The Spanish Antecedents of the Philippine Civil Code By Ruben F. Balane The Marriage of Isabella and Ferdinand -
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10/19/1469, Valledolid Isabella was 18, the great granddaughter of John of Gaunt, Duke of Lancaster, also the princess of Castile Ferdinand was 17, from Aragon, King of Sicily Isabella’s brother preferred her to be married to the King of Portugal, but a papal bull of dispensation w as issued for her to be married to Ferdinand, craftily forged by Ferdinand, his father, and the Archbishop of Toledo As one was Castilian and one Aragonese, both belonged to the Royal Houses of Trastamara, a ruling house in both cities The Compromise of Caspe recognized Fernando de Antequera, the first Trastamara sovereign of Aragon. His grandson was Ferdinand, and his brother, Henry III, was Isabella’s grandfather Marriage brought about the political unification of Spain, in the eve of a war against the Muslim Moor, a war that returned Spain to Christianity from Islam The marriage also allowed a weaver from Genoa, Cristoforo Colombo, to sail beyond the Azores in search of a westward route to the Spice Island, but stumbled upon America instead Spain dispatched another seafarer in Fernao de Magalhaes, who first circumnavigated the globe, but died in Mactan
EARLY IBERIAN DEVELOPMENTS Iberians - First major settlers of Spain - Related to ancient Assyrians and Chaldeans - Spain from Asia through North Africa Celts - 1200 -1300 BC - Crossed the Pyrenees from France - occupied modern Galicia and Portugal
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Gens – a group of families which formed tribes Had a well developed concept of property, either private or communal Carthage - A Phoenician city in North Africa, the rise of whom brought the Iberian peninsula under Carthaginian influence - Carthaginians were interested in the Iberians’ silver and commerce - Accompanied by the rise of Rome Punic Wars - A trio of wars brought about by rival expansionist ambitions between the Romans and the Carthaginians Hamilcar Barca - Led his armies into Spain - The founder of Barcelona Hasdrubal - Hamilcar Barca’s son-in-law - Succeeded Hamilcar - Established capital at Cartagena Hannibal - Hasdrubal’s successor - The greatest Carthaginian general of all Publius Cornelius Scipio - Captured Cartagena - Pushed Carthaginians back to North Africa - Scipio Africanus - Carthage was destroyed and Spain passed on to Roman sovereignty - Spain was divided to: Hispania Ulterior (Farther (Farther Spain) - west of River o Ebro Hispania Citerior (Nearer Spain) – east of River o Ebro Caesar Augustus - Reorganized Spain into three provinces Baetica o Tarraconensis o Lusitania o Diocletian
Lusitania Baetica Galicia Carthagenesis Tarraconensis Two overseas provinces o Mauritania Tingitana Balearica Roman Cities - Zaragoza - Leon - Badajoz - Astorga - Merida - Braga, etc.
Wills – non-existent, in default of children, brothers succeeded, in their default, uncles on both paternal and marernal sides Extreme hospitality – inhuman for anyone to deny o admission into one;s house; every guest stranger, must be served the best food; if food runs out, guest must be escorted to a neighbor’s house Interest on loans – non-existent o Other features of Visigothic law: Mutual aid and protection w/in the family o o Wife had a right to share in property after marriage Parental authority over the children did NOT o include jus vitae ac necis o
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As refinements to civilization dawned on the Visigoths, they began thinking of putting their laws into more permanent form.
The history of Spanish law = the history of Roman Law THE CODE of EURIC 300 AD onwards - Decline of the Roman Empire - VANDALS, ALANS, and SUEVIANS invaded Galicia 400 AD onwards HUNS - Hail from Central Asia - East Goths were brought under subjection VISIGOTHS - Under Alaric - Went through Northern Italy, then the Po Valley, down the Italian boot and then Rome Spain became a Visigothic kingdom. In 416, they established their capital in Barcelona, then in Toulouse, and then in Toledo. MORE ON THE VISIGOTHS - Already had considerable exposure to Roman ways and culture - VISIGOTHIC LAW was preponderantly characteristic of GERMAN LAW - TACITUS said that Visigothic customs featured:
The Code of Euric/Tolosa - The oldest written Germanic law - Unearthed by Benedictine monks of the monastery of St. Germain, who were working on a palimpsest containing writings of St. Jerome - Published in 1847 with the title Reccaredi Visigothorum Regis antiqua legume collection. Ex membranis deletitiis regiae Parisiensis bibliothecae restitutam adjecta vulgate legume Visigothorum lectione - Was divided into CHAPTERS and TITLES - Euric – Visigothic king from 466-484 AD - Was meant to apply ONLY to CONQUERORS, w/c means it was a PERSONAL, not a territorial law - People were confused as to which laws apply to them, so Alaric II cleared up this problem THE BREVIARY of ALARIC Alaric II - Son of Euric - Formed a commission of Visigothic “scholars” under the
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506 – draft was submitted to Alaric, who decreed it into law with the caveat that they be signed by Chancellor Anianus Other names: Lex Romana, Liber legume, Auctoritas ALarici regis, Lex Theodosii, Commonitorium Based on ante-Justinian Roman law consisting of imperial edicts and; o o writings of Roman jurisconsults contained most of what is found in the 16 books of the Theodosian Code is in two parts: Text o Interpretation o Except only in the part of the Institutes of Gaius, in o which both parts are integrated Early Visigothic legal system: Personal o Predominantly Germanic for the conqueror Predominantly Roman for the conquered Romano-Iberian Reminiscent of the ‘legislacion doble’ or ‘legislacion o de castas’ Paved the way for CONSOLIDATION under later o Monarchs
THE CODE of JUSTINIAN Justinian - A peasant from Dacia in 527 AD - Wanted to recover the lost Western provinces and to make the Mediterranean Roman/Byzantine again - Reconstructed the: Hagia Sophia o Codification of laws o Codification of laws - Commissioned on 12/15/530 - Digest was published on 12/16/530, followed by the Institutes, and then the Codex - Corpus Juris Civillis contains a fourth part, the Novellae, new laws enacted subsequent to the first three parts
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Civil Code owes much to the Institutes of Justinian
FUERO JUZGO Context - Visigothic power was consolidating - Power was threatened in the reign of Leoigild (573-586) - Hispano Romans (Orthodox Catholics) v. Visigoths (Arians) - Byzantine and Suevian territories were conquered and made a part of Visigothic Spain - Reccared – faced the religious problem, son of Leovigild, by converting to Catholicism - Only problem that remained was the RESOLUTION of the legislacion doble - Solution: the adoption of a law common to both Visigoths and Hispano-Romans The Fuero Juzgo - Law common to both Visigoths and Hispano-Romans - Was achieved in stages, during the reigns of: Chindaswinth o Recceswinth o Ervigius o Egica o - Was known in various names: Codex legume, Liber Gothorum, Lex Visigothorum, Liber judiciorum, Liber judicum, Forum Judicum PARTS of the FUERO JUZGO: 1.) De electione principum – preliminary part, monarchy 2.) De instrumentis legalibus – first book, lawmaking 3.) De negotiis causarum – general application of law throughout the kingdom, drastic change from personal to territorial application 4.) De ordine conjugali – marriage 5.) De ordine naturali – family, relationship, succession 6.) De transactionibus – contracts 7.) De sceleribus et tormentis, De furtis et fallaciis, De inlatis
9.) De divisionibus et annorum temporibus atque limitibus – division of lands, lease, and prescription 10.) De aegrotis atque mortuis et transmarinis negotiatoribus – physicians, sick, cemetery violators 11.) De removendis pressuris et omnium haereticorum omnimodo sectis exstincis – a variety of public matters, administration of justice, harsh provisions agains the Jews - Was not a code, but a collection of laws - Can be divided into (1) the law of persons and family; (2) the law of property; (3) the law of descent or succession; (4) the law of obligations and contracts A. The law of persons and family a. Social forces at work towards unity – allowed intermarriages between Goths and HispanoRomans b. The establishment of the NATURAL and the JURIDICAL person c. Legal birth = existence for 10 days + baptism d. Age of majority = 15 years e. Impediments to a valid marriage i. Difference in status (bet. Freeman and a slave) ii. Woman is older than a man iii. Holy Orders, from subdeacon up iv. Relationship to the seventh degree v. Prior existing marriage vi. Crimes against chastity, specifically abduction and rape vii. Temporal impediment f. No minimum age requirement for marriage, anyone can marry after reaching puberty g. The ceremony for marriage h. Common property between the spouses = conjugal property i. Patria potestas (power of a father) – acquired solely by reason of marriage; legitimation and adoption was unknown/unacceptable to the Goths; ius necis only available if father catches daughter in the carnal act; rights of infants were scrupulously
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Mother exercises substitute parental authority in the event of the father’s death; will be lost thru remarriage k. Adventitious property is recognized
B. The Law of Property a. Modes of acquiring ownership: (a.) occupation (b.) accession (c.) prescription (d.) succession b. Co-ownership was recognized and regulated c. Servitudes were classified into personal and real; latter referring to pasturelands C. The Law of Descent a. Succession was either testamentary or i ntestate; former occurs by virtue of an attested or a holographic will; only freemen could be witnesses b. Minimum age for wills: 14, 10 for those in periculo mortis c. Reserved portion was large” 4/5 of father’s property, ¾ of the mother’s, with a portion allowed as mejora, and a preferential order of heirs d. Disinheritance was limited to certain specified grounds e. Intestate succession was established f. The Celtiberian idea of reserve troncal D. The Law of Obligations and Contracts a. Contractual capacity acquired at age of 14 b. Minority, insanity, slavery, and force or fear vitiated a contract c. The ff contracts were regulated: (a) sale; (b) lease; (c) mutuum; (d) commodatum; (e) deposit; (f) donation; (g) mortgage); (h) pledge The Code was in force briefly, only about two or three decades, perhaps even less. In 711 AD, the Moors struck. THE MOORS and the RECONQUEST The Moors
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7-year war brought Islam back to S pain, save for pockets of resistance in the Pyrenees and the Cantabrian mountains Battle of Tours – 732 AD, Poitiers, France o they were met by the Christendom under Charles o Martel, the Frankish major domus Christendom was restored in Spain o o Also called the Reconquista
Spain during and after the R e c o n q u i s t a - Under the Moors, Spain was organized as an emirate under the Omayvad caliphate of Damascus - The Omayvad dynasty shifted to the Abbasid dynasty, Abder-Rahman fled to Spain, and set up the magnificent capital of Cordoba - Abd-er-Rahman III assumed the title of CALIPH in the 10 th Century and his kingdom became known to be the Caliphate of Cordoba - Koran – the primary source of law - Influenced by Muslim civilization, with effects on the arts, architecture, literature, mathematics, and the physical sciences - Post Tarik’s conquest, nothing was left of Visigothic Spain except the mountain fastness of Asturias where the remnants of Visigothic nobility, clergy, and army established themselves - Pelayo – the Visigoth duke named the remaining Visigoths’ king - Moors withdrew, as they were weakened by internal dissension and lack of interest to retain the infertile lands in the northwest - Moors evacuated Galicia and Leon, and these regions united with Asturias to form a kingdom called Leon - Basques of Navarre established an independent kingdom - Cataluna was snatched back from the Moors by the Frankish kings - Castile arose in the 10th century - The kingdoms of Leon, Navarre, Cataluna, and Castile were TAIFAS
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Small enclaves formerly of the Caliphate of Cordoba
- Religious, Muslim men from Northwestern Africa Yusuf - Emperor of the Almoravides - Defeated Alfonso VI of Leon in the Battle of Zalaca - Reunited the taifas into one Muslim Kingdom again Ahomades - Unitarians - A sub-branch of Berber Moors - Invaded the peninsula and reunited Muslim Spain, which was shrinking with the advance of Christian Kingdoms 1164 - Aragon and Cataluna were united to a single kingdom under one monarch - Kingdom was called the kingdom of Aragon - Central Spain – consolidation was erratic, as a succession of kings alternately united and divided the kingdoms of Leon and Castile - Both kingdoms captured Extremadura 1212 - Leon, Castile, Navarre, Aragon, won in Navas de Tolosa in Andalucia, the south part of Spain 1230 - Castile and Leon were united into one kingdom, that of Castile THE FUEROS Context - Complex political situation due to fragmented legal jurisdictions - Both separate kingdoms retained a measure of autonomy - There was a VAST diversity of laws and jurisdictions due to the piecemeal reconquest of Spain - Political unions were created The period of the fueros - Period when legislation was made by king and parliament, by customs, charters, and privileges Fuero - Can refer to:
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Also referred to “uses or customs, local laws, privileges, exemptions, or franchises authorized by public power to diverse classes or districts”
M AYORAZGO
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Fiefs are handed down intact to eldest sons, for though land could be divided, an office could not Primogeniture Developed in Carolingian France in the 8th and 9th centuries Breakdown of the Roman Empire and the threat of Isam made it necessary for men to provide their own defense Vassalage was developed, wherein a man pledged military service to another Benefice – a special grant of land to the vassal Fealty - a vow of unfailing loyalty; was then called a ‘fief’; because governmental jurisdiction was included, it was also an office; if the land was to provide economic support for military service, the holder of the fief – the vassal – had to have control over the peasants working th e land Left the younger sons virtually NOTHING Younger siblings set on adventures in search of fame, fortune, success, and lovely damsels, making them heroes of many tales and romantic novels
The Universities Context - Period of Reconquista, which meant a great legal diversity, it wasn’t possible to talk about Spanish law - Spanish law wasn’t regional, provincial, municipal, or sectional - Jealousy-held privileges prevented codification - Great Spanish Universities arose, with faculties of law dedicated to teaching the Justini anaean Roman Law as interpreted by Italian Glossators and Commentators - Universities were established Palencia, 1209 o Salamanca, 1239 o Lerida, 1300 o o Valladolid, 1346 – the CENTER of ROMAN LAW STUDIES Zaragoza, 1474 o Toledo, 1499 o Sevilla, 1504 o Granada, 1537 o - Reception of Roman Law was to assure predomi nance of Roman Law tradition in the peninsula by influencing codes to be enacted
M a y o r a z g o in the Philippines
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Has arisen in litigation, particularly in Barreto v Tuazon o Accdg to the court, a mayorazgo is a usufruct, since the firstborn acquires a dominium utile. The FAMILY of the founder is the owner, owing to o infinite succession o Accdg to the court, a mayorazgo is also a trust or fideicomiso, a particular kind of trust, where the possessor is simultaneously a trustee and a usufructuary heir October 11, 1820 - The Statute of Civil Disentailments was passed; abolished all mayorazgos
FUERO VIEJO - Originally intended as a code of rights and privileges of nobility - Presented to Alfonso VII in 1212; he was unwilling to promulgate it, seeing it as a means of further strengthening the nobles; hence he shilly-shallied like a sir - Alfonso X, his successor, yielded to intense pressure and promulgated it on 1272 as the law of nobility - Under Pedro I ( El Cruel ), amendments were introduced inserting dispositions of a more general character, as for example, the setting of the age of 16 for will-making THE FUERO REAL
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Project was begun by Fernando and completed by Alfonso Alfonso’s codes came on 1254-1255, known as o Fuero de las Leyes, Fuero del Libro, Fuero de la Corte, Fuero Castellano, Fuero de C astilla, Libro de los Concejos de Castilla, Flores de Las Leyes Divided into 4 books, consisting of 72 titles and 545 laws Some noteworthy civil law features: A. General provisions a. Ignorance of the law is not allowed as an excuse. b. Custom is not recognized as source of law. B. The law of persons and family a. Civil personality is acquired by anyone who is baptized, irrespective of length of life; departs from 10-day requirement set by the Fuero Juzgo b. Woman over 30 did not need parental consent to get married, provided she can still find a groom c. Regime of conjugal partnership of gains is further regulated by enumeration of kinds of property included therein d. Legitimation is provided for the first time – takes place by subsequent marriage or by grace of the King. Child should be natural, although the term natural was not defined. Natural child was one conceived by parents, even if they weren’t married C. The law of property a. Accesion natural is recognized and regulated (was not provided by Fuero Juzgo or local laws). Instances of accession natural were: i. Formation of islands ii. Change of river course iii. Fruits of falling on adjacent estates could be recovered by tree owner within one day, after which period the fruits became the property of the owner of the estate on which they fell b. Elements of prescription:
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iv. Period of prescription was one year and one day as against someone present, 30 years as against someone absent c. Provision governing party walls, each co-owner being obliged to pay one-half of the construction and maintenance of the wall D. The law of descent a. Age for will-making remained at 14 b. Portion for descendants: 4/5 of estate, but 1/3 was disposed for betterment (mejora). NO provision granting legitimes to ascendants c. Illegitimate children other than natural received NO d. Causes for unworthiness to succeed are given e.g. killing the testator e. Concept of administrator or testator introduced E. ObliCon a. The ff are regulated: sale, barter ,lease, loan (mutuum and commandum), deposit, pledge, donations, and negotiorum gestio b. Either party to a contract of sale may withdraw from the contract as long as no part of the price has yet been paid c. Individuals with descendants could only donate up to 1/5 of their estate; only limitation imposed upon those w/ no descendants was that they could not donate all property; universal alienations was declared to be void Not a code of general application, as it was made applicable as primary law in only some specified towns and there only at a time like Aguilar de Campoo, Sahaguin, Valladolid, Burgos This Code was primary law in some towns and suppletory in those towns which had a special fuero Was at one time a step forward and cause of greater diversity and confusion The ESPECULO
1258
The 2nd of Alfonso’s codes, but almost probable that it was never promulgated as law but served as basis of the Partidas Not of concern bec 54 titles, 657 laws contain matters rel. to public, procedural, and ecclesiastical law PARTIDAS
Last of Alfonso’s codes Seville, Jun 1256 – Aug 1265, by a group of jurists under Alfonso himself Divided into 7 parts and containing 2,479 laws under 182 titles, originally called Libro de las Leye s or Fuero de las Leyes Jurists of 14th century called it the Siete Partidas Cortes of Segovia and Alcala de Henares called it the Partidas in 1347 and 1348, respectively Influenced by local laws and customs of Castile, but preponderant influence from canon law and Roman law of Justinian Style and structure are conscious imitation of Pandects and numerous sections contain literal translations of portions of Justinian’s codes, with infusions from Italian glossators
Parts of the Partidas 1. Natural law, positive law, custom, Catholic faith, sacraments, other religious matters including dogma and discipline – 24 titles 2. Public law – 31 titles 3. Organization of judiciary, rules of procedure, with last five titles governing ownership, prescription, possession and servitudes – 32 titles 4. Civil law, family law, with last seven titles dedicated to feudal relationships between lord and vassal, master and slave – 27 titles 5. Law of obligations and contracts – 15 titles 6. Succession, custody of orphans, minority – 19 titles 7. Criminal law – 24 titles Other features
A. General Provisions Principle of territoriality is preserved Ignorance of the law is an excuse for peasants, soldiers, and women B. The law of persons and family
Minimum age is age of puberty Legitimation occurs through Subsequent marriage o o Will of the king Performance of some service to the king o Adoption (porfijamiento) – completely Roman in derivation as to kind, requisites, and effects Mother is given no share in patria potestas; in Roman Law, it is granted to ascendant of highest degree
C. Law of property
Ownership acquired by: Occupation o o Accession Prescription o Tradition o hereditary succession o Roman law rules on possession and servitudes (real and personal) are reproduced
D. The law of descent
Features of Roman Law of succession are borrowed e.g. necessity of instituting an heir and legal impossibility of dying partly testate and partly intestate Capacity to inherit from ascendants is denied sacrilegious, adulterous, incestuous children – all of whom are designated as fornecinos Legitimary system: legitimes were reduced to either ½ or
Legitimes are granted to ascendants Substitutions: Vulgar o o Pupilar ejemplar o Fideicomisaria Representation is to operate ad infinitum in the direct descending line, and to 2 nd degree in collateral Succession in collateral line is allowed to 4 th degree; in default of relatives w/in these degrees, the surviving spouse; in spouse’s default, the King
Introduced Roman law too abruptly, or forces of decentralization were too strong Influence of Partidas was far greater than their binding force as a legal enactment would warrant However, encyclopedic treatment as well as obvious scholarship assured lasting influence
LEYES DE ESTILO
E. Law of obligations and contracts
Partidas changed already simplified law on contract which had generally required only consent; the new Code emphasized form Contracts are either real or consensual Real o Mutuum Commodatum Deposit pledge Consensual o Sale Lease Partnership Agency Probable that Alfonso intended Partidas to be the truly general law in his kingdom to supplant the Fuero Juzgo, Fuero Real, and local fueros, but was also seen to be an encyclopedic treatise Did not acquire force of law for more than eight decades Not until Ordenamiento de Alcala de Hen ares in 1348 that the Partidas was promulgated (during reign of Alfonso XI, great-grandson of Alfonso X) Only given a lowly supplementary effect, as proven in the
1310, during reign of Fernando IV Work of certain jurists headed by Oldrado de Ponte Consists of 252 sections called leyes which did with: o propter nuptias conjugal property o prescription o did not have force of law but was a kind of collection of explanatory notes and comments on the Fuero Real some sections were incorporated in the Novisima Recopilacion
ORDENAMIENTO DE ALCALA A collection of laws with reference to Civil Law
Emphasized spiritual aspect of contracts and ignoring the element of form, which was stressed by the Partidas Provided for lesion in sales, being held to exist when the inadequacy amounted to more than one-half of the price – right to rescind had to be exercised within 4 yrs Taking of interest was prohibited (departure from Fuero Real, which allowed interest rates up to 75%). Penalty was
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Will could be executed with 3 witnesses and court clerk, or 5 witnesses without a court clerk Provided that a will need not institute and heir in order to be valid, legacies and devises were to be effective in any case; mixed succession i.e. partial testacy and partial intestacy was expressly allowed
MARRIED LIFE
ISABEL and FERNANDO ISABEL
15th Century Wedding took place in autumn of 1469 Prev autumn: Isabella had been recognized heiress of Castile by its king, her half-brother… Enrique IV called El Impotente (hihi )
The Impotent One had a daughter, Juana b y name, or a purported daughter bec no one believed her to be so Was not capable of siring anyone (walang game, or panget) Juana was then called La Beltraneja, after her reputed father, a courtier named Beltra dela Cueva Marriage of Isabella to Ferdinand upset El Impotente that he withdrew his recognition of his sister as heiress and acknowledged his *daughter* instead 1474 – Enrique’s death, Isabella proclaimed herself Queen of Castile, causing CIVIL WAR 1479 – Isabella won as La Beltraneja took to the convents FERNANDO
ORDENAMIENTO DE MONTALVO
Heir to Aragon’s throne 1480 – father’s death made him King of Aragon F & I were sovereigns of Aragon and Castile
1484 Also called the Ordenanzas Reales de Montalvo A collection of various ordinances of the Castilian Cortes as well as royal decrees Divided into eight books, with 14 titles, some of which are the ff:
A. The law of persons and family:
Turned their prodigious energies to the Reconquista Moorish Granada still stood – reminded the couple that Spain was not wholly theirs 1491 – with an army of 80,000, they starved city into submission In two months, Boabdil, Moorish chief, sued for peace onf 1/6/1492 Boabdil cried while Aixa, his wife, taunted him: “Weep like a woman for what you could not defend like a man” 1492 – year of glory, Reconquista’s completion, Spain’s rise as a colonial power with discovery of the New World Two events were to have far-reaching effects: Internal Consolidation o External expansion o Legal evolution was minimal 1484 – compilation by Dr. Alfonso Diaz de Montalvo
Allows widow to contract a marriage a year after husband’s death Declaring conjugal the fruits of separate property Authorizing the husband to dispose of conjugal property even w/o wife’s consent, provided no intent to prejudice her
Multiple or collective obligations are presumed juris tantum to be joint rather than solidary – solidary oblifation being held to exist only if it is expressly provided by both parties Disputed whether compilation was decreed as law or whether it was just a collection of pre-existing statues Did not help with the bewildering legal situation with all sorts of codes, semi-codes, pseudo-codes, and municipal fueros existing simultaneously Systematic revision of law was BADLY needed
JUANA LA LOCA
1504 – Isabella died, and oldest surviving child was her successor Was either demented or was just declared to be so Was disconsolate over the body of her husband Philip the Handsome Forbade Philip’s burial because a Carthusian monk promised Philip’s resurrection Was Reina proprietaria of Castile 1505 – Castilian Cortes was summoned at Toro to proclaim her queen and ratify her father’s title to the regency Said Castilian Cortes also published a piece of legislation passed by a Toledo Cortes, which promulgated the Leyes de Toro LEYES DE TORO
Consists of 83 laws, without attempt at structural organization. No divisions in books, titles or sections. Salient features:
1. Juridical capacity is possessed by the naturalmente nacido with the following requisites: a. Child must be born alive b. It must survive 24 hours c. It must be baptized d. If any of these requisites were absent, the child was abortivo 2. Marriage as a cause of emancipation from parental authority and the usufruct of any adventitious property passed to the child from the time of the marriage 3. Ley de osculo – if marriage did not materialize, woman had right to retain half of whatever the man had given her, provided he had kissed her 4. Wife could not renounce inheritance without husband’s consent 5. Wife could neither contract nor go to court without husband’s consent 6. Conjugal regime was more minutely regulated; various provisions being devoted thereto 7. Natural children were defined as those born of parents who, at the time of the child’s conception or birth, could have married lawfully and without dispensation B. The Law of Property 1. Provision governs interruption of prescriptive periods C. The law of descent 1. Persons subject to the penalty of death were, unlike the rule in Partidas, allowed to make wills 2. Minimum age for willmaking was fixed at 14 for males and 12 for females 3. Legit ascendants = compulsory heirs in default of children or descendants; as heirs, these ascendants excluded collateral relatives of the descent
predeceased brothers or sisters, nephews and nieces inherited per stirpes, not per capita 5. All kinds of legitimate children were excluded by legitimate descendants from the succession from the succession of the mother, but in the absence of legitimate descendants, these illegitimates, whether natural or spurious, succeeded to the mother’s estate to the exclusion of legitimate ascendants; father and mother could each give illegitimate children of all kinds legacies for support not exceeding 1/5 of their respective estates, but a man w/o legitimate children could give a natural child any amount he wished 6. Mejoras could be given by either WILL or CONTRACT 7. Mayorazgos were there regulated D. The Law of Oblicon 1. Donations of the universality of donor’s patrimony were prohibited, even if only present property was included therein Laws of Toro were enacted to clarify, explain, and reconcile existing legislation which had fallen into a state of confusion They were incorporated in the Nueva and Novisima Recopilacion Was merely a palliative remedy; more drastic reform was required
PHILIP II
1516 – Ferdinand of Aragon died; Ju ana la Loca survived until 1555 Power passed on to Charles of Ghent, her son – “a gawky, unprepossessing youth with an absurdly pronounced jaw…looking like an idiot…and suffering from the unforgivable defect of knowing NO CASTILIAN” because he was raised in Netherlands
Commissioned a minister of his Council named Bartolome Lopez de Arrieta, and upon this man’s death, another jurist, Bartolome Atienza, to undertake this difficult task March 14, 1567 – resultant compilation was promulgated by His Majesty under the title “Nueva Recopilacion de las Leyes de Espana” NUEVA RECOPILACION DE LAS LEYES DE ESPANA
NUEVA RECOPILACION
King of Castile and Leon King of Aragon o Count of Barcelona o Holy Roman Emperor o Charles the First of Spain and the Fifth of the Empire Absentee king, staying in Spain only 16 out of his 39 years as king Jan 1556 – abdicated the throne, passing kingship to Felipe II o
Sought to unify the diverse strands of the Fuero Real, the Partidas, the Ordinance of Montalvo, the Laws of Toro, and other laws Composed of 9 books, 214 titles, 3391 laws 5th book deals with civil law: Husbands, at least 18 years of age, could administer o their property and their wife’s o All assets existing at the time of the dissolution of the marriage were presumed conjugal Purpose was to clarify the state of law, but failed Retained Order of Prelation of the Ordinance of Alcala and the Laws of Toro and therefore did not repeal the earlier laws “an effort to codify Castilian law and did contribute to its unification”
THE BOURBONS CONTEXT
Philip II ruled Spain at the height of her power, but strained resources beyond the limit 1958 – his death, just a decade after the rout of the Invincible Armada at the hands of the English, marked the start of a long decline Philip III, Philip IV, Charles II (the Bewitched[El Hechizado]), each one weaker than the last, presided over Spain that was slipping to a 2 nd rate power Netherlands were lost, as well as the Burgundian possessions and Portugal By the end of the century, France under Louis XIV was in power 1700 – death of Charles II without an heir brought to the throne Philip of Anjou, grandson of Spanish princess Maria Teresa, grandson too of Louis XIV Claim was contested by Archduke Charles of Austria, but Sun King’s machinations won the day 18th Century – Crown of Spain passed from Hapsburg to Bourbon, when Philip of Anjou became Philip V of Spain War of the Spanish Succession failed to dislodge Philip from the throne but succeeded in weakening it Decline was arrested or reversed under the succeeding Bourbon monarchs, but Spain never got back on its feet Absolutism brought about centralization of Spain 1707 – special statues and privileges of Aragon and Valencia were abolished and their place taken by laws and practices of Castile 1716 – Cataluna followed Fragmentation of civil law continued State of confusion continued as well NOVISIMA RECOPILACION
Towards 18th Century, Charles IV commissioned Juan de la Reguera Valdelomar to revise the Nueva Recopilaci on Work was submitted to the king in 1802 15 July 1805 – promulgated as the Nueva Recpolacion de las Leyes de Espana 12 books, 340 titles, 4020 laws Noteworthy provisions: Provision renewing a lease for one year if no notice o to vacate had been given prior to expiry date Prohibition of subleases o o Adoption, as the law on marriage, of the Tridentine decree on this subject Requirement of paternal consent to marriages of o boys below 25 and girls below 23 Much of it was a rehash of the Nueva IN THE PHILIPPINES
Line of Demarcation, set by Alexander VII in the Bull Inter Caetera of May 4, 1993 ran from north to south 100 leagues of the Azores 1. All lands east to Portugal 2. All lands west to Spain Treaty of Tordesillas, concluded in 1499, moved the line 270 degrees further west; gave Brazil to Portugal, not certain if it gave them Moluccas 1529 – Charles V, for a consideration of 350,000 ducats, renounced Spanish claim to Moluccas, but not the Philippines, and thus we fell under Spanish sovereignty Two main Spanish domains: the viceroyalty of Mexico (New Spain) and the viceroyalty of Peru PH was a gobernacion under the vice-royalty of Mexico Bureaucracy started withthe monarch, assisted by the Casa de Contratacion, or Board of Trade, est. in 1503 and headquartered in Seville 1524 – assisted by the Consejo de las Indias, the Royal and
Government was subject to a vast assortment of decrees – cedulas, decretos resoluciones, ordenamientos, reglamentos, pragmaticas, etc – issued by the King or Consejo in his name Decrees were put together in what Horacio de la Costa calls “the most impressive body of legislation in history” – the Recopilacion de Leyes de los Reinos de las Indias 1530 – Royal Ordinance established an order of preference of the laws to govern colonies Order of application: 1. Latest laws enacted for the colonies and decreed therein 2. Recopilacion de las Indias 3. Novisima 4. Nueva 5. Leyes de Toro 6. Royal ordinances of Castile 7. Ordenamiento de Alcala 8. Fuero Juzgo 9. Partidas Supplementary laws were frequently applied since not provisions of civil law nature were found in Recopilacion de las Indias Sinibaldo de Mas – there was very little of the laws that were printed; advocates know the law by tradition and hearsay, but if they have to look for it, they look for it in the house of some friend or secretary’s office of the government; he who has no relatives in the country is ignorant of the rules in force; mass of Spanish codes is confusing
THE FINAL STAGE!!!
1843 – de Mas’ report 1805 – the Novisima 16 years before Novisima, great revolution had broken out
the ancient regime, passed a law in 1792 directing codification Not until Napoleon Bonaparte, who came to power in 1799, that codification was achieved Meeting in the Chateau of Fontainebleau, a o commission headed by two distinguished lawyers, Portalis and Tronchet, worked on a Civil C ode promulgated in 1805 French Civil Code is the oldest in existence. Like o sooooo olde. Aftermath of Napoleonic occupation was a brief period of constitutionalism under the liberal Constitution of Cadiz in 1812 August 19, 1843 – a royal decreed constituted a Comison general de Codigos, subsequently divided into two subsections to distribute the work May 8, 1851 – Commission submitted draft of CC, divided into a preliminary title and three books, containing a total of 1,992 articles 1st book on Persons o 2nd book on Property and Ownership o 3rd book on Modes of Acquiring Ownership o Dissatisfaction and deep-seated opposition from the regions caused project to be pigeonholed During the next decades, the passage of laws – special in scope but general in application – mellowed the somewhat unfavourable psychological climate and made it easier to revive efforts to codify the civil law. Among such laws enacted were: Mortgage Law o Notarial Law o Law of Waters o Law on Marriage o Law on Civil Registry o 2 Feb 1880 – another royal decree called for codification,
regional, with members representing Cataluna, Aragon, Galicia, Navarre, etc 1881 – proyecto de Bases – an outline of bases or fundamental points – was submitted to the Senate 1884 – Minister of Justice presented a proposed ley de Bases – fundamental points on which the CC was to be based, totalling 27 in number The Cortes failed to decree it into law due to irresolution and dissolution 11 May 1988 – became a law by royal fiat 6 October 1888 – royal decree ordained publication thereof 11 February 1889 – new Civil Code would take effect on May 1 of that year, but was promulgated on J uly 24, 1889 THE CODIGO CIVIL
Composed of preliminary title with 16 articles and four books subdivided into 41 titles 1st book: De las Personas (Persons 2nd book: De los Bienes, de la Propiedad y de sus Modificacion (Property, Ownership, and its Modifications) 2rd book: De los Diferentes modos de Adquirir la Propiedad (Different ways of acquiring ownership) 4th book: De las Obligactones y Contratos (Obligations and Contracts The product of the evolutionary process of Spanish law over the centuries, with borrowing from the French Code thrown in for good measure July 31 1889 – a royal decree was issued by the Queen Regent Maria Cristina, in the name of her son, King Alfonso XIII Decree extended the Civil Code to Cuba, Puerto Rico, and the Philippines to take effect 20 days after publication in the official newspapers Decree received the cumplase of the gov. gen. on September 12, 1889, text of code was published in the
CC became effective in the PH on December 7, 1889, the 20th day of its publication (Mijares v Nery) or December 8, 1889 (Benedicto v de la Rama) December 31, 1889 – order was published under the name of Gov. Gen. Valeriano Weyler, which suspended titles 4 and 12 of the CC Questions raised about Weyler’s order: o Was there really a directive from Madrid to suspend titles 4 and 12? Benedicto v de la Rama – no such decree was ever published in the Gaceta, no copy of such decree was obtainable Sanchez-Roman: “accdg to reports which merit a certain amount of credit, wh at probably happened was that the colonial gov’t issued the order of suspension after consulting the colonial office” Weyler could be said to be merely withholding the cumplase o Which title 4 and which title 12? Code contains four books; by a process of elimination, and by reason of historical antecedents, it was generally accepted that the order meant titles 4 and 12 of Book 1 Title 4: Art. 42-107 is on marriage Title 12: Art. 325-332 is on registry of civil status Title 12 was suppressed probably because there was no such officer as a municipal judge who could take charge of the civil registry Title 4 was suppressed probably because of what Sanchez Roman refers to as the opposition of “certain class influences” Code recognized two forms of • •
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Civil Suspension of title 4 means only marriage allowed in the PH is CANONICAL, under the decree of Philip II on July 12, 1564, making the decree of the Council of Trent on marriage the law of the State The Decretum de Reformatione Matrimonii was passed by the Council of Trent at its 24 th session on November 11, 1563 Code continued, being not of political nature, continued to be in force during the American occupation Establishment of Republic: President Roxas issued EO 48 on March 20, 1947, calling for a draft of a Philippine Civil Code May 8, 1947 – Code Commission began drafting June 18 1949 – draft was submitted to Congress as HB. 2118, enacted as RA 386 Code Commission Report: 57% of 2270 articles of the NCC were derived from the Spanish Code o
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Author’s notes In drafting a new Civil Code, a balance has to be struck between contemporary relevance and a historical sense First is attained by an awareness of: the COMPLEX NEEDS and CHALLENGES ☺ of PRESENT-DAY SOCIETY The SOCIAL and CULTURAL ☺ COORDINATES of the FILIPINO towards the 21st Century Second history is attained by: Looking back for wisdom and depth to the ☺ experience and the tradition of a legal system that is already our heritage
