Civil law codes

The two most influential civil codes in the world?

(1) Who follows

(2) Nature of rules

Civil law codes“… 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)

Why survived? (Kate, Jordan) Drawbacks? (Leslie, Jenny)

Civil law codes French Civil Code

– Napoleonic Code– 1804– Four jurists/lawyers

German Civil Code– Burgerliches Gesetzbuck

(BGB)– 1896, eff. 1900– University “Pandecists”

Questions ID differences (Jordan, Jenny)

Former Soviet countries (Jordan)

Belgium

Brazil

Indochina

Italy

Japan

Netherlands

Nordic countries

Northern Africa

Portugal

Spain

Latin America

Switzerland

Civil law codes Belgium Brazil Indochina Italy Japan Netherlands Nordic

countries Northern Africa Portugal Spain Latin America Switzerland

Civil law codes Belgium(1804) Brazil Indochina Italy Japan Netherlands Nordic countries Northern Africa Portugal Spain Latin America Switzerland

Civil law codes Belgium Brazil (1916) Indochina Italy Japan Netherlands Nordic

countries Northern Africa Portugal Spain Latin America Switzerland

Civil law codes Belgium Brazil Indochina Italy Japan Netherlands Nordic

countries Northern Africa Portugal Spain Latin America Switzerland

Civil law codes Belgium Brazil Indochina Italy (1942) Japan Netherlands Nordic

countries Northern Africa Portugal Spain Latin America Switzerland

Civil law codes Belgium Brazil Indochina Italy Japan (Korea) Netherlands Nordic

countries Northern Africa Portugal Spain Latin America Switzerland

Civil law codes Belgium Brazil Indochina Italy Japan Netherlands

(1838 / 1967) Nordic

countries Northern Africa Portugal Spain Latin America Switzerland

Civil law codes Belgium Brazil Indochina Italy Japan Netherlands Nordic

countries Northern Africa Portugal Spain Latin America Switzerland

Civil law codes Belgium Brazil Indochina Italy Japan Netherlands Nordic

countries Northern Africa Portugal Spain Latin America Switzerland

Civil law codes Belgium Brazil Indochina Italy Japan Netherlands Nordic

countries Northern Africa Portugal (1867

/ 1967) Spain Latin America Switzerland

Civil law codes Belgium Brazil Indochina Italy Japan Netherlands Nordic

countries Northern Africa Portugal Spain (1888) Latin America Switzerland

Civil law codes Belgium Brazil Indochina Italy Japan Netherlands Nordic

countries Northern Africa Portugal Spain Latin America Switzerland

Civil law codes Belgium Brazil Indochina Italy Japan Netherlands Nordic

countries Northern Africa Portugal Spain Latin America Switzerland

(Turkey 1926)

Civil law codesFrench 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 CodeCoverage?

A. Civil rights

B. Political rights

C. Rights in private relationships

D. Respect for human body

E. Right of privacy

French Civil CodeCoverage?

A. Civil rights

B. Political rights

C. Rights in private relationships

D. Respect for human body

E. Right of privacy

French Civil CodeFamily law rules? 1. Divorce is “effective end

of marriage relationship”2. Sperm donor cannot be

subject to paternity suits3. Surrogate mother loses

maternal rights if gives consent before notary

4. Illegitimate children have no rights

French Civil CodeFamily law rules? 1. Divorce if “effective end

of marriage relationship”2. Sperm donor cannot be

subject to paternity suits3. Surrogate mother loses

maternal rights if gives consent before notary

4. Illegitimate children have no rights

French Civil CodeProperty rights?

1. Types of property are immovables and movables

2. Usufruct is the right for life to enjoy property and proceeds (like life estate)

3. Use is right to use property, but not proceeds

4. Condos, important in France, are not regulated in Civil Code

French Civil CodeProperty rights?

1. Types of property are immovables and movables

2. Usufruct is the right for life to enjoy property and proceeds (like life estate)

3. Use is right to use property, but not proceeds

4. Condos, important in France, are not regulated in Civil Code

French Civil CodeSuccession? 1. The first topic of Book III is

successions (regulate aristrocracy)2. Individual can bequeath as

chooses, including disinheriting children

3. If person has one child, child inherits at least 50%

4. If person has two children, they inherit 75%

5. Future interests are prohibited

French Civil CodeSuccession? 1. The first topic of Book III is

successions (regulate aristrocracy)2. Individual can bequeath as

chooses, including disinheriting children

3. If person has one child, child inherits at least 50%

4. If person has two children, they inherit 75%

5. Future interests are prohibited

French Civil CodeTorts?

1. “Obligations that arise without contracts”

2. The rules on torts are essentially unchanged since 1804

3. The Civil Code requires the purchase of insurance by those in dangerous occupations

4. Parents can be liable for the torts of their children

French Civil CodeTorts?

1. “Obligations that arise without contracts”

2. The rules on torts are essentially unchanged since 1804

3. The Civil Code requires the purchase of insurance by those in dangerous occupations

4. Parents can be liable for the torts of their children

French Civil CodeContracts / sales?

1. Title passes immediately, once there is agreement on price and object of sale

2. Title cannot, by agreement, pass at some future time

3. A promesse de vente is a sales contract

4. A lease is viewed as a type of contract, not property interest

French Civil CodeContracts / sales?

1. Title passes immediately, once there is agreement on price and object of sale

2. Title cannot, by agreement, pass at some future time

3. A promesse de vente is a sales contract

4. A lease is viewed as a type of contract, not property interest

French Civil CodeCompanies?

1. A company is association of two or more persons to carry out business

2. A one-person company is impossible

3. Companies are governed exclusively by the Commercial Code

4. Limited liability entities are all governed by Commercial Code (LLCs, limited partnership, corporations)

French Civil CodeCompanies?

1. A company is association of two or more persons to carry out business

2. A one-person company is impossible

3. Companies are governed exclusively by the Commercial Code

4. Limited liability entities are all governed by Commercial Code (LLCs, limited partnership, corporations)

Civil law codes

Why do civil codes survive “war, revolution,

political dismemberment”?

In fact, why are civil codes more

permanent than constitutions?

What is “decodification”?

German Civil CodeI. General partII. Law of

obligationsIII. Law of propertyIV. Family lawV. Law of

succession

The “General part” has broad notions that apply throughout the BGB. (Kate)

For example, a person’s “declaration of intent” can be his own declaration or that of a duly authorized agent. (This is the default rule.)

Questions: Does this mean that an agent can

agree to marriage on behalf of another? Adopt a child? Sign a will? (Kate)

How does one know if there is an exception? (Netherlands explicitly limits agency to “patrimony” rights)

German Civil CodeJuristic person?

1. Association

2. Foundation

3. Partnership

4. Close corporation

5. Public corporation

German Civil CodeJuristic person?

1. Association

2. Foundation

3. Partnership

4. Close corporation

5. Public corporation

German Civil CodeObligations?1. There is no technical

requirement of consideration

2. Notarial form is required for a unilateral gift

3. Contracts are created by mutual consent

4. The Civil Code protects tenants, discouraging new construction

5. Employment periods differ for manual and clerical workers

German Civil CodeObligations?1. There is no technical

requirement of consideration

2. Notarial form is required for a unilateral gift

3. Contracts are created by mutual consent

4. The Civil Code protects tenants, discouraging new construction

5. Employment periods differ for manual and clerical workers

German Civil CodeObligations?1. There is no technical

requirement of consideration

2. Notarial form is required for a unilateral gift

3. Contracts are created by mutual consent

4. The Civil Code protects tenants, discouraging new construction

5. Employment periods differ for manual and clerical workers (unconstitutional)

German Civil CodeMore obligations?

1. The relationships of principal and agent are treated as “mandates”

2. Civil law partnerships (not involving merchants) are regulated by BGB

3. Delicts, treated with more specificity than the French Civil Code, are viewed as a subset of obligations

4. Discovery of documents from a third-party arises only if substantive duty

German Civil CodeMore obligations?

1. The relationships of principal and agent are treated as “mandates”

2. Civil law partnerships (not involving merchants) are regulated by BGB

3. Delicts, treated with more specificity than the French Civil Code, are viewed as a subset of obligations

4. Discovery of documents from a third-party arises only if substantive duty

German Civil CodeFamily law?1. All provisions on property

are subject to principle in German Constitution: “Men and women shall have equal rights”

2. One of first things Allied Control Council did after WWII was to replace racist Nazi marriage law

3. Reflecting the value given marriage, there is only “fault” divorce

4. Married couples can by notarial agreement choose their own “property regime”

German Civil CodeFamily law?1. All provisions on property

are subject to principle in German Constitution: “Men and women shall have equal rights”

2. One of first things Allied Control Council did after WWII was to replace racist Nazi marriage law

3. Reflecting the value given marriage, there is only “fault” divorce

4. Married couples can by notarial agreement choose their own “property regime”

German Civil CodeSuccessions?

1. The BGB lays out the order of succession

2. There is no recognition of wills

3. There is complete freedom of testation, thus allowing disinheritance of spouse and children

4. There are compulsory portions for surviving spouses and children

German Civil CodeSuccessions?

1. The BGB lays out the order of succession

2. There is no recognition of wills

3. There is complete freedom of testation, thus allowing disinheritance of spouse and children

4. There are compulsory portions for surviving spouses and children

Civil law codes

What do the civil codes not cover?

(Jordan, Kate)

How are civil codes revised? (Kate, Leslie, Jenny)