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SPANISH CIVIL CODE.

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THE

SPANISH CIVIL CODE

IN FORCE IN

SPAIN, CUBA, PUERTO RICO,

AND THE PHILIPPINES

TRANSLATED 13Y

Licenciados Clifford S, Walton

and

Nestor Ponce

de

Leon,

PUBLISHED UNDER AUTHORITY OF

MAJOR-GENERAL WILLIAM LUDLOW

MILITARY GOVERNOR OF HAVANA.

EDITED BY

MAJOR CLIFFORD S WALTON,

Member of the College of Lawyers of Havana and of the Washington, D. C. Bar.

HAVANA.

LA PROPAGANDA LITER ARIA

PRINTING HOUSE.

l8 99 .

F-"if t "7

'.? 4- I 4

Bancroft Libra??

HEADQUARTERS DEPARTMENT OF HAVANA

SPECIAL ORDERS, ^

No. 68.

Jforafc 21, 1899.

i. Major C. S. Walton, C. P. M., Department of Havana,

in addition to his other duties, is hereby directed to arrange

for the making of a translation into English of the Spanish Civil

subsequent publication for general use

Code, with a view to its

and information; the particulars of the arrangements proposed

and the estimate of cost will

approval

####**

be submitted for

By command of Major General Ludlow.

I- I

H- i T

H. L. SCOTT.

Adjutant General.

ROYAL DECREE.

Upon the proposal of the Minister of Colonies (Ultramar),

approved by the Council of Ministers;

In the name of my August Son, the King D. Alfonso XIII,

and as Queen Regent of the Kingdom,

I decree the following:

The Civil Code in force in the Peninsula, enac-

ted in conformity with the provisions of the law of May n,

1888, and approved by Royal Decree of the 24th. instant, is

hereby extended to the Islands of Cuba, Puerto Rico, and the

Philippines.

Art. 2. This Code will go into effect in the aforesaid Islands

twenty days after its publication in the official papers of the

same.

of the

same Code, the laws shall go in force in the Colonial provinces,

twenty days after their promulgation, it being understood that

this shall be considered as made the day on which their insert-

ions in the official papers of the Islands terminate.

Article i.

Art. 3.

In harmony with the provisions of art.

I

Given at San Ildefonso, the thirty first day of July 1889.

The Minister of the Colonies,

MANUEL BECERRA.

MARIA CHRISTINA.

CIVIL CODE

PRELIMINARY TITLE.

LAWS, THEIR EFFECT, AND GENERAL RULES FOR THEIR

APPLICATION.

Article 1. Laws shall be binding in the Peninsula, the ad-

jacent Islands, the Canaries, and African territory, subject to

Peninsular legislation, twenty days after their promulgation, if

it is not otherwise provided in them. The promulgation is understood to be made upon the day

of the termination of the insertion of the law in the (Official)

Gazette.

2. Ignorance of the law does not excuse from compliance

with the same.

3. Laws shall not have a retroactive effect, unless the

contrary is provided in them.

4. Acts executed against provisions of law are null, except

in the cases in which the same law orders their validity.

Rights conceded by the laws may be renounced, provided

they are not contrary to public interest or order or prejudicial

to a third person.

5. Laws are abrogated only by other subsequent laws,

and the disuse or any custom or practice to the contrary shall

not prevail against their observance.

6. Any tribunal which refuses to give sentence on the

pretext of silence, obscurity, or insufficiency of the laws shall

incur responsibility therefor.

CIVIL CODE.

applicable to the point in

controversy, the custom of the place shall be applied, and, in

When there is no law exactly

default thereof, the general principles of law.

7. If, in the laws, months, days or nights are referred to,

it will be understood that months have thirty days, days twenty

four hours, and nights from the setting to the rising of the sun.

If the months are designated by their names, the number

of days which they respectively contain shall be computed.

8. Penal laws, police laws, and those of public security are

binding on all those who reside in Spanish territory.

9. Laws relating to family rights and obligations, or to

the status, condition, and legal capacity of persons are binding

on Spaniards, even when residing in a foreign country.

10. Personal property is subject to the laws of the nation

of the owner; real property to the laws of the country in which

it is situated.

Nevertheless, legal and testamentary successions, in respect

to the order of succeeding as well as to the amount of the

successional rights and the intrinsic validity of their provisions

shall be regulated by the laws of the nation of the person whose

succession is considered, whatever may be the nature of the

property and the country in which it may be found.

Biscayanes, although they may reside in towns, shall con-

tinue to submit, in respect to the property they possess in the

level lands, to law 15, title 20 of the Fuero of Vizcaya.

11. The forms and solemnities of contracts, wills, and oth-

er public instruments are governed by the laws of the country in which they are executed.

When such instruments are authorized by diplomatic or

consular officials of Spain in a foreign land, the solemnities re-

quired for their execution by Spanish laws shall be observed.

Notwithstanding the provisions of this and the preceding

article, prohibitive laws concerning persons, their acts or prop-

erty, and those which have for their object the public order

and good morals, shall ot become ineffective by laws or sen-

tences dictated or by regulations or conventions agreed upon

in a foreign country.

CIVIL CODE.

II

the effects of the laws, statutes, and general rules for their ap-

plication are binding in every province of the Kingdom. The

provisions contained in title 4, book I, are similarly binding.

In all other matters, the provinces and territories, in which

local law (derecho foral) is in force,

shall preserve it, for the

present, in its entirety without suffering any alteration in its existing juridical regime, whether written or customary, by the

publication of this Code which shall be enforced only as sup-

plementary law in default of that which may be considered as

such supplementary law by their special laws.

13. Notwithstanding the provisions of the preceding ar-

ticle, this Code shall go into effect in Aragon and in the Balea-

ric Islands at the same time as in the provinces, not under local

law, in so far as it may

not oppose those provisions, local or

customary, which are actually in force.

14. In accordance with the provision of art. 12, what is

established in arts. 9. 10, and n, respecting persons, acts, and property of Spaniards in a foreign land, and that of foreigners in

Spain, is applicable to persons, acts, and property of Spaniards

in territories or provinces having different civil legislation.

15.

Family rights and obligations, those relating to the

status, condition, and legal capacity of persons, and those of

testamentary or intestate succession, declared in this Code, are

applicable:

1. To persons born in common law (derecho comun) prov-

inces or territories of parents subject to local law, if the latter,

during the minority of the children, or the same children within

the year following their majority or emancipation, declare it is

their will to subject themselves to the Civil Code.

2. To the children of a father, and, if he does not exist or

is unknown, of the mother belonging to provinces or territories

subject to common law, even when born in provinces or territo-

ries where local law is in force.

3. To those who, proceeding from provinces or territories

having local law, should have gained a residence in places sub-

ject to common law.

For the effects of thi s article, a residence will be gained; by

a residence of ten years in provinces or territories subject to

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CIVIL CODE.

common law, unless the interested party, before the termination

of this period, manifests his will to the contrary;

or by a

resi-

dence of two years, whenever the interested party manifests this

to be his will.

Both manifestations should be made before a municipal judge

for the corresponding inscription in the Civil Registry. In every case, the wife shall follow the condition of the hus-

band; and the children, not emancipated, that of their father,

and, in his default, that of their mother.

The provisions of this article are of reciprocal application to

Spanish provinces and territories having different civil legis- lation.

16.

In matters which are governed by special laws, the

deficiency thereof shall he supplied by the provisions of this

Code.

BOOK FIRST

PERSONS.

TITLE I.

SPANIARDS AND FOREIGNERS.

Article 17.

The following are Spaniards:

1. Persons born in Spanish territory.

2. Children of a Spanish father or mother, although they

may have been born out of Spain.

3. Foreigners who may have obtained letters of natural-

ization.

4. Those who, without them, may have gained a residence

in any place in the Monarchy.

18. Children, while they remain under the parental power

(patria potestad), have the nationality of their parents.

In order .that those born of foreign parents in Spanish ter-

ritory may enjoy the benefits granted to them by

no.

I

of

art. 17, it shall be an indispensable requisite that the parents

declare, in the manner and before the officials specified in art. 19, that they choose, in the name of their children, Spanish national-

ity, renouncing any other.

19. Children of a foreigner, born in Spanish dominion,

should declare, within the year following their majority or

emancipation, if they desire to enjoy the quality of Spaniards

which art. 17 concedes to them.

Those who are in the Kingdom shall make this declaration before the official in charge of the Civil Registry of the town in

which they reside; those who reside in a foreign land, before

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CIVIL CODE.

one of the consular or diplomatic agents of the Spanish gov-

ernment; and those who are in a country

ernment has no agent shall address the Spanish Minister of

State.

in which the gov-

20- The quality of a Spaniard is lost by acquiring nat-

uralization in a foreign country, or by accepting employment

from another government, or by entering the armed service of

a foreign power without permission of the King.

21.

A Spaniard

who loses this quality by acquiring

naturalization in a foreign country can recover it, upon returning

to the Kingdom, by declaring before an official in charge of the

Civil Registry of the domicil which he elects that such is his

will, in order that the official may make the corresponding in-

scription therein, and by renouncing the protection of the flag of such country.

22. A married woman follows the condition and nation-

ality of her husband.

A Spanish woman who marries a foreigner, shall, upon

dissolution of the marriage, recover Spanish nationality by ful-

filling the requisites expressed in the previous article.

23.

Any Spaniard, who loses this quality by accepting

employment of any other government, or by entering the armed service of a foreign power without the King's permission,

shall not recover Spanish nationality without previously obtain-

ing the royal authorization.

24.

Any person, born in a foreign country of a Spanish

father or mother, who may have lost Spanish nationality on

account of the parents having lost it, may also recover it by com-

plying with the conditions prescribed by art. 19.

25. In order that foreigners who have obtained letters of

naturalization or gained a residence in any place in the Monar-

chy may enjoy Spanish nationality, they have to previously

renounce their former nationality, swear to the Constitution of

the Monarchy, and inscribe themselves as Spaniards in the Civil

Registry.

26. Spaniards who change their domicil to a foreign coun-

try, where they may be considered as natives without other con-

in order to [preserve their

ditions than that of residence in it,

CIVIL CODE.

IS

Spanish nationality, shall be required to manifest that such is

their will before the Spanish diplomatic or consular agent who

shall inscribe them in the Registry of Spanish residents, as well

as their consorts, if they are married, and any children which

they may have.

27. Foreigners enjoy in Spain the rights which the civil

laws concede to Spaniards with the exception of what is provi-

ded in art. 2 of the Constitution of the State or in international

treaties.

28. Corporations, institutions , and associations recog-

nized by law and domiciled in Spain shall enjoy Spanish nation- ality, provided they possess the character of juridical persons in

accordance with the provisions of the present Code.

Associations domiciled in a foreign land shall have in Spain

the consideration and rights which treaties or special laws may

determine.

TITLE II

BIRTH AND EXTINCTION OF CIVIL PERSONALITY.

CHAPTER FIRST.

Article 29.

NATURAL PERSONS.

Birth determines personality; but the con-

ceived child is considered as born for all the effects favorable to it,

provided that it be born with the conditions which are expressed

in the following article.

30. For civil effects , the foetus shall only be considered

as born when it may have a human figure and shall live twenty

four hours entirely separated from the mother (seno materno).

31. Priority of birth, in case of double parturition, gives to

the first born the rights which the law recognizes in primogen-

iture.

32. Civil personality is extinguished by the death of a

person.

Minority, insanity or imbecility, state of being deaf and dumb,

prodigality, and civil interdiction are only restrictions upon jurid-

Those who are in any of these conditions are

ical personality.

susceptible of rights and even obligations when such rights or

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CIVIL CODE.

obligations arise from the facts or the relations between the

property of the incapacitated and a third person.

33. If there is doubt, between two or more persons called

to succeed each other, which of them has died first,

he, who

alleges the prior death of one or the other, shall be obliged to prove it; in default of proof, it will be presumed that they both

died at the same time, and the transmission of rights from one

to the other will not take place.

34. In respect to the presumption of the death of an absent

person and its effects, the provisions of title 8 of this book shall

rule.

CHAPTER II.

JURIDICAL PERSONS,

Article 35.

The following are juridical persons:

I. Corporations, associations, and institutions of public

interest recognized by law.

Their personality begins from the very moment in which,

in accordance with law, they shall have become validly consti- tuted.

2 Associations of private interests, whether they may be

civil, mercantile or industrial, to which the law concedes proper personality, independent of that of each one of the associates.

36.

The associations, to which no.

2 of the previous

article refers, shall be governed by the provisions relative to the contract of association, according to the nature of the same.

37. The civil capacity of corporations shall be regulated

by the laws which have created or recognized them, those of

associations by their statutes; and those of institutions by the

rules of their establishment, duly approved by administrative

authority, when such requirement is necessary.

38. Juridical persons can acquire and possess property of

every class, as well as contract obligations and enforce civil and

criminal actions, in conformity with the laws and rules of their

constitution.

The Church shall be governed, in this particular, by what has

been agreed between both powers; and the establishments of in-

struction and beneficence by the provisions of the special laws.

39,

CIVIL CODE.

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When corporations, associations, and institutions have

ceased to act, because of the expiration of the periods during

which they should legally exist, or by having realized the ends

for which they were constituted, or because it has become impos-

sible to apply to such ends the activity and the means at their

disposal, their property shall receive the application which the

laws or their statutes or the clauses of their foundation have assigned to them in anticipation of such cases.

When nothing has been previously established, the property

shall be applied to the realization of similar purposes in the

interests of the region, province, or municipal district which

should have principally reaped the benefits of the extinguished

institutions.

Article 40.

TITLE III.

DOMICIL.

For the enforcement of the rights and the

fulfillment of civil obligations, the domicil of natural persons is the place of their usual residence; and, in certain cases, that

determined by the Law of Civil Procedure.

The domicil of diplomatic residents, who by reason of their

duties in a foreign land enjoy the rights of extra- territoriality,

shall be the last domicil which they had when in Spanish

territory.

41. When neither the law which has created or recog-

nized them, nor the statutes or rules of their foundation shall fix

the domicil of juridical persons, it shall be understood that they

have it at the place where their legal representation is established

or where they exercise the principal functions for which they were established.

TITLE IV.

MARRIAGE.

CHAPTER FIRST.

GENERAL PROVISION.

SECTION FIRST.

FORMS OF MARRIAGE.

Article 42. The law recognizes two forms of marriage, the canonical, which all who profess the Catholic religion should con-

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CIVIL CODE.

tract, and the civil, which shall be celebrated in the manner

provided in this Code.

SECTION SECOND.

PROVISIONS COMMON TO BOTHS FORMS OF MARRIAGE.

Article 43.

contract marriage.

Future espousals do not cause obligation to

No tribunal shall entertain a complaint in

which their fulfillment is claimed.

44.

When the promise has been made in a public or

private document by a person of age, or by a minor, assisted by

the person whose consent is necessary in order to celebrate the marriage, or when the banns have been published, the one who

refuses to marry, without just cause, shall be obliged to indem-

nify the other party for the expenses which he or she may have

incurred by reason of the promised marriage.

An action in order to recover the indemnity for expenses,

to which the previous paragraph refers, can be exercised only

within a year, counted from the day of the refusal to celebrate

the marriage.

45. Marriage is forbidden:

1. To the minor who has not obtained consent and to a person of age who has not asked the advice of the persons to

whom it pertains to authorize one or the other, in

the cases

provided for by law.

2. To the widow, during the three hundred and one days

following the death of her husband, or before child birth if she

should have been left pregnant, and to the woman whose mar-

riage may have been declared null, under the same circum-

stances and limitations, to be counted from her legal separation.

3. To the guardian and his or her descendants with

respect to persons whom such guardian may have or may have had under charge, until the guardianship has terminated and the accounts of the same have been approved, except in the cases

where the father of the person, subject to guardianship, has

authorized the marriage in a will or in a public instrument.

of the preceding

46.

The consent, referred to in

no. i

article, ought to be granted