Civil CodesPresent and Future (Iberian America)

Last updated 28 Oct 09

Latin American Law

Post-independence identity crisis plaguing Latin American countries: truly independent or quasi-

European nations

Ben Austrin-Willis

French “code civil”(1804)

Spanish Civil Code

(1889)

Haiti(1825)

Chile(1852)

Brazil draft(1856)

Argentina(1869)

Bolivia(1831)

Portuguese Civil Code

(1867)

Dalmacio Velez Sarsfield (1800-1875)

Augusto Teixeira de Freitas

(1816-1883)

“Consolidation of Civil Laws”

Andres Bello (1791-1865)

Oaxaca(1827)

Louisiana(1804)

Why did Bello’s code succeed?

Stephanie Richter

Justin Brown

French “code civil”(1804)

Spanish Civil Code

(1889)

Haiti(1825)

Chile(1852)

Brazil draft(1856)

Argentina(1869)

Bolivia(1831)

Portuguese Civil Code

(1867)

Oaxaca(1827)

Louisiana(1804)

Brazil Civil Code• 1917• 2003

Clovis Bevilaqua

The difference in national identity between Brazil and Portugal, thus accounts for the different experiences in codification, with Brazil creating an autochthonous code and Portugal following the Europeanizing path.

the Brazilian Code was one that embraced national law, rather than emulating more Europeanized codes

Stephanie Richter

Should individual rights be protected in codes or constitutions in Latin America?

***

Josaphat Marinho declared: ‘The main difference between the new code and the one now in force is the social character of the new law, which goes well beyond the individualistic or privatist feeling.’”

David Cardamone

US codes?

Prof. John Head:

codification movement in America between 1815 and 1840.

US codes?

David Dudley Field

Karl Lewellyn& Soia Metchikoff

Restatements are “highly regarded distillations of common law,” which are prepared by the American Law Institute (ALI)

David Cardamone

* * *

While ostensibly the Restatement is merely an organization of black letter law, the reality is much more complicated, as often times what actually constitutes the black letter law is open to interpretation and thus the restatement reporter is faced with a choice of what to include and what not to include.

Jeff Servas

Should individual rights be protected in codes or constitutions in Latin America?

Melinda Hanzel

Notaries …

Texas Notary Public may

take acknowledgements protest instruments administer oaths take depositions certify copies of documents not

recordable in the public records

show that a disinterested party duly notifies the validity of a document

show that the signer is indeed who s/he says s/he is and that his/her reasons for signing are genuine

Notario Publico in Mexico City may

be an arbitrator be a mediator issue judicial opinions intervene in judicial

proceedingsensure that documents such

as bylaws of companies, wills, deeds, powers of attorney, real estate purchases and establishments of trusts do not include any legal inconsistencies

ensure payment of taxes protocolize public deeds

A candidate to be a Texas Notary Public must

fill out an application be at least 18 years of age be a legal resident of the State

of Texas be a legal resident of the

United States or a permanent resident alien

pay applicable fees and post a $2,500* dollar bond.

A candidate to be a Notario Publico in the Federal District of Mexico must

be Mexican by birth be older than 25 but younger

than 60 be in good health have a good reputation not be the leader of a church not have a criminal record have studied under a notary

for at least 6 months prior take a written exam be a legal professional with the

title of lawyer.

US “civil law notaries” (imported from Latin America)

FSA 118.10(1)(b). "Civil-law notary" means a person who is a member in good standing of The Florida Bar, who has practiced law for at least 5 years, and who is appointed by the Secretary of State as a civil-law notary.

FSA 118.10(3), (4).A civil-law notary is authorized to issue authentic acts and thereby may authenticate or certify any document, transaction, event, condition, or occurrence. The contents of an authentic act and matters incorporated therein shall be presumed correct. …

FSA 118.10(1)(a). "Authentic act" means an instrument executed by a civil-law notary … which includes the particulars and capacities to act of any transacting parties, a confirmation of the full text of any necessary instrument, the signatures … of any transacting parties, the signature and seal of a civil-law notary ….

Full faith and credit

US Constitution

Article IV

Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

End