Civil law Spain and international private law

Like all private law, Spanish civil law, in contrast to public law, regulates the fundamentally freely entered into relationships between legally equal persons.

Part of private law is civil law or civil law (Derecho Civil). This makes provisions about people, things and obligations, which establish obligations by contract or by law.

In Spain, private law is regulated not only in the Civil Code (Codigo Civil) but also in special laws on commercial law, labor law, tenancy law, family law, real estate law, construction law, banking law, insurance law, etc., which are published in the Spanish Law Gazette (Boletín Oficial del Estado). An important part of civil law is, for example, contract law and sales law.

The current Spanish civil law system, like all Western legal systems, is based on Roman law and its reactions to local historical, cultural and economic developments, among other things. While the Iberian peoples originally maintained their own law, Roman law was generally applied from the 2nd century AD. Although the Visigoths from the 5th century AD brought Germanic influences with them, it should be borne in mind that they had already assimilated Roman law. The lex visigothorum was partly valid in Spain until the 19th century. But the centuries-long Moorish invasion and canon law also left their mark on the law. The current Civil Code is based on a draft based on the French Civil Code and other European laws. This draft from 1851 only partially adopted Castilian law and sought to replace formal law. The law came into force in 1889 and was valid until 1981 without any major changes. As a result of the end of the dictatorship, significant reforms were introduced in the 1978 constitution, such as equality between women and men.

Regardless of all external and internal influences, territorial rights in Spain have always asserted themselves against Romanesque and canon law as well as against Castilian efforts, which ultimately resulted in the draft of the Civil Code of 1851.

Civil law Spain and formal law

According to the justification of the Spanish Constitution and the statutes of the autonomies, Spanish civil law consists of a general law valid throughout the Spanish state and, at the same time, the formal rights of some of the 17 autonomies. According to the constitution, the Cortes Generales, i.e. the parliament consisting of the House of Representatives (Congreso de los diputados) and the Senate (Senado), have the legislative powers at the national level, while the parliaments of the autonomous communities, which had their own historical civil law when the constitution came into force, have the legislative powers to maintain, amend and further develop this civil law.

In Catalonia, for example, the separation of property between spouses applies in property law, while community of gains generally applies in Spain. There are also different inheritance law regulations, which were previously regulated, among other things, in the collections of 1960 and the inheritance law of 1991 and are regulated in the 4th book of the Catalan Civil Code with effect from January 1, 2009, etc.
On the other hand, standards regarding the application and effectiveness of legal provisions, civil law relationships regarding forms of marriage, for example, the basis of contractual obligations and conflict of law rules are regulated by the central government's legislature.

The question of whether the independent civil law of an autonomous community applies in a specific case usually depends on a person's territorial affiliation under civil law.
The Constitutional Court (Tribunal Constitucional) decides on conflicts between the state law and the law of the autonomous communities.

Civil law Spain and international private law

Private international law, also abbreviated as IPR, is regulated by the norms of national law, which are intended to resolve the conflict in the event of a conflict between several possible applicable international private law systems. This occurs when there are circumstances with foreign implications. In such a case, international private law answers whether, for example, Spanish or German law applies. Norms of the German IPR can be found in the EGBGB, the Spanish IPR in Art. 8 f CC (Código Civil, Spanish Civil Code).

Legally concluded international treaties and their legal norms are considered part of the domestic legal system. These legal norms can only be repealed, modified or suspended on the basis of the provisions of these treaties or under international law.

In addition, the European Union's IPR must be observed, such as Regulation Rome I for contractual obligations, which replaces the European Convention on Obligations as an international contract, Rome II for non-contractual obligations and Rome III for divorce law.

As part of the party autonomy of civil law, the applicable law can generally be freely determined by the contracting parties (principle of free choice of law), which has been stipulated for contracts under the law of obligations since 2009 in the Rome I Regulation (Regulation (EC) No. 593/2008).

In contract law, in the absence of an explicit or implied choice of law, sales contracts for movable property are subject to the law of the country in which the seller has his or her habitual residence; in the case of service contracts, where the service provider has his or her habitual residence. However, if the circumstances show that the contract obviously has a closer connection with the other country, the law of that country must apply.

Anyone who, as a German seller or service provider, wants to process the contract according to German law and not Spanish law must negotiate a corresponding explicit choice of law clause.

It should be noted, however, that despite the applicability of foreign law, which the Spanish courts examine ex officio in accordance with Article 12 CC, case law does not assume that the content of this must also be determined ex officio. According to Article 281 II of the Spanish Code of Civil Procedure (Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil, abbreviated as LEC), foreign law must be proven in terms of validity and content. This is interpreted in such a way that the court should only be given the opportunity to provide information. In practice, this means that the respective party asserting a foreign law must also prove its content in the legal proceedings. Otherwise, the court will apply Spanish law. There are high demands on proof of foreign law. If the Spanish court is of the opinion that these are not satisfied, it will again apply Spanish law. In practice, two legal opinions signed by lawyers are generally considered sufficient.

We have assisted a large number of foreign clients as plaintiffs or defendants in Spanish courts over the past more than 20 years and compliance with such requirements before or during legal proceedings is part of our ongoing work.

All of the matters described above concern our permanent areas of activity and areas of responsibility. If you would like to commission us or would like a non-binding cost estimate, please do soContact with us.

With regard to civil law in Spain, we advise, among other things, ongoing on the following issues in Spain:

Natural persons, legal entities; Consumers, entrepreneurs, legal capacity, naming rights, associations, headquarters, constitution, board of directors and representation, appointment and management, resolutions, representatives, liability of the association for organs, board members, general meeting, resolutions, changes to the statutes, exclusion from voting rights, dissolution, legal capacity, liquidation , tasks of the liquidators, registration, register entry, foundations, founders, foundation business, foundation constitution, purpose, legal transactions, legal capacity, nullity, revocation, unilateral legal transactions, service or employment relationship, declaration of intent, fictitious transaction, contestability, compensation, deception or threat, deadline for contesting, written form , judicial settlement, notarial certification, public certification, delivery, interpretation, immoral legal transaction, contract, interpretation of contracts, condition and time determination, suspensive and subsequent condition, representation and power of attorney, granting, revocation and expiration of power of attorney, power of attorney certificate, conclusion of contract by representatives without power of representation , self-dealing, deadlines, dates, start of deadline, end of deadline, extension of deadline, limitation period, limitation period, suspension of limitation period, offsetting and right of retention, withdrawal, securities, movable and immovable property, mortgages, land and pension debts, obligations, good faith, interest rate, lost Profit, immaterial damage, contributory negligence, accountability, place of performance, place of payment, compensation for breach of duty, default by the debtor, default interest, structuring of legal obligations through general terms and conditions, inclusion of general terms and conditions in the contract, retention of title, adjustment and termination of contracts, termination of continuing obligations, mutual Contract, unfulfilled contract, withdrawal, contractual penalty, promise of penalty, warranty, deposit, auction, private sale, offsetting, assignment, assumption of debt, joint and several liability, joint creditor, purchase, exchange, purchase contract, material defect, defect of title, supplementary performance, reduction, exclusion of liability, risk and Transfer of encumbrances, shipment purchase, ship purchase, legal purchase, right of first refusal, recourse, brokerage agreement, form and content of the contract, loan agreement, installment delivery agreement, borrower, lender, donation, subject to conditions, rental agreement, lease agreement, rent reduction, tenant, landlord, lessee, lessor, service agreement, employment relationship , remuneration, transfer of business, employee, employment relationship, termination, termination without notice for good cause, work contract, brokerage agreement, order, agency agreement, compensation claim, exclusion of liability, company, partnership agreement, partner, management, power of representation, company assets, profit and loss distribution, dissolution, obligation to make additional contributions, Community, joint administration, game, bet, lottery and lottery contract, guarantee, declaration of surety, comparison, promise of debt, acknowledgment of debt, unjust enrichment, claim for restitution, tortious acts, liability for damages, property law, possession, property, joint ownership, acquisition, connection, mixing, processing, Burdens, easement, usufruct, housing law, right of first refusal, real burden, mortgage, land charge, owner's land charge, lien, acquisition in good faith, marriage, civil partnership, annulment of marriage, divorce, separate living, equalization of gains, separation of property, contractual property law, marriage contract, community of property, guardianship, care, Maintenance of the divorced spouse, pension equalization, kinship, descent, parental care, representation of the child, custody, guardian, care, inheritance law, succession, legal heirs, legal inheritance law of the spouse, inheritance by testamentary disposition, disinheritance, legacy, inheritance contract, acceptance and renunciation inheritance, acceptance and renunciation of inheritance, renunciation period, liability of heirs, estate liabilities, estate administration, estate insolvency, inventory preparation, community of heirs, co-heirs, estate claims, obligation to provide information, will, joint will, spouse's will, mutual appointment, appointment of heir, substitute heir, subsequent heir, previous heir, legacy, executor, Accounting, inheritance contract, compulsory share, those entitled to a compulsory share; Amount of the compulsory portion, value of the estate, waiver of inheritance, certificate of inheritance. Jurisdiction of the probate court, estate liabilities and much more.

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