Latin American Law
Codification
> German BGB
> decodification
> Lex Mundi project: comparison
of common and civil law
Last updated 19 Sep 11
Robert Joseph Pothier
(1699-1772)
Jean-Etienne Marie Portalis
(1746-1807)
perdu”
"My true“Mon
glorycode
is notest
to have
won 40
battles... Waterloo will erase the
memory
of on
sohearing
many victories...
But
Napoleon,
of the publication
of first
commentary
on Code
Napoleon
what
nothing
will destroy,
what
will
live forever, is my Civil Code”
“Whereas an English lawyer
seeking to interpret a legal principle
will look first to its pedigree,
a continental lawyer
will search for its policy.”
Genealogy of
Latin American codes …
French “code civil”
(1804)
Chile Civil Code (1852)
Andres Bello (1791-1865)
Brazil draft civil code (1856)
Augusto Teixeira de Freitas (1816-1883)
Argentina Civil Code (1869)
Dalmacio Velez Sarsfield (1800-1875)
French “code civil”
(1804)
Spanish Civil Code
(1889)
German civil code
Bürgerliches Gesetzbuch (1900)
“… the basic codes remain
to the civilian, as the
common law remains to us,
the very core of the legal
order, containing not only
rules but also the general
principles which give life
and systematic direction to
every positive norm…”
Rudolf Schlesinger (1959)
German civil code
Bürgerliches Gesetzbuch
(1896, effective 1900)
French Civil Code
I. Persons
II. Property
III. Ways one
acquires property
Jean-Étienne-Marie Portalis
German Civil Code
I. General part
II. Law of obligations
III. Law of property
IV. Family law
V. Law of succession
French Civil Code
Art. 1108
Four requisites are essential for the
validity of an agreement:
– The consent of the party who
binds himself;
– His capacity to contract;
– A definite object which forms
the subject-matter of the
undertaking;
– A lawful cause in the
obligation.
Differences in style, culture
Trevor Ostbye
German BGB
§ 151. [Acceptance without
declaration to the offeror]
The contract is concluded by the
acceptance of the offer, without
the necessity that the offeror be
notified of the acceptance, if such
notification is not to be expected
according to common usage, or if
the offeror has waived it. The
moment at which the offer expires
is determined according to the
intention of the offeror in the light
of the offer or the circumstances.
BGB reflected unification of German
codes for bourgeois society?
Joel De Leon
How does BGB keep up with changing
times? Hyperinflation/Nazism/family?
Lauren Connell
Francisco Morales
Compare Lochner and BGB
(and later progressive era
reforms)
Robby Samuel
Lauren Connell
Are restatements like code? A
debate: yes and no.
Francisco Morales
Robby Samuel
Compare law sources …
Rights of bona fide purchaser
Owner gives goods to Bailee,
who sells the goods to
Purchaser.
Variation on story: Owner’s
goods are stolen by Thief,
who sells them to Purchaser.
When Owner seeks recovery
from Purchaser. who prevails
– Owner or Purchaser?
Owner
Bailee
Thief
Purchaser
Compare legal rules
_ Roman law
_ Law merchant
_ German customary law
_ French civil code
_ Spanish civil code
_ German civil code
A Owner prevails (even if
Purchaser acted in good
faith, paid value)
B Owner prevails, if stolen /
otherwise only good faith
Purchaser prevails
C Owner prevails, if stolen /
otherwise Purchaser
prevails
D Purchaser prevails, if
Purchaser bought with
good faith
E Purchaser prevails, if
acquired in open market
Compare legal rules
A Roman law
E Law merchant
C German customary law
B French civil code
D Spanish civil code
B German civil code
A Owner prevails (even if
Purchaser acted in good
faith, paid value)
B Owner prevails, if stolen /
otherwise only good faith
Purchaser prevails
C Owner prevails, if stolen /
otherwise Purchaser
prevails
D Purchaser prevails, if
Purchaser bought with
good faith
E Purchaser prevails, if
acquired in open market
What is decodification?
Comparison to US
Francisco Morales
Lauren Connell
Decodification …
Judge-made
law
Constitutional
law
Code
Special
legislation
Administrative
regulations
How and why did BGB
get revised in 2002
Common law / Civil law
Napoleón Bonaparte
Sir William Blackstone
Friedrich Karl von Savigny
Lex Mundi project …
Evict a non-paying tenant
Collect on a bad check
British common law
United States
Australia
Canada
South Africa
Israel
Pakistan / India
French civil code
Belgium (1804)
Indochina
Netherlands (1838 / 1967)
Northern Africa
Portugal (1867)
Spain (1889)
Latin America
German civil code
Brazil (1916)
Italy (1942)
Japan (Korea)
Portugal (1967)
Nordic countries
Lex Mundi Project
Measure formalism
– Access: need for lawyers,
formalities to bring
– Ease: oral vs. written
procedures
– Legalism: need for
justifications
– Information: regulation of
evidence
– Superior review
– Count # procedural steps
Measure quality of judicial
system
– Duration of proceeding
– Fairness, consistency,
honesty (survey small firms)
Identify types of courts
(transplanted legal systems)
Findings (formalism):
1.
2.
3.
Legal origins explains 40% of
formalism
Formalism prevalent in civil
law countries
Formalism greater in less
developed vs. richer
countries
Findings (judicial quality):
1.
2.
3.
Formalism predicts duration
of eviction, check collection
Formalism correlated to less
access, higher judicial
inefficiency, higher corruption,
less fairness
True even when holding per
capita income constant
Lex Mundi Project
“Consistent with the literature on
comparative law, we find that
judicial formalism is
systematically greater in civil
law countries, and especially
French civil law countries, than
in common law countries.”
“Formalism is nearly universally
associated with lower survey
measures of the quality of
legal system, including judicial
efficiency, access to justice,
honesty, consistency,
impartiality, fairness, and even
human rights.”
Florencio López-de-Silanes
End
French Civil Code (1804)
I. Persons
II. Property
III. Ways one acquires
property
German Civil Code (1900)
I. General part
II. Law of obligations
III. Law of property
IV. Family law
V. Law of succession
Panama Civil Code (1916)
I. Persons
II. Property
III. Successions/donation
IV. Obligations
V. Notaries/public records
Family Code (1994)