Napoleonic Code

The French Civil Code known as Napoleonic Code, is one of the best known civil codes in the world. It was approved by the Law of March 21, 1804 and is still in force, although with numerous and important reforms. Its elaboration was entrusted to a commission created to collect the French legal tradition, resulting in the promulgation of the Civil Code des Français on March 21, 1804, during the government of Napoleon Bonaparte.

History

Upon assuming the First Consulate, Napoleon proposed to consolidate the accumulation of French legal tradition into a single legal text, in order to put an end to the legal structure of the Old Regime, eliminating the special regulations that affected only certain sectors of the population (laws for the aristocracy, laws for peasants, laws for guilds, etc.), and suppressing local regulations that were an obstacle to public administration, formulating a series of generally applicable regulations; it was also intended to eliminate the contradictions and overlaps born from the coexistence of various legal regimes, supporting political stability. He stipulated the abolition of the feudal system, making its resurrection impossible.

This new structure was supported on two axes. The first, the traditional Franco-German law of the north, with Germanic influences from both the German principalities and the Netherlands. Second, the Roman tradition based on the Corpus Iuris Civilis, although modified by medieval commentators, from the south of France.

The commission in charge of drafting the Code was made up of Tronchet, president of the Court of Cassation: Malleville, judge of the same court; Portalis, senior administrative officer; and Bigot de Préameneu, a former member of the Parliament of Paris. The commission was under the direction of Cambacérès, and within four months it presented a draft that was sent to the Superior Court and the Court of Cassation for their observations.

It was eventually reviewed by the Council of State, presided over by Napoleon, before being sent to parliament for approval. Although Bonaparte was only a soldier, his powerful and impressive personality helped to overcome the formal obstacles presented by the Cortes and the obstruction of the bureaucratic apparatus, forcing its rapid approval and entry into force. It is also claimed that Napoleon himself attended more than half of the codification meetings, for his record and evaluation. However, Napoleon's main participation in the Code was reduced to small but transcendental aspects (such as divorce and adoption), where his personal interests played first and foremost. He is also attributed direct responsibility in article 415, which ruled:​

Over the years, Bonaparte understood the paramount importance of legal codification for French national life:my real glory is not to have won forty battles; Waterloo will erase the memory of so many victories. What nothing will erase, what will live forever, is my civil code ( 

en inglés ).Mi verdadera gloria no está en haber ganado cuarenta batallas; Waterloo eclipsará el recuerdo de tantas victorias. Lo que no será borrado, lo que vivirá eternamente, es mi Código Civil ( 

traducción ).Napoleon Bonaparte during his imprisonment in Saint Helena

Drafting

The four editors come from very different places; two are from statutory law countries (Portalis and Maleville), and the other two are from common law countries (Bigot de Préameneu and Tronchet). His intentions are most clearly expressed in the famous preliminary speeches delivered by Portalis when presenting the first draft ( Projet de l'an VIII ) in 1801.

The Code takes up many provisions of the Code of Justinien under the influence of Pothier, it also takes up many provisions of the Coutume de Paris, in particular for easements. His plan, which was adopted without discussion, is close to that of the Institutes , but it is a classic arrangement in teaching and since the publication of Domat's great synthesis of civil law.

The plan of the Institutes consists of three parts:

• People,
• stuff,
• the actions.

The Civil Code plan was originally separated into four books:

• Persons,
• Goods and various modifications of the property,
• Of the different ways in which property is acquired.
• A procedure book (later withdrawn when governed by a code)

The legal philosopher and Romanist Michel Villey has highlighted a process of subjectivation of law. Although Roman law described things, from the 16th  century it is considered that it is the person who is the subject of the action on the thing and that, therefore, it is necessary to describe its means .

The Civil Code consecrated the disappearance of the clan or family lineage, with the figure of the Pater Familias, patrimony and reputation, which had assistance and protection, even revenge, dowry and establishment to its members: marriage is allowed to all, equal distribution is of rigor, while future succession agreements are prohibited, as well as the actions of children against their father and mother for reasons of establishment . The family loses its legal personality, becoming the marriage the only legal personality that could be constituted, the undivided property of the family is penalized by a regime of instability.

The Code focused particularly on property, whose theory is entirely renewed from Roman law, and on inter-individual contracts that correspond well to the liberal philosophy of the urban and rural nobles, caciques. The commitment of people, which includes employees, farmers and suppliers, is treated like that of things in the category of lease and is left to the free will of the contractors. Non-contractual agreements, with quasi-contracts, and commitments without agreements with quasi-infractions were preserved.

Content

The French Civil Code was structured in such a way that it not only covered legal concepts that today are understood as civil, but also procedural and administrative laws and concepts were introduced .

It was structured in four main sections: Persons, Property, Property Acquisition and Civil Procedure .

• About people. Rights over both natural and legal persons. The general capacity of the same, conditions of these to be owners of goods and carry out legally valid acts. Individual patrimonial right.
• Family Law. Filiation, marriage and divorce by civil means, family property law.
• Property law based on Roman Traditio; on movable and immovable property and real rights as donations.
• Conceptualization of obligations and formation of contracts.

Preamble

In despotic States, where the principle is the owner of all the territory, where all trade is carried out in the name of the Head of State and for his benefit, where individuals have neither freedom nor property, there are more judges and executioners than laws; but where citizens have goods to preserve and defend, where they have political and civil rights, where honor is valued like any other good, a certain number of laws are necessary to deal with everything. The various kinds of goods, the various kinds of industry, the various situations of human life, demand different rules.

• Article 1. The nullity of unpublished laws.
• Article 2. The question of the non-retroactivity of laws and their general nature.
• Article 3. The obligation (or not) for the French and for foreigners, whether it be their person, their property or their deeds, the ordinary laws and security and police regulations.
• Article 4. The obligation of the judge to decide on all the cases submitted to him.
• Article 5. The prohibition of giving a general and regulatory nature to its decisions.
• Article 6. The nullity of contracts whose purpose is contrary to morality or public order.

As well as the principle of prescription of rights and actions for thirty years and its derogations.

Book I: on the General Principles of Law

The First Book of the Code (articles 7-515) contains regulations on the civil status of persons, acts of civil status and matrimonial and family law. The Code ignored the institution of legal persons; this is due to the influence of the views of politicians of the era of the revolution, who feared that private associations of individuals could serve as the basis for the revival of feudal and ecclesiastical institutions. Revolutionary ideas of equality and freedom were enshrined in the provisions of the Code: “The exercise of civil rights does not depend on the quality of citizenship; this quality is acquired and preserved only in accordance with constitutional law” (article 7). At the same time, the Code took a step back from revolutionary legislation by restoring civil death: " The first book includes numerous regulations on the rules for carrying out and registering acts of civil status; such a detailed legal regulation was due to the legislator's desire to finally secularize marriage and family relations (organization of civil status records in town halls, secular marriage, admissibility of divorce). The first book includes numerous regulations on the rules for carrying out and registering acts of civil status; such a detailed legal regulation was due to the legislator's desire to finally secularize marriage and family relations (organization of civil status records in town halls, secular marriage, admissibility of divorce).​

Title VI

Rules on divorce were established, originally also characterized by the inequality of the spouses: the husband could ask for a divorce for his wife's adultery (article 229), while the woman could ask for a divorce for her husband's adultery only if “he kept his concubine in a common house” (article 230); this humiliating clause was only abolished in 1884. Other grounds for divorce included abuse, rough treatment and serious injury by the spouse (article 231), as well as the conviction of one of the spouses to a criminal sanction (article 232) . In addition to the previous grounds for divorce, the Code initially preserved the divorce by mutual agreement introduced during the revolution (article 233), which was annulled, however, in 1816, after the restoration of the Bourbons .

Title VIII

The code was based on the assumption that a husband is the father of his wife's children. At the initiative of Napoleon, the institution of adoption (title VIII of the book) was introduced, which operated within rather narrow limits. The Code allowed to establish the illegitimate origin of children by their voluntary recognition: the father could recognize the illegitimate child of him. However, according to article 340 of the Code, the father cannot be compelled to make such a confession (“it is prohibited to determine paternity”). Paternity can only be established judicially in the exceptional case of the coincidence of the moment of conception with the moment of kidnapping of the mother of the child; the range of cases in which the search for paternity is allowed was expanded only in 1912.​

Book II

The relatively small second book of the Code (Articles 516-710) is devoted to things and property rights. The pre-revolutionary division of goods into generic and acquired was replaced by the Roman law division of things into movable and immovable (article 516), as well as those included in civil circulation and withdrawn from it (articles 537-542). In separate articles of the Code, there are other divisions of things, in particular, interchangeable and irreplaceable, divisible and indivisible. The real rights system is also based on the Roman classification: property, usufruct, uses (personal right of use of another's thing) and easements. Mortgage, although, is recognized by the Code as a real right (article 2114), however, the rules about it as a way to guarantee obligations are in the obligations section. The Code does not know real rights such as surface and emphyteusis; possession is considered by him not as a property right, but as the basis of acquisitive prescription.​

The code emphasized individual private property without even regulating common property in detail. Article 544 affirmed the absolute character of property rights, stripped of the feudal hierarchy of owners and of most of the patrimonial and other pre-revolutionary encumbrances. The owner has an unlimited right to dispose of the thing: he has the right to carry out any legal actions with it, including sale, donation, etc. Article 544 provides that the use of the thing by the owner may be limited by law or regulation. , however, according to the concept of the Code, such restrictions are an exceptional phenomenon: they are carefully enumerated in its own rules on easements. Reproducing article 17 of the revolutionary Declaration of the Rights of Man and of the Citizen,​​

The powers of a landowner were interpreted particularly broadly, including the right to the bowels of the earth and the powers in space above the surface of the land: “ownership of land includes ownership of what is above and what is below (article 552). In practice, this meant that the owner of the land acquired ownership of all the minerals and other natural resources available on the site from him. The norm, so unfavorable for the State and the industry, was already revised in 1810 by a special law on concessions. The Code contains detailed rules governing the rights of the owner, including rules on a special "right of accession" (in French droit d'accession), according to which the right of ownership of a thing gives the right to everything it produces,​​

The third title of the second book contained rules on usufruct, on the right of use and on the right of residence, including rules on the rights and obligations of the usufructuary and on the termination of the usufruct. In the fourth and last title easements are regulated. In article 637 easement was defined: "the lien imposed on a property in order to use a property of another owner and for the benefits of this property." The Code indicates the causes for the appearance of easements (natural location of the lots, legal obligations or agreements between owners) and contains detailed casuistic rules that govern the specific easements (in particular, the rights of the owners of the superjacent lots,​​

Book III

The most significant book in terms of volume is the third "Of the various ways in which property is acquired" (articles 711-2281), which occupies more than two thirds of the entire Code, contains the rules of inheritance law and of obligations, as well as the rules on prescription and possession. The Code regulates only the most general issues of turnover; Special regulations on commissions, brokerage contracts, commercial companies and other agreements with the participation of entrepreneurs were included in the Commercial Code of 1807, which consolidated the dualism of French private law: the division into civil and commercial law. The third book also includes the rules of family law relating to the marriage contract and the property relations of the spouses. Usually,​​

Title I: Succession

The Code only regulates inheritance by law; Wills are classified as gratuitous transactions and are dealt with under the next heading, along with the gift deed. In the field of inheritance, the Code starts from the unity of inheritance: the previously existing feudal distinctions between noble and non-noble assets, assets that corresponded to the testator on the paternal or maternal side, etc., are abolished. until the 12th degree they are called to inherit by legal kinship (only in 1917, in particular, to increase the number of inheritances recognized as reversion and subject to transfer to state property, the circle of legal heirs was limited to the sixth degree of relationship). The heirs are distributed by lines (children and other descendants, privileged relatives in the collateral and ascending line, non-privileged ancestors, non-privileged collaterals); the inheritors of each queue are called to inherit only if there are no inheritors of the previous queue. The surviving spouse inherits only if there are no blood relatives. The rights of the testator were significantly expanded compared to the pre-revolutionary law; however, a gift or legacy could not exceed half of the assets if after the testator's death there was a legitimate child, a third of the assets - if there were two, a quarter - three or more children. The hereditary share of an illegitimate child is equal to one third of the share of a legitimate child. The surviving spouse inherits only if there are no blood relatives. The rights of the testator were significantly expanded compared to the pre-revolutionary law; however, a gift or legacy could not exceed half of the assets if after the testator's death there was a legitimate child, a third of the assets - if there were two, a quarter - three or more children. The hereditary share of an illegitimate child is equal to one third of the share of a legitimate child. The surviving spouse inherits only if there are no blood relatives. The rights of the testator were significantly expanded compared to the pre-revolutionary law; however, a gift or legacy could not exceed half of the assets if after the testator's death there was a legitimate child, a third of the assets - if there were two, a quarter - three or more children. The hereditary share of an illegitimate child is equal to one third of the share of a legitimate child.​​​​

Most of the third book is occupied by the law of obligations. The Code reinforces the traditional division of obligations into contractual and non-contractual, but the main basis for the emergence of property is the contract. Article 1134 proclaims the autonomy of the will, that is, the freedom of every person to enter into a contract, observing the legal conditions of validity of the contract in terms of the will, capacity of the parties and foundation of the pact; pre-revolutionary restrictions on contractual turnover per store and other principles are rejected by the Code. The consent of the parties is a necessary condition for the validity of the contract:

The Code proclaimed the principle of the sovereign force of the contract: “legally concluded agreements replace the law for those who concluded them” (article 1134); the debtor who breaches the obligation is obliged to compensate the losses suffered, unless the breach is caused by fortuitous event or force majeure. The Code establishes general rules on contractual obligations, as well as special rules for the most common civil law contracts (sale, exchange, lease, assignment, storage, loan, etc.), while most of the rules on contracts are device and are valid if the parties have not agreed otherwise. Along with contractual obligations, the Code also regulates obligations that arise without an agreement,​​​

The regime of property relations between the spouses, established in the absence of another agreement of the parties, recognized the community property regime of the spouses (article 1393). Under the community regime, all the movable property belonging to the spouses on the day of the marriage form a single property; only real estate that belonged to the spouses before marriage or was acquired free of charge remains separate property (articles 1404, 1405). The husband is the owner of the common property, which he has the right to administer and dispose of without the consent of his wife (article 1421), while the wife does not have the right to dispose of the common property without the consent of her husband (article 1426). The patriarchal character of the Code was also manifested in the norm, according to which the husband even had the right to manage his wife's movable property, although with certain restrictions regarding the alienation of real estate and liability for damages (article 1428). However, the Code allowed the celebration by the spouses before the marriage of a marriage contract to establish a different regime of property relations, including the regime of separation of property of the spouses (articles 1387-1397) .