Civil Laws at Mexico
Mexico operates under a civil law system, heavily influenced by the Napoleonic Code and its Spanish legal heritage. This means that its laws are primarily codified in comprehensive statutes and codes, rather than relying heavily on judicial precedent (though jurisprudence from high courts does play a role in interpretation).
The most important civil law legislation in Mexico is the Federal Civil Code (Código Civil Federal), which applies to matters of federal jurisdiction. However, each of Mexico's 32 states also has its own State Civil Code, which governs civil matters within that state's jurisdiction. While the state codes largely mirror the Federal Civil Code, there can be subtle differences.
Here's an overview of key areas of civil law in Mexico:
1. The Federal Civil Code and State Civil Codes:
These codes are the bedrock of Mexican civil law and regulate:
Persons: Legal capacity, domicile, civil status (births, deaths, marriages), and absence.
Family: Marriage, divorce, parenthood, adoption, and family property. (Though much of this is now in separate Family Codes or specialized laws).
Property: Ownership, possession, easements, usufruct, and other real rights (rights in rem).
Obligations: General principles of obligations, their sources (contracts, illicit acts, etc.), and their effects.
Contracts: General rules for the formation, validity, interpretation, and termination of contracts.
Succession: Wills, intestate succession (inheritance without a will), and the administration of estates.
2. Family Law:
While historically part of the Civil Code, many states, and the Federal Civil Code itself, have created or are moving towards separate Family Codes (Códigos Familiares) or specialized family laws to address the complexities of family relationships. Key aspects include:
Marriage: Requirements for marriage, legal age (generally 18 for both sexes, though some states might allow exceptions for minors with parental consent or judicial authorization), and matrimonial regimes (community property vs. separate property). The most common regime is "Sociedad Conyugal" (community property) where assets acquired during marriage are jointly owned.
Divorce: Mexico has largely adopted "no-fault" divorce, meaning that a spouse can generally obtain a divorce without proving specific grounds, often requiring only a unilateral declaration of the desire to divorce. Procedures vary by state.
Parenthood and Filial Rights: Rights and duties of parents towards children, including parental authority (patria potestad), custody, and child support. The "best interests of the child" principle guides judicial decisions.
Adoption: Detailed procedures for legal adoption.
Domestic Violence: Legal protections and remedies for victims of domestic violence.
3. Property Law:
Ownership: The right to own property (movable and immovable) is fundamental.
Real Estate: Regulated by the Civil Codes and specific laws. Property transactions (buying, selling, mortgaging) require formal documentation before a Public Notary (Notario Público) and registration in the Public Registry of Property (Registro Público de la Propiedad) to be legally effective against third parties.
"Restricted Zone": A crucial aspect for foreign ownership. The Mexican Constitution (Article 27) restricts direct foreign ownership of land within 100 kilometers (62 miles) of national borders and 50 kilometers (31 miles) of coastlines.
Fideicomiso (Bank Trust): The most common mechanism for foreigners to acquire property in the restricted zone. A Mexican bank holds legal title to the property as a trustee, while the foreign buyer is the beneficiary, retaining all rights of ownership, including possession, use, enjoyment, and the ability to sell or inherit the property. The trust term is typically 50 years, renewable.
Mexican Corporation: Foreigners can also own property in the restricted zone by establishing a Mexican corporation, provided the corporation's bylaws contain a "Calvo Clause" (an agreement to be considered Mexican nationals regarding such property and not invoke the protection of their own government).
Ejido Land: A specific type of communal land in Mexico. Acquiring Ejido land directly can be complex and requires a process of "desincorporation" and privatization.
4. Obligations and Contracts Law:
Civil Code Basis: The Federal and State Civil Codes provide the general framework.
Freedom of Contract: Parties generally have the freedom to agree upon the terms of their contracts, provided they do not violate public order or good customs.
Essential Elements for Contract Validity:
Consent: Agreement of the parties, free from error, fraud, duress, or bad faith.
Object: The subject matter of the contract must be lawful, physically and legally possible, and determinable.
Capacity: The parties must have the legal capacity to enter into the contract.
Form: While many contracts are valid orally, some require a specific form (e.g., written, public instrument before a notary) for validity, enforceability, or for effect against third parties (e.g., real estate transactions).
Types of Contracts: The codes define various specific contracts (e.g., sale, lease, loan, mandate, pledge, mortgage).
5. Tort Law (Civil Liability/Non-Contractual Obligations):
Civil Code Basis: Regulated in the Civil Codes, dealing with harm caused without a pre-existing contractual relationship.
General Principle: Whoever acts unlawfully or against good customs, causing damage to another, is obliged to repair it.
Fault-Based Liability (Culpa): Generally, liability requires some degree of fault (negligence, intent).
Strict Liability (Objective Liability): In some cases, liability can arise without fault, particularly for damage caused by dangerous objects or activities (e.g., handling explosives, certain vehicle accidents), or by specific relationships (e.g., parents for their children, employers for their employees' actions).
Damages: Compensation can include both material damages (patrimonial loss) and moral damages (pain and suffering, damage to reputation).
6. Succession Law (Inheritance):
Wills (Testamento): Individuals can make a will to dispose of their property upon death. Various forms of wills exist (e.g., public open will before a notary, holographic will).
Intestate Succession (Sucesión Intestamentaria): If no valid will exists, the law determines the order of inheritance (spouses, children, parents, siblings, etc.).
Forced Heirs (Legítimos): Unlike some other civil law systems, Mexico does not have a concept of "forced heirs" in the same strict sense that restricts the testator's ability to dispose of their entire estate. However, there are provisions for spousal and child support if these individuals are left without means.
Probate Process: The process of validating a will or determining heirs and distributing the estate. It can be handled extrajudicially through a Public Notary if all heirs are of legal age and agree, or through a judicial process.
Judicial System for Civil Cases:
Local Courts: Most civil cases begin in Civil Courts (Juzgados Civiles) or Family Courts (Juzgados Familiares) at the municipal or district level within each state.
State Appellate Courts: Appeals from local courts go to state-level Superior Courts of Justice (Tribunales Superiores de Justicia).
Federal Courts: For matters of federal jurisdiction (e.g., certain commercial disputes, constitutional challenges through Amparo proceedings), cases may go to Federal District Courts, Circuit Courts, and ultimately the Supreme Court of Justice of the Nation (Suprema Corte de Justicia de la Nación - SCJN).
Amparo (Constitutional Appeal): A unique Mexican legal action that allows individuals to challenge acts of authority (including laws and judicial decisions) that violate their constitutional rights. It's a powerful tool in civil litigation.
Given the dual nature of federal and state civil codes, it's crucial to consult with a local Mexican attorney when dealing with civil law matters, as specific provisions and judicial interpretations can vary depending on the jurisdiction.
RELATED Blog
0 comments