Seminar: Introduction to the Civil Code

Seminar Quicklinks

LAW 6936 (2 credits)
Professor Pedro A. Malavet

Syllabus and Course Outline

The Course: A practical application of the comparative method to the study of the law that gives the civil law system its name: the Civil Code. We will focus on black-letter rules applicable to institutions common to most civil codes in the areas of Family Law, Property, Contracts and Torts. The introduction will include a discussion of the comparative method in the context of our course, and an overview of the civil law, its historical antecedents, structure and interpretation. Students will write a paper on a topic related to our subject matter. The paper will be drafted in stages that will include several oral presentations in class. Comparative law is not a prerequisite.

Text: Materials Handout. A Civil Code Supplement and reading materials will be included in this handout. Because of the large number of pages in the material, a copy charge may be required. Students must get two binders in which to keep their materials.

Office Hours: I will have regular office hours on ____.

Paper: Students must write a paper for this course. The paper must be related to the substantive areas covered in the course. Each student must schedule a meeting with me to discuss and obtain approval for a topic before the ______, class session. A preliminary table of contents shall then be due on or before _____. Thereafter, each student will make a short oral presentation of their topic and table of contents to the class. You must submit one draft and make a presentation based on it to the class. The draft will be due on or before ______. The final paper will be due on or before ______.. The paper must be at least 25, typed, letter-sized pages long, exclusive of cover pages, table of contents, index, bibliography and other attachments. The paper should be at most double-spaced and use a typeface of 12-14 point for text and 10-12 points for citations and footnotes. Footnotes should be used to identify references. A bibliography should also be included. The paper should be of good quality and must meet the senior writing requirement guidelines so that the student may earn the writing certification.

Testing Score. Your testing score will be determined as follows: (1) Paper, 70% of your score; (2) Draft and oral presentation of draft, 20% of your score; (3) Table of contents, oral Presentation of your topic, 10% of your score. Failure to submit the table of contents or draft on time will result in a deduction of 5% from your score for each day of delay. Not submitting the final draft on time will result in failing the course. Extensions will NOT BE GRANTED.

Final Grade: Class Participation: When determining your final grades, I will consider class participation, to adjust your testing score. Because this is a small class, attendance and participation are essential. Therefore, a minimum of 15% of your final grade will be based on class attendance and participation. Quality of Participation. I may consider the quality of student participation and conduct to further adjust final grades, as I deem appropriate.

Class Attendance and Conduct: Attendance is mandatory. Roll will be taken daily. Absences and tardiness will be dealt with on a case-by-case basis. Students arriving late or leaving the room during class are an undue distraction. However, I am willing to be flexible about allowing late arrival or early departure for good cause, provided the good cause is brought to my attention beforehand. Excessive absences, tardiness or any undue conduct in the classroom may result in administrative removal of the offending student from the course or in a reduction of his/her grade.

A note about our materials. Our materials consist of scanned text that has been desktop-published as well as photocopies of some material. You will find some scanning errors. Please advise me whenever you do, because I will continue to update them as we go along. Additionally, most of the reading materials, including the Civil Code supplement, are translations into English. You will find some of the wording a bit awkward, so be careful with your reading. We will talk about the pitfalls of legal translation during the course of the Seminar. Note as well that I have included descriptions of laws that have been substantially amended. I have chosen to continue to use the superseded material to provide you with some ideas for historical research projects, and to generate discussion about why the old rules have been amended. Finally, the Civil Code supplement is the entire Puerto Rico Civil Code. I have chosen it, because the commercially available versions of the French and Spanish Civil Codes in English are extremely expensive, and the Puerto Rico code, which is available on-line, is a useful and inexpensive alternative.


Seminar Outline: Civil Code Seminar

I. Introduction

A. The Comparative Method

    1. Rudolph R. Schlesinger, et al., Comparative Law, Cases, text, materials (5th ed. 1988). [p. 1].
    2. Merryman, Clark & Haley, The Civil Law Tradition: Europe, Latin America, East Asia (1994). [pp. 28-54]

Recommended Outside reading:

    1. Rene David & David EC Brierley, Major Legal Systems in the World Today (3rd ed. 1985). [pp. 1-31].
    2. K. Zweigert & H. Kötz, An Introduction to Comparative Law (2nd ed., Tony Weir, ed. & trans., 1987). [pp. 1-46]

B. Practical Problems

    1. Translation: Schlesinger, et al., Comparative Law [pp. 868-875].
    2. Written Law vs. Reality: Schlesinger, et al., Comparative Law [pp. 880-890].

Recommended Outside Reading:

    1. Tina Rosenberg, The Children of Cain: Violence and the Violent in Latin America (1991).
    2. Hernando de Soto, The Other Path.

C. Foreign Legal Education

    1. Merryman, et al, [pp. 847-862, 869-876, 883-884].

II. The Public (notarial) Document

A. Foreign Legal Professions

    1. Merryman, et al. [892-901]
    2. Hamish Adamson, Free Movement of Lawyers (1992). [11-24] (skim).

B. The Notary Profession

C. The Publica Fides

D. The Public Document

    1. Pedro A. Malavet, Counsel for the Situation: The Latin Notary, a Historical and comparative Model, 19 Hastings Int'l. and Comp. L. Rev. 389 (1996) [Section III only]

III. The Civil Code

A. History, Nature and Underlying Philosophy

    1. David & Brierley [pp. 33-79].
    2. Merryman, et al. [449-454, 463-467]

B. Structure

    1. Merryman, et al. [1136-1138; 1156-1163; 1184-1187].

IV. Emancipation (emancipación, émancipation), i.e., the termination of parens patriae over a minor child prior to reaching the age of majority will illustrate the civilian approach to the family

A. History:

    1. Patria Potestas in Roman Law
    2. Patria Potestas in the Siete Partidas.

Merryman, et al. [259-265, 343-347]

B. Concept: [Readings: code articles, and those otherwise indicated]

    1. Planiol, I-2 Civil Law Treatise, (An English translation by the Louisiana State law Institute, 1959) [pp. 185-209]
    2. A minor has limited legal capacity and is subject to his or her parent's authority until they reach the age of majority. In Puerto Rico, the age of majority is 21. (P.R. Civil Code Art. 247, 31 LPRA § 971). "A person having attained the age of majority is capable of executing all the acts of civil life, with the exceptions established in special cases of this title." (Id.). "Emancipation is an act whose end is to confer upon a minor (1) the government of its person and (2) the enjoyment and administration of its property with a limited capacity." (Planiol, I-2 Civil Law Treatise, Ch. IV § 1983, p. 185 (An English translation by the Louisiana State law Institute, 1959).)

C. Forms of Emancipation: [Readings: code articles]

    1. By Marriage. Allowed in most civil countries. For example: Puerto Rico Civil Code Art. 239 (31 LPRA § 931); Spanish Civil Code Art. 314; French Civil Code Art. 476; Mexican Civil Code Art. 641.
    2. By Public Document subscribed by the parents. Allowed in Puerto Rico, Civil Code Art. 233 (31 LPRA § 911), and Spain, Civil Code Arts. 316-318.
    3. By Judicial Order. Allowed in Puerto Rico, Civil Code Art. 234 (31 LPRA § 912); France, Civil Code Art. 477.

D. Effects of Emancipation: [Readings: code articles]

    1. The emancipated minor has the capacity to act as would a person having reached the age of majority, but some exceptions are imposed by the state, when emancipation is by marriage or by consent of the parents, such as a prohibition of incurring obligations that exceed the amount of his income for one year (P.R. Civil Code Art. 237, 31 LPRA § 915); or a prohibition against mortgaging his real property without parental consent (Id.). Such limitations are not applicable when the emancipation is by judicial order. (P.R. Civil Code Art. 246, 31 LPRA § 955). Parents are also no longer liable for the obligations of the minor nor for torts committed by them. (French Civil Code Art. 482).

V. The pre-nuptial agreement (capitulaciones matrimoniales, conventions matrimoniales, Ehervertrag), will illustrate the civilian conception of the marriage contract

A. Introduction: Ante-nuptial agreements.

    1. These contracts are used to opt-out of the default legal regime,[1] generally community property.[2] Usually, they must be made in a public notarial document unless the property involved is of little monetary value.[3] Normally, they must be made prior to the marriage and have no effect if the couple does not marry.[4]

B. The Default Marriage Contract: Community Property

    1. Materials: Planiol, Treatise on the civil Law, Vol. 3, Part 1, pp 93-115 (through ¶ 948 only), pp.127-130 (¶¶ 973-981 only), 133-146 (¶¶ 988-1014).
    2. Code Articles cited in footnotes to Introduction. They can be found in the excerpts following the materials on Community Property and Pre-nuptial agreements.

C. Pre-Nuptial Agreements

    1. Materials: Planiol, Treatise on the civil Law, Vol. 3, Part 1, pp. 11-50 (ONLY ¶¶ 776-779; 783-784; 795-808; 813-818; 829-845).
    2. Code Articles cited in footnotes to Introduction. They can be found in the excerpts following the materials on Community Property and Pre-nuptial agreements.

VI. Inter-vivos gifts of real property (donación inter vivos, donation entre vifs, Schenkung unter Lebenden) and the open notarial will (testamento, testament) will illustrate the civilian tradition of forced-heirship

A. Donations

    1. Introduction: Inter-vivos gifts of property. (donaciones, in Spanish, donations in French.) It is a "liberal act through which one person freely disposes of a thing in favor of another who accepts it."[5] For these to be valid, they must appear in a public notarial document.[6] The most important limitation on these is that a person may not receive by gift more than they would be entitled to by inheritance.[7]
    2. Inheritance Under Roman Law: Merryman & Clark, pp. 251-253.
    3. The concept of a liberal gift: Aubry & Rau, pp. 3-10 (§ 644 only)
    4. Donations generally: Aubry & Rau, pp. 17-19 (§ 646 only); Planiol, pp. 209-219 (¶ 2511); pp. 232-233.
    5. Code Articles cited in the Introduction above, found at the end of the materials on Donations, Forced Heirship and Wills.

B. Forced Heirship

    1. Introduction: The most important limitation on testamentary disposition are the forced-heirship rules that require the testator to leave most of the inheritance to his legal heirs,[8] and leaves only a small proportion of the inheritance, usually one third, for free disposition, i.e., to be left to whomever the testator wants, regardless of legal heirship, e.g., you can will your Bentley to your cat.[9] The only way to avoid forced heirship is to disinherit the legal heirs, which is very hard to do.[10]
    2. Code Articles cited in the Introduction above, found at the end of the materials on Donations, Forced Heirship and Wills.

C. The Open Notarial Will

    1. Introduction: The different types of wills. Non-holographic wills. Holographic (ológrafo in Spanish, olographe in French) wills are those that are written by the hand of the testator.[11] Non-holographic wills can be divided into open (abierto in Spanish, par acte public in French) or closed (cerrado in Spanish, mystique in French). Open wills must be prepared and certified by the notary and signed by the testator and witnesses (generally three, but the French code requires only two witnesses in addition to the notary or two subscribing notaries); the notary certifies the testator's capacity to subscribe the will.[12] A closed will may be prepared by the testator or by someone else at his request.[13] For it to be effective, the closed will must be placed in a sealed container that must be broken in order to extract the document. It must then be presented before a notary for preparation of a notarial document attesting to the existence of the will. During this act, in the presence of the notary and witnesses (generally five, but the French code requires only two and the Mexican code only three), the testator must state that the document is his last will and testament, the notary prepares the document describing the appearance of the sealed container. The testator, witnesses and the notary must sign the notarial document and certify the testator's testamentary capacity.[14] Concept (Introductory Materials)
    2. Materials: Planiol, pp. 314-315; 325-330
    3. Code Articles cited in the Introduction above, found at the end of the materials on Donations, Forced Heirship and Wills.

VII. The contract for purchase of real property (compraventa) and mortgage creation (constitución de hipoteca, constituer une hypothèque, eine Hypothek bestelen),will illustrate the unified system of substantive property, registry and mortgage laws.

A. The Compraventa Contract

    1. Introduction: As a general rule, among the parties, an agreement is valid if the required elements for a contract are present, regardless of its form.[15] However, as a practical matter, notarial form makes proof of the agreement easy and it allows the transaction to enter into the public registry,
    2. Property Law: Merryman & Clark, pp. 1191-1205.
    3. Code Articles cited in the Introduction above, found at the end of the materials on Purchase and Sale, Mortgage and Property Registry.
    4. Sample Document: Reay-Smith, pp. 149-156.

B. The Mortgage Contract

    1. Real estate mortgage agreements. Real estate mortgages must be made by notarial document and registered as prerequisites for their validity; unlike other contracts, failure to follow the proper form negates the mortgage right.[16]
    2. Publicity and Registration: Schlesinger, et al., pp. 684-702.
    3. Pedro A. Malavet, Counsel for the Situation: The Latin Notary, a Historical and comparative Model, 19 Hastings Int'l. and Comp. L. Rev. 389 (1996) [Section III only]
    4. Code Articles cited in the Introduction above, found at the end of the materials on Purchase and Sale, Mortgage and Property Registry.
    5. Mortgage Deed: To be handed out later.

C. The Property Registry

    1. Conveyances or encumbrances of real property that must be entered into the property registry in order to bind third parties. As a general rule, among the parties, an agreement is valid if the required elements for a contract are present, regardless of its form.[17] However, as a practical matter, notarial form makes proof of the agreement easy and it allows the transaction to enter into the public registry, thus binding all third parties. For example, A may orally agree to sell a farm to B for 100,000 pesetas; B accepts the offer and delivers the money and A gives him the keys to the property and allows him to occupy it. A and B have a perfectly valid contract. However, if A then sells to C, who has no knowledge of the contract with B, they appear before a notary, who conducts a registry search and finds nothing regarding B, since there was no notarial document between A and B. If C purchases by notarial deed and registers this transaction, he can evict B. B has a claim against A, but C owns the land.[18] Concept (Introductory Materials)
    2. Review: Publicity and Registration: Schlesinger, et al., pp. 684-702.
    3. Code Articles cited in the Introduction above, found at the end of the materials on Purchase and Sale, Mortgage and Property Registry.

VIII. Conclusion and Review

IX. Oral Presentation of Topics and Tentative Table of Contents

    1. This presentation should be relatively informal. I want to generate discussion about the paper topics and to have you develop your research ideas, with my assistance and that of the other students in the Seminar. It will probably be scheduled after ____.

X. Oral Presentation of Student Draft Papers

    1. The oral presentation will start with each student discussing their paper for the benefit of the class. Thereafter, the other students and the instructor will ask questions and have a guided discussion of the paper. To be scheduled beginning on _____.


ENDNOTES

1. Code Civil Français art.1387 (Dalloz 1994), Código Civil de Puerto Rico art. 1267 (Equity 1984, supp. 1993), Código Civil Español art. 1315 (Civitas 1991), Código Civ. Mexicano art. 179 (Porrúa 1991) (Because it might prove confusing, I have not used the "bluebook" form for these citations. Hereinafter, I will use the following for the respective civil codes of France: "C. Civ. Fran. art. __"; Puerto Rico: "C. Civ. P.R. art. __"; Spain: "C. Civ. Esp. art. __"; and Mexico: "C. Civ. Mex. art. __"; Mexico is a federal state and each state has its own code, however, the code I use here, that of the Federal District of Mexico City, is the most influential and is binding nationally in Federal matters.)

2. C. Civ. Fran. art. 1393, parr. 2, C. Civ. P.R. art. 1267, parr. 2, C. Civ. Esp. art. 1316, C. Civ. Mex. art. 178.

3. C. Civ. Fran. art. 1394, C. Civ. P.R. art. 1273, C. Civ. Esp. art. 1327, C. Civ. Mex. art. 185 (applicable only when property whose transfer would normally require notarial form).

4. C. Civ. Fran. art. 1395, C. Civ. P.R. arts. 1267 &1273. But the Spanish code allows them before or after marriage. C. Civ. Esp. art. 1326.

5. C. Civ. P.R. art. 558 (translation mine). See also C. Civ. Esp. art. 618.

6. C. Civ. Fran. art. 931, C. Civ. P.R. art. 1273, C. Civ. Esp. art. 1327, C. Civ. Mex. art. 185

7. C. Civ. Fran. art. 931, C. Civ. P.R. art. 1273, C. Civ. Esp. art. 636, C. Civ. Mex. art. 185. See also the discussion of forced heirship supra.

8. In the Spanish and Latin American system, the part of the inheritance that must be left to the legal heirs is called the legítima (legitimate) in Spanish. C. Civ. Esp. art. 806, C. Civ. P.R. art. 735. It is divided into the legítima estricta, usually one third of the inheritance, which must be divided equally among all heirs and the mejora, usually one third of the inheritance, which the testator may use to "improve" one or more heirs, at the expense of the others. C. Civ. Esp. art. 823, C. Civ. P.R. art. 751. The French also have a mandatory "reserve" for heirs that must be followed in testamentary disposition; the reserve starts at one half of the inheritance when there is only one heir, and increases with the number of heirs, to 2/3 if there are two, 3/4 if there are three or more. C. Civ. Fran. arts. 913-914, see also Jean-Luc Aubert, Introduction au Droit 268-269 (1992). The Mexican Civil code has adopted a liberal social approach and eliminated forced heirship. See C. Civ. Mex. Motivos 25-27.

9. In France, whatever is left after the applicable reserve is called the quotité disponible, which may be freely disposed of by will. Jean-Luc Aubert, Introduction au Droit 269 (5th ed. 1992). A similar common law rule might be the imposition of limits charitable bequests.

10. Heirs are entitled to the legítima or reserve. C. Civ. Esp. art. 813, C. Civ. P.R. art. 741. Disinheriting. C. Civ. Esp. arts. 848-857, Civ. P.R. arts. 773-781.

11. C. Civ. Fran. art. 970 (Dalloz 1994), C. Civ. P.R. art. 627 (Equity 1984, supp. 1993), C. Civ. Esp. art. 688 (Civitas 1991), C. Civ. Mex. art. 1550 (Porrúa 1991).

12. C. Civ. Fran. art. 971-975, C. Civ. P.R. art. 644-655, C. Civ. Esp. art. 694-705, C. Civ. Mex. art. 1511-1520.

13. C. Civ. Fran. art. 976, C. Civ. P.R. art. 656, C. Civ. Esp. art. 706, C. Civ. Mex. art. 1521.

14. C. Civ. Fran. arts. 976-680, C. Civ. P.R. arts. 657-665, C. Civ. Esp. arts. 707-715, C. Civ. Mex. arts. 1522-1526.

15. See generally Pedro Malavet-Vega, Manual de Derecho Notarial Puertorriqueño 74 (1987); see also C. Civ. P.R. art. 1230, C. Civ. Esp. art. 1278, C. Civ. Mex. art. 1832.

16. C. Civ. Esp. art. 1875, C. Civ. P.R. art. 1774, United Fed. S & L Assn. of P.R. v. Nones, 283 F.Supp 638, 639 (Dist. P.R. 1968), Bernardo Pérez-Fernández del Castillo, Derecho Notarial [Mexicano] 71 (4th ed. 1989), Jean Yaigre & Jean-François Pillebout, Droit Professionnel Notarial 13 (1991).

17. See generally Malavet-Vega, supra note 15, at 74; see also C. Civ. P.R. art. 1230, C. Civ. Esp. art. 1278, C. Civ. Mex. art. 1832.

18. C. Civ. P.R. art. 1362, parr. 2, C. Civ. Esp. art. 1473, parr. 2. See also United States v. V & E Engg. & Constr. Co., 819 F.2d 331, 333-334 (1987) (under Puerto Rico law, seller who fraudulently sells twice not entitled to protection, only good faith purchasers).

As I mentioned in the introduction, I do not consider here our system of property registration. However, the common law analogy in this area is obviously the U.S. property registries and the application of the statute of frauds.