The Chilean civil code is unique and extremely efficient in terms of establishing and maintaining legal order in the Republic of Chile. Almost all elements of the Chilean civil code can be traced back to the legislator, Andres Bello. He worked single-handedly to deliver the complete Chilean civil code to Congress on the 22nd of November 1855.
It was a relatively quick process once the Chilean civil code had been presented to Congress and it was passed on the 14th December 1855, with the provisions coming into force a year later on 1st January 1857. Although the Chilean civil code has remained in place since this point, it has undergone several changes, most of which have been necessary to ensure that the code has kept pace with modern requirements.
The Chilean civil code did not come out of the blue; Andres Bello obtained much of his inspiration from external sources and most of the theories underlying the Chilean civil code came from the Napoleonic code. This is particularly true when it comes to issues relating to obligations and property, although the Chilean civil code in relation to issues such as successions and family matters is much more closely akin to the Seven Part Code of Alfonso X. This very traditional approach to legal matters, particularly in relation to the transfer of property, can be readily seen in the Chilean civil code and is similar to Roman law as well as the Spanish codes.
Spain also influences the Chilean civil code in the area of succession. Despite the use of external influences, the Chilean civil code has been keen to modernise its structure by taking account of social developments. For example, the rules relating to succession where the Spanish code favours men during the passing down of estates, treats both sexes equally where the Chilean civil code is concerned.
As the Chilean civil code has also derived some of its principles from almost all types of European codes, it is also possible to see considerable German influence. By combining all of these codes, the Chilean civil code became the first code to make provisions to recognise the legal person in a systematic and controlled manner.
Despite the variety of sources that have been drawn upon to create the Chilean civil code, the way in which the code itself is presented is both logical and easy to follow. The starting point for the Chilean civil code is that of the preliminary title which incorporates the first 53 articles and covers the way in which the law, in general, operates. For example, the foundation of the Chilean civil code is that no law will be considered valid unless it has been made fully public and communicated appropriately to the public at large. This was brought in to ensure that no secret laws were passed and that the Chilean civil code was as transparent as possible.
Another issue that the early part of the Chilean civil code deals with is that all laws must not be retrospective in nature. This means that the public can rely on the status of the law at the time that they act, without fear of unexpected changes. Put simply, the first section of the Chilean civil law deals with the general concepts and approaches by which all involved with law and order should abide.
The next section, known as Book 1 and one of the largest in the Chilean civil code, is that related to the person. Articles 54 to 564 are all dedicated to the various issues that relate to individuals and the way in which they interact with others. This part of the Chilean civil code has the central concept of a legal person and how a legal person can be established and subject to certain liabilities. Areas covered include the law in relation to marriage, births, deaths and paternity. Crucially, this part of the Chilean civil code was updated to ensure that there was no discrimination between the way children of unmarried couples and married couples were treated. This is a reflection of the way that the Chilean civil code continuously adapts to reflect the societal norms, at any given point.
Book 2 contains the next section of the Chilean civil code and covers articles 565 to 950. This section deals with goods, possessions and profits. This is primarily a tool to assist with trading and contains definitions and requirements for procedures such as property acquisitions and the way in which possession of property can be protected.
Moving on to Book 3 shows just how unique the Chilean civil code has become. It contains the provisions that deal with successions and donations and spans nearly 500 articles, from article 951 to 1436.
Unsurprisingly, Book 4 is the largest of the entire Chilean civil code and deals with the issues of obligations and contracts. More than 1,000 articles are dedicated to this topic which is incredibly wide and deals with everything form the general way in which contracts are formed to how contracts should be managed, once formed. This section also deals with tortuous obligations.
Finally, the Chilean civil code lays down the date of enactment and the impact that any derogated laws have on the code.
As the largest section of the Chilean civil code is the one dealing with contracts and obligations, it is here that the true ethos of the Chilean civil code can be examined. Chilean civil law relies heavily on consent; for example, a contract can be formed purely by virtue of a series of emails between the parties, and there is no need for a specific formality as is the case in most other jurisdictions.
Limitations on the ability to enter into contracts are relatively few and far between, with the main aim to protect the incapable. A large degree of autonomy is allowed for individuals acting under the Chilean civil code. Whilst this is largely derived from other countries that exercise the ‘freedom to contract’ principles, it is clear to see that the Chilean civil code is written in a way that carefully enshrines the principle and makes it sufficiently strong to be relied on by contracting parties.
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