Latin American Law
Civil Codes
Last updated 02 Nov 11
Today’s topics
• Meaning of civil code
• Origin of civil codes in Latin America
• Chilean civil code
– History, sources (Andres Bello)
– Structure: compilation vs. codification
– Content: persons, property, successions, contracts
French “code civil”
Civil Code
Civil Code
Andres Bello
Brazil draft
Chile’s civil code (1857)
• Structure
• Sources
• Innovations
Southern Patagonia
Santiago, Chile
Message to Congress (1855)
Muchos de los pueblos modernos más civilizados han sentido la necesidad de
codificar sus leyes. Se puede decir que ésta es una necesidad periódica de
las sociedades. Por completo y perfecto que se suponga un cuerpo de
legislación, la mudanza de costumbres, el progreso mismo de la
civilización, las vicisitudes políticas, la inmigración de ideas nuevas,
precursora de nuevas instituciones, los descubrimientos científicos y sus
aplicaciones a las artes y a la vida práctica, los abusos que introduce la
mala fe, fecunda en arbitrios para eludir las precauciones legales, provocan
sin cesar providencias, que se acumulan a las anteriores, interpretándolas,
adicionándolas, modificándolas, derogándolas, hasta que por fin se hace
necesario refundir esta masa confusa de elementos diversos, incoherentes
y contradictorios, dándoles consistencia y armonía y poniéndoles en
relación con las formas vivientes del orden social.
Andres Bello
Compare translation at CB 418
Bello “helped to
institute respect for
the law, giving the
country that political
stability without
which all other action
is enfeebled or
comes to an end.”
Andres Bello
Sam Wellborn
Chilean Civil Code
French Civil Code
German Civil
Siete Partidas
Preliminary Title
Preliminary Title
I. General Part
I. Sources of Law
I. People
I. Persons
II. Obligations
II. Public Law
II. Property
II. Property
III. Property
III. Civil Procedure
and property rights
III. Succession
III. Ways one
acquires property
IV. Family Law
IV. Family law
V. Succession
V. Private law
IV. Contracts
Final Title
VI. Inheritance,
guardianship, minors
VII. Criminal Law
Chile Civil Code
(persons, property, succession, obligations)
Chile – on persons (arts. 1-564)
Identify which rules appear in Chile Civil Code (1857)
__ 1. Persons missing for a long time are presumed dead or to have
severed their ties with family
__ 2. Mutually accepted marital promises do not produce legal
obligations, but only ones of honor and conscience.
__ 3. Even though the Church may recognize a marriage, the civil law
does not unless validated by a notary.
__ 4. A husband does not have a right to wife’s dowry/paraphernalia;
though Chilean women gain right to vote only in 1949.
__ 5. Illegitimate children can be legitimated by the consent of the
father, through sworn affidavit (but not the mother).
__ 6. The age of majority is fixed at 21; before this age, minors cannot
enter into binding contractual obligations.
1-Y / 2-Y / 3-N / 4-Y / 5-Y / 6-N
“How could merely carnal, dubious,
and random intercourse which can
in no way guarantee the faithfulness
of the degraded woman, establish
legitimacy without the corroboration
of the father?”
Where do illegitimate children stand
Taryn Kadar
Women in Chile
• 1880s: University of Chile
graduated first female lawyers
and physicians
• 1930s: women significant
among lawyers, physicians
and dentists.
• 1932: the University of Chile
had 124 women (17% of total
enrollment) enrolled in law, 96
(9.5%) in medicine, and 108
(38%) in dentistry.
• 2007 survey: 64% prof women
(science/technology) say being
a woman is “negative
influence” on career
(respondents 57% PhD, 28%
Master’s, 10% grad studies)
• 2004: divorce was legalized,
though with lengthy waiting
periods and no provision for
joint custody of children.
• Domestic violence
– 1986: infraction under the
Civil Code
– 2001 study: half of all
Chilean women have been
abused by their partners
– 2006: DV fully criminalized.
• 2006: judges can issue
protective orders and police
can arrest men suspected of
threatening or abusing their
Chile – on property (arts. 565-950)
Identify which rules appear in Chile Civil Code (1857)
__ 1. Mortgages must be notarized and filed in the land registry, or they
do not have legal effect under any circumstances.
__ 2. Leases, which are treated as conveyances of real property, must
be notarized and registered in the land registry.
__ 3. A contract to sell real estate cannot transfer ownership, but it
creates rights between the parties.
__ 4. Property rights may be acquired by prescription (adverse
possession) only by regular possession.
__ 5. Easements need not be registered, since these are viewed as
minor encumbrances, the same as the French Civil Code.
__ 6. The number of successive usufructs or testamentary trusts is
limited to one, for the purpose of conserving “industry.”
1-N / 2-N / 3-Y / 4-Y / 5-N / 6-Y
“Among the shortcomings, [one author]
mentions the failure of the Code to
anticipate future needs, such as
copyright, ownership of
correspondence, etc.”
How has Chilean Code survived?
Sam Wellborn
Chile – on succession (arts. 951-1436)
Identify which rules appear in Chile Civil Code (1857)
__ 1. Only legitimate descendants have a right of representation – that
is, to take under the laws of intestacy.
__ 2. The widow and widower are treated equally – each is entitled to
an obligatory distribution of at least 50% of the estate.
__ 3. The right to disinherit, recognized in the French Civil Code, exists
with respect to spouses and children.
__ 4. ¼ Legitime goes to spouse; ¼ Legitime goes to natural children
or, if none, spouse; up to ¼ improvements go to children/
grandchildren; Testator may dispose of remainder as sees fit
__ 5. Persons have the power to use their property during their lifetime
as they see fit – effectively permitting disinheritance.
1-Y / 2-N / 3-N / 4-Y / 5-N
Legal socialization
“Piaget reported that moral decisions about law and
justice are early learned or socialized in . . . systems of
home, school, and community.”
Sam Wellborn
Family in Chile
• (Extended) family occupies a
central role in Chilean life custom, culture and etiquette
• Family and business are
intertwined - nepotism is seen
as a positive concept. Many
small firms 100% family run
• drastic decline in marriage of
45% with 104,700 marriages in
1990 and 57,500 in 2003.
• extramarital births has
increased from 15.9% in 1960
to 34.3% in 1990.
• women with more education
are increasingly choosing to
have children outside of
• Children born out of wedlock
– 30% in late 19th Century
– 40% in early 20th Century
• Orphans in Chile
– Casa de Huérfanos of Santiago largest welfare institution in 1867
– 9% of all children born in Santiago,
mostly illegitimate infants
– from 1853 to 1924, Casa received
over 50,000 children
• Orphanages preferred girls over
– boys turned away or released at
age 7-8
– girls “distributed” later as
Taryn Kadar
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 – If
clearly known, the
intention of the
contracting parties
shall carry more weight
than the contract’s literal
CCC Article 1561 – No
matter how general, the
terms of a contract shall
only apply to the
contract’s specific
subject matter
CCC Article 1564 –
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 …
CCC Article 1566 – …
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) –
Unless a different
intention is manifested
where language has a
generally prevailing
meaning, it is interpreted
in accordance with that
Restatement (Second)
of Contracts §203(c) –
In the interpretation of a
promise or agreement or
a term thereof specific
terms and exact terms
are given greater
weight than general
Restatement (Second)
of Contracts §202(2) –
A writing is interpreted as
a whole, and all writings
that are part of the
same transaction are
interpreted together
Restatement (Second)
of Contracts §206 - 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.
Is Chile Civil Code
capitalist or socialist …
Compare Chile and Norway
Article 1924
The lessor has a duty to deliver
the leased thing to the lessee, to
upkeep the thing to that it may
serve the purpose of the lease
and to liberate the lessee from
any impediment to the
enjoyment of the leased thing.
Section 2-2
The property shall when made
available to the tenant comply
with the requirements ensuing
from the tenancy agreement.
Unless otherwise agreed, the
property and appurtenances shall
when made available to the tenant
be tidy, clean and in normal good
It seems the Norwegian
Act focuses more on what
is stated in the agreement
between the parties, and
then lets the parties fill in
with statutes if the
agreement does not
mention anything on the
upkeep and etc. of the
leased property/thing.
Article 1934
The lessee does not have a
right to damages under the
preceding Article if he entered
into the contract knowing of the
defect and if the lessor did not
commit to repairing it
Section 2-10
The tenant may demand that the
landlord at his own expense shall
repair a defect of the property if
this can be done without causing
the landlord unreasonable
expense or inconvenience.
Here one might see a
difference in how the
“consumer” or “little guy” is
treated. In Norway, even if
you went into the
agreement with open
eyes, you can still make
the lessor repair defects,
unless unreasonable
expense or inconvenience.
Is “a good family father”
(“bonus pater familias”)
the same as “reasonable man” …
Hernando De Soto questioned what
prevents people in “third world”
countries from obtaining the benefits of
capitalism that exist in areas like
western Europe and the United States.
De Soto’s answer to his question was
capital – “the major stumbling block
that keeps the rest of the world from
benefiting from capitalism is its inability
to produce capital.”
Jay Frantz
US law balances the rights of minors
and merchants. General rule is that
minors on the hood, unless minor
brings an action.
The Chilean rule does not adequately
protect orphans.
Robbie Samuel

Foreign Law in US Courts