Latin American Law Last updated 19 Sep 11 Codification > German BGB > decodification > Lex Mundi project: comparison of common and civil law

Jean-Etienne Marie Portalis ( ) Robert Joseph Pothier ( )

"My true glory is not to have won 40 battles... Waterloo will erase the memory of so many victories... But what nothing will destroy, what will live forever, is my Civil Code” “Mon code est perdu” Napoleon, on hearing of the publication of first commentary on Code Napoleon

“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 …

Argentina Civil Code (1869) Dalmacio Velez Sarsfield ( ) French “code civil” (1804) Chile Civil Code (1852) Andres Bello ( ) Brazil draft civil code (1856) Augusto Teixeira de Freitas ( )

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 German Civil Code I.General part II.Law of obligations III.Law of property IV.Family law V.Law of succession Jean-Étienne-Marie Portalis

French Civil Code Art 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. 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. Differences in style, culture Trevor Ostbye

Compare Lochner and BGB (and later progressive era reforms) Robby Samuel Lauren Connell BGB reflected unification of German codes for bourgeois society? Joel De Leon Are restatements like code? A debate: yes and no. Francisco Morales Robby Samuel How does BGB keep up with changing times? Hyperinflation/Nazism/family? Lauren Connell Francisco Morales

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 ThiefBailee 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 … Constitutional law Special legislation Judge-made law Administrative regulations Code How and why did BGB get revised in 2002

Common law / Civil law Friedrich Karl von Savigny Napoleón Bonaparte Sir William Blackstone

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.Legal origins explains 40% of formalism 2.Formalism prevalent in civil law countries 3.Formalism greater in less developed vs. richer countries Findings (judicial quality): 1.Formalism predicts duration of eviction, check collection 2.Formalism correlated to less access, higher judicial inefficiency, higher corruption, less fairness 3.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

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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)