Chapter 1:

Spanish Private Law: History,

Seo pe and Trends

l. History
Like ali legal systems, the Spanish Privare Law is substantially a product
of history. 1 Therefore, social, political and economic circumstances
converge in the formation of Privare Law in each historical period. Two
dominant influences have determined the evolution of Spanish Prívate
Law, and, in particular, Spanish Civil Law: Roman Law that the Roman
colonization of the Iberian Peninsula brought with it; and Germanic
Law that barbarían invasion imposed thereon after the collapse of the
Roman Empire. However, the present form of Spanish Civil Law is
also intensely conditioned by another legal-political factor. The Iberian
Península fragmented into severa! kingdoms and territories that although
sharing common roots, developed independently and separately their
own civil legal systems (historical civil legal systems were: Castilian
Law, Aragonese Law, Catalan Law, Law of Navarre and Balearic Law).
Differing social and economic conditions among these territories ha ve led
to a plural and complex system likely to incorporare a series of Spanish
Civil legal systems.
The so-called codification process began in Spain at the same time that
it started in the rest of Europe. Inspiring ideas of codification appeared
at the end of the seventeenth century among enlightened thinkers, and
the Constitution of Cádiz, proclaimed in 1812, introduced the ideal of
codification. The subsequent alternating periods of absolutism damaged
ongoing codification projects; even if sorne periods of enlightened
despotism allowed codification ideas to reach into the circles of power.
Thus, the first Civil Code of Sainz de Andino was approved in 1829
during the second absolutist period (1823-33) under Fernando VII.
Before the definitive enactment of the current Civil Code of 1885,
an illuminating liberal Civil Code project (drafted by García Goyena,
Bravo Murillo, Luzuriaga and Sánchez Puy) was presented in 1851
and can be considered the immediate precedent of the one currently

1 Professors Luis Díez-Picazo and Antonio Gullón, in their joint publication Sistema de

Derecho Civil, Vol. 1, Madrid: Civitas, 2003 and previous.

2 Spanísh Prívate Law: Hístory, Scope and Trends
in force. The project failed, probably dueto an entrenched conflict among
regions which were hard to manage. Since the approval of a Civil Code
was encountering serious obstacles, a way was thought up to reduce
parliamentary discussion as much as possible and divert the drafting
of Code provisions towards technical and expert circles. The model
devised consisted of approving a Law of Basis by the Parliament that
established the founding principies of the Code, and entrusting a technical
committee with the drafting task. After two failed attempts (in 1881 by
Alonso Martínez and in 1885 by Francisco Silvela), a Law of Basis was
definitively approved by the Parliament on 11 May 1888, authorizing
the Government to draft and publish a Civil Code pursuant to the basis,
guidelines and instructions laid down thereby. Accordingly, the current
Civil Code was approved and published on 6 October 1888. Due to
heated discussion in Parliament triggered by serious disagreements with
the enacted text, a new edition of the Civil Code, including additions
and amendments, was ordered to be published on 24 July 1889. The
Civil Code of 1889, then inspired by the French Code, is currently
in force, although it has been modified on many occasions since its
puhlkarion (1904, 1928, 1939, 1941, 1943, 1952, 1954, 1958, 1960,
1970, 1972, and heavily in 1973, 1975 and 1978 to modernize Civil
Law and align it with constitutional precepts). Since the approval of the
Spanish Constitution in 1978, the Civil Code has also been revised on
numerous occasions within the constitutional framework andas response
to changing social and political imperatives.
The tortuous path followed by the codification process of civil matters
resulted in the curious consequence that the Commercial Code was
approved four years earlier than the Civil Code despite the special-
general rapport that is supposed to link both texts and legal disciplines.
If attention is now turned to the historical evolution of Commercial
Law as an independent and distinct legal system, one is surprised to
discover that no Commercial Law existed in Rome, even though Rome
had become the centre of the world trade in that period. Therefore, the
development of intense economic activity should not be considered the
sale factor triggering the emergence of Commercial Law. Dynamism
of ius civile, great ability to adapt to the needs of reality and the
specific way in which law was applied by the praetor explain the non-
existence of a distinct set of rules aimed to govern business transactions
in the Roman period. lt is accepted that severa) converging factors in
the early Middle Ages gave rise to the very birth of Commercial Law.
The advent of a new urban economy led by the emerging socioeco-
nomic class of merchants, the growth of trade by sea and of regional
and international markets (fairs), and the progressive weakening of
the agricultura) and feudal economy started to demand a new Law
Spanísh Prívate Law: Hístory, Scope and Trends 3
based on the personal condition of the parties involved, the merchants
(ius mercatorum).
The Modern Era, with the formation of modern States and the
consolidation of the sovereignty of monarchies, brought with it important
upheavals for the existing Commercial Law as a separa te legal system far
ruling the activity carried out by a distinct sociaÍ class (merchants). Three
main phenomena may describe Modern Commercial Law. Firstly, unlike
the former predominance of uses and practices, public interventionism
entailed the beginning of a strong process of compilation of commercial
rules (in France, the Commerce Bylaws of 1673 by Louis XIV; or in
Spain the Ordenanzas de Bilbao of 1737). Secondly, as a result of the
nationalization policy, characteristic of the Modern Era, Commercial
Law partially lost its uniform character, insofar as /ex mercatoria
rules were fragmented in domestic regulations. Thirdly, special consular
courts, empowered to deal with commercial matters, became attached to
regal jurisdiction, accordingly losing part of their autonomy.
The French Revolution constituted the definitive impetus to Com-
mercial Law. Although the principies inspiring the Revolution would
seem to flatly refute any class-based legal system, the French Revolution
can be understood as a class victory, by the merchant class (Girón,
Rojo). The nineteenth century gave birth to the still surviving idea
of Codes. The notion of Codes embodied a new drafting technique
that, unlike previous collections of texts and rules, meant a simple
compilation of existing rules, intended to create a timeless and perpetua!
systemized set of rules. The French Civil Code of 1807 defines a new
legal conception of Commercial Code inspired by an objective (actos
de comercio) rather than subjective or personal rationale. The Spanish
Commercial Code of 1829, a personal work by Pedro Sainz de Andino,
accepted the objective trend with caution and moderation. The notion of
actos de comercio was only used to determine the scope of competence
of Commerce Courts. Nevertheless, the subsequent Spanish Commercial
Code of 1885, curren ti y in force, is permeated by a resounding acceptance
of the most objective model underlying the French Code of 1807. As
with most European Commercial Codes in those times, the Spanish
Commercial Code of 1885 constitutes a fiar rejection of the former
professional model of Commercial Law as a class-based legal system
and a warm welcome to an act-based model, to be applied to any so-
named commercial transaction regardless of the condition of the in volved
parties.
Today it is difficult and it would also be very imprecise to identify
Commercial Law with the rules contained in the current Commercial
Code of 1885. The Commercial Law realm has ostentatiously exceeded
the limits of the nineteenth-century Code. Rules concerning commercial
2 Spanish Private Law: History, Scope and Trends
in force. The project failed, probably dueto an entrenched conflict among
regions which were hard to manage. Since the approval of a Civil Code
was encountering serious obstacles, a way was thought up to reduce
parliamentary discussion as much as possible and divert the drafting
of Code provisions towards technical and expert circles. The model
devised consisted of approving a Law of Basis by the Parliament that
established the founding principies of the Code, and entrusting a technical
committee with the drafting task. After two failed attempts (in 1881 by
Alonso Martínez and in 1885 by Francisco Silvela), a Law of Basis was
definitively approved by the Parliament on 11 May 1888, authorizing
the Government to draft and publish a Civil Code pursuant to the basis,
guidelines and instructions laid clown thereby. Accordingly, the current
Civil Code was approved and published on 6 October 1888. Due to
heated discussion in Parliament triggered by serious disagreements with
the enacted text, a new edition of the Civil Code, including additions
and amendments, was ordered to be published on 24 July 1889. The
Civil Code of 1889, then inspired by the French Code, is currently
in force, although it has been modified on many occasions since its
publication (1904, 1928, 1939, 1941, 1943, 1952, 1954, 1958, 1960,
1970, 1972, and heavily in 1973, 1975 and 1978 to modernize Civil
Law and align it with constitutional precepts). Since the approval of the
Spanish Constitution in 1978, the Civil Code has also been revised on
numerous occasions within the constitutional framework andas response
to changing social and political imperatives.
The tortuous path followed by the codification process of civil matters
resulted in the curious consequence that the Commercial Code was
approved four years earlier than the Civil Code despite the special-
general rapport that is supposed to link both texts and legal disciplines.
If attention is now turned to the historical evolution of Commercial
Law as an independent and distinct legal system, one is surprised to
discover that no Commercial Law existed in Rome, even though Rome
had become the centre of the world trade in that period. Therefore, the
development of intense economic activity should not be considered the
sale factor triggering the emergence of Commercial Law. Dynamism
of ius civile, great ability to adapt to the needs of reality and the
specific way in which law was applied by the praetor explain the non-
existence of a distinct set of rules aimed to govern business transactions
in the Roman period. lt is accepted that severa! converging factors in
the early Middle Ages gave rise to the very birth of Commercial Law.
The advent of a new urban economy led by the emerging socioeco-
nomic class of merchants, the growth of trade by sea and of regional
and international markets (fairs), and the progressive weakening of
the agricultura! and feudal economy started to demand a new Law
Spanish Private Law: History, Scope and Trends 3
based on the personal condition of the parties involved, the merchants
(ius mercatorum).
The Modern Era, with the formation of modern States and the
consolidation of the sovereignty of monarchies, brought with it important
upheavals for the existing Commercial Law as a separa te legal system for
ruling the activity carried out by a distinct social class (merchants). Three
main phenomena may describe Modern Commercial Law. Firstly, unlike
the former predominance of uses and practices, public interventionism
entailed the beginning of a strong process of compilation of commercial
rules (in France, the Commerce Bylaws of 1673 by Louis XIV; or in
Spain the Ordenanzas de Bilbao of 173 7). Secondly, as a result of the
nationalization policy, characteristic of the Modern Era, Commercial
Law partially lost its uniform character, insofar as /ex mercatoria
rules were fragmented in domestic regulations. Thirdly, special consular
courts, empowered to <leal with commercial matters, became attached to
regal jurisdiction, accordingly losing part of their autonomy.
The French Revolution constituted the definitive ímpetus to Com-
mercial Law. Although the principies inspiring the Revolution would
seem to flatly refute any class-based legal system, the French Revolution
can be understood as a class victory, by the merchant class (Girón,
Rojo). The nineteenth century gave birth to the still surviving idea
of Codes. The notion of Codes embodied a new drafting technique
that, unlike previous collections of texts and rules, meant a simple
compilation of existing rules, intended to create a timeless and perpetua!
systemized set of rules. The French Civil Code of 1807 defines a new
legal conception of Commercial Code inspired by an objective (actos
de comercio) rather than subjective or personal rationale. The Spanish
Commercial Code of 1829, a personal work by Pedro Sainz de Andino,
accepted the objective trend with caution and moderation. The notion of
actos de comercio was only used to determine the scope of competence
of Commerce Courts. Nevertheless, the subsequent Spanish Commercial
Code of 1885, curren ti y in force, is permeated by a resounding acceptance
of the most objective model underlying the French Code of 1807. As
with most European Commercial Codes in those times, the Spanish
Commercial Code of 1885 constitutes a flat rejection of the former
professional model of Commercial Law as a class-based legal system
and a warm welcome to an act-based model, to be applied to any so-
named commercial transaction regardless of the condition of the in volved
parties.
Today it is difficult and it would also be very imprecise to identify
Commercial Law with the rules contained in the current Commercial
Code of 1885. The Commercial Law realm has ostentatiously exceeded
the limits of the nineteenth-century Code. Rules concerning commercial
4 Spanish Private Law: History, Scope and Trends
matters ha ve overflowed into a reticulate and complex system of specific
legislation that replaces, fills the gaps of, completes or adds new issues to
the scope of the Commercial Code in order to meet the needs and satisfy
the demands of modern society.
2. Private Law in the Spanish legal system
Merely for academic purposes, legal teaching makes a common (but
certainly blurred and indistinct from an analytical perspective) distinction
between two main blocks of rules likely to categorize laws and regulations
as Public Law or Privare Law. Basically, Public Law disciplines relation-
ships between citizens and public powers, and between States or public
authorities and each other. Therefore, rules governing the operation of
the civil service and the performance of public services (Derecho Admin-
istrativo), the tax system (Derecho Financiero), relationships between
the State and the diverse Churches or faiths (Derecho Eclesiástico),
State reaction against and punishment of crimes (Derecho Penal), or
relations among States in the international scene (Derecho Interna-
cional Público) fall within the scope of the so-called Public Law. By
a process of elimination, Privare Law should accordingly encompass
ali those laws and regulations that, not being induded in the Public
Law realm, regulare privare relationships entered into by individuals and
undertakings. Thus, Privare Law embraces Civil Law (Derecho Civil),
Commercial Law (Derecho Mercantil) and International Privare Law
(Derecho Internacional Privado).
Beyond that simple dassification on an academic basis, both Public
Law and Priva te Law form part of the entire legal system, a self-contained,
autonomous and integrated complex of rules. As a result, Privare Law
should not be approached as an isolated element, but incorporated into
the whole legal system and in permanent relation with neighbouring
disciplines.
2.1. The Spanish Constitution
The history of Spanish constitutionalism dates back to the beginning
of nineteenth century and reflects social and political upheavals of the
nineteenth and twentieth centuries in the country. In such a confused two-
century period, the Spanish Constitution of 1812 constituted a milestone
in Spanish constitutionalism as a symbol of liberalism against absolutism.
It contains measures to guarantee separation of powers and a complete
and ambitious regulation of civil liberties and fundamental rights of
citizens and to shape an extraordinarily modern Constitution embodying
liberal principies. Subsequent political and socioeconomic events trig-
gered a long series of sanctioned and abolished Constitutional texts.
Spanish Private Law: History, Scope and Trends 5
The current Spanish Constitution was promulgated in 1978 in the
aftermath of the fall of the dictatorship following the death of the dictator
Franco on 20 November 1975, and as the most valuable result of the
exemplary process of political transition to democracy experienced in
Spain.
Constitutional provisions are grouped in two categories, revealing
a dual structure of the Supreme Text. On the one hand, the so-
called dogmatic part would comprise the Preamble, a memorandum
of understandings defining inspiring principies and founding values
of the constituting society, the Preliminary Title (Arrides 1-9), that
contains basic constitutional principies configuring the political and
territorial model and defining identifying marks of the Spanish State,
and Title 1 (Artides 10-55) 'On Fundamental Rights and Duties'
under which fundamental rights, civil liberties and governing princi-
pies of social and economic policies are prodaimed. Ón the other
hand, the so-called organic or institutional part covers the remain-
ing constitutional provisions (Arrides 56-169) devoted to devising
and regulating the operation of the executive, the judiciary and the
legisla ture. 2
2.1. I. Constitutional rules concerning private re/ationships The Spanish
Constitution, being the Supreme Text located at the apex of the regu-
latory hierarchy, permeates the whole legal system. Accordingly, con-
stitutional rules would outline the legal framework in which private
relationships unfold. As a matter of fact, the constitutional enshrining of
a market-based-economy social model combining the prodamation of
free competition (Arride 38) with the recognition of public provision
of economic activities (Arride 128.2) and the eventual planning of the
economy (Arrides 38 and 131) underpin the playing field of privare
relationships (see further analysis thereon in Chapter 4 ).
Beyond such a general statement, a doser approach is demanded.
In order to assess the role constitutional rules in the development
of privare relationships, two specific questions might be well worth
noting. On the one hand, to determine the room left for fundamental
rights in a scenario where privare relationships take place under the
2
Basic textbooks and further readings on Constitutional Law: Álvarez Conde,
Enrique, Curso de Derecho Constitucional, 6th ed., Madrid: Tecnos, 2008; López
Guerra, Luis, Derecho Constitucional, 7th ed., Valencia: Tirant lo Blanch, 2007;
Salas, Ramón, Lecciones de Derecho Público Constitucional, Madrid: Centro de
Estudios Constitucionales, 1982; Aparicio Pérez, Miguel Ángel, Temas de Derecho
Constitucional, Barcelona, Cedecs, 1998; Torres Del Moral, Antonio, Introducción al
Derecho Constitucional, Madrid: Servicios de Publicaciones de la Facultad de Derecho,
Universidad Complutense, 1996.
4 Spanísh Prívate Law: Hístory, Scope and Trends
matters ha ve overflowed into a reticulate and complex system of specific
legislation that replaces, fills the gaps of, completes or adds new issues to
the scope of the Commercial Code in order to meet the needs and satisfy
the demands of modern society.
2. Private Law in the Spanish legal system
Merely for academic purposes, legal teaching makes a common (but
certainly blurred and indistinct from an analytical perspective) distinction
between two main blocks of rules likely to categorize laws and regulations
as Public Law or Privare Law. Basically, Public Law disciplines relation-
ships between citizens and public powers, and between States or public
authorities and each other. Therefore, rules governing the operation of
the civil service and the performance of public services (Derecho Admin-
istrativo), the tax system (Derecho Financiero), relationships between
the State and the diverse Churches or faiths (Derecho Eclesiástico),
State reaction against and punishment of crimes (Derecho Penal), or
relations among States in the international scene (Derecho Interna-
cional Público) fall within the scope of the so-called Public Law. By
a process of elimination, Privare Law should accordingly encompass
ali those laws and regulations that, not being included in the Public
Law realm, regulare privare relationships entered into by individuals and
undertakings. Thus, Privare Law embraces Civil Law (Derecho Civil),
Commercial Law (Derecho Mercantil) and International Privare Law
(Derecho Internacional Privado).
Beyond that simple classification on an academic basis, both Public
Law and Privare Law form part of the entire legal system, a self-contained,
autonomous and integrated complex of rules. As a result, Privare Law
should not be approached as an isolated element, but incorporated into
the whole legal system and in permanent relation with neighbouring
disciplines.
2.1. The Spanish Constitution
The history of Spanish constitutionalism dates back to the beginning
of nineteenth century and reflects social and political upheavals of the
nineteenth and twentieth centuries in the country. In such a confused two-
century period, the Spanish Constitution of 1812 constituted a milestone
in Spanish constitutionalism as a symbol of liberalism against absolutism.
It contains measures to guarantee separation of powers and a complete
and ambitious regulation of civil liberties and fundamental rights of
citizens and to shape an extraordinarily modern Constitution embodying
liberal principies. Subsequent political and socioeconomic events trig-
gered a long series of sanctioned and abolished Constitutional texts.
Spanísh Prívate Law: Hístory, Scope and Trends 5
The current Spanish Constitution was promulgated in 1978 in the
aftermath of the fall of the dictatorship following the death of the dictator
Franco on 20 November 1975, and as the most valuable result of the
exemplary process of political transition to democracy experienced in
Spain.
Constitutional provisions are grouped in two categorfos, revealing
a dual structure of the Supreme Text. On the one hand, the so-
called dogmatic part would comprise the Preamble, a memorandum
of understandings defining inspiring principies and founding values
of the constituting society, the Preliminary Title (Articles 1-9), that
contains basic constitutional principies configuring the political and
territorial model and defining identifying marks of the Spanish State,
and Title I (Articles 10-55) 'On Fundamental Rights and Duties'
under which fundamental rights, civil liberties and governing princi-
pies of social and economic policies are proclaimed. Ón the other
hand, the so-called organic or institutional part covers the remain-
ing constitutional provisions (Articles 56-169) devoted to devising
and regulating the operation of the executive, the judiciary and the
legislature. 2
2.1.1. Constitutional rules concerning private relationships The Spanish
Constitution, being the Supreme Text located at the apex of the regu-
latory hierarchy, permeates the whole legal system. Accordingly, con-
stitutional rules would outline the legal framework in which privare
relationships unfold. As a matter of fact, the constitutional enshrining of
a market-based-economy social model combining the proclamation of
free competition (Article 38) with the recognition of public provision
of economic activities (Article 128.2) and the eventual planning of the
economy (Articles 38 and 131) underpin the playing field of private
relationships (see further analysis thereon in Chapter 4 ).
Beyond such a general statement, a closer approach is demanded.
In order to assess the role of constitutional rules in the development
of privare relationships, two specific questions might be well worth
noting. On the one hand, to determine the room left for fundamental
rights in a scenario where private relationships take place under the
2
Basic textbooks and further readings on Constitutional Law: Álvarez Conde,
Enrique, Curso de Derecho Constitucional, 6th ed., Madrid: Tecnos, 2008; López
Guerra, Luis, Derecho Constitucional, 7th ed., Valencia: Tirant lo Blanch, 2007;
Salas, Ramón, Lecciones de Derecho Público Constitucional, Madrid: Centro de
Estudios Constitucionales, 1982; Aparicio Pérez, Miguel Ángel, Temas de Derecho
Constitucional, Barcelona, Cedecs, 1998; Torres Del Moral, Antonio, Introducción al
Derecho Constitucional, Madrid: Servicios de Publicaciones de la Facultad de Derecho,
Universidad Complutense, 1996.
6 Spanish Private Law: History, Scope and Trends
dominance of private autonomy and freedom to <leal (Section 2.1.2).
On the other hand, given the territory-based scheme for distributing
competences among public authorities designed by the Supreme Text,
to infer how constitutional rules (basically Articles 148-9) allocate
regulatory power on Private Law matters among local authorities and
the State (Section 3).
2.1.2. Fundamenta/ rights and private relationships Far from the
general statement according to which constitutional principies prevail
over the entire legal system and potentially filter through every private
and public relationship, the question of the application of fundamen-
tal rights to ínter privatos relationships has long been debated by
courts and scholars. In the forefront is the delicate balance between
the important free autonomy principie inspiring Private Law rules
and the equality and non-discrimination rights underlying constitution
building.
More than a trivial theoretical discussion, real conflicts between such
principies and rights are frequently revealed in social and economic
practice. The exercise of the so-called 'right of admission' reserved
by many business establishments open to the public has prompted a
number of interesting court decisions dealing with the role
of fundarrl.ental rights in private relationships. 3
Hence, a conclusive statement may be inferred from court decisions
dealing therewith: public powers are bound to observe the equality
principie, but the autonomy of individuals and private entities is only
limited by the ban on discriminating on grounds against constitutional
public order, namely (among others) those prohibited by Article 14
Spanish Constitution 1978 (birth, race, sex, ideology, religion or any
other personal circumstance). 4
Once such a limit is abided by, private autonomy that also enjoys
constitutional acknowledgment (Articles 1.1, 9.2 and 38), prevails in any
3 Spanish Constitutional Court judgment no. 73/1985, of 14 June (Sala 2ª, Ponente:
Excmo. Sr. Don Antonio Truyol Serra), held that a decision duly adopted by individuals
on well-founded grounds aimed to protect a private entity's interests is to be observed
and <loes not amount by itself toan act infringing the equality principie. The underlying
facts were the following. Access to a casino was refused to a client by the casino's
management on the supposition that given the conduct shown, the expelled client was
presumed to create a disturbance. Likewise, in the judgment of 21 April 1994 (RJ
2770/1994), the Court held to be reasonable and respectful of the equality principie a
ban on access to a dancing hall motivated by the breach of duties imposed on clients
without the risk of violating the right to be treated on an equal basis.
4 Spanish Constitutional Court judgment no. 108/1989, of 8 June (Sala 2ª, Ponente:
Excmo. Sr. Don Francisco Rubio Llorente).
Spanish Private Law: History, Scope and Trends 7
relationship, insofar as predominance of individual will over equality
is inherent in the concept of private autonomy. 5 Parties are free to
<leal with and on the terms and conditions they wish, providing that
they do not act against the law, morals and public order (Article 1255
Civil Code). 6 Accordingly, private autonomy is not directly limited by
a constitutionally enshrined equality principie but indirectly influenced
by constitutional principies through the due observance of the law,
morals and public order, where fundamental rights and civil liberties
are included.
2.2. Public Law and private relationships
Under the inspiration of the liberal flags brandished in the French
Revolution, freedom to compete was enshrined by ali legal systems that
were influenced by it (Article 38 Spanish Constitution 1978), with a
market-based economy as a backdrop. Modern economies are revealing
an increasing phenomenon of 'Public-Law permeation of privare rela-
tionships'. Apart from the constitutional entitlement of public powers to
intervene in the market by carrying on economic activities (Article 128.2
Spanish Constitution) or planning the economy (Articles 38 and 131
Spanish Constitution), a silent and less evident presence of Public
Law in the unfolding of private relationships is becoming a more and
more frequent distinguishing mark of today's legal system. Strategic
economic industries, such as the energy or telecommunications sectors,
and systemic markets involving general interests, like the financia! service
area, are experiencing the heavy burden of public supervision and strict
regulation; their efficiency has moreover been vigorously questioned
because of recent financia! scandals and the present serious economic
breakdown.
5
Spanish Constitutional Court judgment no. 177/1988, of 19 October (Sala 2ª,
Ponente: Excma. Sra. Doña Gloria Begué Cantón). Starck, Christian, 'Derecho
Fundamentales y Derecho Privado (I)', Revista Española de Derecho Constitucional,
no. 66, 2002, pp. 65-90, on p. 66.
6
Alfara Águila-Real, Jesús, 'Autonomía privada y Derechos Fundamentales', ADC,
Vol. 46-I, 1993, pp. 78-9, and 106-14. Díez-Picazo, Luis, 'Comentario al artículo
1255 Ce', in Comentario del Código Civil, Vol. II, Madrid: Ministerio de Justicia, 1991,
pp. 430-2, on p. 432. Likewise, Spanish Constitutional Court judgment no. 19/1985,
of 13 February (Sala 23, Ponente Excmo.: Sr. Don Jerónimo Arozamena Sierra): 'it is
evident that the observance of fundamental rights and public liberties guaranteed by
Constitution is an essential component of public order and, therefore, any contractual
terms clashing with such regard therefor are to be deemed null and void' (Free
translation by the author).
6 Spanish Private Law: History, Scope and Trends
dominance of privare autonomy and freedom to deal (Section 2.1.2).
On the other hand, given the territory-based scheme for distributing
competences among public authorities designed by the Supreme Text,
to infer how constitutional rules (basically Arrides 148-9) allocate
regulatory power on Privare Law matters among local authorities and
the Sta te (Section 3 ).
2.1.2. Fundamenta/ rights and private re/ationships Far from the
general statement according to which constitutional principies prevail
over the entire legal system and potentially filter through every privare
and public relationship, the question of the application of fundamen-
tal rights to inter privatos relationships has long been debated by
courts and scholars. In the forefront is the delicate balance between
the important free autonomy principie inspiring Privare Law rules
and the equality and non-discrimination rights underlying constitution
building.
More than a trivial theoretical discussion, real conflicts between such
principies and rights are frequently revealed in social and economic
practice. The exercise of the so-called 'right of admission' reserved
by many business establishments open to the public has prompted a
number of interesting court decisions dealing with the role
of fundarrl.ental rights in privare relationships. 3
Hence, a condusive statement may be inferred from court decisions
dealing therewith: public powers are bound to observe the equality
principie, but the autonomy of individuals and privare entities is only
limited by the ban on discriminating on grounds against constitutional
public order, namely (among others) those prohibited by Arride 14
Spanish Constitution 1978 (birth, race, sex, ideology, religion or any
other personal circumstance). 4
Once such a limit is abided by, privare autonomy that also enjoys
constitutional acknowledgment (Arrides 1.1, 9.2 and 38), prevails in any
3 Spanish Constitutional Court judgment no. 73/1985, of 14 June (Sala 2ª, Ponente:
Excmo. Sr. Don Antonio Truyol Serra), held that a decision duly adopted by individuals
on well-founded grounds aimed to protect a privare entity's interests is to be observed
and does not amount by itself toan act infringing the equality principie. The underlying
facts were the following. Access to a casino was refused to a client by the casino's
management on the supposition that given the conduct shown, the expelled client was
presumed to creare a disturbance. Likewise, in the judgment of 21 April 1994 (RJ
277011994 ), the Court held to be reasonable and respectful of the equality principie a
ban on access to a dancing hall motivated by the breach of duties imposed on clients
without the risk of violating the right to be treated on an equal basis.
4 Spanish Constitutional Court judgment no. 108/1989, of 8 June (Sala 2ª, Ponente:
Excmo. Sr. Don Francisco Rubio Llorente).
Spanish Private Law: History, Scope and Trends 7
relationship, insofar as predominance of individual will over equality
is inherent in the concept of prívate autonomy. 5 Parties are free to
deal with and on the terms and conditions they wish, providing that
they do not act against the law, morals and public order (Arride 1255
Civil Code). 6 Accordingly, privare autonomy is not directly limited by
a constitutionally enshrined equality principie but indirectly influenced
by constitutional principies through the due observance of the law,
morals and public order, where fundamental rights and civil liberties
are induded.
2.2. Public Law and private relationships
Under the inspiration of the liberal flags brandished in the French
Revolution, freedom to compete was enshrined by ali legal systems that
were influenced by it (Arride 38 Spanish Constitution 1978), with a
market-based economy as a backdrop. Modern economies are revealing
an increasing phenomenon of 'Public-Law permeation of privare rela-
tionships'. Apart from the constitutional entitlement of public powers to
intervene in the market by carrying on economic activities (Artide 128.2
Spanish Constitution) or planning the economy (Arrides 38 and 131
Spanish Constitution), a silent and less evident presence of Public
Law in the unfolding of prívate relationships is becoming a more and
more frequent distinguishing mark of today's legal system. Strategic
economic industries, such as the energy or telecommunications sectors,
and systemic markets involving general interests, like the financia! service
area, are experiencing the heavy burden of public supervision and strict
regulation; their efficiency has moreover been vigorously questioned
because of recent financia! scandals and the present serious economic
breakdown.
5
Spanish Constitutional Court judgment no. 17711988, of 19 October (Sala 2ª,
Ponente: Excma. Sra. Doña Gloria Begué Cantón). Starck, Christian, 'Derecho
Fundamentales y Derecho Privado (J)', Revista Española de Derecho Constitucional,
no. 66, 2002, pp. 65-90, on p. 66.
6
Alfaro Águila-Real, Jesús, 'Autonomía privada y Derechos Fundamentales', ADC,
Vol. 46-1, 1993, pp. 78-9, and 106-14. Díez-Picazo, Luis, 'Comentario al artículo
1255 Ce', in Comentario del Código Civil, Vol. 11, Madrid: Ministerio de Justicia, 1991,
pp. 430-2, on p. 432. Likewise, Spanish Constitutional Court judgment no. 19/1985,
of 13 February (Sala 2ª, Ponente Excmo.: Sr. Don Jerónimo Arozamena Sierra): 'it is
evident that the observance of fundamental rights and public liberties guaranteed by
Constitution is an essential component of public order and, therefore, any contractual
terms clashing with such regard therefor are to be deemed null and void' (Free
translation by the author).
8 Spanish Private Law: History, Scope and Trends
3. Sources of Private Law
The concept and classification of sources of Privare Law are contained in
Article 1 Civil Code in Preliminary Title. Preliminary Title, comprising
Articles 1-16, used to be deemed a quasi-constitutional set of rules
based on the historical role of Civil Law as ius commune. Today
provisions of Preliminary Title of the Civil Code are subject to and are
to be construed under the Constitution. Notwithstanding, those legal
provisions, reformed in 1973-4, do still deserve thorough study, since
they constitute the basic interpretative rules and application guidelines
of Privare Law for courts and practitioners.
3.1. lntroductory concepts
The technical notion of sources of the legal system distils both metaphor-
ical meanings of 'source', as the original place water flows from, andas
sources of knowledge and information.
When Article 1 Civil Code refers to 'sources of the legal system' the first
sense of 'source' prevails. But two approaches are feasible. On the one
hand, source could describe public authorities empowered to adopt reg-
ulatory actions on specific matters (State or regional or local authorities,
Parliament, Ministries or supervisory bodies). On the other hand, source
would be interpreted on an objective basis as denoting the different forms
that legislation and regulations may be in (law, regulation, ministerial
order), or, from a more general perspective, political and socio-economic
phenomena able to give rise to binding rules (hetero-regulation by means
of enacted statutes, self-regulation by drafting codes of conducts, gen-
erally observed practices in the market which become custom, by court
case-law).
Pursuant to Article 1 Civil Code, sources of the Spanish legal system
are law, custom and general principies of law. Therefore, the said
legal provision <loes not only enumerare sources of the legal system,
but also suggests a priority order or hierarchy. Despite the apparent
generality given by the wording of Article 1, classes and hierarchy of
sources do not extend over the entire legal system. Whereas law, custom
and general principies of law constitute indisputable sources of Privare
Law, other legal disciplines, such as Criminal Law, Procedural Law
or Administrative Law, are governed by a rigorous sense of legality,
avoiding the coming into being of customary rules and general principies
of law.
From a functional perspective, sources of the legal system perform
a crucial role in preventing courts from adopting arbitrary decisions.
According to the Constitutional Court, the right to obtain effective court
protection enshrined by Article 24 Spanish Constitution 1978 entails that
Spanish Private Law: History, Scope and Trends 9
well-founded court decisions are to be subject to the hierarchy of legal
sources (judgment of 22 February 1988).
3.2. Law as a source of Private Law
Reference to law as a source of Privare Law is to be considered in a wide
and general sense. Law encompasses ali classes of regulations able to
be laid clown by empowered authorities. Nevertheless, as far as Prívate
Law is concerned, the role of lower-rank regulations (ministerial orders,
circulars approved by the Exchange Commission or the Central Bank's
Instrucciones) is less common and relevant, except for regulated markets
of hybrid (public-private) character, such as the financia! sector.
The basic types of laws and regulations under Spanish law are the
following. The highest position under the Constitution is held by the
law (Ley). Two classes of law are provided for by the Constitution:
ordinary law (Ley ordinaria) and special or organic law (Ley orgánica).
Ordinary law is defined by a process of exclusion: any law other than
an organic law. Organic law is based on a two-fold regime prescribed by
Article 81 Spanish Constitution 1978. The special intensity of organic law
and to a certain extent the exceptional character thereof stem from two
types of conditions. On the one hand, statutes dealing with fundamental
rights and civil liberties, approving Autonomy Statutes of Comunidades
Autónomas or the general electoral system, and any other stated by the
Constitution. On the other hand, any statute to be passed as organic law
requires an absolute majority of the Congress for it to be approved in a
final vote about the whole project.
At the same leve! as held by ordinary and organic law in the
legal hierarchy, two further regulatory initiatives, characterized by
emanating from the executive by express delegation of the legislative,
are contemplated: Real Decreto Legislativo and Real Decreto-Ley. The
term 'Real' in both is an expression of a parliamentary monarchy system
as established in Spain (equivalent to Decreto Legislativo in a Republic).
The former is used to approve by the executive revised texts as a result of
compiling dispersed provisions into a unique legal framework or textos
articulados following guidelines and according to the basis laid clown
by the Parliament in the so-called Ley de Bases (Article 82-3 Spanish
Constitution 1978). The latter also emanates from the executive, subject
to subsequent validation or ratification by the legislative on grounds of
extraordinary and urgent need.
At the purely statutory leve!, the executive is empowered to establish
regulations by approving Reales Decretos that are adopted by the Spanish
Council of Ministers or Ministerial Orders (Órdenes Ministeriales)
individually adopted by one or severa! Ministries. Regulations are to
be subject to that prescribed by the law they develop. Certain topics
8 Spanish Private Law: History, Scope and T rends
3. Sources of Private Law
The concept and classification of sources of Private Law are contained in
Article 1 Civil Code in Preliminary Title. Preliminary Title, comprising
Articles 1-16, used to be deemed a quasi-constitutional set of rules
based on the historical role of Civil Law as ius commune. Today
provisions of Preliminary Title of the Civil Code are subject to and are
to be construed under the Constitution. Notwithstanding, those legal
provisions, reformed in 1973-4, do still deserve thorough study, since
they constitute the basic interpretative rules and application guidelines
of Priva te Law far courts and practitioners.
3.1. lntroductory concepts
The technical notion of sources of the legal system distils both metaphor-
ical meanings of 'source', as the original place water flows from, and as
sources of knowledge and information.
When Article 1 Civil Code refers to 'sources of the legal system' the first
sense of 'source' prevails. But two approaches are feasible. On the one
hand, source could describe public authorities empowered to adopt reg-
ulatory actions on specific matters (Sta te or regional or local authorities,
Parliament, Ministries or supervisory bodies). On the other hand, source
would be interpreted on an objective basis as denoting the different forms
that legislation and regulations may be in (law, regulation, ministerial
arder), or, from a more general perspective, political and socio-economic
phenomena able to give rise to binding rules (hetero-regulation by meaos
of enacted statutes, self-regulation by drafting codes of conducts, gen-
erally observed practices in the market which become custom, by court
case-law).
Pursuant to Arride 1 Civil Code, sources of the Spanish legal system
are law, custom and general principies of law. Therefore, the said
legal provision <loes not only enumerate sources of the legal system,
but also suggests a priority arder or hierarchy. Despite the apparent
generality given by the wording of Article 1, classes and hierarchy of
sources do not extend over the entire legal system. Whereas law, custom
and general principies of law constitute indisputable sources of Privare
Law, other legal disciplines, such as Criminal Law, Procedural Law
or Administrative Law, are governed by a rigorous sense of legality,
avoiding the coming into being of customary rules and general principies
of law.
From a functional perspective, sources of the legal system perform
a crucial role in preventing courts from adopting arbitrary decisions.
According to the Constitutional Court, the right to obtain effective court
protection enshrined by Article 24 Spanish Constitution 1978 entails that
Spanish Private Law: History, Scope and Trends 9
well-founded court decisions are to be subject to the hierarchy of legal
sources (judgment of 22 February 1988).
3.2. Law as a source of Private Law
Reference to law as a source of Privare Law is to be considered in a wide
and general sense. Law encompasses ali classes of regulations able to
be laid clown by empowered authorities. Nevertheless, as far as Privare
Law is concerned, the role of lower-rank regulations (ministerial orders,
circulars approved by the Exchange Commission or the Central Bank's
Instrucciones) is less common and relevant, except for regulated markets
of hybrid (public-private) character, such as the financia! sector.
The basic types of laws and regulations under Spanish law are the
following. The highest position under the Constitution is held by the
law (Ley). Two classes of law are provided far by the Constitution:
ordinary law (Ley ordinaria) and special or organic law (Ley orgánica).
Ordinary law is defined by a process of exclusion: any law other than
an organic law. Organic law is based on a two-fold regime prescribed by
Article 81 Spanish Constitution 1978. The special intensity of organic law
and to a certain extent the exceptional character thereof stem from two
types of conditions. On the one hand, statutes dealing with fundamental
rights and civil liberties, approving Autonomy Statutes of Comunidades
Autónomas or the general electoral system, and any other stated by the
Constitution. On the other hand, any statute to be passed as organic law
requires an absolute majority of the Congress for it to be approved in a
final vote about the whole project.
At the same level as held by ordinary and organic law in the
legal hierarchy, two further regulatory initiatives, characterized by
emanating from the executive by express delegation of the legislative,
are contemplated: Real Decreto Legislativo and Real Decreto-Ley. The
term 'Real' in both is an expression of a parliamentary monarchy system
as established in Spain (equivalent to Decreto Legislativo in a Republic).
The former is used to approve by the executive revised texts as a result of
compiling dispersed provisions into a unique legal framework or textos
articulados following guidelines and according to the basis laid clown
by the Parliament in the so-called Ley de Bases (Article 82-3 Spanish
Constitution 1978). The latter also emanares from the executive, subject
to subsequent validation or ratification by the legislative on grounds of
extraordinary and urgent need.
At the purely statutory level, the executive is empowered to establish
regulations by approving Reales Decretos that are adopted by the Spanish
Council of Ministers or Ministerial Orders (Órdenes Ministeriales)
individually adopted by one or severa! Ministries. Regulations are to
be subject to that prescribed by the law they develop. Certain tapies
10 Spanish Private Law: History, Scope and Trends
are excluded from regulations and are to be regulated by laws or other
law-like norms.
Supervisory bodies in regulated markets, such as the Exchange Super-
visory and Regulation Commission (Comisión Nacional del Mercado
de Valores) or the Central Bank (Banco de España) are empowered to
establish regulations for matters falling within their scope of competence
(called Circulares de la CNMV and Instrucciones del Banco de España,
respectively).
3.2.1. National /egislation: Civil Code, Commercial Code and special
legis/ation The Spanish Constitution 1978 drew a political and socio-
economic picture described as 'A State of Autonomies' (Estado de las
Autonomías) aimed ar reversing certain abuses exerted by the centralist
policy of the just-fallen dictatorship and to recognize a certain extent of
autonomy and self-government for diverse territorial entities within the
proclamation of the indissoluble unity of the Spanish Nation (Arride 2).
As a result, 17 autonomy entities called Comunidades Autónomas are
recognized and invested with legislative, executive and judicial powers.
Within the common edifice erected by the Constitution, Statutes of
Autonomy (Estatutos de Autonomía) are approved as the supreme text
of each region.
The resulting model of shared-legislative-powers between State and
Autonomies directly impacts on the hierarchy of sources and argues for a
delicate distribution of powers according to the matter regulated (Arrides
148 and 149 Spanish Constitution 1978). As far as Privare Law matters
are concerned, exclusive legislative power to regulare thereon
to the State in order to guarantee market unity and equal civil_rights of
citizens within the entire national territory (Article 149). Sta te exclusivity
over Civil Law matters is, nevertheless, qualified by the constitutional
recognition of Autonomies' power to modify and establish regulations
for civil matters regulated by the State's legislation and by the so-called
Derecho Forales.
3.2.2. Regional legis/ation: Comunidades Autónomas and Derechos
Forales One of the special characteristics of Spanish Privare Law
stems from the history-rooted coexistence of different legal systems on
a regional basis. Territorial plurality derives from a medieval structure
in severa! kingdoms that reached unity under the centralist impetus led
by the Bourbon dynasty at the beginning of the eighteenth century.
The ensuing liberal movement that dominated policy in the nineteenth
century was decisively inspired by a strongly unifying trend embodied
in the Cádiz Constitution of 1812. Notwithstanding the centralizing
attempts made in the eighteenth and nineteenth centuries, the second
half of the nineteenth century experienced a renewed flowering of
Spanish Private Law: History, Scope and Trends 11
regionalisms in certain territories of the Iberian Peninsula, propelled by
the theoretical basis of Savigny's ideas and the Historical School's anti-
codifying doctrines. Subsequent political changes saw the evolution of
special or regional priva te legal regimes and their position in the Spanish
legal system.
The promulgation of the current Spanish Constitution in 1978 led to
the foundations for the so-called 'foral question' (deriving from medieval
charters called fueros) insofar as autonomy of certain nationalities and
regions forming the Spanish Nation is acknowledged and guaranteed
(Arride 2 Spanish Constitution 1978). Coexistence of the diverse legal
systems operares pursuant to the following principies determining the
allocation of regulatory powers among authorities at different territorial
levels. From Arride 149.1.8 (subsequently developed by the Statutes of
Autonomy) it may be inferred that the regulation of civil matters is an
exclusive power of the State; without prejudice to the competence of
regional authorities where special civil legal systems exist to preserve,
modify and develop them.
Today, the so-called common Civil Law, expressed in the provisions
of the Civil Code, is applicable in the whole Spanish territory as regards
those matters that are deemed to be of exclusive competence of the
State. As far as preservation, modification and development powers are
concerned, the Civil Code is to be applied just by default- Constitutional
Court, judgment 103/1989, of 8 June. Regions enjoying autonomy
thereon have hastened to exert, as soon as possible and to the widest
extent, their regulatory powers on civil matters, even reducing as much
as possible the room available for common Civil Law to be applied by
default, and rendering inadequate the term 'special' given the breadth
and depth of the provisions adopted (in Catalonia, the Balearics, Aragon,
Navarre and with more restraint Galicia).
The Commercial Law scene is, from a constitutional perspective,
significantly different. Arrides 148-9 Spanish Constitution 1978 bestow
no powers to the Comunidades Autónomas on Commercial Law matters;
far from it, severa! sections of Arride 149 .1 enshrine the exclusive
competence of the Sta te to regula te on commercial legislation, industrial
property, financia! markets, registration of vessels or land transportation.
Nevertheless, sorne Statutes of Autonomy have managed to attract
to local authorities certain powers over commercial legislation. The
Constitutional Court has dealt with such a considerably complex sit-
uation by delimiting an impassable limit for regional regulations in
the principie of 'market unity' to be guaranteed by State-adopted
legislation - judgments of 62/1991, 22 March; 96/1996, 30 May;
37/1997, 27 February. Accordingly, regional regulations are not allowed
to introduce or modify rights and obligations in contractual privare
relationships.
10 Spanish Private Law: History, Scope and Trends
are excluded from regulations and are to be regulared by laws or other
law-like norms.
Supervisory bodies in regulared markets, such as rhe Exchange Super-
visory and Regulation Commission (Comisión Nacional del Mercado
de Valores) or rhe Central Bank (Banco de España) are empowered to
establish regulations for matters falling within their scope of competence
(called Circulares de la CNMV and Instrucciones del Banco de España,
respectively).
3.2.1. National /egis/ation: Civil Cede, Commercial Cede and special
legis/ation The Spanish Constitution 1978 drew a polirical and socio-
economic picture described as 'A State of Autonomies' (Estado de las
Autonomías) aimed at reversing certain abuses exerted by the cenrralist
policy of the just-fallen dicrarorship and to recognize a certain exrent of
autonomy and self-government for diverse territorial entities within the
proclamation of the indissoluble unity of the Spanish Nation (Article 2).
As a result, 17 autonomy entities called Comunidades Autónomas are
recognized and invesred with legislative, executive and judicial powers.
Wirhin the common edifice erected by rhe Constitution, Statutes of
Auronomy (Estatutos de Autonomía) are approved as the supreme rext
of each region.
The resulting model of shared-legislative-powers between State and
Autonomies directly impacts on the hierarchy of sources and argues for a
delicate distribution of powers according to the matter regulated (Arrides
148 and 149 Spanish Constitution 1978). As far as Privare Law matters
are concerned, exclusive legislative power to regulare thereon is..graq,.tJ':d
to the State in order to guarantee market unity and equal civil_rights of
citizens within rhe entire national territory (Article 149). Sta re exclusivity
over Civil Law matters is, neverrheless, qualified by the constirutional
recognition of Autonomies' power to modify and establish regulations
for civil matters regulated by the State's legislation and by the so-called
Derecho Forales.
3.2.2. Regional /egislation: Comunidades Autónomas and Derechos
Forales One of the special characrerisrics of Spanish Privare Law
stems from the history-rooted coexistence of different legal systems on
a regional basis. Territorial plurality derives from a medieval structure
in severa! kingdoms that reached unity under the centralist impetus led
by the Bourbon dynasty ar the beginning of the eighteenth cenrury.
The ensuing liberal movement rhat dominatcd policy in the nineteenth
century was decisively inspired by a strongly unifying trend embodied
in the Cádiz Constitution of 1812. Notwithstanding the centralizing
attempts made in the eighteenth and nineteenth centuries, the second
half of the nineteenrh cenrury experienced a renewed flowering of
Spanish Prívate Law: History, Scope and Trends 11
regionalisms in certain territories of the Iberian Peninsula, propelled by
the theoretical basis of Savigny's ideas and the Historical School's anti-
codifying doctrines. Subsequent political changes saw the evolution of
special or regional priva te legal regimes and their position in the Spanish
legal system.
The promulgation of the current Spanish Constitution in 1978 led to
the foundations for the so-called 'foral question' (deriving from medieval
charters called fueros) insofar as autonomy of certain nationalities and
regions forming the Spanish Nation is acknowledged and guaranteed
(Article 2 Spanish Constitution 1978). Coexistence of the divcrse legal
systems operates pursuant to the following principies determining the
allocation of regulatory powers among authorities at different territorial
levels. From Article 149.1.8 (subsequently developed by the Statutes of
Autonomy) it may be inferred rhat the regulation of civil matters is an
exclusive power of the Stare; without prejudice to the competence of
regional authorities where special civil legal systems exisr to preserve,
modify and develop them.
Today, the so-called common Civil Law, expressed in the provisions
of the Civil Code, is applicable in the whole Spanish territory as regards
those matters that are deemed to be of exclusive competence of the
Stare. As far as preservation, modification and development powers are
concerned, the Civil Code is to be applied just by default - Constitutional
Court, judgment 103/1989, of 8 June. Regions enjoying autonomy
thereon have hastened to exert, as soon as possible and to the widest
extent, their regulatory powers on civil matters, even reducing as much
as possible the room available for common Civil Law to be applied by
default, and rendering inadequate the term 'special' given the breadth
and depth of the provisions adopted (in Catalonia, the Balearics, Aragon,
Navarre and with more restraint Galicia).
The Commercial Law scene is, from a constitutional perspective,
significantly different. Articles 148-9 Spanish Constitution 1978 bestow
no powers to the Comunidades Autónomas on Commercial Law matters;
far from it, severa! sections of Article 149.1 enshrine the exclusive
comperence of the Sta te to regulare on commercial legislation, industrial
property, financia! markets, registration of vessels or land transportation.
Nevertheless, sorne Statutes of Autonomy have managed to attract
to local authorities certain powers over commercial legislation. The
Constitutional Court has dealt with such a considerably complex sit-
uation by delimiting an impassable limit for regional regulations in
the principie of 'market unity' to be guaranteed by State-adopted
legislation - judgments of 62/1991, 22 March; 96/1996, 30 May;
37/1997, 27 February. Accordingly, regional regulations are not allowed
to introduce or modify rights and obligations in contractual private
relationships.
12 Spanish Prívate Law: History, Scope and Trends
3.2.3. Community Law: the influence ofthe European Union Adhesion
by Spain to European Community in 1986 represented a significant
change in the Spanish legal system, particularly in Commercial-Law rules.
A true Community Priva te Law, in particular focused on Company Law,
Competition Law, Consumer Law or Financia! Service Regulations, is
identifiable.
The evolution of the European Community into the present European
Union has entailed the intensification of a Community heritage com-
posed of successive treaties, policy guidelines, derivative regulations
(Directives, Regulations, Decisions, Recommendations) and case law
of the European Court of Justice (hereinafter, the ECJ), especially,
when resolving preliminary questions pursuant to Arride 234 of the
European Union Treaty. This large set of rules, texts and regulations
forms a new and autonomous Community legal system that operares
according to the following principies: supremacy of European Union
law - the famous cases Costa vs. ENEL (judgment 6/64 of 17 July
1964) and Simmenthal (judgment 106/77 of 9 March 1978) of the
ECJ - and need to be interpreted on a uniform basis; the binding
character of certain rules approved by EU bodies in arder to guarantee
the efficacy of the Common Market and the unity of Community
Law; and the direct applicability of certain EU measures (namely, EU
Regulations). The direct applicability principie has, to a certain extent,
raised controversia! questions. The majar part of the regulatory activity
of EU bodies adopts the form of Directives rather than Regulations,
whose number is indeed limited and whose frequency is irregular. Unlike
Regulations, Directives, that cover the widest part of regulated areas,
are to be implemented in each Member State's legal system to be
directly effective therein. Therefore, repeated and severe infringement of
implementation deadlines by Member States is likely to deprive citizens
of their rights pursuant to a non-implemented Directive, triggering an
undesirable inequality within the EU. The ECJ has tried to combar
such a pernicious effect by formulating doctrines aimed at counteracting
Member States' power thereon. A so-called 'vertical direct applicability'
of Directives' clauses is recognized for citizens in their relationships with
the infringing State when the implementation deadline has not been
complied with - ECJ in judgments 41/74 of 4 December 1974 (case Van
Duyn); 8/81of19February1982 (case Becker); or 152/84 of 26 February
1986 (case Marshall). Nevertheless, the ECJ has shown reluctance to
affirm 'horizontal direct applicability' of Directives in inter-individual
relationships - ECJ judgments 26/62 of 5 February 1962 (case Van Gend
en Loos); or C-91/92 of 14 July 1994 (case Faccini Dori). Despite the
refusal to recognize direct effects of non-implemented Directives between
individuals, the ECJ has imposed on domestic courts the obligation to
construe national law in accordance with a non-implemented Directive
Spanish Prívate Law: History, Scope and Trends 13
when applicable thereto, and provided that the period for implementation
thereof has expired, aiming at indirectly ensuring a result to a certain
extent similar to the rejected 'horizontal direct applicability' - ECJ
judgment C-106/89 of 13 November 1990 (case Marleasing). Spanish
Supreme Court opinions are however extraordinarily equivoca! thereon,
and appear to endorse a surprising willingness to endorse the 'horizontal
direct applicability' of non-implemented Directives beyond the ECJ
guidelines on interpretation (Supreme Court judgments of 12 July
1996 (RJ 5580); 8 November 1996 (RJ 7954); 28 November 1997
(8435)).
3.2.4. lnternationa/ Uniform Law The spectacular increase of cross-
border transactions has characterized international commerce in the last
century, which has accordingly been branded the century of globaliza-
tion. Conflict rules used to be the main too! of International Privare Law
for managing transnational activity. International Law of the last decades
has nevertheless experienced a significant transformation, distilled in a
growing abandonment of conflict-rule-based mechanisms and a resolute
support for Uniform Law schemes.
Uniform Law for International Trade constitutes a pliable collection of
rules, regulations, principies and legislation of a very wide range of char-
acter, origin, extent and nature (UNCITRAL Conventions, UNIDROIT
Principies, Uses and Standard Practices, lncoterms, European hinciples
on Contraer Law, and so on) that conforms to a new regulatory
state governed by a reinforced privare autonomy and a leading role
for international uses and practices (new /ex mercatoria). 7 Despite
this heterogeneity, elements constituting Uniform Law have common
distinguishing features. 8
The first feature that merits our foil attention concerns the international
character shared by ali rules, principies, uses, practices and regulations
7
Olivencia, Manuel, 'UNCITRAL: Hacia un Derecho Mercantil Uniforme en el siglo
XXI', RDM, no. 207, 1993, pp. 9-35, in particular from page 26. Vicent Chuliá,
Francisco, 'Doctrina, ciencia de la legislación e institucionalización del Derecho
Mercantil de la última década', in Estudios de Derecho Mercantil en Homenaie al
Profesor Manuel Broseta Pont, Vol. II, Valencia: Tirant lo Blanch, 1995, pp. 4043-121,
in particular footnote 3 on p. 4046. Also Garrigues, Joaquín, 'El Derecho Mercantil en
las Naciones Unidas', in Temas de Derecho Vivo, Madrid: Tecnos, 1978, pp. 321-39;
and Illescas Ortiz, Rafael, 'Las mutaciones contemporáneas del Derecho privado de la
Economía: aspectos estructurales', in Estudios en Homenaie al Profesor Barrera Graf,
Vol. II, México: Universidad Nacional Autónoma de México, 1989, pp. 935-63, on
pp. 940-4.
8
Illescas Ortiz, Rafael, 'El Derecho Uniforme del Comercio Internacional y su
sistemática', RDM, no. 207, 1993, pp. 37-91.
12 Spanish Private Law: History, Scope and Trends
3.2.3. Community Law: the influence ofthe European Union Adhesion
by Spain to European Community in 1986 represented a significant
change in the Spanish legal system, particularly in Commercial-Law rules.
A true Community Priva te Law, in particular focused on Company Law,
Competition Law, Consumer Law or Financia! Service Regulations, is
identifiable.
The evolution of the European Community into the present European
Union has entailed the intensification of a Community heritage com-
posed of successive treaties, policy guidelines, derivative regulations
(Directives, Regulations, Decisions, Recommendations) and case law
of the European Court of Justice (hereinafter, the ECJ), especially,
when resolving preliminary questions pursuant to Article 234 of the
European Union Treaty. This large set of rules, texts and regulations
forms a new and autonomous Community legal system that operates
according to the following principies: supremacy of European Union
law - the famous cases Costa vs. ENEL (judgment 6/64 of 17 July
1964) and Simmenthal (judgment 106/77 of 9 March 1978) of the
ECJ - and need to be interpreted on a uniform basis; the binding
character of certain rules approved by EU bodies in order to guarantee
the efficacy of the Common Market and the unity of Community
Law; and the direct applicability of certain EU measures (namely, EU
Regulations). The direct applicability principie has, to a certain extent,
raised controversia! questions. The major part of the regulatory activity
of EU bodies adopts the form of Directives rather than Regulations,
whose number is indeed limited and whose frequency is irregular. Unlike
Regulations, Directives, that cover the widest part of regulated areas,
are to be implemented in each Member State's legal system to be
directly effective therein. Therefore, repeated and severe infringement of
implementation deadlines by Member States is likely to deprive citizens
of their rights pursuant to a non-implemented Directive, triggering an
undesirable inequality within the EU. The ECJ has tried to combat
such a pernicious effect by formulating doctrines aimed at counteracting
Member States' power thereon. A so-called 'vertical direct applicability'
of Directives' clauses is recognized for citizens in their relationships with
the infringing State when the implementation deadline has not been
complied with - ECJ in judgments 41/74 of 4 December 1974 (case Van
Duyn); 8/81of19 February 1982 (case Becker); or 152/84 of 26 February
1986 (case Marshall). Nevertheless, the ECJ has shown reluctance to
affirm 'horizontal direct applicability' of Directives in inter-individual
relationships - ECJ judgments 26/62 of 5 February 1962 (case Van Gend
en Loos); or C-91/92 of 14 July 1994 (case Faccini Dori). Despite the
refusal to recognize direct effects of non-implemented Directives between
individuals, the ECJ has imposed on domestic courts the obligation to
construe national law in accordance with a non-implemented Directive
Spanish Private Law: History, Scope and Trends 13
when applicable thereto, and provided that the period for implementation
thereof has expired, aiming at indirectly ensuring a result to a certain
extent similar to the rejected 'horizontal direct applicability' - ECJ
judgment C-106/89 of 13 November 1990 (case Marleasing). Spanish
Supreme Court opinions are however extraordinarily equivoca! thereon,
and appear to endorse a surprising willingness to endorse the 'horizontal
direct applicability' of non-implemented Directives beyond the ECJ
guidelines on interpretation (Supreme Court judgments of 12 July
1996 (RJ 5580); 8 November 1996 (RJ 7954); 28 November 1997
(8435)).
3.2.4. lnternational Uniform Law The spectacular increase of cross-
border transactions has characterized international commerce in the last
century, which has accordingly been branded the century of globaliza-
tion. Conflict rules used to be the main too! of International Private Law
for managing transnational activity. International Law of the last decades
has nevertheless experienced a significant transformation, distilled in a
growing abandonment of conflict-rule-based mechanisms and a resolute
support for Uniform Law schemes.
Uniform Law for International Trade constitutes a pliable collection of
rules, regulations, principies and legislation of a very wide range of char-
acter, origin, extent and nature (UNCITRAL Conventions, UNIDROIT
Principies, Uses and Standard Practices, lncoterms, European Principies
on Contract Law, and so on) that conforms to a new regulatory
state governed by a reinforced privare autonomy and a leading role
for international uses and practices (new /ex mercatoria). 7 Despite
this heterogeneity, elements constituting Uniform Law have common
distinguishing fea tu res. 8
The first feature that merits our full attention concerns the international
character shared by ali rules, principies, uses, practices and regulations
7
0livencia, Manuel, 'UNCITRAL: Hacia un Derecho Mercantil Uniforme en el siglo
XXI', RDM, no. 207, 1993, pp. 9-35, in particular from page 26. Vicent Chuliá,
Francisco, 'Doctrina, ciencia de la legislación e institucionalización del Derecho
Mercantil de la última década', in Estudios de Derecho Mercantil en Homenaje al
Profesor Manuel Broseta Pont, Vol. II, Valencia: Tirant lo Blanch, 1995, pp. 4043-121,
in particular footnote 3 on p. 4046. Also Garrigues, Joaquín, 'El Derecho Mercantil en
las Naciones Unidas', in Temas de Derecho Vivo, Madrid: Tecnos, 1978, pp. 321-39;
and Illescas Ortiz, Rafael, 'Las mutaciones contemporáneas del Derecho privado de la
Economía: aspectos estructurales', in Estudios en Homenaje al Profesor Barrera Graf,
Vol. II, México: Universidad Nacional Autónoma de México, 1989, pp. 935-63, on
pp. 940-4.
8
Illescas Ortiz, Rafael, 'El Derecho Uniforme del Comercio Internacional y su
sistemática', RDM, no. 207, 1993, pp. 37-91.
14 Spanish Private Law: History, Scope and Trends
that make up the Unifarm Law. Internationality stems from two different
dimensions. On the one hand, the farmulating agencies empowered to
draft, approve and supervise those rules or regulations are of interna-
tional character. On the other hand, Unifarm Law is naturally inclined
towards the ruling of transnational activities. Whether unifarm rules are
able to overcome obstacles erected by the distantia loci, the cultural,
legal and entrepreneurial disparity, and the risk concerned in cross-
border business relationships, a unifarm approach also looks promising
far managing 'delocalized' activities on the Internet, where territory-
based rules appear useless or at least irrelevant to <leal with 'a-national'
situations.
The second feature that permeates the whole block of rules is the
vertebral notion of commerce. Rules and principies are aimed at reg-
ulating international commercial relationships. For those legal systems
assuming a historical dichotomy between civil rules and commercial
ones, Unifarm Law has meant the easing of the unbearable burden that
was entailed by the interminable doctrinal controversy with an elegant
conceptualization, full of pragmatism, of commerciality. 9 Unifarm Law
has managed to evade dogmatic reflections aiming at distinguishing civil
and commercial relationships and has devised a system based on two
strategies. Firstly, delimiting the scope of rules by enumerating activities
and relationships included therein, regardless of their eventual character,
in accordance with the applicable domestic legislation. Secondly, exclud-
ing from Unifarm Law's scope consumer relationships that are described
on a teleological basis. Sales of goods bought far personal, family or
household use, unless the seller, at any time befare or at the conclusion
of the contraer, neither knew nor ought to have known that the goods
were bought far any such use, are normally excluded from the scope of
Unifarm Law instruments.
The third feature that is worthy of being noted embodies an out-
standing advantage of the Unifarm Law approach over the traditional
conflict-rule technique. Unifarm Law provides parties with substantive
tools to manage their interests and prevent conflicts and disputes.
Such a valuable preventive character of Unifarm Law is able to sat-
isfactorily replace the 'clinical' or 'therapeutic' 10 method operated by
Conflict Law.
9Illescas Ortiz, Rafael, 'El Derecho Uniforme del Comercio Internacional: elementos
de base', in Estudios de Derecho Mercantil en Homenaie al Profesor Manuel Broseta
Pont, op.cit., pp. 1781-800, in particular pp. 1786-90.
10 0livencia, Manuel, 'La Convención de la Naciones Unidas sobre los Contratos de
Compraventa Internacional de Mercaderías: Antecedentes históricos y estado actual',
RDM, 1991, pp. 377-97, on p. 382.
Spanish Private Law: History, Scope and Trends 15
3.3. Custom, uses and practices
Privare rules governing commerce and business act1v1ty share a def-
inite customary origin that has distinctly marked the personality of
Commercial Law. The inability of Civil Law to meet commercial needs
encouraged merchants to devise new rules and institutions suitable far
properly regulating the interests and activities of professional trade.
Commercial Law did nevertheless experience a period of intense leg-
islating that decreased the central role of custom in business activity.
Moreover, demand far certainty and progressive 'standardization' of
commercial trade by the generalized use of Standard Form contracts
appear to contradict the viability of customary law in current times. The
modern international economy is however revitalizing customary rules
in International Commercial Law.
The Spanish legal system affirms the natural hegemony of legislation
over customary rules (Article 2 Commercial Code), but a role of great
worth is nevertheless acknowledged far custom and uses that are called on
to complete regulations. Four main functions are attributed to commerce
uses. Firstly, in the absence of applicable law, uses (usos normativos
in accordance with Article 1.3 Civil Code) are applied to fill the gaps
and regulare relevant situations as a pure source of law. Secondly, when
the statutory provision is too abstraer, uses may help to concretize the
legal mandare. Thirdly, uses are called on to establish certain rules of the
contraer when the law as well as the parties ha ve remained silent thereon.
Fourthly, uses are important interpretative tools likely to dispel doubts
and clarify obscure provisions (Articles 52 and 59 Commercial Code).
To be deemed the very source of law, two main conditions may be
fulfilled. On the one hand, relevant uses crystallize the fruir of a repeated
and constant conduct in business trade. On the other hand, the general
awareness of the existence and the binding character of that reiterated
conduct is indispensable to qualify a repeated practice as a binding
customary rule (opinio iuris). Accordingly, it would be reasonable to
affirm that uses should not be presumably proved by the parties, insofar
as courts should know and apply the law (iura novit curia).
3.4. General principies
According to Article 1 Spanish Civil Code, in the absence of applicable
legal provisions or customary rules, general principies of law shall be
applicable. Therefore, general principies of law are set up as subsidiary
sources of the legal system. Despite their considerable usefulness far
construing legislation and filling gaps, general principies are a very
equivoca! concept charged with great philosophical importance and
strongly influenced by thinking in terms of the positivism-naturalism
14 Spanish Private Law: History, Scope and Trends
that make up the Uniform Law. lnternationality stems from two different
dimensions. On the one hand, the formulating agencies empowered to
draft, approve and supervise those rules or regulations are of interna-
tional character. On the other hand, Uniform Law is naturally inclined
towards the ruling of transnational activities. Whether uniform rules are
able to overcome obstacles erected by the distantia loci, the cultural,
legal and entrepreneurial disparity, and the risk concerned in cross-
border business relationships, a uniform approach also looks promising
for managing 'delocalized' activities on the Internet, where territory-
based rules appear useless or at least irrelevant to deal with 'a-national'
situations.
The second feature that permeates the whole block of rules is the
vertebral notion of commerce. Rules and principies are aimed at reg-
ulating international commercial relationships. Far those legal systems
assuming a historical dichotomy between civil rules and commercial
ones, Uniform Law has meant the easing of the unbearable burden that
was entailed by the interminable doctrinal controversy with an elegant
conceptualization, full of pragmatism, of commerciality. 9 Uniform Law
has managed to evade dogmatic reflections aiming at distinguishing civil
and commercial relationships and has devised a system based on two
strategies. Firstly, delimiting the scope of rules by enumerating activities
and relationships included therein, regardless of their eventual character,
in accordance with the applicable domestic legislation. Secondly, exclud-
ing from Uniform Law's scope consumer relationships that are described
on a teleological basis. Sales of goods bought for personal, family or
household use, unless the seller, at any time befare or at the conclusion
of the contraer, neither knew nor ought to have known that the goods
were bought for any such use, are normally excluded from the scope of
Uniform Law instruments.
The third feature that is worthy of being noted embodies an out-
standing advantage of the Uniform Law approach over the traditional
conflict-rule technique. Uniform Law provides parties with substantive
tools to manage their interests and prevent conflicts and disputes.
Such a valuable preventive character of Uniform Law is able to sat-
isfactorily replace the 'clinical' or 'therapeutic' 10 method operated by
Conflict Law.
9 Illescas Ortiz, Rafael, 'El Derecho Uniforme del Comercio Internacional: elementos
de base', in Estudios de Derecho Mercantil en Homenaje al Profesor Manuel Broseta
Pont, op.cit., pp. 1781-800, in particular pp. 1786-90.
Hlülivencia, Manuel, 'La Convención de la Naciones Unidas sobre los Contratos de
Compraventa Internacional de Mercaderías: Antecedentes históricos y estado actual',
RDM, 1991, pp. 377-97, on p. 382.
Spanish Private Law: History, Scope and Trends 15
3.3. Custom, uses and practices
Prívate rules governing commerce and business act1v1ty share a def-
inite customary origin that has distinctly marked the personality of
Commercial Law. The inability of Civil Law to meet commercial needs
encouraged merchants to devise new rules and institutions suitable for
properly regulating the interests and activities of professional trade.
Commercial Law did nevertheless experience a period of intense leg-
islating that decreased the central role of custom in business activity.
Moreover, demand for certainty and progressive 'standardization' of
commercial trade by the generalized use of Standard Form contracts
appear to contradict the viability of customary law in current times. The
modern international economy is however revitalizing customary rules
in International Commercial Law.
The Spanish legal system affirms the natural hegemony of legislation
over customary rules (Article 2 Commercial Code), but a role of great
worth is nevertheless acknowledged for custom and uses that are called on
to complete regulations. Four main functions are attributed to commerce
uses. Firstly, in the absence of applicable law, uses (usos normativos
in accordance with Article 1.3 Civil Code) are applied to fill the gaps
and regulare relevant situations as a pure source of law. Secondly, when
the statutory provision is too abstraer, uses may help to concretize the
legal mandare. Thirdly, uses are called on to establish certain rules of the
contraer when the law as well as the parties ha ve remained silent thereon.
Fourthly, uses are important interpretative tools likely to dispel doubts
and clarify obscure provisions (Articles 52 and 59 Commercial Code).
To be deemed the very source of law, two main conditions may be
fulfilled. On the one hand, relevant uses crystallize the fruir of a repeated
and constant conduct in business trade. On the other hand, the general
awareness of the existence and the binding character of that reiterated
conduct is indispensable to qualify a repeated practice as a binding
customary rule (opinio iuris). Accordingly, it would be reasonable to
affirm that uses should not be presumably proved by the parties, insofar
as courts should know and apply the law (iura novit curia).
3.4. General principies
According to Article 1 Spanish Civil Code, in the absence of applicable
legal provisions or customary rules, general principies of law shall be
applicable. Therefore, general principies of law are set up as subsidiary
sources of the legal system. Despite their considerable usefulness for
construing legislation and filling gaps, general principies are a very
equivoca! concept charged with great philosophical importance and
strongly influenced by thinking in terms of the positivism-naturalism
16 Spanish Private Law: History, Scope and Trends
dialogue adopted about the whole system. The question that indeed
underlines the conceptualization of general principies is to what extent
the legal system should resort to 'extralegal' criteria to fill gaps, interpret
rules or settle disputes. The advisability and the need to resort to
'extralegal' criteria have long been claimed. In Greece, along with written
law, non-written law (agrafos nomos) embodied moral and religious
convictions and beliefs of the social community. From those days, Civil
Codes and international texts have acknowledged the informing and
inspiring role of general principies.
The legal nature of general principies is not only a difficult matter but
also a relative one. Whereas positivists maintain that general principies
are the supporting walls of the legal system and can therefore be inferred
therefrom; from an iusnaturalist approach, general principies are Natural
Law rules that des pite being considered valid, in force and legally binding,
lack both legal enactment and state sanction.
General principies are meant to revea! beliefs and convictions of
a concrete social community. Thus, the Spanish Constitution 1978
proclaims in its Article 1 that 'liberty, equality, fairness and política!
pluralism' are superior values of the legal system; in addition, as stated
in Article 10.1, the dignity of the human person, his/her inviolable rights,
the free d9velopment of personality and the observance of the law are the
foundations of political order and social peace. But, insofar as general
principies permeate the whole legal system, their acknowledgment is not
only located at the most supreme leve!. The Civil Code declares privare
autonomy (Article 1255), or the duty to compensare damages caused by
a negligent act (Article 1902) as general principies.
Pursuant to repeated Spanish Supreme Court opinions - judgments
of 29 January 1962; 13 December 1962; or 10 June 1966 - general
principies cannot be applied by courts in civil cases unless stated in a
written law or affirmed by case Iaw. In non-civil lawsuits, nevertheless,
general principies benefit from a wider margin of operational capacity,
and courts are entitled to resort to them even if they are not expressly
stated by the law or the jurisprudence.
General principies should not be mistaken for legal maxims or
apothegms. Unlike general principies that qualify as sources of Iaw,
legal maxims are mere graphical formulas aiming at embodying legal
experience for mnemonic or pedagogic purposes (e.g. the maxim pacta
sunt servanda simplifies the rules and principies according to which
contracts are binding for the contracting parties).
3.5. }urisprudence and doctrine
In conformity with the alignment of Spanish legal system with pure
Civil Law models, court decisions are not among the sources of law.
Spanish Private Law: History, Scope and Trends 17
Pursuant to legal theory, court decisions Iack to a great extent both
defining features of law, general character and abstraction; insofar as
they intend to settle a dispute by providing a specific solution according
to concrete circumstances. Accordingly, jurisprudence is not included
among the Iisted sources of the Spanish legal system (Article 1.1 Civil
Code). Notwithstanding such a revealing absence, Article 1.6 Civil Code
entrusts the role of completing the legal system to the repeated opinions
of the Supreme Courts when interpreting and applying the sources of law.
Thus, jurisprudence plays a valuable role for the legal system, despite not
being a real source of law.
Court opinion should be relatively stable and be repeated in at Ieast
two decisions. Relevant opinion likely to become jurisprudence should be
part of the main reasoning (ratio decidendi) leading to the final judgment
but not mere incidental or supplementary arguments. Furthermore, in
order to draw a line of jurisprudence, a substantial identity among the
cases the coincident decisions <leal with has to be ensured.
Other eventual sources of Iaw might well be worth noting. Firstly,
collective agreements on wages and work conditions have become, as
a result of their acknowledgment in Article 37.1, Spanish Constitution
1978, an independent source of law for work matters. Secondly, scholars'
opinion and academic doctrine play a very important role for interpreting
the law, but do not hold a position in the legal catalogue of sources
of Iaw.
4. Civil Law and Commercial Law
4.1. The distinction between Civil Law and Commercial Law
Spanish Prívate Law has been historically divided into two disciplines,
Civil Law and Commercial Law, basically appearing in two separare
codes (Civil Code 1889 and Commercial Code 1885), and perceived as
two different branches of knowledge whose mutual relationship is based
on a general-special rapport. As stated in the first section of this chapter,
Commercial Law is indeed a 'historical concept', 11 insofar as it emerged
and progressively became distant from Civil Law spurred on by social and
economic factors that were proving the inability of civil rules to face the
needs of that historical reality. Since then, Commercial Law has evolved
pursuant to historical circumstances and market exigencies.
11
Professor Vicent Chuliá, in 'El Derecho Mercantil del Neocapitalismo', RDM,
no. 139, 1976, pp. 7-69, in particular pp. 29-30, proposes a two-approach method
to gain an insight into the scope and the evolution of Commercial Law: a diachronic
approach based on the historical method and a synchronic approach consisting of
carefully looking at and observing socio-economic reality.
16 Spanish Private Law: History, Scope and Trends
dialogue adopted about the whole system. The question that indeed
underlines the conceptualization of general principies is to what extent
the legal system should resort to 'extralegal' criteria to fill gaps, interpret
rules or settle disputes. The advisability and the need to resort to
'extralegal' criteria ha ve long been claimed. In Greece, along with written
law, non-written law (agrafos nomos) embodied moral and religious
convictions and beliefs of the social community. From those days, Civil
Codes and international texts have acknowledged the informing and
inspiring role of general principies.
The legal nature of general principies is not only a difficult matter but
also a relative one. Whereas positivists maintain that general principies
are the supporting walls of the legal system and can therefore be inferred
therefrom; from an iusnaturalist approach, general principies are Natural
Law rules that des pite being considered valid, in force and legally binding,
lack both legal enactment and state sanction.
General principies are meant to revea! beliefs and convictions of
a concrete social community. Thus, the Spanish Constitution 1978
proclaims in its Article 1 that 'liberty, equality, fairness and política!
pluralism' are superior values of the legal system; in addition, as stated
in Arride 10.1, the dignity of the human person, his/her inviolable rights,
the free development of personality and the observance of the law are the
foundatiohs of política! order and social peace. But, insofar as general
principies permeate the whole legal system, their acknowledgment is not
only located at the most supreme leve!. The Civil Code declares privare
autonomy (Arride 1255), or the duty to compensare damages caused by
a negligent act (Arride 1902) as general principies.
Pursuant to repeated Spanish Supreme Court opinions - judgments
of 29 January 1962; 13 December 1962; or 10 June 1966 - general
principies cannot be applied by courts in civil cases unless stated in a
written law or affirmed by case law. In non-civil lawsuits, nevertheless,
general principies benefit from a wider margin of operational capacity,
and courts are entitled to resort to them even if they are not expressly
stated by the law or the jurisprudence.
General principies should not be mistaken for legal maxims or
apothegms. Unlike general principies that qualify as sources of law,
legal maxims are mere graphical formulas aiming at embodying legal
experience for mnemonic or pedagogic purposes (e.g. the maxim pacta
sunt servanda simplifies the rules and principies according to which
contracts are binding for the contracting parties).
3.5. Jurisprudence and doctrine
In conformity with the alignment of Spanish legal system with pure
Civil Law models, court decisions are not among the sources of law.
Spanish Private Law: History, Scope and Trends 17
Pursuant to legal theory, court decisions lack to a great extent both
defining features of law, general character and abstraction; insofar as
they intend to settle a dispute by providing a specific solution according
to concrete circumstances. Accordingly, jurisprudence is not included
among the listed sources of the Spanish legal system (Article 1.1 Civil
Code). Notwithstanding such a revealing absence, Arride 1.6 Civil Code
entrusts the role of completing the legal system to the repeated opinions
of the Supreme Courts when interpreting and applying the sources of law.
Thus, jurisprudence plays a valuable role for the legal system, despite not
being a real source of law.
Court opinion should be relatively stable and be repeated in at least
two decisions. Relevant opinion likely to become jurisprudence should be
part of the main reasoning (ratio decidendi) leading to the final judgment
but not mere incidental or supplementary arguments. Furthermore, in
order to draw a line of jurisprudence, a substantial identity among the
cases the coincident decisions <leal with has to be ensured.
Other eventual sources of law might well be worth noting. Firstly,
collective agreements on wages and work conditions have become, as
a result of their acknowledgment in Article 37.1, Spanish Constitution
1978, an independent source of law for work matters. Secondly, scholars'
opinion and academic doctrine play a very important role for interpreting
the law, but do not hold a position in the legal catalogue of sources
of law.
4. Civil Law and Commercial Law
4.1. The distinction between Civil Law and Commercial Law
Spanish Privare Law has been historically divided into two disciplines,
Civil Law and Commercial Law, basically appearing in two separate
codes (Civil Code 1889 and Commercial Code 1885), and perceived as
two different branches of knowledge whose mutual relationship is based
on a general-special rapport. As stated in the first section of this chapter,
Commercial Law is indeed a 'historical concept', 11 insofar as it emerged
and progressively became distant from Civil Law spurred on by social and
economic factors that were proving the inability of civil rules to face the
needs of that historical reality. Since then, Commercial Law has evolved
pursuant to historical circumstances and market exigencies.
11 Professor Vicent Chuliá, in 'El Derecho Mercantil del Neocapitalismo', RDM,
no. 139, 1976, pp. 7-69, in particular pp. 29-30, proposes a two-approach method
to gain an insight into the scope and the evolution of Commercial Law: a diachronic
approach based on the historical method and a synchronic approach consisting of
carefully looking at and observing socio-economic reality.
 Spanish Private Law: History, Scope and T rends
The current division between Civil Law and Commercial Law condi-
tions the whole understanding of Spanish Private Law and determines
its practica! operation. Nevertheless, neither from a theoretical view nor
in practice, is separate application of civil rules and commercial ones
straightforward. 12 The application of Commercial Law provisions is
subject to a set of 'commerciality' criteria provided for in the Commercial
Code, but first interpreting and later applying such rules are not
always easy tasks. Furthermore, the close connection of commercial
rules with socio-economic factors explains the intense relativity that
marks the scope and the transformation of Commercial Law. The line
distinguishing Commercial Law from Civil Law is sometimes blurred;
and sometimes dynamic, changing and moving beca use of three different
phenomena 13 that ha ve been identified in its evolution: the spreading 14
of Commercial Law to rule new social and economic areas (from
ruling only trade to regulating industrial and agricultura! activities and
even liberal professionals); the constant and parallel generalization 15
of commercial institutions from the business realm to be used in
12 Figa Faura, Luis, 'Colisión intraestatal de Ordenamientos. Derecho civil y Derecho
mercantil. Normas de conflicto', ADC, 1981, pp. 41-83; Garrigues, Joaquín, 'Derecho
mercantil y Derecho civil', Conferencia pronunciada en el Ilustre Colegio Notarial
de Madrid de 27 de marzo de 1962, in Temas de Derecho Vivo, Madrid: Tecnos,
1978, pp. 117-39, and 'Qué es y qué debe ser el Derecho Mercantil', RDM, no. 71,
1959, pp. 7-59; Girón Tena, José, 'Concepto del Derecho Mercantil en Derecho
español', ADC, Vol. 7, julio-septiembre 1954, pp. 971-1029 y, del mismo autor, 'El
concepto del Derecho mercantil: desenvolvimiento histórico y Derecho comparado',
ADC, no. 7, 1954, pp. 695-807; Langle, Emilio, 'Las directrices fundamentales del
Derecho mercantil', RDM, no. 9, 1947, pp. 317-94; Polo, Antonio, 'El Nuevo Derecho
de la Economía. Su aparición, concepto y relaciones con el Derecho Mercantil', RDM,
no. 3, 1946, pp. 373-414; Rubio, Jesús, 'Sobre el concepto de Derecho mercantil',
RDM, no. 12, 1947, from p. 317. See also Eizaguirre, José María, Introducción al
Derecho Mercantil, San Sebastián: Librería Carmelo, 1995, on pp. 55-182; Gondra,
José María, Derecho Mercantil l. Introducción, Madrid: Servicio de Publicaciones de
la Facultad de Derecho, Universidad Complutense de Madrid, 1992, on pp. 115-54.
13 Girón Tena, José, Tendencias actuales y reforma del Derecho mercantil, Madrid:
Civitas, 1986, pp. 104-34.
14 Now becoming the general rules governing transactions in the market as stated
Professor Garrigues at the end of the 1970s with a discerning comprehension thereof, in
'El Derecho mercantil en el siglo XX', in Temas de Derecho Vivo, op.cit., pp. 321-39,
on p. 339.
15 A trend that is better named by certain scholars as a process of regeneration or
regeneralisation of Commercial Law. See Font Galán, Juan Ignacio,' ¿Hacia un sistema
mercantil de 'faz completamente nueva'? La Ley 26/1984, de 19 de julio, para la
Defensa de los Consumidores y Usuarios: un instrumento para la realización histórica
de un Derecho Mercantil del Estado Social', RDM, no. 177, 1985, pp. 381-418,
on p. 416.
Spanish Private Law: History, Scope and Trends 19
non-business transactions (e.g. bilis of exchange); and a contradictory
and paradoxical slimming down of the scope of Commercial Law
due to the increasing process of generalization by which special rules
of commercial character become general rules to be applied to any
situation, and falling accordingly within the scope of Civil Law. Ali these
phenomena, even the unstoppable generalization of Commercial Law
institutions that appears to act against the survival of Commercial Law,
do indeed reinforce the vitality thereof. The transfusion of Commercial
Law solutions to the body of Civil Law demonstrates the higher efficiency
of commercial rules for managing social interests. But above ali, the
generalizing trend is pressuring towards the unification of Priva te Law.
4.2. Concept and scope of Civil Law and Commercial Law
The scope of Commercial Law is supposed to be clearly delimited by
the relevant provisions of the Commercial Code. Nevertheless, socio-
economic factors and the need to understand commercial rules from
a realistic viewpoint have devalued the importance of legal criteria.
Article 2 Commercial Code declares that the so-called actos de comercio,
regardless of the condition of the involved parties and whether specified
in the Code or not, shall be regulated by the Commercial Code provisions
or, failing that, by the uses and practices generally observed in the
place. The old wording of the Code outlines an unreal cdmmercial
Law realm defined by the elusive concept of acto de comercio. Far
from the traditional economy which can be inferred from the said
Article 2 Commercial Code, slowly propelled by isolated, intermit-
tent and sporadic acts (actos de comercio) involving entrepreneurs
or individuals acting for personal and family purposes, the modern
economy demands a completely different approach refocused on three
characterizing elements: the entrepreneur, the enterprise and the business
activities carried out by theformet'mthe-marT<et.Therefore, Commercial
Law should be described as the set of rules aimed at governing economic
activity run by entrepreneurs in the market. Such a modernized approach
to Commercial Law is to be continually reassessed to internalize or dodge
pressing, and often contradictory, trends that guide today's economy -
the incorporation of consumers, deregulation, public interventionism,
globalization and self-regulation (see Section 5 of this chapter).
4.3. Proposa/s for unified Private Law
Duality in Private Law entails many pitfalls for practitioners, judges
and individuals, in particular, when relevant criteria are difficult to
apply. Uncertainty is a bad enemy of economic activity. Therefore,
at international leve!, the civil-commercial dichotomy that is not in
18 Spanish Private Law: History, Scope and Trends
The current division between Civil Law and Commercial Law condi-
tions the whole understanding of Spanish Privare Law and determines
its practica! operation. Nevertheless, neither from a theoretical view nor
in practice, is separare application of civil rules and commercial ones
straightforward. 12 The application of Commercial Law provisions is
subject to a set of 'commerciality' criteria provided for in the Commercial
Code, but first interpreting and later applying such rules are not
always easy tasks. Furthermore, the clase connection of commercial
rules with socio-economic factors explains the intense relativity that
marks the scope and the transformation of Commercial Law. The line
distinguishing Commercial Law from Civil Law is sometimes blurred;
and sometimes dynamic, changing and moving because of three different
phenomena 13 that ha ve been identified in its evolution: the spreading 14
of Commercial Law to rule new social and economic areas (from
ruling only trade to regulating industrial and agricultura! activities and
even liberal professionals); the constant and parallel generalization 15
of commercial institutions from the business realm to be used in
12 Figa Faura, Luis, 'Colisión intraestatal de Ordenamientos. Derecho civil y Derecho
mercantil. Normas de conflicto', ADC, 1981, pp. 41-83; Garrigues, Joaquín, 'Derecho
mercantil y Derecho civil', Conferencia pronunciada en el Ilustre Colegio Notarial
de Madrid de 27 de marzo de 1962, in Temas de Derecho Vivo, Madrid: Tecnos,
1978, pp. 117-39, and 'Qué es y qué debe ser el Derecho Mercantil', RDM, no. 71,
1959, pp. 7-59; Girón Tena, José, 'Concepto del Derecho Mercantil en Derecho
español', ADC, Vol. 7, julio-septiembre 1954, pp. 971-1029 y, del mismo autor, 'El
concepto del Derecho mercantil: desenvolvimiento histórico y Derecho comparado',
ADC, no. 7, 1954, pp. 695-807; Langle, Emilio, 'Las directrices fundamentales del
Derecho mercantil', RDM, no. 9, 1947, pp. 317-94; Polo, Antonio, 'El Nuevo Derecho
de la Economía. Su aparición, concepto y relaciones con el Derecho Mercantil', RDM,
no. 3, 1946, pp. 373-414; Rubio, Jesús, 'Sobre el concepto de Derecho mercantil',
RDM, no. 12, 1947, from p. 317. See also Eizaguirre, José María, Introducción al
Derecho Mercantil, San Sebastián: Librería Carmelo, 1995, on pp. 55-182; Gondra,
José María, Derecho Mercantil I. Introducción, Madrid: Servicio de Publicaciones de
la Facultad de Derecho, Universidad Complutense de Madrid, 1992, on pp. 115-54.
13 Girón Tena, José, Tendencias actuales y reforma del Derecho mercantil, Madrid:
Civitas, 1986, pp. 104-34.
14 Now becoming the general rules governing transactions in the market as stated
Professor Garrigues at the end of the 1970s with a discerning comprehension thereof, in
'El Derecho mercantil en el siglo XX', in Temas de Derecho Vivo, op.cit., pp. 321-39,
on p. 339.
15 A trend that is better named by certain scholars as a process of regeneration or
regeneralisation of Commercial Law. See Font Galán, Juan Ignacio,' ¿Hacia un sistema
mercantil de 'faz completamente nueva'? La Ley 26/1984, de 19 de julio, para la
Defensa de los Consumidores y Usuarios: un instrumento para la realización histórica
de un Derecho Mercantil del Estado Social', RDM, no. 177, 1985, pp. 381-418,
on p. 416.
Spanish Private Law: History, Scope and Trends 19
non-business transactions (e.g. bilis of exchange); and a contradictory
and paradoxical slimming clown of the scope of Commercial Law
due to the increasing process of generalization by which special rules
of commercial character become general rules to be applied to any
situation, and falling accordingly within the scope of Civil Law. Ali these
phenomena, even the unstoppable generalization of Commercial Law
institutions that appears to act against the survival of Commercial Law,
do indeed reinforce the vitality thereof. The transfusion of Commercial
Law solutions to the body of Civil Law demonstrates the higher efficiency
of commercial rules for managing social interests. But above ali, the
generalizing trend is pressuring towards the unification of Priva te Law.
4.2. Concept and scope of Civil Law and Commercial Law
The scope of Commercial Law is supposed to be clearly delimited by
the relevant provisions of the Commercial Code. Nevertheless, socio-
economic factors and the need to understand commercial rules from
a realistic viewpoint have devalued the importance of legal criteria.
Article 2 Commercial Code declares that the so-called actos de comercio,
regardless of the condition of the involved parties and whether specified
in the Code or not, shall be regulated by the Commercial Code provisions
or, failing that, by the uses and practices generally observed in the
place. The old wording of the Code outlines an unreal cdmmercial
Law realm defined by the elusive concept of acto de comercio. Far
from the traditional economy which can be inferred from the said
Article 2 Commercial Code, slowly propelled by isolated, intermit-
tent and sporadic acts (actos de comercio) involving entrepreneurs
or individuals acting for personal and family purposes, the modern
economy demands a completely different approach refocused on three
characterizing elements: the entrepreneur, the enterprise and the business
activities carried out by the formtt1rrthe-rrrarr<et. Therefore, Commercial
Law should be described as the set of rules aimed at governing economic
activity run by entrepreneurs in the market. Such a modernized approach
to Commercial Law is to be continually reassessed to internalize or dodge
pressing, and often contradictory, trends that guide today's economy -
the incorporation of consumers, deregulation, public interventionism,
globalization and self-regulation (see Section 5 of this chapter).
4.3. Proposals for unified Private Law
Duality in Private Law entails many pitfalls for practitioners, judges
and individuals, in particular, when relevant criteria are difficult to
apply. Uncertainty is a bad enemy of economic activity. Therefore,
at international level, the civil-commercial dichotomy that is not in
20 Spanísh Prívate Law: Hístory, Scope and Trends
fact shared by ali countries has been attempted to be avoided when
drafting Uniform Law for international trade texts. From a domestic
perspective too, sorne countries have successfully released themselves
from the burden of two disciplines and have managed to unify Civil
Law and Commercial Law (i.e. the Italian Codice Civile of 1942; or the
new Dutch Civil Code). In Spain also, proposals for unifying Privare
Law have been considered. 16 None of them have come to fruition
so far; even if certain rules have been definitively unified by specific
legislation, such as rules determining when a contraer is deemed to
be conduded - Arride 1262 Civil Code and Arride 54 Commercial
Codeas modified by Law 34/2002 on Electronic Commerce (see further
in Section 2.8.7.1 of Chapter 6). The advisability of unification is a
mainstream opinion among scholars. Singularities of commercial trade
can easily be dealt with by induding specific rules. Notwithstanding the
wide consensus thereon, certain scholars (e.g. Sánchez Calero) warn of
difficulties that an eventual unification might give rise to, concerning
the allocation of regulatory power between the State and the regional
bodies (Comunidades Autónomas) on civil matters and on commercial
ones, insofar as historical factors have determined a differing allocation
of regulatory powers thereon.
Even so, proposals for unifying Privare Law ha ve adopted diverse forms
and extents. The total unification of civil and commercial rules in a single
code is not always the suggested result. Severa) authoritative opinions
have opted for advocating tripartite solutions: Business Law-Consumer
Law-Civil Law (Reich) or a common Code of Obligations-Civi/ Code-
Commercial Code (Garrigues, Broseta).
5. Economy and Private Law
5.1. Private Law and efficiency - law and economics
As far as the ultimare aim of Privare Law is to rule economic activity
and social relationships among individuals and entities, the whole system
is encouraged to meet efficiency demands from the market as well as
daims for fairness from society as a whole. Which should be the adequate
guiding principies of Privare Law and which should be the goals to be
achieved thereby is an immediate and fascinating question. Any tentative
answer entails taking a stand on the very conceptualization of Privare
Law's essence. Should Privare Law pursue fairness, equality or efficiency,
rules are applied and interpreted accordingly.
16 Acomprehensive study thereon, Broseta Pont, La Empresa. La Unificación del
Derecho de Obligaciones y el Derecho Mercantil, Madrid: Tecnos, 1965.
Spanísh Prívate Law: Hístory, Scope and Trends 21
The Law and Economics approach contributes an efficiency-based
logic to understanding the legal system (see further analysis thereon in
Section 1.2 of Chapter 7). The feasibility of using the Law and Economics
method to guide a Civil Law system has been long debated between
opposing schools of thought in Spain. 17
5.2. Other aims in Prívate Law - 'consumerism'
Even if the following aims should not be considered to be necessarily
and unavoidably conflicting and incompatible with each other, the
protection of weak parties in market transactions used to be proposed
as an alternative to the pursuit of efficiency. Rules promoting fairness
in commercial transactions and avoiding unconscionability risk in rela-
tionships involving a weak party, such as a consumer, a retail investor,
a bank dient or any person acting for non-professional purposes, do not
always guarantee the highest rate of efficiency in the market. This may
nevertheless be disagreed with, alleging that an efficient situation <loes
always maximize ali involved parties' interests.
The so-called consumerism trend is the most revealing example of
the prevalence of aims other than efficiency in Privare Law rules. Like
most neighbouring countries, Spain has launched in recent decades an
intense campaign for consumer protection by enacting specific legisla-
tion, establishing and operating bodies and institutions entrusted with
the safeguarding of consumer rights, and implementing procedures to
efficiently <leal with conflicts ipvolving consumer rights (see Section 4 of
Chapter 4).
6; Trends in Private Law
6.1. The impact of new technologies on economic activity
and social life
The incorporation of new information and communication technologies
into ali areas of our society is considered to have given rise to a
17
A famous debate led by Professor Cándido Paz-Ares, 'La economía política como
jurisprudencia racional (Aproximación a la Teoría Económica del Derecho)', ADC,
1981, pp. 601-707, on the one hand, and by Professor José María Gondra, '¿Tiene
sentido impartir justicia con criterios de economía? (A propósito de una teoría del
Derecho que postula una Jurisprudencia orientada por el valor de la 'eficiencia
económica)', RDM, no. 226, 1997, pp. 1545-672, on the other, distils the core of the
discussion on the advisability of adopting a Law and Economic approach to construe
and apply Spanish Prívate Law rules.
20 Spanish Prívate Law: History, Scope and Trends
fact shared by ali countries has been attempted to be avoided when
drafting Uniform Law for international trade texts. From a domestic
perspective too, sorne countries have successfully released themselves
from the burden of two disciplines and have managed to unify Civil
Law and Commercial Law (i.e. the Italian Codice Civile of 1942; or the
new Dutch Civil Code). In Spain also, proposals for unifying Privare
Law have been considered. 16 None of them have come to fruition
so far; even if certain rules have been definitively unified by specific
legislation, such as rules determining when a contraer is deemed to
be concluded - Arride 1262 Civil Code and Article 54 Commercial
Codeas modified by Law 34/2002 on Electronic Commerce (see further
in Section 2.8.7.1 of Chapter 6). The advisability of unification is a
mainstream opinion among scholars. Singularities of commercial trade
can easily be dealt with by including specific rules. Notwithstanding the
wide consensus thereon, certain scholars (e.g. Sánchez Calero) warn of
difficulties that an eventual unification might give rise to, concerning
the allocation of regulatory power between the State and the regional
bodies (Comunidades Autónomas) on civil matters and on commercial
ones, insofar as historical factors have determined a differing allocation
of regulatory powers thereon.
Even so, proposals for unifying Privare Law ha ve adopted diverse forms
and extents. The total unification of civil and commercial rules in a single
code is not always the suggested result. Severa! authoritative opinions
have opted for advocating tripartite solutions: Business Law-Consumer
Law-Civil Law (Reich) or a common Code of Obligations-Civil Code-
Commercial Code (Garrigues, Broseta).
5. Economy and Private Law
5.1. Private Law and efficiency - law and economics
As far as the ultimare aim of Privare Law is to rule economic activity
and social relationships among individuals and entities, the whole system
is encouraged to meet efficiency demands from the market as well as
claims for fairness from society as a whole. Which should be the adequate
guiding principies of Privare Law and which should be the goals to be
achieved thereby is an immediate and fascinating question. Any tentative
answer entails taking a stand on the very conceptualization of Privare
Law's essence. Should Priva te Law pursue fairness, equality or efficiency,
rules are applied and interpreted accordingly.
16 Acomprehensive study thereon, Broseta Pont, La Empresa. La Unificación del
Derecho de Obligaciones y el Derecho Mercantil, Madrid: Tecnos, 1965.
Spanish Prívate Law: History, Scope and Trends 21
The Law and Economics approach contributes an efficiency-based
logic to understanding the legal system (see further analysis thereon in
Section 1.2 of Cha pter 7). The fea si bility of using the Law and Economics
method to guide a Civil Law system has been long debated between
opposing schools of thought in Spain. 17
5.2. Other aims in Private Law - 'consumerism'
Even if the following aims should not be considered to be necessarily
and unavoidably conflicting and incompatible with each other, the
protection of weak parties in market transactions used to be proposed
as an alternative to the pursuit of efficiency. Rules promoting fairness
in commercial transactions and avoiding unconscionability risk in rela-
tionships involving a weak party, such as a consumer, a retail investor,
a bank client or any person acting for non-professional purposes, do not
always guarantee the highest rate of efficiency in the market. This may
nevertheless be disagreed with, alleging that an efficient situation <loes
always maximize ali involved parties' interests.
The so-called consumerism trend is the most revealing example of
the prevalence of aims other than efficiency in Private Law rules. Like
most neighbouring countries, Spain has launched in recent decades an
intense campaign for consumer protection by enacting specific legisla-
tion, establishing and operating bodies and institutions entrusted with
the safeguarding of consumer rights, and implementing procedures to
efficiently <leal with conflicts ipvolving consumer rights (see Section 4 of
Chapter 4).
Trends in Private Law
6.1. The impact of new technologies on economic activity
and social life
The incorporation of new information and communication technologies
into ali areas of our society is considered to have given rise to a
17
A famous debate led by Professor Cándido Paz-Ares, 'La economía política como
jurisprudencia racional (Aproximación a la Teoría Económica del Derecho)', ADC,
1981, pp. 601-707, on the one hand, and by Professor José María Gondra, '¿Tiene
sentido impartir justicia con criterios de economía? (A propósito de una teoría del
Derecho que postula una Jurisprudencia orientada por el valor de la 'eficiencia
económica)', RDM, no. 226, 1997, pp. 1545-672, on the other, distils the core of the
discussion on the advisability of adopting a Law and Economic approach to construe
and apply Spanish Private Law rules.
22 Spanish Private Law: History, Scope and Trends
new society, the Information Society. Nevertheless, unlike the general
perception, the Information Society is not static but a dynamic process - a
18
process entailing a historical migration to a new space, the digital space.
Individuals, goods, activities, ideas and spaces are migrating from the
analogue world to the digital one, from the atoms world to the bits
world. 19 Accordingly, the Internet hosts classrooms, playing fields, fora,
meeting rooms, box offices and markets. The Internet infrastructure
supports a new world where people live, teach and learn, discuss, play,
buy and sell, compete and coopera te. The digital space has become a new
field for running one of the most ancient activities of the human race,
the exchange of goods and services, trade. 20 Using an urban metaphor
(Telépolis), the Internet reproduces the structure and the plan of a city,
combining public spaces and private spaces, open places and closed ones.
As far as the Law aims to rule social relationships, the advent of the
Internet has represented a real challenge to the order of social life in a
new world.
The technological metamorphosis of Society and the Economy means
21
an amplification of parameters, a globalization of phenomena. But
beyond these obvious changes, new technologies ha ve led to a shift from
the 'Age of Ownership' to the 'Age of Access'; 22 a transformation of
'goods' to 'services'; a reorganization of markets under network-shaped
23
marketspaces; a melting of cooperation strategies and competition ones
to boost economic growth; anda definitive division of the world into two
positions, connected or non-connected. 24
If new technologies have accelerated the deep metamorphosis of our
society and have stimulated the redefinition of economic strategies, it
makes sense to formulare the following question: 'Do new facts need
18Rodríguez de las Heras, Antonio, 'La migración digital', TELOS. Cuadernos de
Comunicación, tecnología y sociedad, no. 61, 2004, pp. 4-6.
19Negroponte, Nicholas, El mundo digital. El futuro que ha llegado, Barcelona:
Ediciones B, 2000.
2ºIllescas Ortiz, Rafael, Derecho de la Contratación Electrónica, Madrid: Civitas,
2001, p. 33.
21 Although a certain trend towards 'balkanization' can be perceived, Alstyne,
Marchall V.; Brynjolfsson, Erik, 'Electronic Communities: Global Village or
Cyberbalkanization?', Proceeding of the International Conference on Information
Systems, Cleveland, Ohio, 1996.
22 Rifkin, Jeremy, La era del acceso. La revolución de la nueva economía, Barcelona:
Paidós (Estado y Sociedad), 2000.
230ntiveros, Emilio, La economía en la red: nueva economía, nuevas finanzas, Madrid:
Taurus, 2001.
24 Rodríguez de las Heras Ballell, Teresa, El régimen jurídico de los Mercados
Electrónicos Cerrados, Madrid: Marcial Pons, 2006.
Spanish Private Law: History, Scope and Trends 23
new laws?', 25 or perhaps, '(t)echnology changes, (economics) laws do
not?' 26 Sorne replies thereto are provided in Chapter 3 (Section 4), in
Chapter 4 (Sections 1.3 and 2.4) and in Chapter 6 (Section 2).
6.2. Self-regulation, codes of conduct and international
standards
Modero economies are experiencing an intense trend towards the use of
self-regulation techniques. The exhaustion to a certain extent of public
and centralized regulatory and enforcement mechanisms and the expand-
ing sophistication 27 of relationships and the globalization of markets 28
are fertilizing a breeding ground for self-regulation. Although it used to
be preceded by a process of deregulation, sorne legal systems ha ve really
incorporated self-regulation into their regulatory policy. Thus, European
Directives and domestic legislation on electronic commerce for instance
encourage the elaboration of codes of conducts.
Uniformity can also be achieved by approving international stan-
dards that, although they have a more technical character, carry out a
valuable function by facilitating transactions, enabling certification and
guaranteeing homogeneity where it is required.
Self-regulation entails a kind of decentralizing under an up-from-
the-bottom model, inspired by the conviction that closer-to-the-market
rules would better manage parties' interests. Therefore, self-regulation
implies a downward transfer of regulatory power from a centralized
25 Recreating a personal version of the title of the classical book by Professor Garrigues,
Nuevos hechos, nuevo derecho de las sociedades anónimas, Madrid: Revista de
Derecho Privado, 1933.
26
Shapiro, Carl; Varian, Hal R. in Information Rules. A Strategic Cuide to the
Network Economy, Boston: Harvard Business School Press, 1999. Against this 'old
rules far new economy' approach, sorne critica! stances on such a continuist vision
have been adopted inspired by the book by Kevin Kelly, New Rules far the New
Economy. 1ORadical Strategies far a Connected World, New York: Penguin, 1998, and
advocating the drafting of new rules for digital economics. See also, comment by Peter
L. Bernstein, 'Are Networks Driving the New Economy?', HBR, November-December
1998, pp. 159-66.
27
Cooter, Robert D., 'Decentralized Law for a Complex Economy: The Structural
Approach to Adjudicating the New Law Merchant', 144 U.Pa.L.Rev., 1995-1996,
pp. 1643-96.
28
De Ly, Filip, 'Lex Mercatoria (New Law Merchant): Globalization and lnternational
Self-Regulation', Dir.Comm.Int., 14.3, 2000, pp. 555-90. Fox, Eleanor M.,
'Extraterritoriality and Cooperation as Solutions to the Problems of Globalization. Are
They Legitimate? Are They Sufficient?', Fordham Law School Workshop, October 18,
2002.
22 Spanish Private Law: History, Scope and Trends
new society, the Information Society. Nevertheless, unlike the general
perception, the Information Society is not static but a dynamic process - a
process entailing a historical migration to a new space, the digital space. 18
Individuals, goods, activities, ideas and spaces are migrating from the
analogue world to the digital one, from the atoms world to the bits
world. 19 Accordingly, the Internet hosts classrooms, playing fields, fora,
meeting rooms, box offices and markets. The Internet infrastructure
supports a new world where people live, teach and learn, discuss, play,
buy and sell, compete and cooperate. The digital space has become a new
field for running one of the most ancient activities of the human race,
the exchange of goods and services, trade. 20 Using an urban metaphor
(Telépolis), the Internet reproduces the structure and the plan of a city,
combining public spaces and private spaces, open places and closed ones;
As far as the Law aims to rule social relationships, the advent of the
Internet has represented a real challenge to the order of social life in a
new world.
The technological metamorphosis of Society and the Economy means
an amplification of parameters, a globalization of phenomena. 21 But
beyond these obvious changes, new technologies ha ve led to a shift from
the 'Age of Ownership' to the 'Age of Access'; 22 a transformation of
'goods' to 'services'; a reorganization of markets under network-shaped
marketspaces; a melting of cooperation strategies and competition ones 23
to boost economic growth; anda definitive division of the world into two
positions, connected ar non-connected. 24
If new technologies have accelerated the deep metamorphosis of our
society and have stimulated the redefinition of economic strategies, it
makes sense to formulare the following question: 'Do new facts need
18Rodríguez
de las Heras, Antonio, 'La migración digital', TELOS. Cuadernos de
Comunicación, tecnología y sociedad, no. 61, 2004, pp. 4-6.
19 Negroponte, Nicholas, El mundo digital. El futuro que ha llegado, Barcelona:
Ediciones B, 2000.
2 ºIllescas Ortiz, Rafael, Derecho de la Contratación Electrónica, Madrid: Civitas,
2001, p. 33.
21 Although a certain trend towards 'balkanization' can be perceived, Alstyne,
Marchall V.; Brynjolfsson, Erik, 'Electronic Communities: Global Village or
Cyberbalkanization?', Proceeding of the International Conference on Information
Systems, Cleveland, Ohio, 1996.
22 Rifkin, Jeremy, La era del acceso. La revolución de la nueva economía, Barcelona:
Paidós (Estado y Sociedad), 2000.
23 0ntiveros, Emilio, La economía en la red: nueva economía, nuevas finanzas, Madrid:
Taurus, 2001.
24 Rodríguez de las Heras Ballell, Teresa, El régimen jurídico de los Mercados
Electrónicos Cerrados, Madrid: Marcial Pons, 2006.
Spanish Private Law: History, Scope and Trends 23
new laws?', 25 or perhaps, '(t)echnology changes, (economics) laws do
not?' 26 Sorne replies thereto are provided in Chapter 3 (Section 4), in
Chapter 4 (Sections 1.3 and 2.4) and in Chapter 6 (Section 2).
6.2. Self-regulation, codes of conduct and international
standards
Modern economies are experiencing an intense trend towards the use of
self-regulation techniques. The exhaustion to a certain extent of public
and centralized regulatory and enforcement mechanisms and the expand-
ing sophistication 27 of relationships and the globalization of markets 28
are fertilizing a breeding ground for self-regulation. Although it used to
be preceded by a process of deregulation, sorne legal systems have really
incorporated self-regulation in to their regulatory policy. Thus, European
Directives and domestic legislation on electronic commerce for instance
encourage the elaboration of codes of conducts.
Uniformity can also be achieved by approving international stan-
dards that, although they have a more technical character, carry out a
valuable function by facilitating transactions, enabling certification and
guaranteeing homogeneity where it is required.
Self-regulation entails a kind of decentralizing under an up-from-
the-bottom model, inspired by the conviction that closer-to-the-market
rules would better manage parties' interests. Therefore, self-regulation
implies a downward transfer of regulatory power from a centralized
25
Recreating a personal version of the title of the classical book by Professor Garrigues,
Nuevos hechos, nuevo derecho de las sociedades anónimas, Madrid: Revista de
Derecho Privado, 1933.
26
Shapiro, Carl; Varian, Hal R. in Information Rules. A Strategic Cuide to the
Network Economy, Boston: Harvard Business School Press, 1999. Against this 'old
rules far new economy' approach, sorne critica] stances on such a continuist vision
have been adopted inspired by the book by Kevin Kelly, New Rules far the New
Economy. 1ORadical Strategies far a Connected World, New York: Penguin, 1998, and
advocating the drafting of new rules for digital economics. See also, comment by Peter
L. Bernstein, 'Are Networks Driving the New Economy?', HBR, November-December
1998, pp. 159-66.
27
Cooter, Robert D., 'Decentralized Law for a Complex Economy: The Structural
Approach to Adjudicating the New Law Merchant', 144 U.Pa.L.Rev., 1995-1996,
pp. 1643-96.
28
De Ly, Filip, 'Lex Mercatoria (New Law Merchant): Globalization and lnternational
Self-Regulation', Dir.Comm.Int., 14.3, 2000, pp. 555-90. Fox, Eleanor M.,
'Extraterritoriality and Cooperation as Solutions to the Problems of Globalization. Are
They Legitimate? Are They Sufficient?', Fordham Law School Workshop, October 18,
2002.
24 Spanish Private Law: History, Scope and Trends
regulatory authority to 'self-regulated organizations' .29 Complexity and
technical sophistication are characteristics of economic sectors that
make self-regulation more advisable for efficient regulatory operation
(financia! markets, electronic commerce, marketing and advertising,
biotechnology, and nanotechnology).
Self-regulation as described above must be distinguished from the
legitimare exercise of privare autonomy. When negotiating, contract-
ing, agreeing on conditions and terms, parties are self-regulating their
behaviours. Even the adoption of a code of conduct and the grounds
for affirming its binding effect are based on free will. Providers assume
certain commitments and duties in favour of users, whereas no obligation
is imposed on users. The theory of binding unilateral declaration is a
convincing argument to explain to a certain extent the binding character
and the economic function of codes of conduct and other self-regulation
outcomes. 30
Examining ali economic sectors in respect of codes of conduct and
other self-regulation products would be very arduous. An overview of
the electronic commerce realm will suffice to gauge the magnitude and
31
the extent of the self-regulation movement in modern economies.
29 Esteve Pardo, José, Autorregulación. Génesis y efectos, Navarra: Aranzadi, 2002;
Álvarez García, Vicente, 'La capacidad normativa de los sujetos privados', REDA,
no. 99, 1998, pp. 343-67; de la Cuesta Rute, José Mª, 'Algunas reflexiones sobre el
fenómeno de la autorregulación', RDBB, no. 94, 2004, pp. 87-115; Levin, Harvey J.,
'The Limits of Self-Regulation', Colum.L.Rev., Vol. 67, 1967, pp. 603-44.
30Illescas Ortiz, Rafael, 'La autorregulación, entre la quiebra de la relatividad y
la obligatoriedad de la declaración unilateral de voluntad', Derecho Privado y
Constitución, no. 17, 2003, pp. 291-306, in particular p. 305.
3! A selected sample of Codes of Conduct approved in Spain concerning electronic-
commerce-connected activities can be consulted on www.lssi.es (last visited
9/01/2009): Asociación para la Autorregulación de la Comunicación Comercial
(AUTOCONTROL), Asociación Española de Comercio electrónico (AECE) y en
colaboración con el Interactive Advertising Bureau Spain (IAB Spain), November
2002 (http://www.confianzaonline.org); Asociación Española de Normalización
y Certificación (AENOR), October 2001 (http://www.aenor-e.com); Asociación
Española de Distribuidores y Editores de Software de Entretenimiento (ADESE),
January 2002 (http://www.consumo-inc.es/informes/interior/corregul/corregul.htm);
Asociación de Tiendas Virtuales de España (ATIENDES), 2002 (http://www.
atiendes.es); Asociación de Usuarios de Internet (AUI), June 2000 (http://aui.es/
contraelspam/); Asociación para la promoción de las tecnologías de la informa-
ción y del comercio electrónico (APTICE) (http://www.agace.com); Agencia de
Calidad de Internet (IQUA), October 2002 (http://www.iqua.net); Organización
de Consumidores y Usuarios in collaboration with eight European and Argen-
tinian consumer associations (http://www.dinero 15 .com/webtradersite/code_es.html);
Asociación Multisectorial de Empresas Españolas de Electrónica (ASIMELEC),
November 1999 (http://www.asimelec.es/pdf/codeon.pdf); Eurocommerce, June 2000
Spanish Private Law: History, Scope and Trends 25
6.3. The increasing role of 'trusted third porties' - functions and
liability of 'gatekeepers'
The globalization of activities, the higher complexity of markets and the
decentralization of power centres are factors that are undermining trust
and certainty in commercial trade and socioeconomic relationships. As
exogenous mechanisms to generare confidence in markets, trusted third
parties are acquiring increasing relevance in modern economies. The
inherent risks of modern economies are a reason for trust-generating
mechanisms. Information asymmetry and technical complexity in finan-
cia! markets, anonymity and delocalization in electronic commerce,
moral hazard, adverse selection or simply inability to discover relevant
information for decision-making in goods and services markets, hamper
an efficient functioning of markets.
The trust-generating role played by trusted third parties is backed by
reputational, reasons of independence and professionalism. Auditors,
classification societies for vessels, rating companies, e-marketplaces'
managers, inspecting entities, or electronic signature certification agen-
cies are classes of trusted third parties (also called 'gatekeepers') operating
in modern markets. Gatekeepers manage the flow of information to creare
confidence in market relationships where confidence is lacking.
Recent events in financia! markets (and also in other industries) are nev-
ertheless calling in to question the prevention role expected to be played by
gatekeepers. The participation of gatekeepers in contemporary financia!
scandals, the economic crisis, or even environmental catastrophes caused
by the sinking of a vessel, is now under scrutiny. The role of auditors in
the covering up of certain entrepreneurial frauds, the behaviour of rating
entities in the subprime mortgage crisis, or the diligence of classification
(http://www.euro-label.com); Asociación Española de Contabilidad y Adminis-
tración de Empresas, November 2002 (http://www.aeca.es); Asociación Ayuda a
Consumidores y Usuarios Parquesol, 2003 (http://www.ayudaconsumidores.info);
Web Médica Acreditada del Colegio Oficial de Médicos de Barcelona, July 1999
(http://wma.comb.es/home_esp.htm). See also Botana García, Gema Alejandra,
'Comercio Electrónico y Protección de los consumidores', RCE, no. 16, 2001,
pp. 51-76; Rodríguez de las Heras Ballell, Teresa, 'Códigos de conducta y sistemas
de "sello de garantía'',: sobre el acuerdo UNICE-BEUC e-Confidence', RCE, no. 25,
2002, pp. 51-63. It is also worth noting the approved regulations for creating public
trust signs for electronic commerce: Real Decreto 29212004, of 20 February, por el
que se crea el distintivo público de confianza en los servicios de la sociedad de la
información y de comercio electrónico y se regulan los requisitos y procedimientos
de concesión (published in Official Bulletin BOE, no. 50, dated 27 February 2004 ).
Comment by Botana García, Gema, 'El distintivo público de confianza en los servicios
de la sociedad de la información y de comercio electrónico', RCE, no. 49, 2004,
pp. 61-74.
24 Spanísh Prívate Law: Hístory, Scope and Trends
regulatory authority to 'self-regulated organizations'. 29 Complexity and
technical sophistication are characteristics of economic sectors that
make self-regulation more advisable for efficient regulatory operation
(financia! markets, electronic commerce, marketing and advertising,
biotechnology, and nanotechnology).
Self-regulation as described above must be distinguished from the
legitimate exercise of prívate autonomy. When negotiating, contract-
ing, agreeing on conditions and terms, parties are self-regulating their
behaviours. Even the adoption of a code of conduct and the grounds
for affirming its binding effect are based on free will. Providers assume
certain commitments and duties in favour of users, whereas no obligation
is imposed on users. The theory of binding unilateral declaration is a
convincing argument to explain to a certain extent the binding character
and the economic function of codes of conduct and other self-regulation
outcomes. 30
Examining ali economic sectors in respect of codes of conduct and
other self-regulation products would be very arduous. An overview of
the electronic commerce realm will suffice to gauge the magnitude and
31
the extent of the self-regulation movement in modern economies.
29 Esteve Pardo, José, Autorregulación. Génesis y efectos, Navarra: Aranzadi, 2002;
Álvarez García, Vicente, 'La capacidad normativa de los sujetos privados', REDA,
no. 99, 1998, pp. 343-67; de la Cuesta Rute, José Mª, 'Algunas reflexiones sobre el
fenómeno de la autorregulación', RDBB, no. 94, 2004, pp. 87-115; Levin, Harvey J.,
'The Limits of Self-Regulation', Colum.L.Rev., Vol. 67, 1967, pp. 603-44.
30 Illescas Ortiz, Rafael, 'La autorregulación, entre la quiebra de la relatividad y
la obligatoriedad de la declaración unilateral de voluntad', Derecho Privado y
Constitución, no. 17, 2003, pp. 291-306, in particular p. 305.
31 A selected sample of Codes of Conduct approved in Spain concerning electronic-
commerce-connected activities can be consulted on www.lssi.es (last visited
9/01/2009): Asociación para la Autorregulación de la Comunicación Comercial
(AUTOCONTROL), Asociación Española de Comercio electrónico (AECE) y en
colaboración con el Interactive Advertising Bureau Spain (IAB Spain), November
2002 (http://www.confianzaonline.org); Asociación Española de Normalización
y Certificación (AENOR), October 2001 (http://www.aenor-e.com); Asociación
Española de Distribuidores y Editores de Software de Entretenimiento (ADESE),
January 2002 (http://www.consumo-inc.es/informes/interior/corregul/corregul.htm);
Asociación de Tiendas Virtuales de España (A TIENDES), 2002 (http://www.
atiendes.es); Asociación de Usuarios de Internet (AUI), June 2000 (http://aui.es/
contraelspam/); Asociación para la promoción de las tecnologías de la informa-
ción y del comercio electrónico (APTICE) (http://www.agace.com); Agencia de
Calidad de Internet (IQUA), October 2002 (http://www.iqua.net); Organización
de Consumidores y Usuarios in collaboration with eight European and Argen-
tinian consumer associations (http://www.dinero 15 .com/webtradersite/code_es.html );
Asociación Multisectorial de Empresas Españolas de Electrónica (ASIMELEC),
November 1999 (http://www.asimelec.es/pdf/codeon.pdf); Eurocommerce, June 2000
Spanísh Prívate Law: Hístory, Scope and Trends 25
6.3. The increasing role of 'trusted third porties' - functions and
liability of 'gatekeepers'
The globalization of activities, the higher complexity of markets and the
decentralization of power centres are factors that are undermining trust
and certainty in commercial trade and socioeconomic relationships. As
exogenous mechanisms to generate confidence in markets, trusted third
parties are acquiring increasing relevance in modern economies. The
inherent risks of modern economies are a reason for trust-generating
mechanisms. Information asymmetry and technical complexity in finan-
cia! markets, anonymity and delocalization in electronic commerce,
moral hazard, adverse selection or simply inability to discover relevant
information for decision-making in goods and services markets, hamper
an efficient functioning of markets.
The trust-generating role played by trusted third parties is backed by
reputational, reasons of independence and professionalism. Auditors,
classification societies for vessels, rating companies, e-marketplaces'
managers, inspecting entities, or electronic signature certification agen-
cies are classes of trusted third parties (also called 'gatekeepers') operating
in modern markets. Gatekeepers manage the flow of information to create
confidence in market relationships where confidence is lacking.
Recent events in financia! markets (and also in other industries) are nev-
ertheless calling into question the prevention role expected to be played by
gatekeepers. The participation of gatekeepers in contemporary financia!
scandals, the economic crisis, or even environmental catastrophes caused
by the sinking of a vessel, is now under scrutiny. The role of auditors in
the covering up of certain entrepreneurial frauds, the behaviour of rating
entities in the subprime mortgage crisis, or the diligence of classification
(http://www.euro-label.com); Asociación Española de Contabilidad y Adminis-
tración de Empresas, November 2002 (http://www.aeca.es); Asociación Ayuda a
Consumidores y Usuarios Parquesol, 2003 (http://www.ayudaconsumidores.info);
Web Médica Acreditada del Colegio Oficial de Médicos de Barcelona, July 1999
(http://wma.comb.es/home_esp.htm). See also Botana García, Gema Alejandra,
'Comercio Electrónico y Protección de los consumidores', RCE, no. 16, 2001,
pp. 51-76; Rodríguez de las Heras Ballell, Teresa, 'Códigos de conducta y sistemas
de "sello de garantía",: sobre el acuerdo UNICE-BEUC e-Confidence', RCE, no. 25,
2002, pp. 51-63. It is also worth noting the approved regulations for creating public
trust signs for electronic commerce: Real Decreto 29212004, of 20 February, por el
que se crea el distintivo público de confianza en los servicios de la sociedad de la
información y de comercio electrónico y se regulan los requisitos y procedimientos
de concesión (published in Official Bulletin BOE, no. 50, dated 27 February 2004).
Comment by Botana García, Gema, 'El distintivo público de confianza en los servicios
de la sociedad de la información y de comercio electrónico', RCE, no. 49, 2004,
pp. 61-74.
26 Spanísh Prívate Law: Hístory, Scope and Trends
societies in the assessment of vessel seaworthiness are arousing certain
liability concerns (see Section 3.4 of Chapter 7).
Two main strategies are being deployed to counter this crisis in
confidence. On the one hand, the proliferation of codes of conduct for
self-regulating gatekeeper activity aimed to ensure reputational values
and safeguard the integrity of markets (e.g. the 2008 revision of the
!OSCO Code of Conduct Fundamentals for Credit Rating Agencies). On
the other hand, the severe application of liability rules as a deterrent
measure.
6.4. Alternative Dispute Resolution
The fundamental Right to Access to Justice must mean today an
easy, fast, efficient and real access to any legitimare dispute resolution
methods. Although Civil Law legal systems used to show reluctance
to accept extrajudicial methods for administering justice, the manifest
deficiencies sustained by a judicial system overloaded with cases and
with scarce economic and human resources, on the one hand, and
the appealing advantages (speed, efficacy, professionalism, neutrality,
impartiality, confidentiality) offered by Alternative Dispute Resolution
methods (ADRs), on the other, have boosted a real trend towards
the 'extrajudicialization' of dispute resolution in most countries. Along
with conclusive international initiatives thereon, the European Union
has launched a strong campaign to urge Member States to implement
alternative dispute resolution methods of extrajudicial character to
realize universal access to justice (very recently, European Directive
2008152/EC, of the European Parliament and the Council, of 21 May,
on certain aspects of mediation in civil and commercial matters).
Whereas arbitration has had a warm reception by Spanish legal
system - Law 60/2003, of 23 December, that replaces the former
Law 36/1988, of 5 December, in order to align the Spanish system
with UNCITRAL Model Law (see Sections 2.4.2 of Chapter 4 and
4.9.2 of Chapter 8); mediation has encountered sorne difficulties in
being clothed with a general and tailor-made legal covering. Legislation
on mediation is very partial regarding the matters concerned and
extremely heterogeneous as regards the competent authority. Regional
authorities (Comunidades Autónomas) are empowered to legislare on
family mediation. Hence, there is a whole panoply of regional laws
thereon. At State leve!, regulation on mediation is practically limited
to divorce and separation matters on the occasion of the enactment of
the Law 15/2005, of 8 July, modifying the Civil Code on divorce and
separation matters.
Alternative Dispute Resolutions (ADRs) are especially suitable for
dealing with international, interpersonal and cross-border conflicts.
Spanísh Prívate Law: Hístory, Scope and Trends 27
Thus, it makes sense that ADRs and so-called ODRs (On-line Dispute
Resolutions) have proliferated as alternative dispute resolution methods
in electronic transactions and markets, where judicial methods for dispute
resolution encounter severe pitfalls stemming from delocalization, a-
national character, lack of supranational courts and non-existence of
universal legislation. ODRs 32 add to the abundant advantages associated
with ADRs, 33 efficiencies contributed by the use of new technologies. 34
As far as implementation, ODR solutions are crucial strategies for fuelling
trust in electronic commerce and increasing cohesion of the online
community in electronic markets, sorne ODRs are designed under four-
party models. The computer system becomes the fourth party. Therefore,
these systems are really based on a monitored negotiation or automatic
negotiation - blind bidding, blind negotiation or electronic settlement
negotiation - aiming to opera te as negotiation 'facilitators'. Despite their
crucial strategic value, they fall outside of the legal scope of extrajudicial
methods, insofar as no impartial third party intervenes. 35
Most ODRs are designed on a voluntary and non-exclusive basis.
Access to ODRs is contractually established and regulated. Having
recourse to ODRs to settle a dispute <loes not prevent parties from
accessing judicial methods to further resolution.
32
Katsh, Ethan, 'Dispute Resolution in Cyberspace', Conn.L.Rev., Vol. 28, 1995-
1996, pp. 953-80. Bordone, Robert C., 'Electronic Online Dispute Resolution: A
Systems Approach - Potential, Problems, and a Proposal', Harv. Negotiation L.Rev.,
Vol. 3, 1998, pp. 175-211. At the European Union leve!, ARO development has had
special effects on consumer, family and labour matters. As regards ADR in the digital
age, Melissa Devack, 'lntellectual Property as an Investment: a Look at How ADR
Relates to the European Union Proposal for Electronic Commerce in the Single Market',
Cardozo Online ].Confl.Resol., pp. 57-95.
33
Alternative Dispute Resolution far Online Consumer Transactions, Public Work-
shop, Federal Trade Commission/Department of Commerce, June 6-7, 2000. Libro
Verde sobre las modalidades alternativas de solución de conflictos en el ámbito del
derecho civil y mercantil, presentado por la Comisión, COM (2002) 196 final.
34
Even if certain legal concerns are aroused thereby, Hill, Richard, 'On-line
Arbitration: Issues and Solutions', Arbitration International, April 1999, also available
on http://www.umass.edu/dispute/hill.htm (last visited 11/01/2009). Rabinovich-Einy,
Orna, 'Going Public: Diminishing Privacy in Dispute Resolution in the Internet Age',
Va.].L.&Tech., Vol. 7, no. 4, 2002, pp. 1-55.
35
Cybersettle (www.cybersettle.com), SmartSettle (www.smartsetlled.com); or Square
Trade's 'Direct Negotiation' software for eBay are operating ODR platforms or
enabling software for online conflict management. CHUA, Lusan, 'eBay: Conflict
Management in an Online Community', Fall 2002, available on http://www.
ombuds.org/cyberweek2003/chua.paper.htm (last visited 11/01/2009).
26 Spanish Private Law: History, Scope and Trends
societies in the assessment of vessel seaworthiness are arousing certain
liability concerns (see Section 3.4 of Chapter 7).
Two main strategies are being deployed to counter this crisis in
confidence. On the one hand, the proliferation of codes of conduct for
self-regulating gatekeeper activity aimed to ensure reputational values
and safeguard the integrity of markets (e.g. the 2008 revision of the
IOSCO Code of Conduct Fundamentals for Credit Rating Agencies). On
the other hand, the severe application of liability rules as a deterrent
measure.
6.4. Alternative Dispute Resolution
The fundamental Right to Access to Justice must mean today an
easy, fast, efficient and real access to any legitimare dispute resolution
methods. Although Civil Law legal systems used to show reluctance
to accept extrajudicial methods for administering justice, the manifest
deficiencies sustained by a judicial system overloaded with cases and
with scarce economic and human resources, on the one hand, and
the appealing advantages (speed, efficacy, professionalism, neutrality,
impartiality, confidentiality) offered by Alternative Dispute Resolution
methods (ADRs), on the other, have boosted a real trend towards
the 'extrajudicialization' of dispute resolution in most countries. Along
with conclusive international initiatives thereon, the European Union
has launched a strong campaign to urge Member States to implement
alternative dispute resolution methods of extrajudicial character to
realize universal access to justice (very recently, European Directive
2008152/EC, of the European Parliament and the Council, of 21 May,
on certain aspects of mediation in civil and commercial matters).
Whereas arbitration has had a warm reception by Spanish legal
system - Law 60/2003, of 23 December, that replaces the former
Law 36/1988, of 5 December, in order to align the Spanish system
with UNCITRAL Model Law (see Sections 2.4.2 of Chapter 4 and
4.9.2 of Chapter 8); mediation has encountered sorne difficulties in
being clothed with a general and tailor-made legal covering. Legislation
on mediation is very partial regarding the matters concerned and
extremely heterogeneous as regards the competent authority. Regional
authorities (Comunidades Autónomas) are empowered to legislare on
family mediation. Hence, there is a whole panoply of regional laws
thereon. At State leve!, regulation on mediation is practically limited
to divorce and separation matters on the occasion of the enactment of
the Law 15/2005, of 8 July, modifying the Civil Code on divorce and
separation matters.
Alternative Dispute Resolutions (ADRs) are especially suitable for
dealing with international, interpersonal and cross-border conflicts.
Spanish Private Law: History, Scope and Trends 27
Thus, it makes sense that ADRs and so-called ODRs (On-line Dispute
Resolutions) have proliferated as alternative dispute resolution methods
in electronic transactions and markets, where judicial methods for dispute
resolution encounter severe pitfalls stemming from delocalization, a-
national character, lack of supranational courts and non-existence of
universal legislation. ODRs 32 add to the abundant advantages associated
with ADRs, 33 efficiencies contributed by the use of new technologies. 34
As far as implementation, ODR solutions are crucial strategies for fuelling
trust in electronic commerce and increasing cohesion of the online
community in electronic markets, sorne ODRs are designed under four-
party models. The computer system becomes the fourth party. Therefore,
these systems are really based on a monitored negotiation or automatic
negotiation - blind bidding, blind negotiation or electronic settlement
negotiation - aiming to operate as negotiation 'facilitators'. Despite their
crucial strategic value, they fall outside of the legal scope of extrajudicial
methods, insofar as no impartía! third party intervenes. 35
Most ODRs are designed on a voluntary and non-exclusive basis.
Access to ODRs is contractually established and regulated. Having
recourse to ODRs to settle a dispute <loes not prevent parties from
accessing judicial methods to further resolution.
32
Katsh, Ethan, 'Dispute Resolution in Cyberspace', Conn.L.Rev., Vol. 28, 1995-
1996, pp. 953-80. Bordone, Robert C., 'Electronic Online Dispute Resolution: A
Systems Approach - Potential, Problems, and a Proposal', Harv. Negotiation L.Rev.,
Vol. 3, 1998, pp. 175-211. At the European Un ion leve!, ARD development has had
special effects on consumer, family and labour matters. As regards ADR in the digital
age, Melissa Devack, 'Intellectual Property as an lnvestment: a Look at How ADR
Relates to the European Union Proposal for Electronic Commerce in the Single Market',
Cardozo Online j.Confl.Resol., pp. 57-95.
33
Alternative Dispute Resolution far Online Consumer Transactions, Public Work-
shop, Federal Trade Commission/Department of Commerce, June 6-7, 2000. Libro
Verde sobre las modalidades alternativas de solución de conflictos en el ámbito del
derecho civil y mercantil, presentado por la Comisión, COM (2002) 196 final.
34
Even if certain legal concerns are aroused thereby, Hill, Richard, 'On-line
Arbitration: Issues and Solutions', Arbitration International, April 1999, also available
on http://www.umass.edu/dispute/hill.htm (last visited 11/01/2009). Rabinovich-Einy,
Orna, 'Going Public: Diminishing Privacy in Dispute Resolution in the Internet Age',
Va.j.L.&Tech., Vol. 7, no. 4, 2002, pp. 1-55.
35
Cybersettle (www.cybersettle.com), SmartSettle (www.smartsetlled.com); or Square
Trade's 'Direct Negotiation' software for eBay are operating ODR platforms or
enabling software for online conflict management. CHUA, Lusan, 'eBay: Conflict
Management in an Online Community', Fall 2002, available on http://www.
ombuds.org/cyberweek2003/chua.paper.htm (last visited 11/01/2009).