Civil law (legal system)

Civil law, or civilian law, is a legal system originating in Europe, intellectualized within the framework of Roman law, the main feature of which is that its core principles are codified into a referable system which serves as the primary source of law. This can be contrasted with common law systems, the intellectual framework of which comes from judge-made decisional law, and gives precedential authority to prior court decisions, on the principle that it is unfair to treat similar facts differently on different occasions (doctrine of judicial precedent, or stare decisis).[1][2]

Historically, a civil law is the group of legal ideas and systems ultimately derived from the Corpus Juris Civilis, but heavily overlaid by Napoleonic, Germanic, canonical, feudal, and local practices,[3] as well as doctrinal strains such as natural law, codification, and legal positivism.

Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules.[4] It holds case law secondary and subordinate to statutory law. Civil law is often paired with the inquisitorial system, but the terms are not synonymous.

There are key differences between a statute and a codal article. The most pronounced features of civil systems are their legal codes, with brief legal texts that typically avoid factually specific scenarios.[5] The short articles in a civil law code deal in generalities and stand in contrast with statutory systems, which are often very long and very detailed.

Overview

The purpose of codification is to provide all citizens with manners and written collection of the laws which apply to them and which judges must follow. It is the most widespread system of law in the world, in force in various forms in about 150 countries.[6] It draws heavily from Roman law, arguably the most intricate known legal system dating from before the modern era.

Where codes exist, the primary source of law is the law code, a systematic collection of interrelated articles,[7] arranged by subject matter in some pre-specified order,[8] that explain the principles of law, rights and entitlements, and how basic legal mechanisms work. Law codes are simply laws enacted by a legislature, even if they are in general much longer than other laws. Other major legal systems in the world include common law, Islamic law, Halakha, and canon law.

Map of the Legal systems of the world (en)
Legal systems of the world.[9] Civil law based systems are in turquoise.

Civil law countries can be divided into:

  • those where Roman law in some form is still living law but there has been no attempt to create a civil code: Andorra and San Marino
  • those with uncodified mixed systems in which civil law is an academic source of authority but common law is also influential: Scotland and the Roman-Dutch law countries (South Africa, Zimbabwe, Sri Lanka and Guyana)
  • those with codified mixed systems in which civil law is the background law but has its public law heavily influenced by common law: Puerto Rico, Philippines, Quebec and Louisiana
  • those with comprehensive codes that exceed a single civil code, such as France, Germany, Greece, Italy, Japan, Mexico, Russia, Spain: it is this last category that is normally regarded as typical of civil law systems, and is discussed in the rest of this article.

The Scandinavian systems are of a hybrid character since their background law is a mix of civil law and Scandinavian customary law and they have been partially codified. Likewise, the laws of the Channel Islands (Jersey, Guernsey, Alderney, Sark) mix Norman customary law and French civil law.

A prominent example of a civil-law is the Napoleonic Code (1804), named after French emperor Napoleon. The code comprises three components:

  • the law of persons
  • property law
  • commercial law

Rather than a compendium of statutes or catalog of case law, the code sets out general principles as rules of law.[7]

Unlike common law systems, civil law jurisdictions deal with case law apart from any precedent value. Civil law courts generally decide cases using codal provisions on a case-by-case basis, without reference to other (or even superior) judicial decisions.[10] In actual practice, an increasing degree of precedent is creeping into civil law jurisprudence, and is generally seen in many nations' highest courts.[10] While the typical French-speaking supreme court decision is short, concise and devoid of explanation or justification, in Germanic Europe, the supreme courts can and do tend to write more verbose opinions, supported by legal reasoning.[10] A line of similar case decisions, while not precedent per se, constitute jurisprudence constante.[10] While civil law jurisdictions place little reliance on court decisions, they tend to generate a phenomenal number of reported legal opinions.[10] However, this tends to be uncontrolled, since there is no statutory requirement that any case be reported or published in a law report, except for the councils of state and constitutional courts.[10] Except for the highest courts, all publication of legal opinions are unofficial or commercial.[11]

Civil law is sometimes referred to as neo-Roman law, Romano-Germanic law or Continental law. The expression "civil law" is a translation of Latin jus civile, or "citizens' law", which was the late imperial term for its legal system, as opposed to the laws governing conquered peoples (jus gentium); hence, the Justinian Code's title Corpus Juris Civilis. Civil law practitioners, however, traditionally refer to their system in a broad sense as jus commune, literally "common law", meaning the general principles of law as opposed to laws specific to particular areas. (The use of "common law" for the Anglo-Saxon systems may or may not be influenced by this usage.)

History

Civil law takes as its major inspiration classical Roman law (c. AD 1–250), and in particular Justinian law (6th century AD), and further expanded and developed in the late Middle Ages under the influence of canon law.[12] The Justinian Code's doctrines provided a sophisticated model for contracts, rules of procedure, family law, wills, and a strong monarchical constitutional system.[13] Roman law was received differently in different countries. In some it went into force wholesale by legislative act, i.e., it became positive law, whereas in others it was diffused into society by increasingly influential legal experts and scholars.

Roman law continued without interruption in the Byzantine Empire until its final fall in the 15th century. However, given the multiple incursions and occupations by Western European powers in the late medieval period, its laws became widely implemented in the West. It was first received in the Holy Roman Empire partly because it was considered imperial law, and it spread in Europe mainly because its students were the only trained lawyers. It became the basis of Scots law, though partly rivaled by received feudal Norman law. In England, it was taught academically at Oxford and Cambridge, but underlay only probate and matrimonial law insofar as both were inherited from canon law, and maritime law, adapted from lex mercatoria through the Bordeaux trade.

Consequently, neither of the two waves of Roman influence completely dominated in Europe. Roman law was a secondary source that was applied only when local customs and laws were found lacking on a certain subject. However, after a time, even local law came to be interpreted and evaluated primarily on the basis of Roman law, since it was a common European legal tradition of sorts, and thereby in turn influenced the main source of law. Eventually, the work of civilian glossators and commentators led to the development of a common body of law and writing about law, a common legal language, and a common method of teaching and scholarship, all termed the jus commune, or law common to Europe, which consolidated canon law and Roman law, and to some extent, feudal law.

Codification

An important common characteristic of civil law, aside from its origins in Roman law, is the comprehensive codification of received Roman law, i.e., its inclusion in civil codes. The earliest codification known is the Code of Hammurabi, written in ancient Babylon during the 18th century BC. However, this, and many of the codes that followed, were mainly lists of civil and criminal wrongs and their punishments. The codification typical of modern civilian systems did not first appear until the Justinian Code.

Germanic codes appeared over the 6th and 7th centuries to clearly delineate the law in force for Germanic privileged classes versus their Roman subjects and regulate those laws according to folk-right. Under feudal law, a number of private custumals were compiled, first under the Norman empire (Très ancien coutumier, 1200–1245), then elsewhere, to record the manorial – and later regional – customs, court decisions, and the legal principles underpinning them. Custumals were commissioned by lords who presided as lay judges over manorial courts in order to inform themselves about the court process. The use of custumals from influential towns soon became commonplace over large areas. In keeping with this, certain monarchs consolidated their kingdoms by attempting to compile custumals that would serve as the law of the land for their realms, as when Charles VII of France in1454 commissioned an official custumal of Crown law. Two prominent examples include the Coutume de Paris (written 1510; revised 1580), which served as the basis for the Napoleonic Code, and the Sachsenspiegel (c. 1220) of the bishoprics of Magdeburg and Halberstadt which was used in northern Germany, Poland, and the Low Countries.

The concept of codification was further developed during the 17th and 18th centuries AD, as an expression of both natural law and the ideas of the Enlightenment. The political ideals of that era was expressed by the concepts of democracy, protection of property and the rule of law. Those ideals required certainty of law, recorded, uniform law. So, the mix of Roman law and customary and local law gave way to law codification.

Also, the notion of a nation-state implied recorded law that would be applicable to that state.

There was also a reaction to law codification. The proponents of codification regarded it as conducive to certainty, unity and systematic recording of the law; whereas its opponents claimed that codification would result in the ossification of the law.

In the end, despite whatever resistance to codification, the codification of European private laws moved forward. Codifications were completed by Denmark (1687), Sweden (1734), Prussia (1794), France (1804), and Austria (1811). The French codes were imported into areas conquered by Napoleon and later adopted with modifications in Poland (Duchy of Warsaw/Congress Poland; Kodeks cywilny 1806/1825), Louisiana (1807), Canton of Vaud (Switzerland; 1819), the Netherlands (1838), Serbia (1844), Italy and Romania (1865), Portugal (1867) and Spain (1888). Germany (1900), and Switzerland (1912) adopted their own codifications. These codifications were in turn imported into colonies at one time or another by most of these countries. The Swiss version was adopted in Brazil (1916) and Turkey (1926).

In the United States, U.S. states began codification with New York's "Field Code" (1850), followed by California's codes (1872), and the federal revised statutes (1874) and the current United States Code (1926).

In Japan, at the beginning of the Meiji Era, European legal systems—especially the civil law of Germany and France—were the primary models for the judicial and legal systems. In China, the German Civil Code was introduced in the later years of the Qing dynasty, emulating Japan. In addition, it formed the basis of the law of the Republic of China, which remains in force in Taiwan. Furthermore, Korea, Taiwan, and Manchuria, former Japanese colonies, have been strongly influenced by the Japanese legal system.

Some authors consider civil law the foundation for socialist law used in communist countries, which in this view would basically be civil law with the addition of Marxist-Leninist ideals. Even if this is so, civil law was generally the legal system in place before the rise of socialist law, and some Eastern European countries reverted to the pre-socialist civil law following the fall of socialism, while others continued using a socialist legal systems.

Several civil-law mechanisms seem to have been borrowed from medieval Islamic Sharia and fiqh. For example, the Islamic hawala (hundi) underlies the avallo of Italian law and the aval of French and Spanish law.[14]

Differentiation from other major legal systems

The table below contains essential disparities (and in some cases similarities) between the world's four major legal systems.[7]

Common law Civil law Socialist law Islamic law
Other names Anglo-American, English, judge-made, legislation from the bench Continental, Romano-Germanic, European Continental Soviet Religious law, Sharia
Source of law Case law, statutes/legislation Statutes/legislation Statutes/legislation Religious documents
Lawyers Judges act as impartial referees; lawyers are responsible for presenting the case Judges dominate trials Judges dominate trials Secondary role
Judges' qualifications Career lawyers (appointed or elected) Career judges Career bureaucrats, Party members Religious as well as legal training
Degree of judicial independence High High; separate from the executive and the legislative branches of government Very limited Ranges from very limited to high[14][15]
Juries Provided at trial level May adjudicate in conjunction with judges in serious criminal matters Often used at lowest level Allowed in Maliki school,[15] not allowed in other schools
Policy-making role Courts share in balancing power Courts have equal but separate power Courts are subordinate to the legislature Courts and other government branches are theoretically subordinate to the Shari'a. In practice, courts historically made the Shari'a, while today, the religious courts are generally subordinate to the executive.
Examples Australia, United Kingdom (except Scotland), Israel, India, Cyprus, Nigeria, Republic of Ireland, Singapore, Hong Kong, United States (except Louisiana), Canada (except Quebec), New Zealand, Pakistan, Malaysia, Bangladesh All European Union states (except the UK, Ireland, and Cyprus) and European states, Mexico, all of continental South and Middle America (except Guyana and Belize), Quebec, all of East Asia (except Hong Kong), DR Congo, Azerbaijan, Kuwait, Iraq, Russia, Turkey, Egypt, Madagascar, Lebanon, Switzerland, Indonesia, Vietnam, Thailand, Louisiana Soviet Union, China Many Muslim countries have adopted parts of Sharia Law. Examples include Saudi Arabia, Afghanistan, Iran, United Arab Emirates, Oman, Sudan, Malaysia, Pakistan and Yemen.

Civil law is primarily contrasted with common law, which is the legal system developed first in England, and later among English-speaking peoples of the world. Despite their differences, the two systems are quite similar from a historical point of view. Both evolved in much the same way, though at different paces. The Roman law underlying civil law developed mainly from customary law that was refined with case law and legislation. Canon law further refined court procedure. Similarly, English law developed from Anglo-Saxon customary law, Danelaw and Norman law, further refined by case law and legislation. The differences are

  • Roman law had crystallized many of its principles and mechanisms in the form of the Justinian Code, which drew from case law, scholarly commentary, and senatorial statutes
  • civilian case law has persuasive authority, not binding authority as under common law

Codification, however, is by no means a defining characteristic of a civil law system. For example, the statutes that govern the civil law systems of Sweden and other Nordic countries and the Roman-Dutch countries are not grouped into larger, expansive codes like those in French and German law.[16]

Subgroups

The term civil law comes from English legal scholarship and is used in English-speaking countries to lump together all legal systems of the jus commune tradition. However, legal comparativists and economists promoting the legal origins theory prefer to subdivide civil law jurisdictions into four distinct groups:

  • Napoleonic: France, Italy, the Netherlands, Spain, Chile, Belgium, Luxembourg, Portugal, Brazil, Mexico, other CPLP countries, Macau, former Portuguese territories in India (Goa, Daman and Diu and Dadra and Nagar Haveli), Romania, and most of the Arab world when Islamic law is not used. Former colonies include Quebec (Canada) and Louisiana (U.S.).
    • The Chilean Code is an original work of jurist and legislator Andrés Bello. Traditionally, the Napoleonic Code has been considered the main source of inspiration for the Chilean Code. However, this is true only with regard to the law of obligations and the law of things (except for the principle of abstraction), while it is not true at all in the matters of family and successions. This code was integrally adopted by Ecuador, El Salvador, Nicaragua, Honduras, Colombia, Panama and Venezuela (although only for one year). According to other Latin American experts of its time, like Augusto Teixeira de Freitas (author of the "Esboço de um Código Civil para o Brasil") or Dalmacio Vélez Sársfield (main author of the Argentinian Civil Code), it is the most important legal accomplishments of Latin America.
    • Cameroon, a former colony of both France and United Kingdom, is bi-juridical/mixed
  • Germanistic: Germany, Austria, Switzerland, Latvia, Estonia, Roman-Dutch, Czech Republic, Russia, Lithuania, Croatia, Hungary, Serbia, Slovenia, Slovakia, Bosnia and Herzegovina, Greece, Ukraine, Turkey, Japan, South Korea, Taiwan and Thailand
    • South Africa, a former colony of the United Kingdom, was heavily influenced by colonists from the Netherlands and therefore is bi-juridical/mixed.
  • Nordic: Denmark, Finland, Iceland, Norway, and Sweden
  • Chinese (except Hong Kong and Macau) is a mixture of civil law and socialist law. Presently, Chinese laws absorb some features of common law system, especially those related to commercial and international transactions. Hong Kong, although part of China, uses common law. The Basic Law of Hong Kong ensures the use and status of common law in Hong Kong. Macau continues to have a Portuguese legal system of civil law.

However, some of these legal systems are often and more correctly said to be of hybrid nature:

Napoleonic to Germanistic influence: The Italian civil code of 1942 replaced the original one of 1865, introducing germanistic elements due to the geopolitical alliances of the time.[17] This approach has been imitated by other countries, including Portugal (1966), the Netherlands (1992), Brazil (2002) and Argentina (2014). Most of them have innovations introduced by the Italian legislation, including the unification of the civil and commercial codes.[18]

Germanistic to Napoleonic influence: The Swiss civil code is considered mainly influenced by the German civil code and partly influenced by the French civil code. The civil code of the Republic of Turkey is a slightly modified version of the Swiss code, adopted in 1926 during Mustafa Kemal Atatürk's presidency as part of the government's progressive reforms and secularization.

Some systems of civil law do not fit neatly into this typology, however. Polish law developed as a mixture of French and German civil law in the 19th century. After the reunification of Poland in 1918, five legal systems (French Napoleonic Code from the Duchy of Warsaw, German BGB from Western Poland, Austrian ABGB from Southern Poland, Russian law from Eastern Poland, and Hungarian law from Spisz and Orawa) were merged into one. Similarly, Dutch law, while originally codified in the Napoleonic tradition, has been heavily altered under influence from the Dutch native tradition of Roman-Dutch law (still in effect in its former colonies). Scotland's civil law tradition borrowed heavily from Roman-Dutch law. Swiss law is categorized as Germanistic, but it has been heavily influenced by the Napoleonic tradition, with some indigenous elements added in as well.

Louisiana private law is primarily a Napoleonic system. Louisiana is the only U.S. state partially based on French and Spanish codes and ultimately Roman law, as opposed to English common law.[19] In Louisiana, private law was codified into the Louisiana Civil Code. Current Louisiana law has converged considerably with American law, especially in its public law, judicial system, and adoption of the Uniform Commercial Code (except for Article 2) and certain legal devices of American common law.[20] In fact, any innovation, whether private or public, has been decidedly common law in origin. Quebec law, whose private law is also of French civil origin, has developed along the same lines, adapting in the same way as Louisiana to the public law and judicial system of Canadian common law. By contrast, Quebec private law has innovated mainly from civil sources. To a lesser extent, other states formerly part of the Spanish Empire, such as Texas and California, have also retained aspects of Spanish civil law into their legal system, for example community property. The legal system of Puerto Rico exhibits similarities to that of Louisiana: a civil code whose interpretations rely on both the civil and common law systems. Because Puerto Rico's Civil Code is based on the Spanish Civil Code of 1889, available jurisprudence has tended to rely on common law innovations due to the code's age and in many cases, obsolete nature.

Several Islamic countries have civil law systems that contain elements of Islamic law.[21] As an example, the Egyptian Civil Code of 1810 that developed in the early 19th century—which remains in force in Egypt is the basis for the civil law in many countries of the Arab world where the civil law is used— is based on the Napoleonic Code, but its primary author Abd El-Razzak El-Sanhuri attempted to integrate principles and features of Islamic law in deference to the unique circumstances of Egyptian society.

Japanese Civil Code was considered as a mixture of roughly 60 percent of the German civil code and roughly 30 percent of the French civil code and 8 percent of Japanese customary law and 2 percent of the English law.[22] The code includes the doctrine of ultra vires and a precedent of Hadley v Baxendale from English common law system.

See also

References

  1. ^ Washington Probate, "Estate Planning & Probate Glossary", Washington (State) Probate, s.v. "common law", [htm], 8 Dec. 2008, retrieved on 7 November 2009.
  2. ^ Charles Arnold-Baker, The Companion to British History, s.v. "English Law" (London: Loncross Denholm Press, 2008), 484.
  3. ^ Charles Arnold Baker, The Companion to British History, s.v. "Civilian" (London: Routledge, 2001), 308.
  4. ^ Michel Fromont, Grands systèmes de droit étrangers, 4th edn. (Paris: Dalloz, 2001), 8.
  5. ^ “The role of legislation is to set, by taking a broad approach, the general propositions of the law, to establish principles which will be fertile in application, and not to get down to the details. . . .” Alain Levasseur, Code Napoleon or Code Portalis?, 43 Tul. L. Rev. 762, 769 (1969).
  6. ^ "The World Factbook". cia.gov.
  7. ^ a b c Neubauer, David W., and Stephen S. Meinhold. Judicial Process: Law, Courts, and Politics in the United States. Belmont: Thomson Wadsworth, 2007, pg.28.
  8. ^ "Glossary of Legal Terms", 12th District Court – Jackson, County, MI, retrieved on 12 June 2009: [1]
  9. ^ Alphabetical Index of the 192 United Nations Member States and Corresponding Legal Systems, Website of the Faculty of Law of the University of Ottawa
  10. ^ a b c d e f Reynolds 1998, p. 58.
  11. ^ Reynolds 1998, p. 59.
  12. ^ "Roman Law and Its Influence". Infoplease.com. Retrieved 2011-08-18.
  13. ^ Kenneth Pennington, "Roman and Secular Law in the Middle Ages", Medieval Latin: An Introduction and Bibliographical Guide, edd. F.A.C. Mantello and A.G. Rigg (Washington, D.C.: Catholic University Press of America, 1996), 254–266; [html], available at "Archived copy". Archived from the original on 2011-09-27. Retrieved 2011-08-27.CS1 maint: Archived copy as title (link), retrieved 27 August 2011.
  14. ^ a b Badr, Gamal Moursi (Spring 1978), "Islamic Law: Its Relation to Other Legal Systems", The American Journal of Comparative Law, 26 (2 [Proceedings of an International Conference on Comparative Law, Salt Lake City, Utah, February 24–25, 1977]): 187–198 [196–8], doi:10.2307/839667, JSTOR 839667
  15. ^ a b Makdisi, John A. (June 1999), "The Islamic Origins of the Common Law", North Carolina Law Review, 77 (5): 1635–1739
  16. ^ Smits, Jan (ed.); Dotevall, Rolf (2006), Elgar Encyclopedia of Comparative Law, "63: Sweden", Edward Elgar Publishing, ISBN 978-1-84542-013-0CS1 maint: Extra text: authors list (link)
  17. ^ "Towards a civil code: the italian experience". teoriaestoriadeldirittoprivato.com.
  18. ^ Franklin, Mitchell (April 1951). ""On the Legal Method of the Uniform Commercial Code" by Mitchell Franklin". Duke.edu. 16 (2): 330–343.
  19. ^ "How the Code Napoleon makes Louisiana law different". LA-Legal. Archived from the original on 2006-10-31. Retrieved 2006-10-26.
  20. ^ "Louisiana – Judicial system". City-data.com. Retrieved 2011-08-18.
  21. ^ "Civil Law". Microsoft Encarta Online Encyclopedia 2009. Archived 2009-10-31.
  22. ^ 和仁陽「岡松参太郎――法比較と学理との未完の綜合――」『法学教室』No.183 (in Japanese) P.79

Bibliography

  • Lydorf, Claudia. (2011). Romance Legal Family. Mainz: Institute of European History.
  • MacQueen, Hector L. "Scots Law and the Road to the New Ius Commune." Electronic Journal of Comparative Law 4, no. 4 (December 2000).
  • John Henry Merryman & Rogelio Pérez-Perdomo. The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America, 4th edn. Stanford University Press, 2018.
  • Moustaira Elina N., Comparative Law: University Courses (in Greek), Ant. N. Sakkoulas Publishers, Athens, 2004, ISBN 960-15-1267-5
  • Reynolds, Thomas H. (1998). "Introduction to Foreign and Comparative Law". In Rehberg, Jeanne; Popa, Radu D. Accidental Tourist on the New Frontier: An Introductory Guide to Global Legal Research. pp. 47–86. ISBN 978-0-837-71075-4.

External links

Argentine law

The Legal system of Argentina is a Civil law legal system. The pillar of the Civil system is the Constitution of Argentina (1853).

The Argentine Constitution of 1853 was an attempt to unite the unstable and young country of the United Provinces of the Rio de la Plata under a single law, creating as well the different organisms needed to run a country. This constitution was finally approved after failed attempts in 1813 (see Assembly of 1813), 1819 and 1831 (Pacto Federal).

Civil code

A civil code is a systematic collection of laws designed to deal with the core areas of private law such as for dealing with business and negligence lawsuits and practices. A jurisdiction that has a civil code generally also has a code of civil procedure. In some jurisdictions with a civil code, a number of the core areas of private law that would otherwise typically be codified in a civil code may instead be codified in a commercial code.

Civil law

Civil law may refer to:

Civil law (common law), the non-criminal branch of law in a common law legal system

Civil law (legal system), or continental law, a legal system originating in continental Europe and based on Roman lawPrivate law, the branch of law in a civil law legal system that governs relations among private individualsMunicipal law, the domestic law of a state, as opposed to international law

Code of law

A code of law, also called a law code or legal code, is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the code was enacted, by a process of codification. Though the process and motivations for codification are similar in different common law and civil law systems, their usage is different.

In a civil law country, a code of law typically exhaustively covers the complete system of law, such as civil law or criminal law. By contrast, in a common law country with legislative practices in the English tradition, a code of law is a less common form of legislation, which differs from usual legislation that, when enacted, modify the existing common law only to the extent of its express or implicit provision, but otherwise leaves the common law intact. A code entirely replaces the common law in a particular area, leaving the common law inoperative unless and until the code is repealed. In a third case of slightly different usage, in the United States and other common law countries that have adopted similar legislative practices, a code of law is a standing body of statute law on a particular area, which is added to, subtracted from, or otherwise modified by individual legislative enactments.

Commercial code (law)

In law, a commercial code is a codification of private law relating to merchants, trade, business entities (especially companies), commercial contracts and other matters such as negotiable instruments.Many civil law legal systems have codifications of commercial law.

Decennial liability

Decennial liability insurance or "Inherent Defect Insurance" is insurance that is taken out (by the contractor or principal) to cover costs associated with the potential collapse of the building after completion. The names derives from the fact that it covers the 10 year period after completion of the project. It is compulsory to insure in a few countries such as France, and Egypt,. In other countries like Qatar there is the form of strict liability arising from the French Civil Code which does not require any proof of fault, but there is no compulsory requirement to insure The cost of the insurance can significantly increase construction costs and may be up to 1.5% of structural value (including the Technical Inspections that the insurers mandate).

Under French law (article L241-1 of the Insurance Code), every builder is required to purchase a ten-year insurance policy covering the mandatory decennial warranty on all construction projects. The decennial warranty is a legal liability assumed by builders for all defects that compromise the integrity of their structures or that cause them to become unsuited for their intended purposes. This responsibility is mandated by articles 1792 et seq. of the Civil Code. It is imposed on builders for ten years from the acceptance date of the structure.

Derogation

Derogation is the partial suppression of a law, as opposed to abrogation—total abolition of a law by explicit repeal—and obrogation—the partial or total modification or repeal of a law by the imposition of a later and contrary one. The term is used in canon law, civil law, and common law. It is sometimes used, loosely, to mean abrogation, as in the legal maxim: Lex posterior derogat priori, i.e. a subsequent law imparts the abolition of a previous one.

Derogation differs from dispensation in that it applies to the law, whereas dispensation applies to specific people affected by the law.

Emphyteusis

Emphyteusis is a right, susceptible of assignment and of descent, charged on productive real estate, the right being coupled with the enjoyment of the property on condition of taking care of the estate and paying taxes and sometimes a small rent.

It started in the early Roman Empire and was initially granted by the state for the purposes of agriculture or building on land. In essence it was a long-term lease of an imperial domain of private land for a rental in kind. The title existing before emphyteusis was ius in agro vectigali. The emphyteusis gave the lease-holder (emphyteuta) rights similar to those of a proprietor, although the real owner remained the person to whom the rent (canon or pensio) was paid. Nevertheless, the tenant gained most of the rights of the owner. Accordingly, he could maintain actio vectigalis in rem against any one to recover possession of the land thus leased to him. Under certain circumstances, the land returned to the owner (as in the case of the death of the emphyteuta without an heir, non-payment of the rent or taxes for three years (or 2 years in case of land held of the Church), lapse of time if a term was fixed in the original agreement, contractus emphyteuseos, which was a specific contract and neither an ordinary lease nor a sale. The rights of the emphyteuta embraced the full use of the land and its products; they were alienable and transferable by testament or ab intestato.

Family patrimony

Family patrimony is a type of civil law patrimony that is created by marriage or civil union (where recognized) which creates a bundle of entitlements and obligations that must be shared by the spouses or partners upon divorce, annulment, dissolution of marriage or dissolution of civil union, when there must be a division of property. It is similar to the common law concept of community property.

Jurisprudence constante

Jurisprudence constante (French for "stable jurisprudence", or literally, "constant jurisprudence") is a legal doctrine according to which a long series of previous decisions applying a particular legal principle or rule is highly persuasive but not controlling in subsequent cases dealing with similar or identical issues of law. This doctrine is recognized in most civil law jurisdictions as well as in certain mixed jurisdictions, e.g., Louisiana.

The rule of law applied in the jurisprudence constante directly compares with stare decisis. But the Louisiana Supreme Court notes the principal difference between the two legal doctrines: a single court decision can provide sufficient foundation for stare decisis; however, "a

series of adjudicated cases, all in accord, form the basis for jurisprudence constante." Moreover, the Louisiana Court of Appeal has explicitly noted that within Louisiana, jurisprudence constante is merely a secondary source of law, which cannot be authoritative and does not rise to the level of stare decisis.

Law of Lithuania

Lithuanian law is a part of the legal system of Lithuania. It belongs to the civil law legal system, as opposed to the common law legal system.

The legal system of Lithuania is based on epitomes of the French and German systems. The Lithuanian legal system is grounded on the principles laid out in the Constitution of the Republic of Lithuania and safeguarded by the Constitutional Court of the Republic of Lithuania.

Law of Louisiana

Law in the state of Louisiana is based on a more diverse set of sources than the laws of the other 49 states of the United States. Private law—that is, substantive law between private sector parties, principally contracts and torts—has a civil law character, based on French and Spanish codes and ultimately Roman law, with some common law influences. Louisiana's criminal law largely rests on American common law. Louisiana's administrative law is generally similar to the administrative law of the U.S. federal government and other U.S. states. Louisiana's procedural law is generally in line with that of other U.S. states, which in turn is generally based on the U.S. Federal Rules of Civil Procedure.

Law of obligations

The law of obligations is one branch of private law under the civil law legal system and so-called "mixed" legal systems. It is the body of rules that organizes and regulates the rights and duties arising between individuals. The specific rights and duties are referred to as obligations, and this area of law deals with their creation, effects and extinction.

An obligation is a legal bond (vinculum iuris) by which one or more parties (obligants) are bound to act or refrain from acting. An obligation thus imposes on the obligor a duty to perform, and simultaneously creates a corresponding right to demand performance by the obligee to whom performance is to be tendered.

Legal system of Macau

Macau law is broadly based on Portuguese law, and therefore part of the civil law tradition of continental European legal systems. Portuguese law is itself highly influenced by German law. However, many other influences are present, including Chinese law, Italian law, and some narrow aspects of common law.

Macau's legal code is written in Portuguese; therefore law students at University of Macau take their classes in Portuguese.

Matrimonial regime

Matrimonial regimes, or marital property systems, are systems of property ownership between spouses providing for the creation or absence of a marital estate, and if created, what properties are included in that estate, how and by whom it is managed, and how it will be divided and inherited at the end of the marriage. Matrimonial regimes are applied either by operation of law or by way of prenuptial agreement in civil-law countries, and depend on the lex domicilii of the spouses at the time of or immediately following the wedding. (See e.g. Quebec Civil Code and French Civil Code, arts. 431-492.). In most Common law jurisdictions, the default and only matrimonial regime is separation of property, though some U.S. states, known as community property states, are an exception. Also, in England, the birthplace of Common law, pre-nuptial agreements were until recently completely unrecognized, and although the principle of separation of property prevailed, Courts are enabled to make a series of orders upon divorce regulating the distribution of assets.

Civil-law and bijuridical jurisdictions, including Quebec, Louisiana, France, South Africa, Italy, Germany, Switzerland, and many others, have statutory default matrimonial regimes, in addition to or, in some cases, in lieu of regimes that can only be contracted by prenuptial agreements. Generally, couples marry into some form of community of property by default, or instead contract out under separation of property or some other regime through a prenuptial agreement passed before a Civil-law notary or other public officer solemnizing the marriage. Five countries, including the Netherlands, have signed on to the Hague Convention on the Law applicable to Matrimonial Property Regimes, which entered into force on 1 September 1992, which allows spouses to choose not only the regimes offered by their country, but also any regime in force in the country where at least one is a citizen or resident or where marital real estate is situated.

Private law

Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts (as it is called in the common law), and the law of obligations (as it is called in civil legal systems). It is to be distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the state, including regulatory statutes, penal law and other law that affects the public order. In general terms, private law involves interactions between private citizens, whereas public law involves interrelations between the state and the general population.

Trust law in civil law jurisdictions

Trust law is not part of most civil law jurisdictions, but is a common figure in most common law system (and thus in most Commonwealth jurisdictions). Trust law enters civilian jurisdictions through conflict of law arrangements recognizing it as a matter of private international law and has been implemented in the civil code of certain countries such as Liechtenstein and Curaçao.

Usufruct

Usufruct () is a limited real right (or in rem right) found in civil-law and mixed jurisdictions that unites the two property interests of usus and fructus:

Usus (use) is the right to use or enjoy a thing possessed, directly and without altering it.

Fructus (fruit, in a figurative sense) is the right to derive profit from a thing possessed: for instance, by selling crops, leasing immovables or annexed movables, taxing for entry, and so on.A usufruct is either granted in severalty or held in common ownership, as long as the property is not damaged or destroyed. The third civilian property interest is abusus (literally abuse), the right to alienate the thing possessed, either by consuming or destroying it (e.g. for profit), or by transferring it to someone else (e.g. sale, exchange, gift). Someone enjoying all three rights has full ownership.

Generally, a usufruct is a system in which a person or group of persons uses the real property (often land) of another. These "usufructuary" do not own the property, but do have an interest in it, which is sanctioned or contractually allowed by the owner. Two different systems of usufruct exist: perfect and imperfect. In a perfect usufruct, the usufructuary is entitled the use of the property but cannot substantially change it. For example, an owner of a small business may become ill and grant the right of usufruct to an individual to run their business. The usufructuary thus has the right to operate the business and gain income from it, but does not have the right to, for example, tear down the business and replace it, or to sell it. The imperfect usufruct system gives the usufructuary some ability to modify the property. For example, if a land owner grants a piece of land to a usufructuary for agricultural use, the usufructuary may have the right to not only grow crops on the land but also make improvements that would help in farming, say by building a barn. However this can be disadvantageous to the usufructuary: if a usufructuary makes material enhancements to their usufruct, they do not own them, and any money spent on those enhancements would essentially transfer to the original owner at the end of the usufruct.In many usufructuary property systems, such as the traditional ejido system in Mexico, individuals or groups may only acquire the usufruct of the property, not legal title. A usufruct is directly equatable to a common-law life estate except that a usufruct can be granted for a term shorter than the holder's lifetime (cestui que vie).

Vacatio legis

Vacatio legis (Latin: absence of law) is a technical term in both Catholic canon law and civil law which refers to the period between the promulgation of a law and the time the law takes legal effect.

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