The Spanish Antecedents of the Philippine Civil Code - Gens – a group of families which formed tribes

By Ruben F. Balane - Had a well developed concept of property, either private or

communal
The Marriage of Isabella and Ferdinand Carthage
- A Phoenician city in North Africa, the rise of whom
- 10/19/1469, Valledolid brought the Iberian peninsula under Carthaginian
- Isabella was 18, the great granddaughter of John of Gaunt, influence
Duke of Lancaster, also the princess of Castile - Carthaginians were interested in the Iberians’ silver and
- Ferdinand was 17, from Aragon, King of Sicily commerce
- Isabella’s brother preferred her to be married to the King - Accompanied by the rise of Rome
of Portugal, but a papal bull of dispensation was issued for Punic Wars
her to be married to Ferdinand, craftily forged by - A trio of wars brought about by rival expansionist
Ferdinand, his father, and the Archbishop of Toledo ambitions between the Romans and the Carthaginians
- As one was Castilian and one Aragonese, both belonged to Hamilcar Barca
the Royal Houses of Trastamara, a ruling house in both - Led his armies into Spain
cities - The founder of Barcelona
- The Compromise of Caspe recognized Fernando de Hasdrubal
Antequera, the first Trastamara sovereign of Aragon. His - Hamilcar Barca’s son-in-law
grandson was Ferdinand, and his brother, Henry III, was - Succeeded Hamilcar
Isabella’s grandfather - Established capital at Cartagena
- Marriage brought about the political unification of Spain, Hannibal
in the eve of a war against the Muslim Moor, a war that - Hasdrubal’s successor
returned Spain to Christianity from Islam - The greatest Carthaginian general of all
- The marriage also allowed a weaver from Genoa, Cristoforo Publius Cornelius Scipio
Colombo, to sail beyond the Azores in search of a westward - Captured Cartagena
route to the Spice Island, but stumbled upon America - Pushed Carthaginians back to North Africa
instead - Scipio Africanus
- Spain dispatched another seafarer in Fernao de Magalhaes, - Carthage was destroyed and Spain passed on to Roman
who first circumnavigated the globe, but died in Mactan sovereignty
- - Spain was divided to:
EARLY IBERIAN DEVELOPMENTS o Hispania Ulterior (Farther Spain) - west of River
Ebro
Iberians o Hispania Citerior (Nearer Spain) – east of River
- First major settlers of Spain Ebro
- Related to ancient Assyrians and Chaldeans Caesar Augustus
- Spain from Asia through North Africa - Reorganized Spain into three provinces
Celts o Baetica
- 1200 -1300 BC o Tarraconensis
- Crossed the Pyrenees from France o Lusitania
- occupied modern Galicia and Portugal Diocletian
Celtiberians - Spain as one diocese under the prefecture of Gaul
- Celts + Iberians - Composed of
- FAMILY was the basic social structure o Five provinces
  Lusitania o Wills – non-existent, in default of children,
 Baetica brothers succeeded, in their default, uncles on both
 Galicia paternal and marernal sides
 Carthagenesis o Extreme hospitality – inhuman for anyone to deny
 Tarraconensis admission into one;s house; every guest stranger,
o Two overseas provinces must be served the best food; if food runs out, guest
 Mauritania Tingitana must be escorted to a neighbor’s house
 Balearica o Interest on loans – non-existent
Roman Cities - Other features of Visigothic law:
- Zaragoza o Mutual aid and protection w/in the family
- Leon o Wife had a right to share in property after marriage
- Badajoz o Parental authority over the children did NOT
- Astorga include jus vitae ac necis
- Merida
- Braga, etc. As refinements to civilization dawned on the Visigoths, they began
thinking of putting their laws into more permanent form.
The history of Spanish law = the history of Roman Law
THE CODE of EURIC
300 AD onwards
- Decline of the Roman Empire The Code of Euric/Tolosa
- VANDALS, ALANS, and SUEVIANS invaded Galicia - The oldest written Germanic law
400 AD onwards - Unearthed by Benedictine monks of the monastery of St.
HUNS Germain, who were working on a palimpsest containing
- Hail from Central Asia writings of St. Jerome
- East Goths were brought under subjection - Published in 1847 with the title Reccaredi Visigothorum
VISIGOTHS Regis antiqua legume collection. Ex membranis deletitiis
- Under Alaric regiae Parisiensis bibliothecae restitutam adjecta vulgate
- Went through Northern Italy, then the Po Valley, down the legume Visigothorum lectione
Italian boot and then Rome - Was divided into CHAPTERS and TITLES
- Euric – Visigothic king from 466-484 AD
Spain became a Visigothic kingdom. In 416, they established - Was meant to apply ONLY to CONQUERORS, w/c means
their capital in Barcelona, then in Toulouse, and then in it was a PERSONAL, not a territorial law
Toledo. - People were confused as to which laws apply to them, so
Alaric II cleared up this problem
MORE ON THE VISIGOTHS
- Already had considerable exposure to Roman ways and THE BREVIARY of ALARIC
culture
- VISIGOTHIC LAW was preponderantly characteristic of Alaric II
GERMAN LAW - Son of Euric
- TACITUS said that Visigothic customs featured: - Formed a commission of Visigothic “scholars” under the
o Marriage - highly regarded, generally monogamous leadership of a count named GOYARIC to formulate of
o Adultery – dealt with severely body of laws based on Roman law
 - 506 – draft was submitted to Alaric, who decreed it into - Civil Code owes much to the Institutes of Justinian
law with the caveat that they be signed by Chancellor
Anianus FUERO JUZGO
- Other names: Lex Romana, Liber legume, Auctoritas
ALarici regis, Lex Theodosii, Commonitorium Context
- Based on ante-Justinian Roman law consisting of - Visigothic power was consolidating
o imperial edicts and; - Power was threatened in the reign of Leoigild (573-586)
o writings of Roman jurisconsults - Hispano Romans (Orthodox Catholics) v. Visigoths
- contained most of what is found in the 16 books of the (Arians)
Theodosian Code - Byzantine and Suevian territories were conquered and
- is in two parts: made a part of Visigothic Spain
o Text - Reccared – faced the religious problem, son of Leovigild,
o Interpretation by converting to Catholicism
o Except only in the part of the Institutes of Gaius, in - Only problem that remained was the RESOLUTION of the
which both parts are integrated legislacion doble
- Early Visigothic legal system: - Solution: the adoption of a law common to both Visigoths
o Personal and Hispano-Romans
 Predominantly Germanic for the conqueror
 Predominantly Roman for the conquered The Fuero Juzgo
Romano-Iberian - Law common to both Visigoths and Hispano-Romans
o Reminiscent of the ‘legislacion doble’ or ‘legislacion - Was achieved in stages, during the reigns of:
de castas’ o Chindaswinth
o Paved the way for CONSOLIDATION under later o Recceswinth
Monarchs o Ervigius
o Egica
THE CODE of JUSTINIAN - Was known in various names: Codex legume, Liber
Gothorum, Lex Visigothorum, Liber judiciorum, Liber
Justinian judicum, Forum Judicum
- A peasant from Dacia in 527 AD
- Wanted to recover the lost Western provinces and to make PARTS of the FUERO JUZGO:
the Mediterranean Roman/Byzantine again
- Reconstructed the: 1.) De electione principum – preliminary part, monarchy
o Hagia Sophia 2.) De instrumentis legalibus – first book, lawmaking
o Codification of laws 3.) De negotiis causarum – general application of law
Codification of laws throughout the kingdom, drastic change from personal to
- Commissioned on 12/15/530 territorial application
- Digest was published on 12/16/530, followed by the 4.) De ordine conjugali – marriage
Institutes, and then the Codex 5.) De ordine naturali – family, relationship, succession
- Corpus Juris Civillis contains a fourth part, the Novellae, 6.) De transactionibus – contracts
new laws enacted subsequent to the first three parts 7.) De sceleribus et tormentis, De furtis et fallaciis, De inlatis
violentiis et damnis – criminal law
The Code of Justinian 8.) De fugitivis et de refugientibus – military deserters and
- Influence accompanied that of the universities 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-
Romans
b. The establishment of the NATURAL and the
JURIDICAL person
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
slave)
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
property
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 one’s eyes; mother who aborts
will be deemed a slave
j. Mother exercises substitute parental authority in
the event of the father’s death; will be lost thru
remarriage
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
mortis
c. Reserved portion was large” 4/5 of father’s
property, ¾ of the mother’s, with a portion allowed
as mejora, and a preferential order of heirs
d. Disinheritance was limited to certain specified
grounds
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 and the RECONQUEST
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 Reconquista
- 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 10th
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
sciences
- Post Tarik’s 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’
king
- 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 10th century
- The kingdoms of Leon, Navarre, Cataluna, and Castile were
TAIFAS
- Small enclaves formerly of the Caliphate of Cordoba
- Divided in 1031
- Fell prey to Christian kings
Almoravides
- Religious, Muslim men from Northwestern Africa
Yusuf
- Emperor of the Almoravides
- Defeated Alfonso VI of Leon in the Battle of Zalaca
- Reunited the taifas into one Muslim Kingdom again
Ahomades
- Unitarians
- A sub-branch of Berber Moors
- Invaded the peninsula and reunited Muslim Spain, which
was shrinking with the advance of Christian Kingdoms
1164
- 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
1212
- Leon, Castile, Navarre, Aragon, won in Navas de Tolosa in
Andalucia, the south part of Spain
1230
- Castile and Leon were united into one kingdom, that of
Castile
THE FUEROS
Context
- Complex political situation due to fragmented legal
jurisdictions
- 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
Fuero
- 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”
MAYORAZGO
- 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 8th and 9th
centuries
- 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
Mayorazgo 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
Context
- Period of Reconquista, which meant a great legal diversity,
it wasn’t possible to talk about Spanish law
- Spanish law wasn’t regional, provincial, municipal, or
sectional
- 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
STUDIES
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
FUERO VIEJO
- Originally intended as a code of rights and privileges of
nobility
- 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
THE FUERO REAL
- 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
- Alfonso’s 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
excuse.
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
Juzgo
b. Woman over 30 did not need parental consent
to get married, provided she can still find a
groom
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
weren’t 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
NO
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,
Burgos
• 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 ESPECULO
 1258
  The 2nd of Alfonso’s codes, but almost probable that it was
never promulgated as law but served as basis of the
Partidas
 Not of concern bec 54 titles, 657 laws contain matters rel.
to public, procedural, and ecclesiastical law
B. The law of persons and family
PARTIDAS
 Last of Alfonso’s 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
Leyes
 Jurists of 14th 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
C. Law of property
Justinian
 Style and structure are conscious imitation of Pandects and
numerous sections contain literal translations of portions
of Justinian’s 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
D. The law of descent
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
 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
 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
 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 ½ or
1/3 depending on number of children
 Mejoras are not provided for
  Legitimes are granted to ascendants
 Substitutions:
o Vulgar
o Pupilar ejemplar
o Fideicomisaria
 Representation is to operate ad infinitum in the direct
descending line, and to 2nd degree in collateral
 Succession in collateral line is allowed to 4th degree; in
default of relatives w/in these degrees, the surviving
spouse; in spouse’s default, the King
 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
LEYES DE ESTILO

E. Law of obligations and contracts

 1310, during reign of Fernando IV
 Partidas changed already simplified law on contract which
 Work of certain jurists headed by Oldrado de Ponte
had generally required only consent; the new Code
 Consists of 252 sections called leyes which did with:
emphasized form
o propter nuptias
 Contracts are either real or consensual
o conjugal property
o Real
o prescription
 Mutuum
 did not have force of law but was a kind of collection of
 Commodatum
explanatory notes and comments on the Fuero Real
 Deposit
 some sections were incorporated in the Novisima
 pledge
Recopilacion
o Consensual
 Sale
 Lease
 Partnership ORDENAMIENTO DE ALCALA
 Agency
A collection of laws with reference to Civil Law
 Probable that Alfonso intended Partidas to be the truly
general law in his kingdom to supplant the Fuero Juzgo,  Emphasized spiritual aspect of contracts and ignoring the
Fuero Real, and local fueros, but was also seen to be an element of form, which was stressed by the Partidas
encyclopedic treatise  Provided for lesion in sales, being held to exist when the
 Did not acquire force of law for more than eight decades inadequacy amounted to more than one-half of the price –
 Not until Ordenamiento de Alcala de Henares in 1348 that right to rescind had to be exercised within 4 yrs
the Partidas was promulgated (during reign of Alfonso XI,  Taking of interest was prohibited (departure from Fuero
great-grandson of Alfonso X) Real, which allowed interest rates up to 75%). Penalty was
 Only given a lowly supplementary effect, as proven in the severe: forfeiture of ½ of creditor’s patrimony, and in case
Laws of Toro 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
ISABEL and FERNANDO
ISABEL
 15th Century
 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 – Enrique’s death, Isabella proclaimed herself Queen
of Castile, causing CIVIL WAR
 1479 – Isabella won as La Beltraneja took to the convents
FERNANDO
 Heir to Aragon’s throne
 1480 – father’s 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
MARRIED LIFE
 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
submission
 In two months, Boabdil, Moorish chief, sued for peace onf
1/6/1492
 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, Reconquista’s completion, Spain’s
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
ORDENAMIENTO DE MONTALVO
 1484
 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 husband’s
death
 Declaring conjugal the fruits of separate property
 Authorizing the husband to dispose of conjugal property
even w/o wife’s consent, provided no intent to prejudice
her
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
parties
 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
JUANA LA LOCA
 1504 – Isabella died, and oldest surviving child was her
successor
 Was either demented or was just declared to be so
 Was disconsolate over the body of her husband Philip the
Handsome
 Forbade Philip’s burial because a Carthusian monk
promised Philip’s resurrection
 Was Reina proprietaria of Castile
 1505 – Castilian Cortes was summoned at Toro to proclaim
her queen and ratify her father’s title to the regency
 Said Castilian Cortes also published a piece of legislation
passed by a Toledo Cortes, which promulgated the Leyes de
Toro
LEYES DE TORO
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
abortivo
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 husband’s
consent
5. Wife could neither contract nor go to court without
husband’s 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 child’s 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
mother’s 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 donor’s patrimony were
prohibited, even if only present property was included
therein
 Laws of Toro were enacted to clarify, explain, and reconcile
existing legislation which had fallen into a state of
confusion
 They were incorporated in the Nueva and Novisima
Recopilacion
 Was merely a palliative remedy; more drastic reform was
required
NUEVA RECOPILACION
 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
jaw…looking like an idiot…and 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
II
PHILIP II
 Commissioned a minister of his Council named Bartolome
Lopez de Arrieta, and upon this man’s 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”
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
 5th book deals with civil law:
o Husbands, at least 18 years of age, could administer
their property and their wife’s
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
laws
 “an effort to codify Castilian law and did contribute to its
unification”
 THE BOURBONS
CONTEXT
 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 2nd 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
power
 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 King’s machinations won the day
 18th 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
NOVISIMA RECOPILACION
 Towards 18th 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
IN THE PHILIPPINES
 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
therein
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 secretary’s office of the
government; he who has no relatives in the country is
ignorant of the rules in force; mass of Spanish codes is
confusing
THE FINAL STAGE!!!
 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
codification
 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
1812
 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 1st book on Persons
o 2nd book on Property and Ownership
o 3rd 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
THE CODIGO CIVIL
 Composed of preliminary title with 16 articles and four
books subdivided into 41 titles
 1st book: De las Personas (Persons
 2nd 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)
 4th book: De las Obligactones y Contratos (Obligations and
Contracts
 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
20th 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 Weyler’s 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
gov’t 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
registry
 Title 4 was suppressed probably because of
what Sanchez Roman refers to as the
opposition of “certain class influences”
• Code recognized two forms of
marriage:
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 24th
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
Code
 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

Author’s 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 COMPLEX NEEDS and CHALLENGES
of PRESENT-DAY SOCIETY
☺ The SOCIAL and CULTURAL
COORDINATES of the FILIPINO towards
the 21st Century
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