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Civil Code

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A Civil Code legal system is one based on a set of written laws developed by a legislature rather than legal precedent developed by judges. It is the dominant legal system in most of the French speaking world and is the most likely legal system in any other nation which is not a former colony of the United Kingdom. It is use in most of Europe apart from the U.K. Some notable Civil Code jurisdictions in countries that otherwise use common law are Scotland, Louisiana, and Quebec, all of which had notable French influence in the past.

Although legal codes date back to the Code of Hammurabi in the 18th century B.C.E., it was the Romans who developed a systematic legal code. Roman law survived the fall of the Roman Empire and remained the dominant form of law in Europe until the 19th Century.

However, Napoleon was dissatisfied with several obsolete portions of Roman Law and implemented a new set of law known as the Napoleonic Code. It quickly supplanted the old French Civil Code even in areas no longer under direct French control, such as Quebec.

The key concept of the Civil Code is patrimony - anything to which a monetary value can be attached (even bodily injury or reputation) is the property of one, and only one, natural person or artificial person. This rule leads to important differences between Civil Code systems and common law systems. For example:

  • Common law recognizes that more than one person may have a similtaneous interest in a single piece of property. Civil Code systems do not. As such, the concepts of trust and foreclosure were unknown to Civil Code systems.
  • Common law systems recognize that within a marriage, certain property can belong to the husband, the wife, or both, and that interests in property can shift during a marital breakdown. Under Civil Code systems, neither a husband or wife may own their own property - it belongs to both of them (a "marital patrimony"), and in a marital breakdown must be shared equally.

However, in the past century, the two legal systems have moved closer together as Civil Codes created remedies and rights that exist in common law, and common law adopts legal principles that first existed in Civil Codes. For example:

  • The patrimony of affectation now exists in most Civil Code systems to set up a structure similar to a common law trust.
  • Quantum meruit was adopted as a cause of action in common law to grant remedies where no valid contract exists in common law, but where a Civil Code system would recognize contractual remedies.

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