Civil CodesBrazil

Trailer to favela filmLast updated 07 Nov 11

Latin American Law

Compare

• 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 Code

Chilean Civil Code

Brazilian Civil Code

German Civil Code

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 obligations)

III. Succession 

III. Property IV. Family

IV. Obligations 

IV. Family V. Succession

  Final Title 

V. Succession  

    Final Title  

• Model for borrowing

• Gain perspective

• Discover truths

• Impose / power

Value of knowing other legal systems

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In Chile a contract with a minor may be rescinded, it is not null.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

If clearly known, the intention of the contracting parties shall carry more weight than the contract’s literal words.

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. Nevertheless, 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 meaning.

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 language

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.

Brazil’s civil code (2003)

• 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, applicability”

Trevor Ostbye

Brazil civil code chronology …

Civil C

ode

(191

7)

Draft

Code

(185

6)

Milit

ary c

oup

(196

4)

New C

onsti

tutio

n

(199

8)

Code

proje

ct

(197

5)

New C

ivil C

ode

(200

3)

Code

com

miss

ion

(196

9)

New C

onsti

tutio

n

(196

7)

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)

1. Legal transactions are to be interpreted according to good faith and the common usage of the place in which they occur.

2. Judges are to determine the reasonableness of time and amount due in agency situations.

3. Disposal of a person’s organs (such as kidneys) is permitted, including for payment.

4. A person’s name may not be used in commercial advertising without authorization.

5. Ambiguous or contradictory clauses in a contract of adhesion shall be interpreted in favor of the adhering party.

6. Civil unions, including same-sex civil unions, are recognized and entitle the partners to full protection of the law

7. 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

UNITED STATES

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 succession.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.

LATIN AMERICA

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 Bolivia.  1982:  Rosario Ibarra de Piedra is the first woman to run for President of Mexico.  1989: Violeta Barrios de Chamorro elected President of Nicagagua.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 Argentina.2010: Dilma Roussef elected President of Brazil (former guerrilla)

[student]

“Only doctrine that was consolidated or that had been extensively expounded was to be included …”

“We exhaustively enumerate, numerus clausus, cases of prescription….”

“We put an end to synonyms that may lead to confusion ….”

[student]

“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 marriage.

“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 regime? 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 issues4. 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

End

STABLE UNIONS

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