notion of faktischer Arbeitsvertrag, and the equivalent solutions in French and Italian Law (Supremo Tribunal Federal, 30 November 2004, AI 476950, opinion of Justice Gilmar Mendes, who obtained his PhD in Germany in 1990 and is today the President of the Brazilian Supreme Court).


René David, ‘L’originalité des droits de l’Amérique latine’ in René David, Le Droit comparé: Droits d’hier, droits de demain (1982) 161 ff (reprint of 1953 original); Julio Olavarría Ávila, Los Códigos de Comercio Latinoamericanos (1961); Kenneth L Karst and Keith S Rosen, Law and Development in Latin America (1975); John H Merryman, David S Clark and John O Haley, The Civil Law Tradition: Europe, Latin America, and East Asia (1994); Alejandro Guzmán Brito, La Codificación Civil en Iberoamérica—Siglos XI–XX (2000); Matthew C Mirow, Latin American Law (2004); Eugen Bucher, ‘Zu Europa gehört auch Lateinamerika!’ (2004) 12 ZEuP 515; Jan Kleinheisterkamp, ‘Development of Comparative Law in Latin America’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (2006) 260 ff; Jan P. Schmidt, Zivilrechtskodifikation in BrasilienStrukturfragen und Regelungsprobleme in historisch-vergleichender Perspektive (2009).

Retrieved from Latin America, Influence of European Private Law – Max-EuP 2012 on 25 May 2022.

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