Sie sind auf Seite 1von 16

The Spanish Antecedents of the Philippine Civil Code

By Ruben F. Balane

The Marriage of Isabella and Ferdinand

- 10/19/1469, Valledolid
- Isabella was 18, the great granddaughter of John of Gaunt,
Duke of Lancaster, also the princess of Castile
- Ferdinand was 17, from Aragon, King of Sicily
- Isabellas brother preferred her to be married to the King
of Portugal, but a papal bull of dispensation was issued for
her to be married to Ferdinand, craftily forged by
Ferdinand, his father, and the Archbishop of Toledo
- As one was Castilian and one Aragonese, both belonged to
the Royal Houses of Trastamara, a ruling house in both
- The Compromise of Caspe recognized Fernando de
Antequera, the first Trastamara sovereign of Aragon. His
grandson was Ferdinand, and his brother, Henry III, was
Isabellas grandfather
- Marriage brought about the political unification of Spain,
in the eve of a war against the Muslim Moor, a war that
returned Spain to Christianity from Islam
- The marriage also allowed a weaver from Genoa, Cristoforo
Colombo, to sail beyond the Azores in search of a westward
route to the Spice Island, but stumbled upon America
- Spain dispatched another seafarer in Fernao de Magalhaes,
who first circumnavigated the globe, but died in Mactan

- First major settlers of Spain
- Related to ancient Assyrians and Chaldeans
- Spain from Asia through North Africa
- 1200 -1300 BC
- Crossed the Pyrenees from France
- occupied modern Galicia and Portugal
- Celts + Iberians
- FAMILY was the basic social structure
- Gens a group of families which formed tribes
- Had a well developed concept of property, either private or
- A Phoenician city in North Africa, the rise of whom
brought the Iberian peninsula under Carthaginian
- Carthaginians were interested in the Iberians silver and
- Accompanied by the rise of Rome
Punic Wars
- A trio of wars brought about by rival expansionist
ambitions between the Romans and the Carthaginians
Hamilcar Barca
- Led his armies into Spain
- The founder of Barcelona
- Hamilcar Barcas son-in-law
- Succeeded Hamilcar
- Established capital at Cartagena
- Hasdrubals successor
- The greatest Carthaginian general of all
Publius Cornelius Scipio
- Captured Cartagena
- Pushed Carthaginians back to North Africa
- Scipio Africanus
- Carthage was destroyed and Spain passed on to Roman
- Spain was divided to:
o Hispania Ulterior (Farther Spain) - west of River
o Hispania Citerior (Nearer Spain) east of River
Caesar Augustus
- Reorganized Spain into three provinces
o Baetica
o Tarraconensis
o Lusitania
- Spain as one diocese under the prefecture of Gaul
- Composed of
o Five provinces
o Two overseas provinces
Mauritania Tingitana
Roman Cities
- Zaragoza
- Leon
- Badajoz
- Astorga
- Merida
- Braga, etc.

The history of Spanish law = the history of Roman Law

300 AD onwards
- Decline of the Roman Empire
- VANDALS, ALANS, and SUEVIANS invaded Galicia
400 AD onwards
- Hail from Central Asia
- East Goths were brought under subjection
- Under Alaric
- Went through Northern Italy, then the Po Valley, down the
Italian boot and then Rome

Spain became a Visigothic kingdom. In 416, they established
their capital in Barcelona, then in Toulouse, and then in

- Already had considerable exposure to Roman ways and
- VISIGOTHIC LAW was preponderantly characteristic of
- TACITUS said that Visigothic customs featured:
o Marriage - highly regarded, generally monogamous
o Adultery dealt with severely
o Wills non-existent, in default of children,
brothers succeeded, in their default, uncles on both
paternal and marernal sides
o Extreme hospitality inhuman for anyone to deny
admission into one;s house; every guest stranger,
must be served the best food; if food runs out, guest
must be escorted to a neighbors house
o Interest on loans non-existent
- Other features of Visigothic law:
o Mutual aid and protection w/in the family
o Wife had a right to share in property after marriage
o Parental authority over the children did NOT
include jus vitae ac necis

As refinements to civilization dawned on the Visigoths, they began
thinking of putting their laws into more permanent form.


The Code of Euric/Tolosa
- The oldest written Germanic law
- Unearthed by Benedictine monks of the monastery of St.
Germain, who were working on a palimpsest containing
writings of St. Jerome
- Published in 1847 with the title Reccaredi Visigothorum
Regis antiqua legume collection. Ex membranis deletitiis
regiae Parisiensis bibliothecae restitutam adjecta vulgate
legume Visigothorum lectione
- Was divided into CHAPTERS and TITLES
- Euric Visigothic king from 466-484 AD
- Was meant to apply ONLY to CONQUERORS, w/c means
it was a PERSONAL, not a territorial law
- People were confused as to which laws apply to them, so
Alaric II cleared up this problem


Alaric II
- Son of Euric
- Formed a commission of Visigothic scholars under the
leadership of a count named GOYARIC to formulate of
body of laws based on Roman law
- 506 draft was submitted to Alaric, who decreed it into
law with the caveat that they be signed by Chancellor
- Other names: Lex Romana, Liber legume, Auctoritas
ALarici regis, Lex Theodosii, Commonitorium
- Based on ante-Justinian Roman law consisting of
o imperial edicts and;
o writings of Roman jurisconsults
- contained most of what is found in the 16 books of the
Theodosian Code
- is in two parts:
o Text
o Interpretation
o Except only in the part of the Institutes of Gaius, in
which both parts are integrated
- Early Visigothic legal system:
o Personal
Predominantly Germanic for the conqueror
Predominantly Roman for the conquered
o Reminiscent of the legislacion doble or legislacion
de castas
o Paved the way for CONSOLIDATION under later


- A peasant from Dacia in 527 AD
- Wanted to recover the lost Western provinces and to make
the Mediterranean Roman/Byzantine again
- Reconstructed the:
o Hagia Sophia
o Codification of laws
Codification of laws
- Commissioned on 12/15/530
- Digest was published on 12/16/530, followed by the
Institutes, and then the Codex
- Corpus Juris Civillis contains a fourth part, the Novellae,
new laws enacted subsequent to the first three parts

The Code of Justinian
- Influence accompanied that of the universities
- Civil Code owes much to the Institutes of Justinian


- Visigothic power was consolidating
- Power was threatened in the reign of Leoigild (573-586)
- Hispano Romans (Orthodox Catholics) v. Visigoths
- Byzantine and Suevian territories were conquered and
made a part of Visigothic Spain
- Reccared faced the religious problem, son of Leovigild,
by converting to Catholicism
- Only problem that remained was the RESOLUTION of the
legislacion doble
- Solution: the adoption of a law common to both Visigoths
and Hispano-Romans

The Fuero Juzgo
- Law common to both Visigoths and Hispano-Romans
- Was achieved in stages, during the reigns of:
o Chindaswinth
o Recceswinth
o Ervigius
o Egica
- Was known in various names: Codex legume, Liber
Gothorum, Lex Visigothorum, Liber judiciorum, Liber
judicum, Forum Judicum


1.) De electione principum preliminary part, monarchy
2.) De instrumentis legalibus first book, lawmaking
3.) De negotiis causarum general application of law
throughout the kingdom, drastic change from personal to
territorial application
4.) De ordine conjugali marriage
5.) De ordine naturali family, relationship, succession
6.) De transactionibus contracts
7.) De sceleribus et tormentis, De furtis et fallaciis, De inlatis
violentiis et damnis criminal law
8.) De fugitivis et de refugientibus military deserters and
ecclesiastical asylum
9.) De divisionibus et annorum temporibus atque limitibus
division of lands, lease, and prescription
10.) De aegrotis atque mortuis et transmarinis
negotiatoribus physicians, sick, cemetery violators
11.) De removendis pressuris et omnium haereticorum
omnimodo sectis exstincis a variety of public matters,
administration of justice, harsh provisions agains the Jews
- Was not a code, but a collection of laws
- Can be divided into (1) the law of persons and family; (2)
the law of property; (3) the law of descent or succession;
(4) the law of obligations and contracts

A. The law of persons and family
a. Social forces at work towards unity allowed
intermarriages between Goths and Hispano-
b. The establishment of the NATURAL and the
c. Legal birth = existence for 10 days + baptism
d. Age of majority = 15 years
e. Impediments to a valid marriage
i. Difference in status (bet. Freeman and a
ii. Woman is older than a man
iii. Holy Orders, from subdeacon up
iv. Relationship to the seventh degree
v. Prior existing marriage
vi. Crimes against chastity, specifically
abduction and rape
vii. Temporal impediment
f. No minimum age requirement for marriage, anyone
can marry after reaching puberty
g. The ceremony for marriage
h. Common property between the spouses = conjugal
i. Patria potestas (power of a father) acquired
solely by reason of marriage; legitimation and
adoption was unknown/unacceptable to the Goths;
ius necis only available if father catches daughter in
the carnal act; rights of infants were scrupulously
protected; infanticide and abortion are punished by
death or gouging out ones eyes; mother who aborts
will be deemed a slave
j. Mother exercises substitute parental authority in
the event of the fathers death; will be lost thru
k. Adventitious property is recognized

B. The Law of Property
a. Modes of acquiring ownership: (a.) occupation (b.)
accession (c.) prescription (d.) succession
b. Co-ownership was recognized and regulated
c. Servitudes were classified into personal and real;
latter referring to pasturelands

C. The Law of Descent
a. Succession was either testamentary or intestate;
former occurs by virtue of an attested or a
holographic will; only freemen could be witnesses
b. Minimum age for wills: 14, 10 for those in periculo
c. Reserved portion was large 4/5 of fathers
property, of the mothers, with a portion allowed
as mejora, and a preferential order of heirs
d. Disinheritance was limited to certain specified
e. Intestate succession was established
f. The Celtiberian idea of reserve troncal

D. The Law of Obligations and Contracts
a. Contractual capacity acquired at age of 14
b. Minority, insanity, slavery, and force or fear
vitiated a contract
c. The ff contracts were regulated: (a) sale; (b) lease;
(c) mutuum; (d) commodatum; (e) deposit; (f)
donation; (g) mortgage); (h) pledge

The Code was in force briefly, only about two or three decades,
perhaps even less. In 711 AD, the Moors struck.


The Moors
- Muslims
- From North Africa
- 12,000 strong, landed on the hill of Tarik (Gibraltar)
- 7-year war brought Islam back to Spain, save for pockets of
resistance in the Pyrenees and the Cantabrian mountains
- Battle of Tours
o 732 AD, Poitiers, France
o they were met by the Christendom under Charles
Martel, the Frankish major domus
o Christendom was restored in Spain
o Also called the Reconquista

Spain during and after the Reconqui sta
- Under the Moors, Spain was organized as an emirate under
the Omayvad caliphate of Damascus
- The Omayvad dynasty shifted to the Abbasid dynasty, Abd-
er-Rahman fled to Spain, and set up the magnificent
capital of Cordoba
- Abd-er-Rahman III assumed the title of CALIPH in the 10

Century and his kingdom became known to be the
Caliphate of Cordoba
- Koran the primary source of law
- Influenced by Muslim civilization, with effects on the arts,
architecture, literature, mathematics, and the physical
- Post Tariks conquest, nothing was left of Visigothic Spain
except the mountain fastness of Asturias where the
remnants of Visigothic nobility, clergy, and army
established themselves
- Pelayo the Visigoth duke named the remaining Visigoths
- Moors withdrew, as they were weakened by internal
dissension and lack of interest to retain the infertile lands
in the northwest
- Moors evacuated Galicia and Leon, and these regions
united with Asturias to form a kingdom called Leon
- Basques of Navarre established an independent kingdom
- Cataluna was snatched back from the Moors by the
Frankish kings
- Castile arose in the 10
- The kingdoms of Leon, Navarre, Cataluna, and Castile were
- Small enclaves formerly of the Caliphate of Cordoba
- Divided in 1031
- Fell prey to Christian kings
- Religious, Muslim men from Northwestern Africa
- Emperor of the Almoravides
- Defeated Alfonso VI of Leon in the Battle of Zalaca
- Reunited the taifas into one Muslim Kingdom again
- Unitarians
- A sub-branch of Berber Moors
- Invaded the peninsula and reunited Muslim Spain, which
was shrinking with the advance of Christian Kingdoms
- Aragon and Cataluna were united to a single kingdom
under one monarch
- Kingdom was called the kingdom of Aragon
- Central Spain consolidation was erratic, as a succession
of kings alternately united and divided the kingdoms of
Leon and Castile
- Both kingdoms captured Extremadura
- Leon, Castile, Navarre, Aragon, won in Navas de Tolosa in
Andalucia, the south part of Spain
- Castile and Leon were united into one kingdom, that of


- Complex political situation due to fragmented legal
- Both separate kingdoms retained a measure of autonomy
- There was a VAST diversity of laws and jurisdictions due to
the piecemeal reconquest of Spain
- Political unions were created
The period of the fueros
- Period when legislation was made by king and parliament,
by customs, charters, and privileges
- Can refer to:
o The great general code the Fuero Juzgo
o Also referred to uses or customs, local laws,
privileges, exemptions, or franchises authorized by
public power to diverse classes or districts


- Fiefs are handed down intact to eldest sons, for though
land could be divided, an office could not
- Primogeniture
- Developed in Carolingian France in the 8
and 9

- Breakdown of the Roman Empire and the threat of Isam
made it necessary for men to provide their own defense
- Vassalage was developed, wherein a man pledged military
service to another
- Benefice a special grant of land to the vassal
- Fealty - a vow of unfailing loyalty; was then called a fief;
because governmental jurisdiction was included, it was
also an office; if the land was to provide economic support
for military service, the holder of the fief the vassal had
to have control over the peasants working the land
- Left the younger sons virtually NOTHING
- Younger siblings set on adventures in search of fame,
fortune, success, and lovely damsels, making them heroes
of many tales and romantic novels

Mayor azgo in the Philippines
- Has arisen in litigation, particularly in Barreto v Tuazon
o Accdg to the court, a mayorazgo is a usufruct, since
the firstborn acquires a dominium utile.
o The FAMILY of the founder is the owner, owing to
infinite succession
o Accdg to the court, a mayorazgo is also a trust or
fideicomiso, a particular kind of trust, where the
possessor is simultaneously a trustee and a
usufructuary heir
October 11, 1820
- The Statute of Civil Disentailments was passed; abolished
all mayorazgos

Royal Decree of 31 October 1863
- Statute of extended provinces, taking effect there on 1
March 1864

The Universities

- Period of Reconquista, which meant a great legal diversity,
it wasnt possible to talk about Spanish law
- Spanish law wasnt regional, provincial, municipal, or
- Jealousy-held privileges prevented codification
- Great Spanish Universities arose, with faculties of law
dedicated to teaching the Justinianaean Roman Law as
interpreted by Italian Glossators and Commentators
- Universities were established
o Palencia, 1209
o Salamanca, 1239
o Lerida, 1300
o Valladolid, 1346 the CENTER of ROMAN LAW
o Zaragoza, 1474
o Toledo, 1499
o Sevilla, 1504
o Granada, 1537
- Reception of Roman Law was to assure predominance of
Roman Law tradition in the peninsula by influencing codes
to be enacted

- Originally intended as a code of rights and privileges of
- Presented to Alfonso VII in 1212; he was unwilling to
promulgate it, seeing it as a means of further strengthening
the nobles; hence he shilly-shallied like a sir
- Alfonso X, his successor, yielded to intense pressure and
promulgated it on 1272 as the law of nobility
- Under Pedro I (El Cruel), amendments were introduced
inserting dispositions of a more general character, as for
example, the setting of the age of 16 for will-making

- Alfonso X (El Sabio) presaged the promulgation of the
Codes; they were published in an encyclopedic treatise
called the SEPTENARIO
- Project was begun by Fernando and completed by Alfonso
- Alfonsos codes came on 1254-1255, known as
o Fuero de las Leyes, Fuero del Libro, Fuero de la
Corte, Fuero Castellano, Fuero de Castilla, Libro
de los Concejos de Castilla, Flores de Las Leyes
- Divided into 4 books, consisting of 72 titles and 545 laws
- Some noteworthy civil law features:
A. General provisions
a. Ignorance of the law is not allowed as an
b. Custom is not recognized as source of law.
B. The law of persons and family
a. Civil personality is acquired by anyone who is
baptized, irrespective of length of life; departs
from 10-day requirement set by the Fuero
b. Woman over 30 did not need parental consent
to get married, provided she can still find a
c. Regime of conjugal partnership of gains is
further regulated by enumeration of kinds of
property included therein
d. Legitimation is provided for the first time
takes place by subsequent marriage or by grace
of the King. Child should be natural, although
the term natural was not defined. Natural child
was one conceived by parents, even if they
werent married
C. The law of property
a. Accesion natural is recognized and regulated
(was not provided by Fuero Juzgo or local laws).
Instances of accession natural were:
i. Formation of islands
ii. Change of river course
iii. Fruits of falling on adjacent estates
could be recovered by tree owner within
one day, after which period the fruits
became the property of the owner of the
estate on which they fell
b. Elements of prescription:
i. Continuous possession
ii. Lapse of required period of time
iii. Prescriptibility og the thing
iv. Period of prescription was one year and
one day as against someone present, 30
years as against someone absent
c. Provision governing party walls, each co-owner
being obliged to pay one-half of the
construction and maintenance of the wall
D. The law of descent
a. Age for will-making remained at 14
b. Portion for descendants: 4/5 of estate, but 1/3
was disposed for betterment (mejora). NO
provision granting legitimes to ascendants
c. Illegitimate children other than natural received
d. Causes for unworthiness to succeed are given
e.g. killing the testator
e. Concept of administrator or testator introduced
E. ObliCon
a. The ff are regulated: sale, barter ,lease, loan
(mutuum and commandum), deposit, pledge,
donations, and negotiorum gestio
b. Either party to a contract of sale may withdraw
from the contract as long as no part of the price
has yet been paid
c. Individuals with descendants could only donate
up to 1/5 of their estate; only limitation
imposed upon those w/ no descendants was
that they could not donate all property;
universal alienations was declared to be void
Not a code of general application, as it was made applicable
as primary law in only some specified towns and there only
at a time like Aguilar de Campoo, Sahaguin, Valladolid,
This Code was primary law in some towns and suppletory
in those towns which had a special fuero
Was at one time a step forward and cause of greater
diversity and confusion


The 2
of Alfonsos codes, but almost probable that it was
never promulgated as law but served as basis of the
Not of concern bec 54 titles, 657 laws contain matters rel.
to public, procedural, and ecclesiastical law


Last of Alfonsos codes
Seville, Jun 1256 Aug 1265, by a group of jurists under
Alfonso himself
Divided into 7 parts and containing 2,479 laws under 182
titles, originally called Libro de las Leyes or Fuero de las
Jurists of 14
century called it the Siete Partidas
Cortes of Segovia and Alcala de Henares called it the
Partidas in 1347 and 1348, respectively
Influenced by local laws and customs of Castile, but
preponderant influence from canon law and Roman law of
Style and structure are conscious imitation of Pandects and
numerous sections contain literal translations of portions
of Justinians codes, with infusions from Italian glossators

Parts of the Partidas
1. Natural law, positive law, custom, Catholic faith,
sacraments, other religious matters including dogma and
discipline 24 titles
2. Public law 31 titles
3. Organization of judiciary, rules of procedure, with last five
titles governing ownership, prescription, possession and
servitudes 32 titles
4. Civil law, family law, with last seven titles dedicated to
feudal relationships between lord and vassal, master and
slave 27 titles
5. Law of obligations and contracts 15 titles
6. Succession, custody of orphans, minority 19 titles
7. Criminal law 24 titles

Other features
A. General Provisions
Principle of territoriality is preserved
Ignorance of the law is an excuse for peasants, soldiers,
and women
B. The law of persons and family
Minimum age is age of puberty
Legitimation occurs through
o Subsequent marriage
o Will of the king
o Performance of some service to the king
Adoption (porfijamiento) completely Roman in
derivation as to kind, requisites, and effects
Mother is given no share in patria potestas; in Roman
Law, it is granted to ascendant of highest degree
C. Law of property
Ownership acquired by:
o Occupation
o Accession
o Prescription
o Tradition
o hereditary succession
Roman law rules on possession and servitudes (real and
personal) are reproduced
D. The law of descent
Features of Roman Law of succession are borrowed e.g.
necessity of instituting an heir and legal impossibility of
dying partly testate and partly intestate
Capacity to inherit from ascendants is denied sacrilegious,
adulterous, incestuous children all of whom are
designated as fornecinos
Legitimary system: legitimes were reduced to either or
1/3 depending on number of children
Mejoras are not provided for
Legitimes are granted to ascendants
o Vulgar
o Pupilar ejemplar
o Fideicomisaria
Representation is to operate ad infinitum in the direct
descending line, and to 2
degree in collateral
Succession in collateral line is allowed to 4
degree; in
default of relatives w/in these degrees, the surviving
spouse; in spouses default, the King
E. Law of obligations and contracts
Partidas changed already simplified law on contract which
had generally required only consent; the new Code
emphasized form
Contracts are either real or consensual
o Real
o Consensual
Probable that Alfonso intended Partidas to be the truly
general law in his kingdom to supplant the Fuero Juzgo,
Fuero Real, and local fueros, but was also seen to be an
encyclopedic treatise
Did not acquire force of law for more than eight decades
Not until Ordenamiento de Alcala de Henares in 1348 that
the Partidas was promulgated (during reign of Alfonso XI,
great-grandson of Alfonso X)
Only given a lowly supplementary effect, as proven in the
Laws of Toro
Introduced Roman law too abruptly, or forces of
decentralization were too strong
Influence of Partidas was far greater than their binding
force as a legal enactment would warrant
However, encyclopedic treatment as well as obvious
scholarship assured lasting influence


1310, during reign of Fernando IV
Work of certain jurists headed by Oldrado de Ponte
Consists of 252 sections called leyes which did with:
o propter nuptias
o conjugal property
o prescription
did not have force of law but was a kind of collection of
explanatory notes and comments on the Fuero Real
some sections were incorporated in the Novisima

A collection of laws with reference to Civil Law
Emphasized spiritual aspect of contracts and ignoring the
element of form, which was stressed by the Partidas
Provided for lesion in sales, being held to exist when the
inadequacy amounted to more than one-half of the price
right to rescind had to be exercised within 4 yrs
Taking of interest was prohibited (departure from Fuero
Real, which allowed interest rates up to 75%). Penalty was
severe: forfeiture of of creditors patrimony, and in case
of recidivism, total forfeiture
Two provisions were prominent
o Will could be executed with 3 witnesses and court
clerk, or 5 witnesses without a court clerk
o Provided that a will need not institute and heir in
order to be valid, legacies and devises were to be
effective in any case; mixed succession i.e. partial
testacy and partial intestacy was expressly allowed

Wedding took place in autumn of 1469
Prev autumn: Isabella had been recognized heiress of
Castile by its king, her half-brother
Enrique IV called El Impotente (hihi )

The Impotent One had a daughter, Juana by name, or a
purported daughter bec no one believed her to be so
Was not capable of siring anyone (walang game, or panget)
Juana was then called La Beltraneja, after her reputed
father, a courtier named Beltra dela Cueva
Marriage of Isabella to Ferdinand upset El Impotente that
he withdrew his recognition of his sister as heiress and
acknowledged his *daughter* instead

1474 Enriques death, Isabella proclaimed herself Queen
of Castile, causing CIVIL WAR
1479 Isabella won as La Beltraneja took to the convents
Heir to Aragons throne
1480 fathers death made him King of Aragon
F & I were sovereigns of Aragon and Castile
Legally and technically were separate kingdoms but for
practical purposes were one
Turned their prodigious energies to the Reconquista
Moorish Granada still stood reminded the couple that
Spain was not wholly theirs
1491 with an army of 80,000, they starved city into
In two months, Boabdil, Moorish chief, sued for peace onf
Boabdil cried while Aixa, his wife, taunted him: Weep like
a woman for what you could not defend like a man
1492 year of glory, Reconquistas completion, Spains
rise as a colonial power with discovery of the New World
Two events were to have far-reaching effects:
o Internal Consolidation
o External expansion
Legal evolution was minimal
1484 compilation by Dr. Alfonso Diaz de Montalvo
Also called the Ordenanzas Reales de Montalvo
A collection of various ordinances of the Castilian Cortes as
well as royal decrees
Divided into eight books, with 14 titles, some of which are
the ff:
A. The law of persons and family:
Allows widow to contract a marriage a year after husbands
Declaring conjugal the fruits of separate property
Authorizing the husband to dispose of conjugal property
even w/o wifes consent, provided no intent to prejudice
B. Law of ObliCon
Multiple or collective obligations are presumed juris
tantum to be joint rather than solidary solidary oblifation
being held to exist only if it is expressly provided by both
Disputed whether compilation was decreed as law or
whether it was just a collection of pre-existing statues
Did not help with the bewildering legal situation with all
sorts of codes, semi-codes, pseudo-codes, and municipal
fueros existing simultaneously
Systematic revision of law was BADLY needed


1504 Isabella died, and oldest surviving child was her
Was either demented or was just declared to be so
Was disconsolate over the body of her husband Philip the
Forbade Philips burial because a Carthusian monk
promised Philips resurrection
Was Reina proprietaria of Castile
1505 Castilian Cortes was summoned at Toro to proclaim
her queen and ratify her fathers title to the regency
Said Castilian Cortes also published a piece of legislation
passed by a Toledo Cortes, which promulgated the Leyes de
Consists of 83 laws, without attempt at structural organization. No
divisions in books, titles or sections.
Salient features:
A. The law of persons and family:
1. Juridical capacity is possessed by the naturalmente nacido
with the following requisites:
a. Child must be born alive
b. It must survive 24 hours
c. It must be baptized
d. If any of these requisites were absent, the child was
2. Marriage as a cause of emancipation from parental
authority and the usufruct of any adventitious property
passed to the child from the time of the marriage
3. Ley de osculo if marriage did not materialize, woman had
right to retain half of whatever the man had given her,
provided he had kissed her
4. Wife could not renounce inheritance without husbands
5. Wife could neither contract nor go to court without
husbands consent
6. Conjugal regime was more minutely regulated; various
provisions being devoted thereto
7. Natural children were defined as those born of parents
who, at the time of the childs conception or birth, could
have married lawfully and without dispensation
B. The Law of Property
1. Provision governs interruption of prescriptive periods
C. The law of descent
1. Persons subject to the penalty of death were, unlike the
rule in Partidas, allowed to make wills
2. Minimum age for willmaking was fixed at 14 for males and
12 for females
3. Legit ascendants = compulsory heirs in default of children
or descendants; as heirs, these ascendants excluded
collateral relatives of the descent
4. In default of descendants and ascendants, brothers and
sisters inherited by intestacy; and in representation of
predeceased brothers or sisters, nephews and nieces
inherited per stirpes, not per capita
5. All kinds of legitimate children were excluded by legitimate
descendants from the succession from the succession of the
mother, but in the absence of legitimate descendants, these
illegitimates, whether natural or spurious, succeeded to the
mothers estate to the exclusion of legitimate ascendants;
father and mother could each give illegitimate children of
all kinds legacies for support not exceeding 1/5 of their
respective estates, but a man w/o legitimate children could
give a natural child any amount he wished
6. Mejoras could be given by either WILL or CONTRACT
7. Mayorazgos were there regulated
D. The Law of Oblicon
1. Donations of the universality of donors patrimony were
prohibited, even if only present property was included
Laws of Toro were enacted to clarify, explain, and reconcile
existing legislation which had fallen into a state of
They were incorporated in the Nueva and Novisima
Was merely a palliative remedy; more drastic reform was
1516 Ferdinand of Aragon died; Juana la Loca survived
until 1555
Power passed on to Charles of Ghent, her son a gawky,
unprepossessing youth with an absurdly pronounced
jawlooking like an idiotand suffering from the
unforgivable defect of knowing NO CASTILIAN because
he was raised in Netherlands
C of Ghent was the most powerful man in Europe, became:
o Duke of Burgundy
o King of Castile and Leon
o King of Aragon
o Count of Barcelona
o Holy Roman Emperor
Charles the First of Spain and the Fifth of the Empire
Absentee king, staying in Spain only 16 out of his 39 years
as king
Jan 1556 abdicated the throne, passing kingship to Felipe
Commissioned a minister of his Council named Bartolome
Lopez de Arrieta, and upon this mans death, another
jurist, Bartolome Atienza, to undertake this difficult task
March 14, 1567 resultant compilation was promulgated
by His Majesty under the title Nueva Recopilacion de las
Leyes de Espana
Sought to unify the diverse strands of the Fuero Real, the
Partidas, the Ordinance of Montalvo, the Laws of Toro, and
other laws
Composed of 9 books, 214 titles, 3391 laws
book deals with civil law:
o Husbands, at least 18 years of age, could administer
their property and their wifes
o All assets existing at the time of the dissolution of
the marriage were presumed conjugal
Purpose was to clarify the state of law, but failed
Retained Order of Prelation of the Ordinance of Alcala and
the Laws of Toro and therefore did not repeal the earlier
an effort to codify Castilian law and did contribute to its

Philip II ruled Spain at the height of her power, but
strained resources beyond the limit
1958 his death, just a decade after the rout of the
Invincible Armada at the hands of the English, marked the
start of a long decline
Philip III, Philip IV, Charles II (the Bewitched[El
Hechizado]), each one weaker than the last, presided over
Spain that was slipping to a 2
rate power
Netherlands were lost, as well as the Burgundian
possessions and Portugal
By the end of the century, France under Louis XIV was in
1700 death of Charles II without an heir brought to the
throne Philip of Anjou, grandson of Spanish princess Maria
Teresa, grandson too of Louis XIV
Claim was contested by Archduke Charles of Austria, but
Sun Kings machinations won the day
Century Crown of Spain passed from Hapsburg to
Bourbon, when Philip of Anjou became Philip V of Spain
War of the Spanish Succession failed to dislodge Philip
from the throne but succeeded in weakening it
Decline was arrested or reversed under the succeeding
Bourbon monarchs, but Spain never got back on its feet
Absolutism brought about centralization of Spain
1707 special statues and privileges of Aragon and
Valencia were abolished and their place taken by laws and
practices of Castile
1716 Cataluna followed
Fragmentation of civil law continued
State of confusion continued as well
Towards 18
Century, Charles IV commissioned Juan de la
Reguera Valdelomar to revise the Nueva Recopilacion
Work was submitted to the king in 1802
15 July 1805 promulgated as the Nueva Recpolacion de
las Leyes de Espana
12 books, 340 titles, 4020 laws
Noteworthy provisions:
o Provision renewing a lease for one year if no notice
to vacate had been given prior to expiry date
o Prohibition of subleases
o Adoption, as the law on marriage, of the Tridentine
decree on this subject
o Requirement of paternal consent to marriages of
boys below 25 and girls below 23
Much of it was a rehash of the Nueva
Line of Demarcation, set by Alexander VII in the Bull Inter
Caetera of May 4, 1993 ran from north to south 100 leagues
of the Azores
1. All lands east to Portugal
2. All lands west to Spain
Treaty of Tordesillas, concluded in 1499, moved the line
270 degrees further west; gave Brazil to Portugal, not
certain if it gave them Moluccas
1529 Charles V, for a consideration of 350,000 ducats,
renounced Spanish claim to Moluccas, but not the
Philippines, and thus we fell under Spanish sovereignty
Two main Spanish domains: the viceroyalty of Mexico
(New Spain) and the viceroyalty of Peru
PH was a gobernacion under the vice-royalty of Mexico
Bureaucracy started withthe monarch, assisted by the Casa
de Contratacion, or Board of Trade, est. in 1503 and
headquartered in Seville
1524 assisted by the Consejo de las Indias, the Royal and
Supreme Council of the Indies; comprised of lawyers, had
supreme jurisdiction over all colonies
Government was subject to a vast assortment of decrees
cedulas, decretos resoluciones, ordenamientos,
reglamentos, pragmaticas, etc issued by the King or
Consejo in his name
Decrees were put together in what Horacio de la Costa calls
the most impressive body of legislation in history the
Recopilacion de Leyes de los Reinos de las Indias
1530 Royal Ordinance established an order of preference
of the laws to govern colonies
Order of application:
1. Latest laws enacted for the colonies and decreed
2. Recopilacion de las Indias
3. Novisima
4. Nueva
5. Leyes de Toro
6. Royal ordinances of Castile
7. Ordenamiento de Alcala
8. Fuero Juzgo
9. Partidas
Supplementary laws were frequently applied since not
provisions of civil law nature were found in Recopilacion
de las Indias
Sinibaldo de Mas there was very little of the laws that
were printed; advocates know the law by tradition and
hearsay, but if they have to look for it, they look for it in the
house of some friend or secretarys office of the
government; he who has no relatives in the country is
ignorant of the rules in force; mass of Spanish codes is
1843 de Mas report
1805 the Novisima
16 years before Novisima, great revolution had broken out
in France, and revolutionary government, to sweep away
the ancient regime, passed a law in 1792 directing
Not until Napoleon Bonaparte, who came to power in 1799,
that codification was achieved
o Meeting in the Chateau of Fontainebleau, a
commission headed by two distinguished lawyers,
Portalis and Tronchet, worked on a Civil Code
promulgated in 1805
o French Civil Code is the oldest in existence. Like
sooooo olde.
Aftermath of Napoleonic occupation was a brief period of
constitutionalism under the liberal Constitution of Cadiz in
August 19, 1843 a royal decreed constituted a Comison
general de Codigos, subsequently divided into two
subsections to distribute the work
May 8, 1851 Commission submitted draft of CC, divided
into a preliminary title and three books, containing a total
of 1,992 articles
o 1
book on Persons
o 2
book on Property and Ownership
o 3
book on Modes of Acquiring Ownership
Dissatisfaction and deep-seated opposition from the
regions caused project to be pigeonholed
During the next decades, the passage of laws special in
scope but general in application mellowed the somewhat
unfavourable psychological climate and made it easier to
revive efforts to codify the civil law. Among such laws
enacted were:
o Mortgage Law
o Notarial Law
o Law of Waters
o Law on Marriage
o Law on Civil Registry
2 Feb 1880 another royal decree called for codification,
this time the composition of Code Commission was trans-
regional, with members representing Cataluna, Aragon,
Galicia, Navarre, etc
1881 proyecto de Bases an outline of bases or
fundamental points was submitted to the Senate
1884 Minister of Justice presented a proposed ley de
Bases fundamental points on which the CC was to be
based, totalling 27 in number
The Cortes failed to decree it into law due to irresolution
and dissolution
11 May 1988 became a law by royal fiat
6 October 1888 royal decree ordained publication thereof
11 February 1889 new Civil Code would take effect on
May 1 of that year, but was promulgated on July 24, 1889
Composed of preliminary title with 16 articles and four
books subdivided into 41 titles
book: De las Personas (Persons
book: De los Bienes, de la Propiedad y de sus
Modificacion (Property, Ownership, and its Modifications)
2rd book: De los Diferentes modos de Adquirir la
Propiedad (Different ways of acquiring ownership)
book: De las Obligactones y Contratos (Obligations and
The product of the evolutionary process of Spanish law
over the centuries, with borrowing from the French Code
thrown in for good measure
July 31 1889 a royal decree was issued by the Queen
Regent Maria Cristina, in the name of her son, King
Alfonso XIII
Decree extended the Civil Code to Cuba, Puerto Rico, and
the Philippines to take effect 20 days after publication in
the official newspapers
Decree received the cumplase of the gov. gen. on
September 12, 1889, text of code was published in the
Gaceta de Manila on November 17, 1889
CC became effective in the PH on December 7, 1889, the
day of its publication (Mijares v Nery) or December 8,
1889 (Benedicto v de la Rama)
December 31, 1889 order was published under the name
of Gov. Gen. Valeriano Weyler, which suspended titles 4
and 12 of the CC
Questions raised about Weylers order:
o Was there really a directive from Madrid to
suspend titles 4 and 12?
Benedicto v de la Rama no such decree
was ever published in the Gaceta, no copy of
such decree was obtainable
Sanchez-Roman: accdg to reports which
merit a certain amount of credit, what
probably happened was that the colonial
govt issued the order of suspension after
consulting the colonial office
Weyler could be said to be merely
withholding the cumplase
o Which title 4 and which title 12?
Code contains four books; by a process of
elimination, and by reason of historical
antecedents, it was generally accepted that
the order meant titles 4 and 12 of Book 1
Title 4: Art. 42-107 is on marriage
Title 12: Art. 325-332 is on registry
of civil status
Title 12 was suppressed probably because
there was no such officer as a municipal
judge who could take charge of the civil
Title 4 was suppressed probably because of
what Sanchez Roman refers to as the
opposition of certain class influences
Code recognized two forms of
o Canonical
o Civil
Suspension of title 4 means only
marriage allowed in the PH is
CANONICAL, under the decree of
Philip II on July 12, 1564, making
the decree of the Council of Trent on
marriage the law of the State
The Decretum de Reformatione Matrimonii
was passed by the Council of Trent at its 24

session on November 11, 1563
Code continued, being not of political nature, continued to
be in force during the American occupation
Establishment of Republic: President Roxas issued EO 48
on March 20, 1947, calling for a draft of a Philippine Civil
May 8, 1947 Code Commission began drafting
June 18 1949 draft was submitted to Congress as HB.
2118, enacted as RA 386
Code Commission Report: 57% of 2270 articles of the NCC
were derived from the Spanish Code

Authors notes
In drafting a new Civil Code, a balance has to be
struck between contemporary relevance and a
historical sense
First is attained by an awareness of:
the 21
Second history is attained by:
Looking back for wisdom and depth to the
experience and the tradition of a legal
system that is already our heritage