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The Spanish Antecedents of the Philippine Civil
Code
Los Reyes Catolicos
- On October 19, 1469, a wedding took place
o Ferdinand (17, King of Sicily and heir to the throne of Aragon) and
Isabella (18, princess of Castile and heiress to its throne) were
practically strangers to each other only meeting 4 days before
- Some opposed the marriage, including the brides brother, who would have
preferred to marry her of to the King of Portugal. But she had a mind of her
own and she had her way (despite the fact that they were second cousins)
- To surmount their obstacles, a forged papal bull of dispensation was presented
- This was a marriage of surpassing importance, both of the Royal House of
Trastamara
o A Castilian house that occupied the throne of Castile and by 1410,
also Aragon (because of the civil disturbances over the succession of
the childless Martin I)
Fernando de Antequera (Martins nephew) became the first
Trastamara sovereign of Aragon
Ferdinands grandfather
Isabellas grandfathers (Henry III of Castile) brother
- This marriage united 2 branches of the same family and made possible the
political unification of Spain
o Before this, Spain was fragmented to numerous kingdoms because of
the long and sporadic tug-o-war between Christianity and Islam
(through the Muslim Moor)
Early Iberian Developments
- Iberians were the first major settlers of Spain
o They were probably related to the ancient Assyrians and Chaldeans
and came to Spain from Asia through North Africa
o Celts occupied what is now modern Galicia and Portugal
- Intermarriage between the Iberians and Celts produced Celtiberians
o Their basic social structure was the family, a collection of which
formed gens, and a collection of gens formed a tribe
Celtiberian tribes had a well-defined concept of property
(private, and some, communal)
- The rise of Carthage in North Africa brought the Iberian peninsula under
Carthaginian influence, but not domination
o Conquest eventually became essential to Carthage because Rome
was also expanding
o Their rivalry eventually led to what is known as the three Punic Wars
- After the 1st war:
o Hamilcar Barca founded Barcelona, Hasdrubal succeeded him and
established his capital in Cartagena; and then, Hannibal, the greatest
Carthaginian general, succeeded Hasdrubal
- In 210 B.C., Publius Cornelius Scipio captured Cartagena and pushed its
constituents back to North Africa. Spain passed on to Roman sovereignty for
the next 6 centuries.
- Spain was first divided to 2 provinces: Hispania Ulterior (Farther Spain) and
Hispania Citerior (Nearer Spain)
- Eventually, Caesar Augustus reorganized Spain into 3: Baetica, Tarraconensis,
and Lustiania
- Finally, Emperor Diocletian reorganized it to 5 provinces and 2 others
overseas: Lusitania, Baetica, Galicia, Carthagenesis, Tarraconensis, Mauritania
Tingitana, and Balearica
o Romans migrated to Spain as soldiers and as laborers
- Through all centuries of Roman rule, the history of Hispanic law is the history
of Roman law
- By the 4th century, it was becoming clear that Imperial Rome was not eternal
- By the 5th century, it became certain when the Huns, came thundering from
across central Asia to pillage, conquer, and destroy
o The Visigoths (West Goths) fled southward
- The Visigoths
o Under Alaric, settled in Spain and it became a Visigothic Kingdom
o Had exposure to Roman culture visible in their codification of their
laws (but its preponderant characteristic was Germanic)
o Tacitus wrote about their customs:
Marriage was highly regarded
Adultery was dealt with severely
Wills were unknown to them
Hospitality was extraordinary
If food runs out, the guest is escorted to the
neighbors to be fed
Interest on loans was unknown to them
Personal offense was a family offense
Wife has a right to share in property earned after marriage
(beginnings of conjugal property)
Parental authority did not have jus vitae ac necis (power of
life and death)
o But all these were customary, unwritten law. Only eventually did they
grow appreciative of the refinements of civilization and began
thinking of putting their laws to a more permanent form
The Code of Euric
- The Code of Tolosa (oldest written Fermanic law) probably promulgated by
Euric, a Visigothic King
- The discovered fragments contained chapters 276-336 of the Code
- Sanchez Roman observes the Germanic element in the Code is predominant.
The Roman element can be discerned in the rules on purchase and sell,
pledge, donation, loan, deposit, and testamentary succession
- This was not intended to be a general law for all inhabitants of Visigothic Spain
but only for the conquerors
o It was a personal, rather than territorial, law
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o The subjected people was governed by whatever remaining traces of - The first was the Fuergo Juzgo
Roman law remained among them o A loose compilation if rules relating to the various fields of law
o 12 books 3 (general application), 4 (marriage), 5 (family and
The Breviary of Alaric succession), 10 (health and maritime commerce) dealt with civil law
- Alaric formed a commission of Visigothic scholars with the mission of o A. Persons and Family
formulating a body of laws for the conquered subjects on the basis of known Allows intermarriage between Goths and Hispano-Romans
Roman Law Juridical and physical persons
- It was decreed into law with the caveat that only copies that were signed by Natural persons are legally born, lived for 10 days, and
the Chancellor was to be considered authentic baptized
- 2 parts: the text and the interpretation; presented separately except for some Majority was 15 years
that are integrated and some that dont have interpretative exposition Impediments to a valid marriage
- Thus, the legal system of Visigothic Spain were 2: the predominantly Germanic Difference in status (slave / freeman)
law of the conquerors and the predominantly Roman law of the conquered - Woman was older than the man
Legislacion doble/Legislacion de castas Holy orders
o Could lead to confusion where the conflict is between a Goth and a Relationship (up to the 7th degree)
Romano-Iberian (in which case the formers law is to be applied)\ Prior subsisting marriage
Abduction and rape
No minimum age for marriage
The Code of Justinian Concept of property
- In Constantinople, Justinian ascended the imperial throne in 527 A.D. Patria potestas
- He won back southern Spain though his imperial legions, but was also quickly Absolute power of the father over members of the
lost family
- His lasting achievements: Mother exercised substitute parental authority
o The Hagia Sophia Adventitious property (similar to Art. 321, NCC)
o The great work of codification o B. Property
- Imperial commission for the work was given. The results were: Modes of acquiring ownership
o Digest became law on December 533 Occupation
o Institutes followed shortly after o By conquest
o Codex on December of 534 Accession
o The Corpus Juris Civilis contained the fourth, the Novellae o By building
New laws enacted after the 1st three parts Prescription
- Justinians codification did not extend to Spain because it was no longer a part o Ordinary (30 yrs) or extraordinary (50 yrs)
of the Empire politically
Succession
- The contents of our Civil Code owe much to the Institutes of Justinian
Co-ownership was recognized
Servitudes were classified to personal and real (pasture
The Fuero Juzgo
lands)
- Meanwhile, Spains Visigothic power was proceeding o C. Law of descent
o External threats:
Succession was either testamentary or intestate
Byzantine in the south, Suevian kingdoms in the west and
Minimum age for will-making = 14, 10 for those in periculo
northwest
mortis
o Internal threats:
Reserved portion was 4/5 of the fathers and of the
Religious differences mothers, and a preferential option for heirs
(Hispano-Romans) Catholics vs. Arians Disinheritance was limited to specified grounds
- The religious problem was settled when then king Reccared converted to Established an order of intestate succession
Catholicism, emulated by the Visigoths (which secured Visigothic rule over the The beginnings of reserva
peninsula because of unification) o D. Obligations and contracts
- The problem of the legislacion doble still subsists Contractual capacity is acquired at the age of 14
o The increasing interaction between conquerors and conquered Minority, insanity, slavery, force, and fear vitiated a contract
induced a uniform legal system in the span of four monarchs Regulated contracts
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Sale, lease, mutuum, commodatum, deposit,
donation, mortgage, and pledge
- This code is the most famous, important, regular, and complete of all bodies of
law formed after the fall of the Roman Empire
- This code is the parent law of all countries in America ever under Spanish rule
- But it was short-lived. Maybe less than three decades
The Moors and the Reconquest
- Muslims came from North Africa and usurped Roderic, the Visigothic king
- Islam was supreme in Spain, save for a few pockets of resistance in the
Pyrenees and Cantabarian mountains
- The source of law in Moorish Spain was the Koran, supplemented by the
legislation of the caliphs. No formal code
- Battle of Tours
o The Muslim power was stopped and the hope of reconquest was born
- Reconquista
o A sporadic drive, not a continuous war, of Christian Europe to
reacquire Spain
- The Visigothic remnants resided in the Asturias and elected Pelayo as their
king The Kingdom of Asturias was secured in 718 and became the cradle
of the Reconquista
- The Moors evacuated Galicia and Leon and they were united with Asturias to
be called the Kingdom of Leon
o The purported tomb of apostle James the Greater served as a shrine
and inspiration in the battles against the Moors
- The Basques of Navarre, Cataluna, Castile, and the Aragonese were able to
establish their own kingdoms
- Sancho the Great of Navarro temporarily unified Leon Navarre, Aragon, and
Castile. He undid this by dividing it amongst his sons
- Almoravides was led by Yusuf and eventually defeated Alfonso VI of Spain only
to be fragmented again
- Almohades reunited a shrinking Muslim Spain once more
- In 1164, Aragon and Cataluna were united and named the Kingdom of
Aragon
- Leon and Castile were alternatively reunited and divided due to a succession
of kings, but remained inching in the battle
- In 1212, the forces of Leone, Castile, Navarre and the Kingdom of Aragon won
at Navas de Tolosa and the Muslim stopped being a threat
- In 1230, Castile and Leon became the Kingdom of Castile
The Fueros
- By the 13th century, Spain consisted of 2 Christian Kingdoms, and the Moor
confined to Granada
- The piecemeal reconquest gave rise to a vast diversity of laws and
jurisdictions
o A system of non-system
o Fuergo Juzgo was in force, but merely suppletory in some cases; or
simultaneously with legislation by king and parliament, customs,
charters, and privileges of a local character
o This period is known as the period of the fueros
Fueros
Can mean general codes
Also means uses or customs, local laws, privileges,
exemption, or franchises authorized by public
power to diverse classes or districts
Brought by unsettled times and were a necessity at
that period in order to obtain the support of
different localities
In this confusing period, mayorazgos, developed
Mayorazgo
- A.k.a. primogeniture (the state of being the firstborn son)
- Developed because the threat of Islam made it necessary for men to provide
for their own defense
o Vassalage
A man pledged military service of unfailing loyalty (fealty)
to another and receives special grant of land (benefice) in
return
This military benefice eventually was called fief (root of
feudal
The military service provided was also considered an office
(because governmental jurisdiction applied)
Since you can divide land but not an office, fiefs
were inherited by the eldest sons
- This practice left younger sons with nothing, setting them on adventures in
search of fame, fortune, success, and lovely damsels
o Making them heroes of many a picaresque tale and romantic novel
- This practice outlived its justification
o Remained after Europe achieved political stability
o It became exclusively economic and proprietary in nature
- It was carried over to the Philippines
o The Supreme Court said mayorgazo partook in 2 natures:
A usufruct the firstborn acquires only a dominium utile
The owner is the family itself
A trust/fideicomiso possessor is simultaneously a trustee
and a usufructuary heir
- Spain abolished it in 1820, and by 1864 as effective on overseas provinces
The Universities
- Reconquista gave rise to the great Spanish universities and faculties of law
devoted to study the Justinianean Roman Law
- The University of Valladolid was important for it became the center of Roman
law studies
- This was to assure the predominance of the Roman law tradition in the
peninsula by influencing the codes to be enacted
The Fuero Viejo
- First code produced by the Universities
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- Alfonso VIII saw it as strengthening the position of the nobles and was
unwilling to promulgate it
- But Alfonso X did in 1272
- Septenatio an encyclopedic treatise
o Presages the promulgation of the Codes that was enacted in quick
succession due to the wisdom of Alfonso X
- Fuero Real Alfonso Xs first code and was divided into 4 books (book 3
concerns civil law)
o A. General provisions
Ignorantia legis non excusat
Custom is not a source of law
o B. Persons and Family
Civil personality is acquired in baptism
A woman over 30 does not need parental consent of
marriage
Conjugal partnership of gains
Legitimation is provided for the first time
Either by subsequent marriage or by grace of the
kings
o The child should be natural (not defined)
o C. Property
Accession natural is recognized and regulated
Formation of islands
Change of river course
Fruits falling on adjacent estates could be
recovered by tree owner within one day only
Elements of prescription
Continuous possession
Lapse of the required period of time
Prescriptibility of the thing
o 1 year and 1 day as against someone
present
o 30 years as against someone absent
Provision governing party walls
Each co-owner obliged to pay of the construction
and maintenance of the wall
o D. Law of descent
Age for will-making remained at 14
Reserved portions fixed at 4/5 of the estate
Illegitimate children received no successional rights
Causes of disqualification to succeed are given
Introduction of concept of administrator or executor
o E. Obligations and Contracts
Ff. contracts are regulated:
Sale, barter, lease, loan, deposit, pledge, donation,
guaranty, and negotiorum gestio
Parties to a contract may withdraw as long as no part is paid
yet
Those w/ descendants can only donate 1/5 of their estate,
those w/o can donate cant donate all of their property
o Fuero Real was not a code of general application but only in specified
town and there only one at a time
Primary law in some and suppletory to some that had their
own fuero
The Especulo
- Second code of Alfonso but probably never promulgated into law, only as basis
for the Partidas
The Partidas
- Most celebrated of Alfonsos codes
- Influenced by the local laws of Castile but preponderant influence was from
canon law and the Roman law of Justinian
o A. General Provisions
Territorial law
Ignorance of the law is admitted for peasants, soldiers, and
women
o B. Persons and Family
Minimum age for marriage is puberty
Legitimation occurs in
Subsequent marriage
Will of the king
Performance of some service to the king
Adoption
Mother has no share in patria potestas
It is granted to the ascendant of the highest degree
o C. Property
Ownership is acquired through
Occupation
Accession
Prescription
Tradition
Hereditary succession
Roman-law rules on possession and servitude are
reproduced
o D. Law of descent
Roman law of succession are borrowed
Inheritance is denied from sacrilegious, adulterous, and
incestuous children all are called fornecinos
Legitimes of descendants were reduced from 4/5 to either
or 1/3 depending on the number of children
Mejoras are not provided for
Legitimes are granted to ascendants
Representation is made to operate ad infinitum in the direct
descending line and to the second degree in the collateral
Succession in the collateral line is allowed to the 4 th degree
in default, the King
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o Obligations and Contracts
Contracts are either real or consensual
Real: mutuum, commodatum, deposit, pledge
Consensual: sale, lease, partnership, agency
- Alfonso probably intended the Partidas to be the general law in his kingdom
o But it has been conjectured that it might merely have been intended
to be an encyclopedic treatise
o The Partidas did not acquire the force of law for more than 8 decades
Only in 1348 when the Ordenamiento de Alcala de Henares
was passed was it promulgated
And even then, it was merely supplementary after the
decrees of the Cortes, Fuero Real, and local fueros.
Eventually relegating it to a lower position after the
Novisima and the Nueva
- Its influence was however greater than their binding force
o It expressed the latest trends in juridical science as it flourished in
the great universities of Europe
o It produced the most complete treatise of jurisprudence
o Basis of the modern Spanish Civil Code of 1889
Leyes de Estilo
- In 1310, a short compilation was styled with 252 sections called leyes and
some of these sections had to do with donations propter nuptias, conjugal
property and prescription
- It was agreed that this was a commentary on Fuero Real
Ordenamiento de Alcala
- A collection of laws that referenced civil law:
o Emphasized spiritual aspect of contracts
o Provided for lesion in sales
o Taking of interest was prohibited
o Two provisions in successional law
Wills must be executed w/ 3 witnesses and a court clerk or 5
witnesses w/o a court clerk
A will need not institute an heir in order to be valid
Mixed succession was allowed
Isabel & Fernando
- Her half-brother, Enrique IV a.k.a. Il Impotente, recognized her as heiress of
Castile
o He was believed to be impotent and hence his purported daughter,
Juana, was called la Beltraneja (after her reputed father)
- The marriage of Isabella and Ferdinand caused Enrique to withdraw his
recognition and acknowledge Juana as the rightful successor
- Isabella in 1474, upon Enriques death, proclaimed herself Queen of Castilr
plunging the kingdom into civil war which she won in 1479
o Juana betook herself to a convent dreaming of splendor that might
have been by signing all her correspondence with the royal: I, the
Queen
- Ferdinand, in 1480, became king of Aragon
- They became joint sovereigns of Aragon and Castile
o For practical purposes, they were one Spain
- They turned their energies to the Reconquista
- Moorish Granada still stood
o In 1941, Spains army stood at the gates of Granada
o They were going to starve the city into submission
o 2 months later, the Most Catholic Majesties rode in triumph through
the citys gates
- In 1942, the Reconquista was complete, Spain became a colonial
power with the discovery of the New World
o Internal consolidation and external expansion
- 1484, they commissioned Dr. Alfoso Diaz de Montalvo to compile their laws
Ordenamiento de Montalvo
- A collection of various ordinances of the Castilian Cortes as well as royal
decrees that date back to Alfonso X
o A. Persons and Family
A provision allowing the widow to contract marriage during
the year following her husbands death
Declaring conjugal the fruits of separate property
Authorized the husband to dispose of conjugal property
provided that it was with no intent to prejudice her
o B. Obligations and contracts:
Multiple or collective obligations are presumed juris tantum
to be joint rather than solidary
- By now, it was becoming clear that a systematic revision of the law was badly
needed in the presence of all sorts of codes, semi-codes, pseudo-codes, and
municipal fueros existing simultaneously
Juana La Loca
- Isabellas child and only successor
- Debated if she was really insane or a hapless victim oh husband, father, and
son
- She was Reina propietaria of Castile
- In 1505, a Castilian Cortes was summoned to proclaim her Queen
o He also published a piece of legislation by the previous Cortes in
1502 and named it Leyes de Toro
Leyes de Toro
- A free-wheeling enumeration
o A Persons and Family
Juridical capacity is possessed by naturalmente nacido w.
the ff. requisites:
Child is born alive
Survive for at least 1 day
Must be baptized
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In the absence of any of the above, he is abortivo
Marriages was recognized as a cause of emancipation from
parental authority
Ley de osculo
If marriage did not materialize, the woman has the
right to retain of whatever the man had given
her, if he had already kissed her
She could not renounce inheritance w/o husbands consent
She could neither contract nor go to court w/o husbands
consent
Conjugal regime was more minutely regulated
Natural children is defined as:
Born of parents who could have married lawfully at
the time of conception
o B. Property
A provision governing interruption of prescriptive periods
o C. Law of descent
A person sentenced to death was allowed to make wills
Minimum age for will-making is 14 for males and 12 for
females
Legitimate ascendants were made compulsory heirs in
default of children or descendants
In default of the above, siblings inherited by intestacy
Illegitimate children were excluded by legitimate
descendants from the succession of the mother
Mejoras could be given by will or by contract
Mayorazgos were regulated
o Obligations and Contracts
Donations of the universality of the donors patrimony were
prohibited
- This was enacted in an effort to clarify and reconcile (at least in part) existing
legislation that had fallen into a state of utter condusion
- These laws were incorporated into the Nueva and Novisima Recopilacion
Nueva Recopilacion
- Charles of Ghent (the son of Juana la Loca) became the most powerful man in
Europe Duke of Burgundy, King of Castile and Leon, King of Aragon, Count of
Barcelona and the Holy Roman Emperor (Charles V of Spain and Charles V of
the Empire)
- He was an absentee king and after 39 years, passed the scepter to Felipe II,
his son
- Philip found himself sovereign of a realm on which the sun never set
- King Philip commissioned Bartolome Lopez de Arrieta to reform the law
- Nueva Recopilacion de las Leyes Espana sought to unify Fuero Real, the
Partidas, the Ordinance of Montalvo, the Laws of Toro, and other laws
- Noteworthy features:
o Husbands (at least 18 years old) could administer their property and
that of their wives
o All assets existing at the time of the dissolution of the marriage were
presumed conjugal
- But its organization was sloppy, integration inadequate, and explanations
unclear
- It was, at best, partial codification
The Bourbons
- Philip IIs death caused Spains decline
o Portugal, the Netherlands, Sardinia, the Burgundian possessions were
eventually lost
o By the end of the century, the preponderant power in Europe became
France of Louis XIV
- The death of Charles II without an heir gave the throne to Philip of Anjou,
grandson of Louis XIV
- The War of the Spanish Succession (1702-1711) failed to dislodge Philip and
weakened Spain even further
- The succeeding Bourbon monarchs reversed the decline
o They replaced the statues of Aragon and Valencia and put laws and
practices of Castile in their place in 1707
- Confusion and chaos of an utter babel of statutory provisions continued
Novisima Recopilacion
- Charles IV commissioned Juan de la Reguero Valdelomar to fix the legal
situation and revise the Nueva Recopilacion
- Thus Novisima Recopilacion de las Leyes de Espana was promulgated in 1805
- Noteworthy provisions:
o Renewing the lease for one year if no notice to vacate had been
given prior to the expiry date
o Prohibition of subleases
o Adoption of Tridentine decree as the law on marriage
o Requirement of parental consent to marriages of boys below 25 and
girls below 23
- Much of it was a rehash of the Nueva and made the Novisima a supplementary
code or partial codification
In the Philippines
- Charles V renounced all Spanish claims to the Moluccas to Portugal (but not
the Philippines)
- 2 main jurisdictions in the Spanish domain: Viceroyalty of Mexico (which the
Philippines is a part of) and Viceroyalty of Peru
- Bureaucracy started with (1) the monarch, assisted by (2) Board of Trade (from
1503) and Royal and Supreme Council of the Indies (by 1524), then (3)
viceroys or governors (but subject to decrees issued by the King or the
Council)
o The Council was composed chiefly of lawyers that had jurisdiction
over all the colonies
All laws and ordinances of viceroys and governors were
subject to its approval
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- The various decrees take the form of the Recopilacion de Leyes de los
Reinos de las Indias Weyler
o A Royal Ordinance made in 1530 established the order of preference - There is debate on whether there was an actual order from Madrid
of the laws to govern the colonies: - Title 4 covered marriage, Title 12 covered the registry of civil status
Latest laws enacted for the colonies and decreed therein o The former suppressed probably because of what Sanchez Roman
The Recopilacion de las Indias refers to as the opposition of certain class influences
The Novisima Because of the suppression, only canonical marriages were
The Nueva allowed in the Islands (as opposed to also civil)
The Leyes de Toro o The latter suppressed probably because there was no such officer the
Royal ordinances of Castile could take charge of the civil registry
Ordenamiento de Alcala
Fuero Juzgo The Civil Code of the Philippines
The Partidas - With the exception of 2 titles, the Spanish Civil Code also became the
o No provisions of a civil law nature was found in the Recopilacion de Philippines
las Indias - E.O. 48 calling for the framing of a Philippine Civil Code was issued on 1947
o Work was begun by the Commission on May 8, 1947
The Final Stage o R.A. 386 was submitted to Congress on June 1949 and took effect on
- 16 years before the Novisima, the revolutionary government in France passed August 1950
a law in 1792 directing codification
- It was not until Napoleon in 1799 that this work was achieved
o 57% of the most basic provisions of the 2,270 articles of the new
- To this day, the Civil Code promulgated in 1805 is still in effect and served an Code are derived from the Spanish Code
example for countries in Europe
- After Napoleonic occupation was a brief period of constitutionalism under
Constitution of Cadiz of 1812
- The codification of laws came to nothing until on 1841, the Commission
decreed in 1843 submitted a draft of a Civil Code
o 1st book Persons
o 2nd book Property and Ownership
o 3rd book Modes of Acquiring Ownership
- Dissatisfaction however caused the project to be pigeonholed
- 1880, another decree called for codification and the composition of the
Commission was trans-regional: Cataluna, Aragon, Galicia, Navarre, and other
regions were present
- In 1888, the draft was completed and publication was ordained
- July 1889, Spain had a Civil Code

The Codigo Civil

- Divided into 4 books
o 1 book Persons
st

o 2nd book Property, Ownership, and its Modifications

o 3rd book Modes of Acquiring Ownership
o 4th book Obligations and Contracts
- July 1889, a royal decree issued extended the Code to the Islands of Cuba,
Puerto Rico, and the Philippines
- It was published in the Gaceta de Manila on November 17, 1889 and became
effective on December 7, 1889
- On December 31, 1990, Governor-General Weyler published an order
o Titles r and 12 of the Civil Code, by direction of her Majestys
Government, are suspended in this Archipelago