Is It Possible for a Minor Code of the Nineteenth Century to Serve as a Model in the Twenty-First Century?

Abstract

The 1889 Spanish Civil Code, belonging to the Civil Law and of a clear French inspiration, is a minor code in the big continental Romano-Germanic family, late adopted owing to domestic political reasons, which failed to satisfactorily solve the so called foral problem (or Proper Civil Law, surviving for historical reasons in many territories), to which article 149.1.8 of the Constitution in force gives a generous solution. The Code was enacted after the 1885 Commercial Code, which was deemed as special law, compared to the common or general law of the Civil Code, and was based on the old-fashioned theory of the act of commerce. The Code included the provisions of Private International Law and was supplemented by a number of special laws. In 1973, the Preliminary Title was modernized by clearly outlining the role of case law and by developing legal interpretation techniques, as well as the private international law system. Family law and succession were deeply modified by the 1978 Constitution. Since 1985, it has become part of the European Union, and it has incorporated to its provisions the Communitarian Law, highly important in relation to the protection to consumers. Civil doctrine was originally inspired in the French and Italian doctrine of the nineteenth century, but it is through the Italian doctrine that it has received a strong influence of the German Dogmatic. As from the end of the twentieth century, it has also been sensitive to the Common Law, especially from the United States of America. It is also open to the unification movement in Europe and, in general, to the comparative law.