Civil Code (Chile)
Encyclopedia
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 Venezuelan jurist
and legislator Andrés Bello
. After several years of individual work (though officially presented as the work of multiple Congress commissions), Bello delivered a complete project of the Code on November 22, 1855, which was sent to Congrees by President Manuel Montt
, preceded by a foreword by Bello himself. Congress passed the Civil Code into law on December 14, 1855. It then came into force on January 1, 1857. Although it has been the object of numerous alterations, the Code has been kept in force since then.
has been considered the main source of inspiration for the Chilean Code. However, this is true only with regard to the law of obligations and the law of things (except for principle of abstraction), while it is not true at all in the matters of family and successions.
The indisputable main source of the Civil Code is the Siete Partidas
(Seven-Part Code) of King Alfonso X, perhaps the pinnacle of Spanish ius commune. For instance, in relating the acquisition of property, the code makes a clear distinction between the titles and the actual acquisition of property, similarly to the Roman Law
and the German Bürgerliches Gesetzbuch
.
The traditional Spanish law is also manifested strongly in the matter of successions. This is true notwithstanding the important modernisations 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 successive ususfructs
.
Similarly, 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 necessities of the post-colonial economy. It was the first Civil Code containing especific provisions regarding the legal persons systematically.
The Code based its method of interpretation on 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 influence is in no case a mere transcription. For instance, while the French Code's 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 of clear neoclassic inspiration. Each institution is first aborded from an axiom and then the articles or sections cite examples or consequences of the axiom with a didactic purpose.
in 1858, El Salvador
in 1859, Venezuela
in 1862 (although only for 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), it is the most important legal accomplishment of Latin America.
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
and legislator Andrés Bello
Andrés Bello
Andrés de Jesús María y José Bello López was a Venezuelan humanist, poet, lawmaker, philosopher, educator and philologist, whose political and literary works constitute an important part of Spanish American culture...
. After several years of individual work (though officially presented as the work of multiple Congress commissions), Bello delivered a complete project of the Code on November 22, 1855, which was sent to Congrees by President Manuel Montt
Manuel Montt
Manuel Francisco Antonio Julián Montt Torres was a Chilean statesman and scholar. He was twice elected President of Chile between 1851 and 1861.-Biography:...
, preceded by a foreword by Bello himself. Congress passed the Civil Code into law on December 14, 1855. It then came into force on January 1, 1857. Although it has been the object of numerous alterations, the Code has been kept in force since then.
Sources
Traditionally, the Napoleonic CodeNapoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
has been considered the main source of inspiration for the Chilean Code. However, this is true only with regard to the law of obligations and the law of things (except for principle of abstraction), while it is not true at all in the matters of family and successions.
The indisputable main source of the Civil Code is the Siete Partidas
Siete Partidas
The Siete Partidas or simply Partidas was a Castilian statutory code first compiled during the reign of Alfonso X of Castile , with the intent of establishing a uniform body of normative rules for the kingdom. The codified and compiled text was originally called the Libro de las Leyes...
(Seven-Part Code) of King Alfonso X, perhaps the pinnacle of Spanish ius commune. For instance, in relating the acquisition of property, the code makes a clear distinction between the titles and the actual acquisition of property, similarly to the Roman Law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
and the German Bürgerliches Gesetzbuch
Bürgerliches Gesetzbuch
The Bürgerliches Gesetzbuch is the civil code of Germany. In development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project....
.
The traditional Spanish law is also manifested strongly in the matter of successions. This is true notwithstanding the important modernisations 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 successive ususfructs
Usufruct
Usufruct is the legal right to use and derive profit or benefit from property that either belongs to another person or which is under common ownership, as long as the property is not damaged or destroyed...
.
Similarly, it adopted the Canonical Law provisions regarding marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
.
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 necessities of the post-colonial economy. It was the first Civil Code containing especific provisions regarding the legal persons systematically.
The Code based its method of interpretation on the Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
Code creating a system original to its era.
Although the Napoleonic Code influenced the Chilean Code largely redarding the law of obligations, this influence is in no case a mere transcription. For instance, while the French Code's 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
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
.
The Chilean Code is of clear neoclassic inspiration. Each institution is first aborded from an axiom and then the articles or sections cite examples or consequences of the axiom with a didactic purpose.
Content of the Code
- Preliminary title (articles 1 to 53): the title deals with 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 also 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 birthBirthBirth is the act or process of bearing or bringing forth offspring. The offspring is brought forth from the mother. The time of human birth is defined as the time at which the fetus comes out of the mother's womb into the world...
and deathDeathDeath is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
of persons, marriageMarriageMarriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
and paternityPaternity (law)In law, paternity is the legal acknowledgment of the parental relationship between a man and a child usually based on several factors.At common law, a child born to the wife during a marriage is the husband's child under the "presumption of legitimacy", and the husband is assigned complete rights,...
. It also deals with the creation and liability of legal persons. This section of the Code has been highly modified in the last 20 years, along with the Book III, in order to eliminate discriminations between children born from married and unmarried couples.
- Book II: On goods, its property, possession, use and profit (articles 565 to 950): the book contains the general dispositions relative to the distinct kinds of goods, the means of property acquisition, possession, the 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 destination of the property after the deathDeathDeath is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
of a person, the formation and execution of willWill (law)A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
s and, finally, it deals with donations.
- Book IV: On obligations in general and contracts (articles 1437 to 2524): the book regulates the general theory of contracts, the most important contracts in particular, the annulment and satisfaction of contracts. It also deals with torts.
- Final article: On the obedience of the Code: the title determines the date in which the Code would come into 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 EcuadorEcuador
Ecuador , officially the Republic of Ecuador is a representative democratic republic in South America, bordered by Colombia on the north, Peru on the east and south, and by the Pacific Ocean to the west. It is one of only two countries in South America, along with Chile, that do not have a border...
in 1858, El Salvador
El Salvador
El Salvador or simply Salvador is the smallest and the most densely populated country in Central America. The country's capital city and largest city is San Salvador; Santa Ana and San Miguel are also important cultural and commercial centers in the country and in all of Central America...
in 1859, Venezuela
Venezuela
Venezuela , officially called the Bolivarian Republic of Venezuela , is a tropical country on the northern coast of South America. It borders Colombia to the west, Guyana to the east, and Brazil to the south...
in 1862 (although only for that year), Nicaragua
Nicaragua
Nicaragua is the largest country in the Central American American isthmus, bordered by Honduras to the north and Costa Rica to the south. The country is situated between 11 and 14 degrees north of the Equator in the Northern Hemisphere, which places it entirely within the tropics. The Pacific Ocean...
in 1867, Honduras
Honduras
Honduras is a republic in Central America. It was previously known as Spanish Honduras to differentiate it from British Honduras, which became the modern-day state of Belize...
in 1880 (until 1899 and again since 1906), Colombia
Colombia
Colombia, officially the Republic of Colombia , is a unitary constitutional republic comprising thirty-two departments. The country is located in northwestern South America, bordered to the east by Venezuela and Brazil; to the south by Ecuador and Peru; to the north by the Caribbean Sea; to the...
in 1887 and Panama
Panama
Panama , officially the Republic of Panama , is the southernmost country of Central America. Situated on the isthmus connecting North and South America, it is bordered by Costa Rica to the northwest, Colombia to the southeast, the Caribbean Sea to the north and the Pacific Ocean to the south. The...
(after its separation from Colombia in 1903).
According to other Latin American experts of its time, like Augusto Teixeira de Freitas
Augusto Teixeira de Freitas
Augusto Teixeira de Freitas was a prominent Brazilian jurist whose prolific writings inspired all South American private law codifications.After studies at Olinda and São Paulo, Teixeira de Freitas practiced law as an advocate and jurisconsult...
(author of the Esboço de un Código Civil para Brasil) or Dalmacio Vélez Sársfield
Dalmacio Vélez Sársfield
Dalmacio Vélez Sársfield was an Argentine lawyer and politician who wrote the Argentine Civil Code of 1869, the vast majority of which remains in use to this day.-Life and times:...
(main author of the argentinian Civil Code), it is the most important legal accomplishment of Latin America.