Latin American Law
Civil Codes
Trailer to favela film
Last updated 07 Nov 11
• Chilean civil code (classic – 1857)
– Content: persons, property, successions, contracts
– Political economy: for whom written?
• Brazilian civil code (modern – 2003)
– Purposes: non-individualist, social reforms
– Changing role of judge
– Political economy: for whom written?
Keith Orgel
Trevor Ostbye
French Civil
Chilean Civil
Brazilian Civil
Preliminary Title
Preliminary Title
General Part
I. General Part
I. Persons
I. People
I. Obligations
II. Obligations
II. Property
II. Property
II. Enterprise
III. Property
III. Ways one
acquires property
(includes both
succession and
III. Succession
III. Property
IV. Family
IV. Obligations
IV. Family
V. Succession
Final Title
V. Succession
Final Title
German Civil
Value of knowing other legal systems
Model for borrowing
Gain perspective
Discover truths
Impose / power
US social interests
reflected in law?
Chile – on obligations (arts. 1437-2524)
Identify which rules appear in Chile Civil Code (1857)
__ 1. The Civil Code abolishes the privilege of minors, who are made
responsible for their act and contracts.
__ 2. Notarization is required for all contracts whose value exceeds a
certain amount.
__ 3. The Civil Code imposes a statute of limitations of 30 years on
contract and property rights, which must be affirmatively pled.
__ 4. The Civil Code bans the subleasing of things, since the lessee is
said to acquire no property interest, but a mere contract right.
__ 5. Business associations are regulated in the Civil Code; for
example, partners are liable for the partnership’s debts
1-Y / 2-Y / 3-Y / 4-Y / 5-Y
In Chile a contract with a minor may be
rescinded, it is not null. This idea is
also seen within United States
contract law.
US law allows some protection for
those who contract with minors.
Taryn Kadar
What we can learn from
rules of construction in Bello’s code …
Comparison – rules of construction
CCC Article 1560
CCC Article 1561
CCC Article 1564
CCC Article 1566
If clearly known, the
intention of the
contracting parties
shall carry more weight
than the contract’s literal
No matter how general,
the terms of a contract
shall only apply to the
contract’s specific
subject matter
Contractual clauses shall
be interpreted jointly, in
the sense that best suits
the contract as a whole.
They may also be
interpreted in the light of
the clauses of other
contracts between the
same parties …
… ambiguous clauses
shall be interpreted in
favor of the debtor.
ambiguous clauses that
one of the parties… has
included or dictated shall
be interpreted against
that party….
Restatement (Second)
of Contracts §202(3)
Restatement (Second)
of Contracts §203(c)
Restatement (Second)
of Contracts §202(2)
Restatement (Second)
of Contracts §206
Unless a different
intention is manifested
where language has a
generally prevailing
meaning, it is
interpreted in
accordance with that
In the interpretation of a
promise or agreement or
a term thereof specific
terms and exact terms
are given greater weight
than general language
A writing is interpreted as
a whole, and all writings
that are part of the
same transaction are
interpreted together
In choosing among the
reasonable meanings …
that meaning is generally
preferred which operates
against the party who
supplies the words or
from whom a writing
otherwise proceeds.
Brazil’s civil code
• Purpose
• Sources
• Innovations
Rio de Janeiro
“This piece of legislation [the new Civil
Code of 2003] represents
quintessentially the law of civil society.”
“head-in-the-sky” philosopher –
writer of the “common man’s
Constitution … ethics, social welfare,
Trevor Ostbye
Brazil civil code
chronology …
17.4 million people in 1901 (80% in countryside)
to 169.6 million people in 2000 (80% is cities)
Keith Orgel
Trevor Ostbye
Brazil Civil Code (selected articles)
Identify which rules appear in Brazil Civil Code (2003)
Legal transactions are to be interpreted according to good faith
and the common usage of the place in which they occur.
Judges are to determine the reasonableness of time and amount
due in agency situations.
Disposal of a person’s organs (such as kidneys) is permitted,
including for payment.
A person’s name may not be used in commercial advertising
without authorization.
Ambiguous or contradictory clauses in a contract of adhesion
shall be interpreted in favor of the adhering party.
Civil unions, including same-sex civil unions, are recognized and
entitle the partners to full protection of the law
Life begins at birth, not as an embryo – thus making abortion
legal, despite the views of the Church
1-Y, 2-Y, 3-N, 4-Y, 5-Y, 6-N, 7-N
1916: Jeanette Rankin of Montana is the first woman
elected to the U.S. House of Representatives.
1920: The US ratifies the 19th Amendment, providing
universal suffrage to women.
1933: Frances Perkins, the first U.S. female Cabinet
member, is appointed Secretary of Labor. This makes her
the first woman to enter the line of succession to the US
Presidency at number 11.
1977: Patricia Harris is tapped by President Lyndon B.
Johnson to become the Secretary of Housing and Urban
Development, becoming the first African American woman to
be named to the Cabinet and enter the Presidential line of
1984: Geraldine Ferraro (D) is the first woman nominated
for Vice-President by a political party in the United States.
1992: California elects two women, Dianne Feinstein and
Barbara Boxer, to the U.S. Senate.
2002: Nancy Pelosi is sworn in as the House Democratic
Whip - the highest-ranking leadership position ever held by a
woman in the United States Congress at that time. She was
later named Minority Leader.
2006: Democrats take control of the United States Congress
and Nancy Pelosi becomes Speaker of the House, the third
highest ranking official in the US government and the
highest ranking female in US political history.
2007: Senator Hillary Clinton is the first woman to ever be
considered as a top candidate for the US Presidency.
2008: Sarah Palin (2) is second woman nominated as VP by
political party.
1974: Maria Estela (Isabela) Martinez de Peron succeeds
her husband and becomes the first woman President of
Argentina and the first female head of state in the Americas.
1979: Maria de Lourdes Pintasilgo becomes the first woman
Prime Minister of Portugal.
1979: Lidia Geiler is the first woman elected President of
1982: Rosario Ibarra de Piedra is the first woman to run for
President of Mexico.
1989: Violeta Barrios de Chamorro elected President of
1990: Ertha Pascal-Trouillot is the first woman elected
President of Haiti.
1995: Two women run for President and 8 for Vice
President of Peru, the first time women have been
candidates for these offices.
1999: Mireya Elisa Moscoso de Arias becomes first female
President of Panama.
2003: Beatriz Merino elected as Prime Minister of Peru,
becoming first woman to hold the position. However,
unsubstantiated rumors circulated about Merino that she
was a lesbian due to her status as unmarried and having
bought a house with a female colleague. Due to the fact that
Peru is a deeply Roman Catholic nation, these rumors were
enough to have Merino dismissed from office 6 months after
her term began, despite a 60% job approval rating.
2006: Michelle Bachelet is elected President of Chile.
2007: Cristina Fernández de Kirchner elected President of
2010: Dilma Roussef elected President of Brazil (former
“Only doctrine that was
consolidated or that had been
extensively expounded was to be
included …”
“We exhaustively enumerate,
numerus clausus, cases of
“We put an end to synonyms that
may lead to confusion ….”
“Any tabloid that reported on
emerging Herman Cain scandal
could be sanctioned … usually a
crime in Brazil.”
“In US law, there is distinction
between object of news….”
“The American [sic] system
seems better as to protecting
private individuals….”
Keith Orgel
Sec. 7. Definition of 'marriage' and 'spouse' …
the word 'marriage' means only a legal union
between one man and one woman as husband and
wife, and the word 'spouse' refers only to a person
of the opposite sex who is a husband or a wife.
Article 226(3). For purposes of protection by the
State, the stable union between a man and a
woman is recognized as a family entity, and the law
shall facilitate the conversion of such entity into
“Familial authority …. Adoption,
welfare benefits, inheritance,
social security, immigration,
hospital visitation ….”
“In 2004, first same-sex civil
union … in May 2011 Brazil
Supreme Court recognizes….”
“Both US and Brazil at turning
point … though different routes.”
Trevor Ostbye
Article 1240:
Anyone who possesses as
his own and unopposed
urban property of up to 250
square meters for 5
uninterrupted years and
lives on the land with his
family acquire dominion, so
long as he own no other
real property…
Brazilian history of favelas?
Role of judiciary in new
Keith Orgel
Brazil’s Code stand out to me as granting legal authority and
legitimacy to the rules of the Church:
1. The providing of rights for the unborn.
2. The prohibition of suicide.
3. Social justice issues
4. The disapproval of homosexual relationships ??
Trevor Ostbye
national holidays in Brazil: Saint Sebastian’s Day, Saint John’s Day,
Christmas, Our Lady of Carmen, Assumption Day, Ash Wednesday, Good
Friday, Corpus Christi, Our Lady Aparecida, All Souls’ Day, Immaculate
Conception, Evangelicals Day, and Christmas
Company Law
Company law moved to civil code from
commercial code
LLCs must amend article within year
• Can reduce capital: creditors have 90 days
to complain
• ¾ holdrs must approve / and dissenters can
be reimbursed
• Statutory audit committee
Taylor Noland
Court decisions
• since 1998 same-sex couples - inheritance, immigration, and state
pension and welfare benefits
• recognized civil unions, de facto relationships and “stable unions”
between homosexuals.
National Social Security Institute: no differences between some
homosexual couples and married couples wrt retirement or death.
2005 federal prosecutor brings civil action: prohibition on gay marriage is
unconstutitonal (1998 Constitution prohibits "prejudice as to origin,
race, sex, colour, age and any other forms of discrimination."
Rio Grande do Sul: legalizes civil unions between homosexuals in 2004
(can own property, establish custody of children, and claim the right
to pensions and property when one partner dies)
Mike Kerr
Visa-seeking Andrea
• Cartorio:
• document 5 years cohabitation (no proof).
• writ of maintenance and subsistence.
• authorized copy of her partner’s Brazilian ID card
• authorized copy of her own US passport.
• proof of good behavior from the U.S.
Government (U.S. embassy)
• paid the immigration tax, obtain health insurance
• cover letter stating her intentions to live with the
partner in Brazil
Rob Robine
“Good faith”
Brazilian code appears to impose greater good-faith
obligations than US contract law, insofar as US law does
not require good-faith negotiation in all circumstances
Joe Adams
our system uses similar generalized principles …. Throughout
our system there is a “reasonable person” standard which
leaves it up to judges to use as a standard what their
conception of a reasonable person would do.
Garrett Sprowls

Foreign Law in US Courts