Basque civil law
- 1 History
- 2 Theoretical summary and thematic development
- 3 The Charters of Biscay, Álava and Gipuzkoa, in particular
- 4 Modern Age
- 5 The Spanish Codification
- 6 Compilation
- 7 The Spanish 1978 Constitution and the Statute of Autonomy of Euskadi/Basque Country
- 8 The (Basque Parliament) Act 3/1992, 1992-07-01, Basque Civil Law Charter
- 9 The Basque Law Academy
- 10 The in force Basque Civil Regulation
- 11 Civil Law Charter of Biscay
- 12 Civil Law Charter of Alava
- 13 Civil Law Charter of Gipukoa
- 14 The Proposal of a Basque Civil Law Act in 2012-05-09
- 15 References
- 16 External links
“Flanked by three universal influent juridical systems, the Roman law, which seems to face two contradictory laws, the canonical and the civil ones; the Germanic Law, that leaks out through the Corpus Iuris cracks, and flourishes in an uncountable number of local laws, and the Islamic Law, that pretends to impose its Koran unitary rule to all abroad, the Basque people introduces us into its own juridical system developed according to the following patterns: The Private law sets the woman full capability and under all circumstances equality to man; the indivision of the Family Heritage and therefore emancipating the non inheriting offspring; as well as giving the neither cultivated nor fenced soil a ruling main character to ease the non heirs to gain their own wealth. The Public Law gives the Family house a public law entity status, so that the house chief is also the judge having jurisdiction when acting in behalf that house (etxe-jauntza); and articulating the country’s personality in the basis of the presence of all Basque Family chiefs in a Assembly, the whole country’s Assembly, without which the King’s Lord nor has rights other than his own office, neither is entitled to modify the Country’s Law. This Public law is expressed in the Basque noun “jauntza” that in those times was far from meaning the power of the Landlord, but that every Basque individual was a Lord himself”.
Theoretical summary and thematic development
1.1. Concept: According to the Dictionary of the Royal Spanish Language Academy, “Foral” is the adjective of the noun “Fuero” that in juridical English means: a) jurisdiction, which either can be classified in terms of the kind of applicable Law (i.e. Ecclesiastical, Secular, Civil, Administrative, Labour…), or under territorial criteria; b) the code of laws applicable to a case, or c) in, a territorial sense, as a Charter. We must highlight that the aforementioned Dictionary first meaning for “Fuero“ is” the charter of a given territory that the 1978 Spanish Constitution has preserved for Navarre and the Basque Country”.
Etymologically “Fuero”, derives from the Latin Word “”, that is the place where the Court hears the causes, and not from “Foedus”, also in Latin, treaty, pact or alliance, which is coherent with the historical origin of the Basque Charters as juridical corpus applicable to determine either the lawsuit itself or the competent jurisdiction to judge that lawsuit. Also merges with the historical origin of both the Village’s Charters and the Countryside’s Charter.
The term “Chartered Law” was used for its real first time in a letter sent by the University of Valencia staff to the King Charles the Third, with occasion of his accession to the Throne, applying for reestablishment of the Region of Valencia Civil Charter abolished by Phillip the Fifth. Nowadays, Chartered Law means, a formal statement of the rights of a country's people both in the public and private Law areas, but sin 1759 on, the term is used in Spain to name the peculiar Civil Law of the territories that resisted the centralization politic initiated by Phillip the Fifth.
1.2. The Basque Charters: The characteristics of a juridical system: A congress held in Andorra about the Law stated that, prior to the French Revolution the Law in the northern side of the Pyrenees had many points in common with the Law in its southern side. It was deemed as proved that the Pyrenean Law is a peculiar regulation that only arbitrarily could be classified as Roman or Germanic. It is stated that the Basque Law fully adapted to the economy within, as well as to the Basque People social life. A Country of farmers and small artisans, isolated homesteads and almost domestic industries had to ensure the conservation of the Family Heritage, avoiding its division due to dire consequences. So the Biscay Charter does, permitting the testator to transfer his heritage, focused on the Homestead, either to just a single inheritor or to freely distribute it among his progeny.
As manifestations of a common background of the Basque Charters, we can identify, in the Public Law area the creation of a complete institutional and political own system based on: a) Internal free trade. b) Taxes exemption. C) Contribution to the Crown through a fiscal given. d) “Pase Foral” or non-compliance with those King’s Acts in contradiction with the Charter, c) Compulsory military service exemption and f) a system of individual rights, inviolability of the domicile and prohibition of torture.
In the Private Law area: a) Freedom of testation (among the descendants). b) Unity and indivisibility of the Family Heritage. c) Agreement as to Succession and Marriage Contract as titles to transfer the Family Heritage, not only by means of the Roman testament. e) The marriage universal community of property and f) a concept of the property focused on the Family, far form the Liberal individualist definition.
1.3. The Basque Charters, a territorial reality: Nonetheless the aforementioned common background, “It is a remarkable Basque peculiarity that the different territories considered Basque have never joint into a political unity, with the sole exception of the Reign of Sancho the Great from Navarre. Every Basque territory has lived its own History and, in spite of some similarities, with also remarkable differences, has created its own legal system. Therefore it is necessary to separately analyse the different Charters throughout every corner of the Basque Land. The essence of the Basque Law should be discovered in a later work, to try to infer, above the peculiarities, among the variety of rules and institutions all what is shared”.
The custom is the original Basque Law, born form the free and spontaneous juridical activity of the fellow citizens, the experience and the clash of the economical interests. Its result is the sequence of charters that are “written”, that is, more than Act enactments, mere record of the precedent usages.
The most accurate juridical meaning for the Word “Fuero” is found in the first “Partida” which states: “Charter is a concept that includes two aforementioned things, custom and usage, which both must enter into the Charter to become in force. Custom as long as men must get used to and love it. The usage is like an agreement that is to be handled and observed, and if the Charter is right, made of good usages and customs, turns into Law as long as keeps humankind in peace and justice…”.
So, the point is not “a Royal enactment upon the Court or the concession by the competent authority of a Charter of establishment of a Village, but mainly the cultural fact of Law writing and the subsequent availability of knowledge, lawsuit, concession as privilege, and its value as a documentary proof mean”.
And Ana María BARRERO GARCÍA concludes: “Trough the observation of the data resulting from a vast number of local charters from different dates and regions, it seems that this work was characterized by its intensity and insecurity, due, no doubt, to the technical difficulties inherent to the effort of abstracting the daily activity of authorities and fellow citizens to a written regulation; to the deficiencies related to the knowledge of the usage that might pop up; or the actual being of their recording documents. It is therefore not surprising that there could be different versions of the same local Charter, all of them suitable of being acknowledged as so; hence a certain version might not be considered as the definitive one”.
A “race” between the Villages and the Countryside can be observed during the low Middle Age in order to leave a written, official, testimony of their characteristic Laws.
a) The first legal text ruling the “Merindad” (County) of Durango, Biscay, was enacted by the King of Navarre Sancho the Wise and written in a missal of the church of Saint Agustin of Echevarria approximately in 1.200 b.c. Circa 1.342 b.c. the Charter of the County of Durango was written, including the custom and usage about succession, property, Criminal law, etc., till then orally transmitted. This Charter lasted till the enforcement of the Charter of Biscay, which was not initially accepted by the people of Durango, who preserved for a while the application the aforementioned own legal text. b) The Charter of Abellaneda of 1394. The Charter of Custom and Usages in force in the County of “Las Encartaciones” was written in 1394, 58 years before the redaction of the Biscay Charter. This Encartaciones first Ordinance or Charter, edited under the impulse of the Mayor appointed by the King Gonzalo Moro, had 45 articles or epigraphers. Inspired by the Brotherhood Ordinance of Biscay, was led by a preface, changed some penalties, inserted some original provisions and added some civil regulations. d) The Old Charter of 1452. This Charter is divided into 210 chapters or norms (unnumbered, Astuy´s edition aside) that rule diverse issues: The oath of the Lord, trade freedom, fiscal freedoms, process warranties, etc. as well as a vast number of civil provisions. In 1506-02-11, by means of the Mayor appointed by the King Vázquez de Acuña application, a revision of some regulation was held, the most interesting one, the provision, in order to avoid the application of Roman or Canonical sources in the interpretation of the Biscayan Law, the latter literal interpretation. e) The Charter of the Encartaciones in 1503 includes 111 chapters or provisions. The last 38 ones are the Common Law charter, mainly Civil Law. The text also comprehends the Neighbours’s Charter applicable on Salcedo and Gordejuela valleys. f) The New Charter of 1526 includes 36 epigraphs divided into an unbalanced number of norms. It is an incomplete text since its ignores many institutions, something logical in some cases due to the subsidiary enforcement of the Law of Castile, but not about some Biscayan deep-rooted customs, specifically in the Public Law area, where, as a matter of fact, it is remarkable the absence of any regulation about the notification and functioning of the Biscay County Assembly. However, the Charter rules the utmost important institutions, and mainly, the essential freedoms that constitute the Charter regulation.
The Villages vs. the Countryside of Biscay:
As in the rest of territories of the Iberic peninsula, the need to use legal texts reflecting their own Law, prompted the achievement of the first results in urban areas, either in the Encartaciones, Biscay or Durango, before these Counties’ Countryside did. The aforementioned urban Charters, basically imitated Logroño’s one. The Villages were established from 1199 on: Balmaseda, Orduña (1229); Bermeo (1236); Lanestosa(1287); Plencia/Gaminiz (1299); Bilbao (1300); Ochandiano (1304); Portugalete(1322); equeitio (1325); Ondárroa (1327); Villaro(1338); Marquina (1355); Elorrio (1356); Guernica y Guerricaiz (1366); Miravalles/Ugao (1375). The last three ones were established upon Biscayan people’s request to defend themselves from the Gang Wars: Munguía, Larrabezúa and Rigoitia in 1376. The Villages of Durango and Ermua, established in 1212, enacted their Charter in 1372.
The agreement of 1630 between the Villages and the Countryside :
The demarcation of the territories where the Charter of Biscay is in force is they key and most difficult question due to the historical evolution of the Villages and the Countryside and the complexity of identifying their corresponding areas.
In opposition to the general enforcement of the Public Law to any Biscayan individual, the Biscayan Civil Law was not overall in force: The universal yeomanly status, i.e., was applicable to any Biscayan person; no matter his domicile were the Villages or the Countryside. In the other hand, the Family and Inheritance provisions are only in force in the Countryside, also called Yeoman Land.
The Villages where the Spanish Civil Code is nowadays in force are: Bermeo, Durango, Ermua, Guernica y Luno, Lanestosa, Lequeitio, Marquina, Ochandiano, Ondárroa, Portugalete, Plencia y Valmaseda, the City of Orduña and all the Municipality of Bilbao. The 1630 Agreement, which enabled the Villages to change to the Charter of Biscay in their territory, was adopted by Elorrio (1712), Bermeo (1734), Ochandiano (1818) and Villaro(1825).
Some Public Law hints:
The “Juntas Generales de Bizkaia” (Biscay County Assembly) was the legislative power; whereas the executive power was held by the “Diputación” (County council, formerly, “Regimiento”). There was an own Supreme Court of Appeal, a special section of the Royal Chancellor in Valladolid.
The Charter of Alava can be traced back to the 1322 agreement between the King of Castile and the County of Alava, which incorporated the latter to the Crown of Castile as both a Crown and Manor property; and conceded the yeomen –not the servants- overall Tax exemption. The County of Alava is established in 1417 after the gradual incorporation of seven areas. Different Ordinances were enacted throughout time, among which, stands out the Ordinance by the Rivabellosa Assembly, approving a very important Compilation in terms of assessing the Charter institutions. After the enactment of the Royal Statute and the Ordinance of Alcala (1348) the Castilian Law, a marginal acceptance of the local custom aside, became in force in Alava. This is the reason why Alava does not have its own Civil Law, with the exception of the Ayala Valley, and the municipalities of Llodio and Aramayona, where the Charter of Biscay is in force.
Within the circumscription of Alava, the Valley of Ayala is a land limiting northwards with Biscay and southwards with the Losa Valley, Burgos province. The Valley of Ayala is mentioned as “property of their inhabitants” in the Salmantinian Chronicle (9th century). Time after that valley became a Manor of the Counts of Ayala: “the Manor of Ayala, according with its 1373 Charter, is like the Manor of Biscay, as they are twinned”. In 1463 Ayala merged with the County of Alava but preserved its own authorities and courts. The 1373 Charter, enacted by the Count Fernán Pérez de Ayala, in a meeting with the five Town Mayors of the County of Saraube, was a compilation of customs and usage. It is divided into 95 chapters, 15 of which (according to Galíndez) were directly copied from the Royal Statute, whilst the rest of them comprehend the County of Ayala usage, and among which the chapter XXVIII states the utmost testamentary freedom. In 1469-06-24, García II of Ayala enacted an extension of the Charter with 16 additional provisions, mainly focused against the Gang Wars, therefore not very interesting under the Civil Law point of view.
In 1487 the people of Ayala, already part of Alava, since its unwritten Charters were considered prone to many mistakes, agreed with Don Pedro López de Ayala the renouncement to the antique laws and the adoption of the Royal Statute, Laws of Partida, and Royal Ordinance, “except for the inheritances and successions of every citizen of the aforementioned land, so that they are entitled to testate, legate or donate, any or all their assets to anyone, separating their sons and relatives, at will. Also, nor citizen, neither foreigner shall be imprisoned in these land for debts, debts to Kings or the Lord aside, since so long it was the usage in the past …”
In political terms, the Basic institution is the “Juntas Generales” (County Assembly) that appointed a “Diputado General” (County Major Councillor), the top rank within the province, as well as appointed the Particular Council, formed by seven members each appointed by one zone. The Authority was the “Diputación” (County Council, formerly, “Regimiento”).
The Charter institutions can be traced back to the County Ordinances, 1397, which established among the municipalities of Gipuzkoa an alliance or brotherhood, that long lasted and evolved into a permanent institution. Originally this alliance had both a judicial and security focus. That is, the allied municipalities decided that they could more easily defeat the local landlord’s gangs if joint.
However, as time past, this association enabled other powers such as government, taxes, military and legislative. Therefore the last General Brotherhood of Gipuzkoa turned into the most important political and judicial organ within its territory.
Gipuzkoa was ruled by a Compilation edited in Tolosa in 1583, corrected and augmented due to the province’s request in 1692 and printed in 1696 under the title “New compilation of the Charters, Privileges, good usages an customs, provisions and ordinances of the very noble an loyal Province of Guipuzcoa”. The County Assembly, composed of 57 members, chosen by the 57 City Mayors, met every July to write the new regulation demanded by the public interest. Before leaving the annual meeting, they delegated their powers to four “Diputados Generales” (County Mayor Councillors) elected among the people of the cities of San Sebastián, Tolosa, Azpeitia and Azcoitia. The County Major Councillor of the township in which the Major Appointed by the King resided that year, altogether with his adjutant and the two local first councillors, formed the Ordinary County Council, competent to deal with non extremely important issues. For the latter, and anyway twice a year, the Extraordinary County Council, formed by the four Major County Councillors, should be called.
The Charter of Gipuzkoa does not include civil regulation, pastures (epigraph XL) and distances between plantations (epigraph XXXVIII) provisions aside. After the incorporation into Castile, the lack of written regulations prompted the jurisdictional application of the Royal Statute and the Castile Law, although the customs about succession and Family survived. It is however notorious the nowadays subsistence of those family and inheritance usages in many ways similar to those in Biscay; and in fact, the County Assembly failed to exit from the Regulation of Castile in 1555, 1587, 1659, 1671, 1673, 1712, 1747.
Consequently, the Civil Code is nowadays in force in Gipuzkoa, although in the rural areas the usages preserving the unity and indivisibility of the Homestead are observed by the families: Family Patrimony unity, Family assets Communal Tenancy, Dowry, etc.
The most important political organ in Gipuzkoa, as well as in Biscay and Alava, was the County Assembly, that ordinary met every July the 2nd. The Mayor Appointed by the King, or supreme Magistrate, was the President of both the County Council and the County Assembly and, although, had no voting right, was elected by the fellow citizens and had to reside for three years in the aforementioned towns.
The Spaniard King Phillip V by means of the New Jurisdictional Decrees abolished the main part of both Public Law institutions and sources in the Spanish regions of Aragon, Valencia, Cataluña and the Balearic Islands. However, the application of their own Civil Law remained, but corseted, due to the aforementioned deletion of their own sources of law. Navarre and the Basque Country did not share the same fate, since these territories were loyal to that Monarch, appointed by Charles II’s testament as the successor in the Crown, in opposition to the Charter Institutions of the other four territories referred to, who proclaimed the Archduke Charles of Austria as the King of Spain, a Monarch imposed by international treaties against that will.
The Spanish Codification
The 1812 Spanish Constitution settled the principle of National Sovereignty and the corollary of the latter was the unification of both Jurisdiction and Law due to a proposal by Espiga y Gadea: “The Civil, Criminal and Commerce Codes will be the only ones for all the Kingdom, notwithstanding the variations that under particular circumstances may the Parliament introduce”, and hence this last sentence gave the Charters a chance of survival.
The instability, first due to the War of Independence, later due to the Ferdinand VII’s political turns, and after his death, the Carlist Wars, delayed the Codification till the establishment of a General Coding Commission, which in 1846 finished the utmost important project preceding the today in force Civil Code.
The first consequence of the Carlist War was the abolition of the Charter Regime by means of the substitution of the County Council by the Province Council (1836) and the gradual suppression of the Charter Jurisdictional system through the introduction of the Magistrate and the Court of Appeal (1835). General Espartero, in the “Hug at Vergara” promised the preservation of the Charters, and consequently, the 1839-10-25 Act states “The confirmation of Charters of the Basque Provinces and Navarre, notwithstanding the constitutional unity of the Crown”. Apparently, the Charters were safe, but the constitutional unity salvo enabled the suppression of the most characteristic institutions, if discordant with the Constitution. The 2nd article of the Act stated: “The Government shall propose to the Parliament the indispensable modification on the aforementioned Charters demanded by the Provinces interest, reconciled with the general interest”.
The 1851 Civil Code Project, also known as the García Goyena´s Project is part of this spirit. Both based on the Napoleon Code and the Spanish Law essence and tradition, derogated previous Charters, custom and usages in force, but its radical suppression of any Charter, eventually resulted into the its rejection and non enactment.
This made the representatives of the territories which had a historically rooted Civil Law, raise their voices defending their Laws. We observe two faced positions, those who thought that the juridical unification was to succeed through the construction of a rational law (in the Illustration sense of term) that ought to be enacted by means of a common Code for the entire Nation; and those who wanted to preserve the historical Law of the former Kingdoms. There was also a more radical view, consisting on the unification through the extension and depuration of the Castilian Law, the old Royal Law transmuted into National Law.
The 1863 National Jurists Congress agreed the solution that in the end succeeded: The Civil Code, once enacted, should be in force in all Spain for just marriage and Title I related subjects only. For the very rest, those provinces or territories with surviving Charters should retain their own written or custom Law, notwithstanding the enactment of the Civil Code, merely subsidiary.
In the meantime the failure of the 1851 Project, turned into the enactment of urgently needed special Acts, such as the Mortgage Act (1861), Notary Act (1863), Water Act (1886), Civil Marriage and Civil Register Act (1870), in force in all Spain.
In 1880 the codification wish resurges, by means of creating a unique Civil Code based on the regimes of those regions with their own Civil Law, extracting the most peculiar institutions from each one. Therefore some representatives from the Chartered Regions were included in the Codification Commission, but in the end no result was achieved.
Thus, the 1889 Civil Code inherited that idea, included in the Basis of the Civil Code Act of 1888, that the former shall compile the essential content of the Law then in force, and subsequently its successive appendixes –also enacted by the Parliament- shall annex the different Charters (#6). This system only succeeded in the case of the Civil Charter of Aragon, the 1923 Appendix, enacted in 1925 and in force in 1931. Consequently, the Decree 1889-04-17 ordered the Government to nominate the Special Commissions to deal with such a task, and another Decree in 24-04-1889 erected the Special Commission to draft the Civil Charters of Biscay and Alava. In 1900-02-09 this Commission held its last session and considered its task fulfilled.
The Special Codification Commission for Biscay, presided by Mr. Manuel Lecanda, had six members, three appointed by the County Council of Biscay, one by the Bar Association, and one by the Burgos Notary Association. Later, by means of the Decree 1899-05-15 three additional members from Alava entered the commission. This first Civil Code Appendix draft was never enacted.
Although the commission drafted its famous Project in 1900, it remained halted till 1928 when the Bar Association of Biscay produced a report about the former including some changes, but no further achievements succeeded. The Bar Association of Alava also reported about Ayala in 1930. Non of them were successful by that time.
The Basque Studies Society in behalf of Gipuzkoa applied for the writing of the usages in 1918 and 1930, with no result. Nevertheless, with increasing difficulties, the people from Gipuzkoa observed its customs, located in the rural areas.
The summarizing of the Civil Law Charters was halted till the National Civil Law Congress held in Zaragoza from 1946-10-09 to 1946-10-03, which retook the of the old idea of a general Civil Code, which shall systematize the historical institutions of every Territory, balance their enforcement and practice with present days needs, adapt them to the Civil Code system and avoid coincidences and repetitions. The suggestion was adopted by the Decree 1947-05-23, and thus, Commissions were appointed for Aragon, Cataluña, Balearic Islands, Galicia, Alava and Biscay (Order 1947-06-24) . The Compilations enacted as the result of the Zaragoza initiative were: Biscay and Alava (1959-07-30 Act); Cataluña (1960-07-21 Act); Balearic Islands (1967-04-19 Act), and Navarre (1973-03-01 Act).
In order to complete the Commission of Jurist created, the Decree 1953-10-23 of the General Codification Commission, ordered the incorporation of Charter supporter members to assess the Compilations and to raise to the Government the project drafts. The Commission created a special section under the former presidency integrated by two Charter supporters from Biscay and Alava and by representatives of the First Section in order to draft a Project, based on the Biscayan Bar Association report dated in 1928.
The 32/1959-07-30 Act, the Compilation of Civil Law Charter of Biscay and Alava was the summit of that task. It is divided in two books, respectively focused on the general regulation in force in Biscay and Alava. The Second Book, dedicated to the latter province has two titles, first and second, related to the demarcation of the Civil Law in Llodio/Laudio and Aramaio (with express submission to the Biscayan Law) and the Civil Law of the Ayala Valley.
The Spanish 1978 Constitution and the Statute of Autonomy of Euskadi/Basque Country
As Democracy came to Spain, the 1978 Constitution opened a new way for the Charters, from then on autonomic Civil Laws, greatly empowered by means of #149.1.8º, which prompted the revision of the Compilations, both in terms of politics, since it will come from the regional parliaments, and in terms of contents, as entitled not only to preserve, but to modify and develop their Civil Law. The nowadays in force Organic Act 1979-12-18, the Statute of Autonomy of the Basque Country, extends those autonomic powers (#10.5) both to written or custom Law, and sets its demarcation.
According with those powers, the Basque Parliament Act 6/1998 modified the Compilation and stated, in accordance with the traditional civil liberty that inspires the Charter system, the freedom to agree or to modify the Marriage Property Regime, before or after the wedding. It also removed any discrimination between legitimate and illegitimate children.
The (Basque Parliament) Act 3/1992, 1992-07-01, Basque Civil Law Charter
The Compilation was derogated and substituted by the Basque Parliament Act 3/1992, 1992-07-01, Basque Civil Law Charter (BCLC, from now on). It was completed with the (Basque Parliament) Charter of Gipuzkoa Act 3/1999 focused on the Homestead succession in that territory.
The background of that renovation is the Civil Law Congress held in San Sebastian in 1981, which highlighted the Doctrine confusion about an eventual renovation of the Charter. A Seminar organized within the Biscayan commission of the Basque Royal Society of the Friends of the Country resulted into great interest and the flourishing of a bunch of jurist eager for the Basque Civil Law Charter.
Between the mid and the final 80´s several Civil Law Charter projects were drafted. Among them, we must highlight, due its exhaustiveness and the subsequent influence in the later initiative of the County Council of Biscay, the Civil Law Charter of Biscay project written by the Basque Royal Society of the Friends of the Country, the Reform of the Compilation for Biscay and Alava draft by the Notary Bar Association of Bilbao and the Civil Law Charter of Biscay draft by the lawyer and Biscayan Law studious from Gernika Mr. Julián Arzanegui Sarricolea.
Immediately after the San Sebastian Congress, the Works towards the Compilation reform started, including a draft presented to de County Council of Biscay. Following this trail, from 10 to 12, December 1986, a Seminar about the up to date of Civil Law of Biscay was held in Bilbao, revealing major advances on our Civil Law Charter knowledge.
The Civil Law Charter Commission appointed by the County Council of Biscay adopted in 1991 a text and sent a copy to the County Council of Alava, which also nominated a Commission to write the Charter Civil Law of Alava. The County Assembly of Alava approved an Act proposal sent to the Basque Parliament, simply adopting its Commission proposal.
Thus, a Common Act for the three Historical Territories of the Basque Autonomic Community was enacted, with a preliminary Title about the sources of law, and three Books (I, Charter of Biscay, the Villages vs. Countryside duality included; II, Charter of Alava, regulating the essence of the Charter of the Ayala Valley; and III, Charter of Gipuzkoa, a mere reference to some customs).
The President of the Government appealed upon the Constitutional Court against some of the Act articles, but after a Council of State report, the Government desisted such appeal.
Finally, the Act 3/1999 modified the Basque Civil Law Act in terms of introducing the Homestead regulation as a farm.
The Basque Law Academy
The Basque Law Academy (Zuzenbidearen Euskal Akademia in Basque language –BLA, from now on-) was erected due to a proposal in an Extraordinary Assembly of the Basque Royal Society of the Friends of the Country (the original core of the BLA) in 2002-11-29.
It is a private organization with about 200 associated jurists from the professional and University sectors, under Mr. Adrián Celaya Ibarra presidency. The BLA is formed by truly Law operators: Lawyers; Civil Servants from administration such as Fiscal, Basque Parliament; Magistrates; Notaries, Registrars, etc. who usually face the Law issues; as well as University members. A result, the magazine “JADO” publishes valuable articles that dip into the Basque Law knowledge as an instrument to serve the civil society, not as goal itself.
There are four main activity lines:
1. Regulation proposals:
Three progressive attempts to renew the Basque Civil Law: A Basque Civil Law draft in 2001, a second one in 2007 an the Civil Law Proposal of 2012 , in cooperation with the Biscay Bar Association.
Nowadays BLA edits several publications, mostly about the Charter Civil Law, such as JADO the magazine, both in paper and in the internet (http://www.avd-zea.com/castellano/el_boletin.php); and the Basque Law Classic Collection (“Euskal Zuzenbidearen Klasikoak Bilduma”).
The Basque Civil Law Data base (“Forulege”http://www.forulege.com/default.cfm?atala=estatikoak&id=1&hizkuntza=1), developed by BLA, supplies the user in force regulations, jurisprudence, bibliography and patterns that may be useful in Basque Civil Law. The Data Base also offers FAQ so that the reader gets a glimpse about what the Basque Civil Law is and what it means. Finally it is possible to access to all the information compiled in the different sections due to various searching system: a free search system, a fast search system, a guided search system, according with the territorial specialities; either in Fiscal and Civil Law.
4. Training & divulgation:
The working boards are very popular and classical monthly meetings held in cooperation with the Bar Association of Biscay to study any Basque Civil Law issue and its practical use. Every November there is a Basque Civil Law Charter seminar with many lecturers either from Spain or abroad and great media success.
The in force Basque Civil Regulation
The 3/1992 Basque Parliament Act, is divided in a preliminary Title, and three Books, the Civil Charter of Biscay, the Civil Charter of Alava and the Civil Charter of Gipuzkoa.
The sources of law are the written laws, the customs and the traditional law general inspiring principles; the Jurisprudence by the Basque Superior Court, and, subsidiary, the Civil Code –CC- and the rest of the Spanish general regulations, although the latter, must be interpreted according to the aforementioned Basque Civil Law General Principles, starting with the Civil Liberty.
The Civil Law Charter of Biscay is in force in all the Countryside, that is with the exception of the non Chartered Villages (Balmaseda, Bermeo, Durango, Ermua, Gernika-Lumo, Lanestosa, Lekeitio, Markina-Xemein, Ondarroa, Otxandio, Portugalete and Plentzia, de the City of Orduña and the municipality of Bilbao),where the general Spanish regulation is in force. Outside Biscay, in Alava, the municipalities of Llodio/Laudio y Aramaio are ruled, however by the Civil Law of Biscay. Finally there is a procedure to convert the Villages to the Countryside regulation, but there is no option to do the opposite.
The Civil Law Charter of Alava is just the Ayala Valley’s, in force in the municipalities of Amurrio and Okendo as well as in the hamlets of Mendieta, Retes de Tudela, Santa Coloma and Sojoguti.
The Civil Law Charter of Gipuzkoa was not included in the Compilation. However, it is acknowledged that, although no written laws existed, the people of Gipuzkoa lastingly preserved their own institutions, similar to those in Biscay and Alava.
Due to that Law variety, up to five status can be found (Basque people not subject to Spanish Law, aside): A) The Spanish General Law, in force in all Gipuzkoa (with the sole exception of the Homestead regime) and the main part of Alava (Ayala Valley, Llodio/Laudio and Aramaio, aside); B) Biscayan people subject to Spanish General Law (General Law Biscayans), although they can make Power of Appointments (testamentary or not) and Joint Testaments; C) Charter Biscayans, D) Charter Ayalians and E) and the Real Estate Trunk Lineage Condition enforceable even to people formerly Charter Biscayans.
Civil Law Charter of Biscay
By provisions of the BCLC first Book and its remission to zoning laws, the Biscay Civil Law constraints its enforcement to all the Biscayan Countryside and some parts of the municipality of Bilbao and the twelve Villages (#6: Balmaseda, Bermeo, Durango, Ermua, Gernika-Lumo, Lanestosa, Lekeitio, Markina-Xemein, Ondarroa, Otxandio, Portugalete, Plentzia, and the City of Orduña).
The personal status is therefore set by the “vecindad civil” (personal interregional Spanish civil statute; civil-residence, from now on) so that the Biscayan status is applicable to any civil-resident in Biscay, among which, we must distinguish between General Law Biscayans or Charter Biscayans depending on the fact of their residence within or outside the Countryside or the non Charter zones of the Villages (#10 & 12 BCLC and #14 CC).
The aforementioned non Charter zones (#7 BCLC) “shall be integrated by the nowadays original town perimeter and the adjacent land zoned as “urban” according to the zoning laws in force at the time of the enactment of the present Charter”, so the subsequent zoning modifications will not change the extension of the non Charter territory (#8). That is, the zoning laws in force three months after the BCL enactment in the Basque Gazette, determined the demarcation and froze the Villages further extension. According to #1 Additional Provision to the BCLC, the demarcation maps were drafted and approved by the County Assembly of Biscay in 1994-05-4 and sent to the Basque Superior Court. However these topographic maps are not accurate due to its big scale (http://www.forulege.com/default.cfm?atala=mapak&hizkuntza=1).
Real Estate Trunk Statute
“The utmost peculiarity of the Basque Law is definitely, the deep-rooting Real Estate Trunk Statute; either applicable to the testate and intestate succession, to Causa Mortis or inter vivo acquisition, to onerous title or gratis, and out-enforcing in comparison with our surrounding countries, even among the Pyrenees Charter regions”. The BCLC does not give a definition, instead, regulates the Real Estate Trunk Statute. Etymologically the Spanish legal term “Troncalidad” is an adjective that comes from the noun “Tronco” and the former means the qualities inherent to that “Trunk”. That is, a Lineage Condition inherent to the Real State property in the Countryside (and Llodio/Laudio and Aramayona, #146).
From a modern point of view, the Trunk Statute is the basic Status of the Real Estate in the Countryside, so, in contradiction to the Roman property perception (#348 CC), that considered unrestricted all the entitlements onto the Real Estate, the BCLC “constrains the property right and the entitlements within” (Domain: transfer, free use, accession, and recovery, summarized in the Roman formula “ius utendi, fruendi, abutendi, vindicandi, disponendi”). The Trunk proprietor has its full transfer rights disabled (#17 BCLC), has never acquired such entitlement; he can only transfer that property to the so-called Trunk Relatives or otherwise the deal is deemed as null and void (#24 BCLC) if gratis, or, in case of an onerous title deal, the latter is subject to emption rights by those relatives. (# 112 BCLC).
The Trunk Statute is a legal regime different from the Forced Heirship in terms of: 1.- The object of the Trunk State is constrained to Real State in the Countryside of Biscay (#19 BCLC), what means an special succession subject to the assets own rules-of-conflict (lex rei sitae), no to the deceased’s ones, as in the Forced Succession (#23 & 25 BLCA); 2.- this regulation is applicable under an asset by asset basis, with the sole exception of the Homestead, which includes all movable and immovable properties (#26 BCLC), whereas the Forced Heirship entitles a net value of the inheritance; 3.- Although uncles and cousins are not Forced Heirs, they definitely are Trunk Relatives if inserted in the genealogical lineage of the asset prior proprietors, the mere family relation between the deceased and the successor aside. 4.- Even though the testator can disinherit his Forced Heirs due to the subsidiary application of the Civil code (#4 CC & #3 BLCA), he is not empowered to disinherit his relatives from their Trunk rights due to #17, 24 & 60 BCLC categorical terms. 5. - The Trunk Statute is enforceable to inter vivo deals before the decease, so instead of going into hotchpot after the testator’s death as with the Forced Heirship, the Trunk Relative can sue the annulment of the gratis acts of disposition. Therefore #25 & 26 BCLC coordinate hotchpot and Trunk Line Status issues.
The Trunk Line Status, absolutely linked to the Family, radically differs from other assets regimes and comprehends all means of Trunk property transfer. It is not only applicable to the testamentary (#24 & 60 BCLC) and intestate succession (#67 & 68.a) BCLC); but also to the widow/er legal rights; marriage property liquidation (#58, 60, 108 & 110); forced heirship (#25, 60 & 62); legates, heir appointment (#24); and even acts of disposition, either causa mortis (#24), inter vivo, gratis, onerous title (#112), voluntary or forced (Administrative, Notary or Judicial auctions).
However, whilst the gratis transfers, inter vivo or causa mortis, to estrangers to the Trunk or to relatives aside the former proprietors lineage are void (#24 BCLC), the onerous title transfers are subject to (exception: urban and developable land areas)emption rights of trunk relatives who must be positively be aware of the deal by means of a notification process. If the transfer concludes without such previous formal notification, the aforementioned trunk relatives can sue the annulment of the previous deal and the acquisition of the asset for its fair price.
Finally, #126 BCLC states that the trunk assets renters are prior entitled to the collateral ancestors to these emption rights.
Although the inheritance liberty is the main Biscayan Law principle (#4 & 27 BCLC), there are three kinds of restrictions: A) The Forced Heirship (Book I, Title III, Chapter II, “Successions”, #53 BCLC). B) The Trunk Line Statute (Book I, Title II, #17-26 & 112, “Legal Extraction and Emption Rights”), and the Reservations and Reversions (#84-92, Book I, Title III, Chapter V, “Common regulation of all means of succession”).
BCLC does not intend to be thoroughly exhaustive, but wisely rules just the Basque specialities, assuming an overall subsidiary application of the Spanish general regulation (# 3), which is applicable in terms of: 1.- the succession opening (Power of Appointment, aside); 2.- the different means of acquiring the inheritance (heirs, legates, aliquot legates, #46 & 74); 3.- the object and the persons of the succession (capacity, prohibitions to inherit); 4.- the different forms of a will admitted in the Spanish general regulation; 5.- the subsequent phases of the succession process (death pending, opening, acceptation/renouncement, division), an consequently, 6.- acceptation/renouncement, benefit of inventory, the merge/split of the inheritance with the heir’s own patrimony; 7.- the creditors rights on the inheritance and against the heirs and 8.- the community of heirs and its division.
Different forms of testament and the other different forms of succession
1. “Hil buruko” will": All the Civil Code forms of testament are accepted, as well as the “hil buruko” (#31 BCLC) or in Danger of Death oral will, told to witnesses, which shall be deemed as void, if not judicially certified in a given lapse of time after death or, if the testator survives with his mental abilities enabled.
2. Power of appointment (#32 BCLC), one of the Charter of Biscay most important pieces, that enables a powerful position of the widow/er in the succession, as well as good organization of the Family Patrimony to whom the Civil Code (#831) has lately come close to.
The representative can use this power in one or more acts, irrevocably (with an exception) subject to the deceased's instructions and the legal limits applicable to the latter. The nominated successor must be capable at the time the power is exercised or at the time of the testator’s death. Till that moment, there are no other inheritance rights than the deceased’s offspring to apply for maintenance payable on the inheritance benefits.
But the true value of this institution is the widow/er appointment as the deceased’s representative, therefore entitled to administrate and usufruct the inheritance whilst the Power of Appointment is not executed, which can last all the widow/er life, and hence, the latter can exercise the Testamentary Power of an Appointment in his own testament, and in this case, both the deceased’s and the representative’s testamentary provisions are revocable.
3. Joint Testament: (#49): The Biscayan married couples, subject to the Charter or not, against the Civil Code prohibition (#669) can jointly testate, that is, in the same document they can make a will either in mutual benefit or in a third party’s one.
The Joint Testament must not to be confused with the Agreements as to Succession (forbidden to General Law Biscayans), thus, apart from the fact that they are different type of formal documents (the former notarized), the Joint Testament (or in brotherhood) is revocable, not only by mutual consensus, but also unilaterally, but in this case, if one spouse dies within one year after the notarization the survivor can not revoke the provisions about assets in common property.
4. Agreements as to Succession:
From #74 BCLC we deduct the Agreements as to Succession share the contract basic features: 1. Legal sources of obligations (#1088 & 1091 CC); 2. Means of acquiring property and rights (#609 CC); 3. Freedom of contract and its limits (#1255 CC); 4.- Relativity of contracts (#1257 & 1259 CC) as far as it only constraints the contracting parties and their successors and 5.- the Agreements as to Succession are overall irrevocable (#1256 CC & 79 BCLC). The Agreements as to Succession differ from the contracts due to the former causa mortis nature (#75 BCLC), no matter the moment of the assets transfer conclusion (their effects can be immediate or after the deceased’s death, #74 & 78 BCLC), as long as they are the integral regulation of the deceased’s succession (#27 & 74).
The Agreements as to Succession variety is as vast as all the terms, reservations, substitutions, reversions, encumbrances or obligation that could be agreed. The usual classification is: 1.- Depending on the agreeing parties, agreements on the parties’ inheritance and agreement on third parties´ inheritance (the latter, void); 2.- Depending on the transferee, agreement on the parties’ benefit or on third parties’ benefit; 3.- Positive succession agreements (“succedendo”, either appointing heirs or legatees) or agreements waiving right of inheritance (“non succedendo”), actually valid, and 4.- Depending on the moment of the legal effects, current transfer of all/part of the present goods and post mortem transfers.
Both agreeing parties must be individuals (#74 BCLC, implicitly), with full legal capacity (#29 & 322 CC), more demanding that the testamentary ability (#662 & 663 CC), and the Agreements as to Succession must be always notarized, no matter this notarization consists on a document of Marriage Contract, Donation or contract.
Their effects shall be as agreed plus its inherent content (#74 BCLC & 1258 CC), in accordance with the limits stated by law, public moral, and the Civil order (#1255 CC). The general effect is the revocation of any previous testamentary provision about the same assets.
If the Agreements as to Succession have presently effects, the successor acquires the assets property, but for any act of disposing regarding those assets, the joint consent of transferor and transferee is needed. If the agreement has post mortem effects, the transferee is the irrevocable successor, an inalienable and not suitable to any legal seizure appointment condition, but the transferors preserve their property which can only be onerous title transferred.
5. The Forced Succession or Forced Heirship:
Implicitly, the BCLC assumes the CC definition of forced heirship (#806, an indefeasible portion the testator can not freely dispose of because it is reserved to some heirs therefore called Forced Heirs), since the former uses the latter terminology and effects.
According to some Doctrine, the Biscayan Forced Heirship is collective, that is, there is no individual entitlement benefited by that regulation, in spite of the Roman institution.
However, it is more accurate to define the Forced Heirship as a mere limitation to the deceased’s Freedom of testation, so some portions must be indefeasibly transferred to the forced successors, all or any of them, with equal or uneven portions. The Forced Succession is therefore a boundary to the testator will (#806 CC), so that the hypothetical transferees do not have any rights before the inheritance opening, and this limit works in two ways: 1.- Who are the prior successors and 2.- How the indefeasible portion is divided among them or the latter own successors.
That is, the BCLC system resemblances the CC, the Forced Heirship nature is not “pars bonorum” or a direct right on the inheritance assets, but “pars valoris bonorum”, a right to a net value payable on the inheritance assets. The system is rated as a negative regulation since the Law sets the testator free, hoping he will voluntarily fulfil his inheritance obligations, by any means (inter vivo o causa mortis), but in the other hand the Forced Successor is entitled to sue when these limits are breached.
The Forced Heirs are called as follows: 1st.- Son/Daughters, adoptive offspring included, and the rest of the descendants; 2nd.- Parents and ulterior ascendants. The indefeasible portion is equally divided among the first group lineages and, among the ascendants, no matter the lineage, the closer excludes the farther.
The descendants Forced Hership is the 4/5 part of the inheritance net value and the ancestors portion is ½. The rest of the inheritance disposing is discretionary, aside the Trunk Lineage Statute.
However, whilst the CC has a portion of the Forced Succession equally divided among the descendants, the Biscayan Forced Heirship just entitles the offspring (ascendants, aside) to sue the successors (or the inheritance itself, pending the Power of Appointment exercise, #41 BCLC) for maintenance. The Biscayan Law enables the Separation, as an act of disposing (usually gratis, inter vivo o causa mortis) that empowers the deceased to set aside the aforementioned Forced Succession order within the lineages, and to uneven divide the inheritance, or furthermore, exclude the closest relatives and choose a farthest one.
The Separation must be specific, nominally appointing the descendants/ascendants set aside. The Separation can also be tacit (equal to preterition) but only in the cases of side lineage Trunk relatives (#54 BCLC), in the Ayala Valley in general (#135BCLC), and in the last paragraph or #54 BLCA, that is, that the farther descendants of a closer descendant take the latter’s place in the deceased’s ascendant succession. But if the closer descendant was separated on porpoise, the farther descendant if not preterit on porpoise, will inherit a portion equal to the less benefited same degree relative.
Separation is not equivalent to Preterition; the latter ruled by #814 CC, due its subsidiary application, as the typical institution that protects the indefeasibility of the Forced Succession. The Preterition is the effect (rather than the act) of passing by, disregarding, or omitting some of the Forced Heirs, who also have not received any transfer as a Forced Succession payment. Otherwise they are entitled no to sue for preterition effects but to demand a complement of their forced inherited portions (#815 CC), although the forced heir was not benefited by the will. Preterition can either be intentional or erroneous, depending on the testator awareness of the existence of the Forced Heir at the time the will is made.
The institution of Separation does not enervate the testator's right to disinherit the Forced Heirs, due to a regulation that was already enacted in the 1526 New Charter (#22, Title XXI). The testator is not empowered to Separate his only Forced Heir, but the latter could be disinherited if there is a justified cause among the subsidiary applicable #852-855 CC. The institution of Indignity is also in force in Biscay, Trunk Lineage Assets, aside. And neither the Trunk Relatives can be disinherited from such their rights according with the radical void sanction to acts against Trunk Lineage Estatyte in #24 BCLC.
As in the Civil Code (#818), the Forced Succession portion is calculated adding all the inheritance assets value and deducting debts and encumbrances (#62 BCLC), plus adding the deceased’s donations value (relictum & donatum). It is assumed the testator tacit will to divide his inheritance according to the forced heirship legal order, so going into hotchpot is the ordinary operation, separated Forced Heirs excluded (#. 62.1,3°).
5. Widow's Allowance:
The Biscayan Widow's Allowance consists on a usufruct, which burdens half the inheritance (if surviving deceased’s descendants or ascendants) or 2/3 if there are only deceased’s collateral ancestors. The usufruct encumbrance is only subsidiary on Trunk Lineage Estate and, if so, the Trunk Relativves can exchange this widow/er right for a lump sum (#58 BCLC). Of course the widow/er has no succession rights in case of marriage split, divorce or declaration of nullity. #61 also empowers to legate the widow/er a usufruct over the whole inheritance, though this legate is incompatible with the legation of the discretionary portion, but in that case the testator can leave the choice between both legates to the widow/er.
The widow/er, as in the CC, is not a Forced Heir, that is: 1.- has no responsibility on the deceased’s debts (although his rights might be inexistent due to the negative or zero value of the inheritance); 2.- his rights are an encumbrance on heirs, either voluntary, forced or intestate, which is not considered as the latter’s forced portion reduction; 3.- the widow’s allowance, as aforementioned, can be exchanged for a lump sum if burdening Trunk Estate.
Finally, we must remark than the widow’s allowance is an institution different from the widow/er marriage property regime liquidation rights.
The opening of the Intestate Succession happens in two different situations: 1.- not only in the cases as provided in #912 CC, that coherently with #27 BCLC means intestate succession opens when no testament, Agreements as to Succession, Marriage Contracts, Donations… are made, but also, 2.- the utmost significant speciality is the nullity of all Causa Mortis and gratis acts of disposition on the Trunk Estate, which means a call to the Trunk Successors to acquire these goods.
The intestate succession order is: 1st.- sons/daughters and their descendants in the former’s representation (lineage division). 2nd.- the closest Trunk ascendants (in default of, the collateral ancestors) both in the trunk lineage these assets came from, 3rd.- in the non trunk assets both parents or the surviving one. If there are no parents all the inheritance shall be transferred to the closest ascendant, no matter the lineage. If the degrees are equal in the lineage, the division is equal. 4th.- in absence of both ancestors and descendants, the widow/er is called. 5th.- Subsidiary to the latter, the collateral lineages will equally divide the inheritance. 6th.- The residual legal heir is the County Council in the Basque Country correspondent to the deceased’s last residence.
Unless becoming the legal successor, in all the aforementioned intestate succession, the widow/er will have the aforementioned widow’s allowance (#58 BCLC).
Reservations & Reversions
Reservations and Reversions are regulated in Title III, Chapter V of the BCLC, under the epigraph “Common provisions to all means of successions”. The first rule is the #811 CC reservation, accommodated to the Biscayan peculiarity, that is, limited to the Trunk Estate (#84 BCLC).
BCLC #85-87 adhere, with minor changes, to the CC reservation about asset gains during the marriage (#85): the reservation of Trunk Estates inherited from the deceased by means of the liquidation of the Biscayan universal common property marriage property regime (#86 BCLC); and the reservation of dowries and donations propter nuptias (#87).
BCLC #88 also regulates a widow/er reservation, similar to #968 CC, in respect of non trunk assets.
BCLC #90 entitles the transferee to appoint the successor in these special situations among the group of potential benefited people. And #92 closes the Chapter with the Reversion rights on assets donated with maintenance encumbrance.
Biscayan Marriage Property Regime
1. Conflict-of-laws in International, Interregional and among Basque Provinces issues:
The personal effects of marriage, as well as its forms of celebration are the State’s exclusive power (#149.1.8º Spanish constitution) and consequently #13 CC imposes the general and direct application in all Spain of the latter Book I, Title IV provisions (celebration of Marriage, nullity, split, divorce and their fundamental effects), with the exception of the latter marriage property regime provisions.
The characteristic Basque Marriage Property Regime, the universal common property regime, is only applicable to Charter Biscayan people as well as to civil-residents of LLodio/Laudio and Aramaio : #94 BCLC agrees with #9.2. CC conflict-of-laws rules (subsidiary if no Marriage Contract existed) that establish the aforementioned regime if: a) When both spouses have civil-residence either in Biscayan Countryside, Llodio or Aramayona. b) When only one of the spouses has such a civil-residence the Biscayan regime shall be in force if the first common habitual residence of the couple is in the aforementioned territories, and lack thereof, if those are the place of conclusion of the marriage.
2. Marriage patrimonial effects:
BCLC just regulates the marriage community property regime, which means an implicit general remission to the CC, since the former just fixes three general principles: A) freedom of marriage settlement (#93); B) the Marriage Property Regime mutability, notwithstanding third parties’ rights (#93); C) the subsidiary regimen is the universal community property (#94); D) the intimate relationship between the Succession regime and the marriage property regime (Agreements as to Succession, donations propter nuptias, power of appointment…) and E) there is a primordial regime, or marriage property civil order similar to Spanish general one (#1315-1317 CC) applicable on the universal community regime: First, the aforementioned principles of freedom, mutability and the subsidiary regime. Second, 1.- Payment of the Family expenses, 2.- Tacit power of administration for ordinary issues. 3.- Acts of disposition of the home and its household furnishings. 4.- The widow/er pre-emption right on the household furnishings. 5.- #78 Bankruptcy Act. 6. Legal consequences of acts of administration or disposition executed by just one spouse. 7. Freedom of trade between the couple and 8. The spouse’s acknowledgment of the other’s private property assets.
As a manifestation of the spouses’ freedom, the Marriage Contract, concluded before, during or after the wedding, settles the marriage property regime (#93 BCLC). The subsidiary application of the CC (#1325) Marriage Contract regulation states its requirements and effects, specially the marriage regime publication in the Civil, Property and Mercantile Registers (#1333 CC, #77 Civil Register Act, #26 Mortage Acta and #6 and on Mercantile Code).
However the Biscayan specialities for the Marriage Contracts are: A) They can exceed the marriage property regulation and set the Succession, since Marriage contracts are considered as true overall Family agreements that rule any financial, family or succession issue among the spouses or any agreeing party within (#27, 33, 74, 165 & 179 BCLC). However, the Power of Appointment can not be included in such contracts. B) On the contrary, the Marriage Contracts are not the only kind of agreements as to marriage, since, both General Spanish Law or Basque Law, admit private agreements judicially approved as valid and registrable (#90 CC), as well as the division of property judicial documents (#788 & 810 Civil Procedure Act) (#788 & 810 Civil Procedure Act).
3. Universal community property:
“Comunicación Foral de Bienes” is a universal community property regime consisting on two different patrimonies facing during the marriage (the spouse’s private assets vs. conjugal gains), in terms of their demarcation, the encumbrances and obligations surrounding those patrimonies, and the acts of administration and disposition. The community is a mere expectative, awaiting the way the marriage ends, either consolidation, by means of a spouse’s death leaving common offspring (all privately or commonly acquired assets merge into one only patrimony), or frustration (marriage end in any other circumstances) meaning the common assets division mostly according with the CC “conjugal partnership of gains” regimen provisions.
During this pending situation, the expectative of consolidation is protected by means of prohibiting unilateral acts of disposition or administration by one of the spouses (#99-101 BCLC), under the sanction of nullity. The expectative of frustration is protected through the limited exposure of one spouse’s private and common assets portion to the other spouse's debts (#98 & 102 BCLC).
Both consolidation and frustration mean the end of the universal community property regime. That is, the patrimony becomes static and undivided; either it is the merger of the former spouses’ private and common patrimony, or its just the mere adding of the conjugal gains. In both cases, the co-proprietor has an abstract portion of that patrimony that can only turn into the adjudication of certain assets by means of liquidation and division operations (#96 & 104 BCLC).
Finally, we must remark the combined effects of the Power of Appointment, the universal community property regime and the widow/er allowance: The aforementioned marriage property regime optimises and enhances the widow/er position, specially if the latter is the deceased's representative, in terms of: a. The Power of Appointment can be exercised during all the surviving spouse life or for a long time, a common stipulation in testaments. b. The widow/er is the legal inheritance representative. c. Till the exercise of the power of appointment, the survivor has a usufruct on the inheritance, either universal by provisions of the testator, or a usufruct on the deceased’s half of the couple’s patrimony. d. The widow/er is the whole proprietor of the other half of such the couple’s patrimony. e. As long as the power appointment can be partially exercised, the survivor will preserve the aforementioned status till the last disposition of the deceased’s inheritance. f. Moreover, the widow/er together with, either the legal divider or the hypothetical successors (eager to please the survivor spouse due to the power of appointment), can divide and liquidate the inheritance, the Forced Succession Portion (#64 BCLC) and the marriage common patrimony (#106 BCLC). In any case the judicial division is always possible. Furthermore, the widow/representative can himself divide the patrimony and acquire half the property of all and any of the goods, notwithstanding the Trunk Assets Lineage reservations.
4. Unmarried couples:
The Basque Civil Law has a scattered and imprecise regulation about this subject, due to its strong political inspiration and lack of juridical meditation by technicians.
The first hindrance is the unmarried couple definition, since there are at least three different kinds in the Basque Autonomic Community Regulation: 1. Those erected under the 2/2003 Unmarried Couples Act. 2. The “Co-living Unities” referred to in the 2/2008 Family Mediation Act as “people linked by means a permanent relationship similar to marriage”, which must be trustworthy proved for juridical issues, and 3. The rest of the unmarried couples.
Only the unmarried couples settled by means of registration in the ad hoc Basque Administration’s Register are subject to Succession and Marriage Property provisions. This category’s regulation will be summarized later.
The overall rest of unmarried couples, according to jurisprudence, have nothing to be with marriage, and therefore, there is no analogical application of the marriage regulation, since as, a de facto situation, notwithstanding rated as Family institutions, if two people are not willing to marry, they neither are willing to the marriage effects, specially after the enacting of the homosexual marriage and free divorce.
The aforementioned regulation consists on: (#5) the personal relationship of the unmarried couple itself and the Property Regime, including some general terms and conditions about the latter (#6), although there is no such a general statute; Children shelter (#7); adoption (#8) and a succession regime fully equivalent to married couples if subject to the Charter of Biscay (#9).
Rights of way
Whilst in the General Spanish Law, the Right of way, due to its discontinuous use, is not subject to prescriptive easement, but can only be acquired by means of titles (#537, 539 & 541 CC) or judicial sentence (with the sole exception of prescriptions started before the Civil Code enactment), the BCLC (#128) authorizes prescriptive easements, including those initiated before the latter enactment (Additional Provision #4). However, due to the subsidiary application of the CC, the rest of the latter prescriptive easement requirements must be fulfilled: The possession must be as a proprietor, public, peaceful and uninterrupted for 20 years (positive easement, #538 CC) since the moment the estate benefited by such an encumbrance proprietor exercises the right of way through the burdened property. There is no prescriptive easement due to merely tolerated possession (# 444, 4447, 1941 & 1942 CC).
There are also two additional rules (#129 & 130 BCLC) to solve the most important issues regarding the rights of way: The widening of the easement and the conservation of the pave.
Civil Law Charter of Alava
Even though BCLC, Book II, is accordingly titled Civil Law Charter of Alava, it really just includes the Charter of Ayala (#131) since Llodio/Laudio and Aramaio are subject to the Civil Law Charter of Biscay (#146) and the rest of Alava is ruled by the Spanish General Civil Law.
The Civil Law Charter of Ayala is enforced in Ayala, that is (#131), the municipalities of Ayala, Amurrio, Okondo and the hamlets of Mendieta, Retes de Tudela, Santa Coloma and Sojoguti, in the municipality of Artziniega.
There are two Basic Civil Law Ayalians institution:
1. The deceased’s freedom of both testation and donation:
The forced succession is the same as in the CC (#138 BLCA). In order deprive the forced heirs (those stated in the CC) the testator can just separate them (the intentional preterition and the justified or unjustified disinheritance are equivalent to the former), all together or one by one (#135), although the succession forced rights are applicable to those subject to unintentionally preterition.
Since the forced heirship is a constriction on the freedom of testation, the Ayalian regulation is reduced to the separation empowerment. That is, all the rest of the Spanish Civil Law institutions are in force, particularly the intestate succession.
2. The "Powerful Usufruct”:
The other characteristic Ayalian institution due to the freedom of testation, and therefore subject to the testator’s will. The Powerful Usufruct entitles the usufructuary, not only to the typical usufruct contents, but also to a power of appointment among the deceased’s descendants.
Civil Law Charter of Gipukoa
BCLC #147 acknowledges the enforcement of the customs that previously regulated the Homestead, that is (#151), the home, other buildings, rooms, pieces of land and “ondaziliegis” (communal forests and meadows) as a whole annexes to the first one, as well as furniture, livestock and machinery within.
The Civil Law Charter of Gipuzkoa just states certain provisions about the Succession on the Homestead:
1. Freedom of testation; Separation and the Homestead:
The CC is in force about succession in general and forced heirship in particular, with the exception that, for the sake of the Homestead indivision –unless an opposite provision by the testator-, the descendants and ascendants successors in the Homestead are not going into hotchpot. However, the individual benefited by such a disposition, will not inherit over his forced heirship portion, the homestead aside. Subsequently, there is no entitlement to forced successor's lawsuits such as succession supplement, unjustified disinheritance or preterition. Finally such a disposition is not burden by third parties forced heir.
2. Residual Forced Succession:
Consequently, the forced heirs shall only be entitled to sue the Homestead successors for maintenance in proportion to the latters’ portion in the inheritance. The widow/er has a Right of habitation of the living part of the Homestead, notwithstanding his other legal rights over the deceased’s inheritance in accordance with #834-840 CC.
3. Power of Appointment:
Similar to the Biscayan institution, with the exceptions that, only the spouse can be the deceased’s representative and two additional limitations regarding the beneficiaries: Either the latter must be appointed among those nominated by the testator or, in the absence of such a provision, the beneficiaries shall be the intestate heirs.
4. Joint Testament:
As in Biscay, by means of the Joint Testament, the spouses can dispose the succession in the Homestead and in other assets too, altogether in the same document.
5. Agreement as to Succession:
The succession in the Homestead and its annexes can be regulated by means of a notarized agreement, otherwise similar to its Biscayan counterpart.
The Proposal of a Basque Civil Law Act in 2012-05-09
The Basque Law Academy/Zuzenbidearen Euskal Akademia and the Basque Civil Law Studies Group of the Biscayan Bar Association have been lastingly cooperating in the progress and development of the Basque Civil Law by means of different initiatives, such as the annual Seminar or several publications.
The Academy and the Biscayan Bar, the latter via the Basque Civil Law Studies Group, have revised an reformulated the Basque Autonomic Civil Law Act draft of 2007-06-20, subject of a Seminar “Towards the New Basque Civil Law” published in the JADO bulletin the same year, extraordinary number IV, and also available in Internet (www.avd-zea.com).
The main milestones are:
1. The term “Basque Civil Act” or “Basque Civil Law”, as a noun revealing the truly Basque roots and the fact that is applicable on all the Basque Autonomic Community.
2. The Basque Civil sources of law are preserved (#1-4) and the Basque Civil Law Principles are enunciated (#5-7).
3. The Basque Civil Law demarcation: The Basque civil-residence and its overall application to all the Basque Autonomic Community (#8-11), notwithstanding the local specially mentioned specialities.
The provisions applicable to the Basque civil-residents, in all the Basque Autonomic Community territory are: A) Joint Testament; B) Power of Appointment; C) Forced Succession (Forced Heirship, Separation); D) Intestate Succession; E) Agreement as to Succession; F) Property and succession regimes of unmarried couples; G) Rustic Lease; H) Easements and I) an opening to the traditional Basque associative World, by means of acknowledgment of the Brotherhoods and Mutualities.
The Biscayan local civil residence (applicable in the Biscayan Countryside, Llodio and Aramayona) enables the universal community marriage property regime as well as imposes the Real Estate Trunk Lineage Statute.
The Ayalesian local residence preserves the freedom of testation and the Powerful Usufruct.
The Gipuzkoan local civil residence goes on with the Homestead succession regime.
3. Succession content: A) A variety of compatible succession titles, including the three Basque Civil Law classics: Testamentary (widening the joint testament to whom living together), Intestate and Agreement as to Succession (#18). B) Settlement of an inheritors calling mechanism, especially in the event of a Power of Appointment (the representative has some disposition capabilities on the inheritance), with remission to the moment of its exercise. C) Regulation of the Heir and Legatee Status, including presumptions of the Heir Status of certain Legatees. D) A definition of the Inheritance debts, which includes the maintenance payable to the deceased’s descendants; and the establishment of a responsibility for the inheritance debts limited to the value, in the moment of the call to the successor, of de assets acquired (#21). E) The forced succession regulation is extended to all the Basque Autonomic Community and the forced portion reduced to 1/3 of the patrimony net value. F) The traditional widow allowance is extended with a Right of habitation in the spouses’ home during widowhood. G) The intestate succession provisions splits between Trunk Lineage Statutory assets and the rest of the deceased’s patrimony (#111 & 112). This intestate succession passes by right of representation to the issue of a deceased’s beneficiary (#113 & 116.2). The subsequent intestate successors are: The descendants, the widow/er (#114), ascendants (#115), collateral ancestors (#116), and if there is no surviving person within the Basque Community Administration Escheats the assets as a trustee to pass to herself, to the County Council of the deceased’s last residence and to the municipality of the latter last residence, by third parts and by means of benefit of inventory. Therefore an overall intestate succession system is generated to any Basque Community civil residents. H) Reservations and Recessions.
4. The Marriage Property Regime is based on the freedom of contract (#125) and two subsidiary regulations according to the conflict-of-laws rules: The General Spanish conjugal partnership of gains applicable to the General Law Biscayans (#127.1), and the universal community of property to Biscayan local civil residents (#127.2 & 127.3). The registration of the marriage property regime is compulsory to achieve opposable effects versus third parties (#128), as well its modification by means of Marriage Contracts (#126). Separation of property is the subsidiary regime for unmarried couples.
The Biscayan universal community of property provisions demark the assets and rights, burdens and debts within, and the acts of disposition that a spouse can make on his own. The confession of the private conditions of certain real estates is also accepted, if properly registered.
5. The Trunk Lineage Statute is a family institution (#61) based on both the lineage of the previous proprietors (#62, 66 & 67) and the Real Estate (#62). The provisions include general effects and extinction (#68 & 69), as well as the coordination with succession (#70 & 71). The general effects of Trunk Lineage Statute are that Trunk relatives may sue for the invalidation (4 years expiration term) of any act of disposition breaching the trunk statute, either gratis, inter vivo, causa mortis (#69). The emption rights are not nor applicable to estate on urban and developable land areas (#74), neither the 4th degree collateral ancestors are entitled thereof (#72). In general, the BCLC main lines are followed, although some precisions are introduce in terms of the effects of the emption rights execution, their pre-emptive effects even over the registered third parties (#87).
- 1.[Leizaola, J.M.: Contribución de los vascos a la formación y a la Ciencia del Derecho. San Sebastián, 1935. Págs. 15 y 16].
- DERECHO CIVIL VASCO. Adrián Celaya Ibarra. Ed. Deusto, 1993.
- El horizonte actual del Derecho. AVD-ZEA. Bilbao, Junio 2004, núm. 2, pp 3-18. Adrián Celaya.
- Ana María BARRERO GARCÍA. Los Fueros de las Encartaciones y otros fueros contemporáneos. FEDHAV. Iura Vasconiae, 5/2008, 103-149.
- es:Merindad de Durango
- es:Las Encartaciones
- DERECHO CIVIL VASCO. Adrián Celaya Ibarra. Ed. Deusto, 1993.
- DERECHO CIVIL VASCO. Adrián Celaya Ibarra. Ed. Deusto, 1993.
- EL APÉNDICE FORAL ARAGONÉS DE 1925 Y ENCRUCIJADAS DEL DERECHO CIVIL Y LA CUESTIÓN TERRITORIAL EN ESPAÑA. José Luis MOREU BALLONGA. Ivs Fvgit, 15, 2007-2008, pp. 81-124. ISSN: 1132-8975
- DERECHO CIVIL VASCO. Adrián Celaya Ibarra. Ed. Deusto, 1993.
- Santiago Larrazábal Basáñez. Laudatio: “Homenaje a la Comisión Técnica redactora del Nuevo Fuero Civil de Bizkaia de 1991, por su labor en relación con la actualización de nuestro Derecho Civil foral, que desembocaría en la Ley 3/1992, de 1 de julio, del Derecho Civil Foral del País Vasco”. http://www.forulege.com/dokumentuak/Laudatio_Comision_Redactora_de_la_Ley_3-1992.pdf.
- Exposición de Motivos de la Ley 3/1992 de Derecho Civil Foral del País Vasco
- See Spanish Supreme Court Sentence 2010-03-10 and Basque Superior Court Sentence 2003-10-09.
- Legítima y troncalidad. La sucesión forzosa en el derecho de Bizkaia. Gorka Galicia Aizpurua, Marcial Pons. 2002.
- La necesidad del Apartamiento Expreso en Derecho Foral Vizcaíno. Jesús Fernández de Bilbao. Boletín JADO. Bilbao. Año VII. Nº 18. Diciembre 2009, pp. 261-286. ISSN: 1888-0525.
- Adrián Celaya Ibarra en “Derecho Civil Vasco”, Editorial Deusto, 1993