2010 Colección: Traducciones del derecho español Edita: Ministerio de Justicia- Secretaría General Técnica NIPO: 051-12-023-6 Traducción realizada por: Dª Sofía de Ramón-Laca Clausen Traducción de las modificaciones: Clinter Traducciones e Interpretaciones S.A. Maquetación: Subdirección General de Documentación y Publicaciones SPANISH CIVIL CODE PRELIMINARY TITLE On legal rules, their application and effectiveness CHAPTER ONE Sources of law Art. 1 1. The sources of the Spanish legal system are statutes, customs and general legal principles. 2. Any provisions which contradict another of higher rank shall be invalid. 3. Customs shall only apply in the absence of applicable statutes, provided that they are not contrary to morals or public policy, and that it is proven. 4. Legal uses which are not merely for the interpretation of a declaration of will shall be considered customs. 5. General legal principles shall apply in the absence of applicable statute or custom, without prejudice to the fact that they contribute to shape the legal system. 6. Legal rules contained in international treaties shall have no direct application in Spain until they have become part of the domestic legal system by full publication thereof in the Spanish Official State Gazette. 7. Case law shall complement the legal system by means of the doctrine repeatedly upheld by the Supreme Court in its interpretation and application of statutes, customs and general legal principles. 8. The Courts shall have the inexcusable duty to resolve in any event on the issues brought before them, abiding by system of sources set forth herein. Art. 2 1. Statutes shall enter into force twenty days after their full publication in the Official State Gazette, unless otherwise provided therein. 2. Statutes may only be repealed by subsequent statutes. Such repeal shall have the scope expressly provided therein, and shall always extend to any provisions of the new statute on the same matter which are incompatible with the prior statute. Mere abrogation of a statute shall not entail recovery of the force and effect of any provisions repealed thereby. 3. Statutes shall not have retroactive effect, unless otherwise provided therein. 1 CHAPTER II Application of legal rules Art. 3 1. Rules shall be construed according to the proper meaning of their wording and in connection with the context, with their historical and legislative background and with the social reality of the time in which they are to be applied, mainly attending to their spirit and purpose. 2. Equity must be taken into account in applying rules, but the resolutions of the Courts may only be based exclusively on equity when the law expressly allows this. Art. 4 1. Where the relevant rules fail to contemplate a specific case, but do regulate another similar one in which the same ratio is perceived, the latter rule shall be applied by analogy. 2. Criminal statutes, exceptional statutes and statutes of temporary nature shall not be applied in cases or times other than as expressly provided therein. 3. The provisions of this Code shall be of subsidiary application in matters governed by other statutes. Art. 5 1. Unless otherwise provided, for periods stated in number of days, counting from a particular date, the latter shall be excluded from the calculation, which shall begin on the following day; and periods set in number of months or years shall be calculated from date to date. Where on the month of the expiration date there should be no date equivalent to the initial date of the period, the period shall be deemed to expire on the last day of the month. 2. Calculation of periods according to civil law shall not exclude non-business days. CHAPTER III General effectiveness of legal rules Art. 6 1. Ignorance of the law does not excuse from compliance thereof. Error in law shall only have the effects provided in the law. 2. The voluntary exclusion of applicable law and the waiver of any rights acknowledged therein shall only be valid when they do not contradict the public interest or public policy or cause a detriment to third parties. 3. Acts contrary to mandatory and prohibitive rules shall be null and void by operation of law, save where such rules should provide for a different effect in the event of violation. 4. Acts performed pursuant to the text of a legal rule, which pursue a result forbidden by the legal system or contrary thereto shall be considered to be in fraud of the law and shall not prevent the due application of the rule which they purported to avoid. 2 Art. 7 1. Rights must be exercised in accordance with the requirements of good faith. 2. The law does not support abuse of rights or antisocial exercise thereof. Any act or omission which, as a result of the author’s intention, its purpose or the circumstances in which it is performed manifestly exceeds the normal limits to exercise a right, with damage to a third party, shall give rise to the corresponding compensation and the adoption of judicial or administrative measures preventing persistence in such abuse. CHAPTER IV Rules of private international law Art. 8 1. Criminal, police and public security statutes shall be binding on all persons within Spanish territory. 2. (repealed). Art. 9 1. The personal law applicable to an individual shall be determined by his nationality. Such law shall govern capacity and civil status, family rights and duties and mortis causa succession. A change in personal law shall not affect the coming of age acquired in accordance with the former personal law. 2. The effects of marriage shall be governed by the personal law common to the spouses at the time of the marriage; in the absence thereof, by the personal law or the law of the place of residence of any of them, chosen by both in an authentic instrument executed prior to the marriage ceremony; in the absence of such election, by the law of the place of habitual residence common to both immediately after the ceremony and, in the absence of such residence, by that of the place of the marriage ceremony. Legal separation and divorce shall be governed by the law provided in article 107. 3. Covenants or marriage articles stipulating, amending or replacing the property regime of the marriage shall be valid when they are in accordance with either the law governing the effects of the marriage, or the law of the nationality or habitual residence of either party at the time of execution thereof. 4. The nature and content of filiation, including filiation by adoption, and the relations between parents and their children, shall be governed by the personal law of the child and, if this cannot be determined, the law of his habitual residence. 5. International adoption shall be governed by the provisions of the International Adoption Law. Likewise, adoptions decreed by foreign authorities shall be effective in Spain in accordance with the provisions of the aforementioned International Adoption Law. 6. Guardianship and other institutions to protect incapable persons shall be regulated by the latter’s national law. Notwithstanding the foregoing, provisional or urgent protection measures shall be governed by the law of his habitual residence. The formalities to constitute guardianship and other protection institutions in which Spanish judicial or administrative authorities should participate shall in any event be performed in accordance with Spanish law. Spanish law shall apply to the taking of protective and educational measures relating to abandoned minors or incapable persons within Spanish territory. 3 7. The right to support between relatives shall be governed by the common national law of the giver and the recipient of such support. Notwithstanding the foregoing, the law of the habitual residence of the person claiming such support shall apply where the latter cannot obtain it in accordance with the common national law. In the absence of both such laws, or where neither allows to obtain support, the domestic law of the authority hearing the claim shall apply. In the event of a change in the common nationality or habitual residence of the recipient of support, the new law shall apply from the time of such change. 8. Succession mortis causa shall be governed by the national law of the decedent at the time of his death, whatever the nature of the property and the country in which it is located. However, testamentary provisions and covenants relating to future succession executed in accordance with the national law of the testator or bequeather at the time of execution thereof shall remain valid even if another law is to govern the succession. Rights attributed by operation of law to the surviving spouse shall be governed by the same law which governs the effects of marriage, respecting at all times the forced share allocated to the descendants. 9. For the purposes of the present chapter, the provisions of the international treaties shall apply to situations of dual nationality provided under Spanish law, and, in the absence of such provisions, the nationality of the last place of habitual residence and, in the absence thereof, the last nationality acquired shall be preferred. In any event, Spanish nationality shall prevail for persons who also hold another nationality that is not provided for in Spanish statutes or international treaties. If such person should hold two or more nationalities, and none should be Spanish, the provisions of the following section shall apply. 10. The law of the place of habitual residence shall be deemed to be the personal law of persons without nationality or with indeterminate nationality. 11. The personal law corresponding to legal entities shall be determined by their nationality, and shall apply in all matters relating to their capacity, incorporation, representation, operation, transformation, dissolution and termination.