So goes the law, so goes the practice of Real Estate…
Mexican Civil Law is not the Same as English Common Law. This makes a difference to you as a buyer or seller.
Civil Law and Common Law
Legal systems around the world vary greatly, but they usually follow civil law or common law.
The Mexican legal system has historical roots that go back to 16th-century Spanish law and to Pre-Colombian indigenous law. After the Spanish conquered the Aztec Empire, they found an advanced indigenous legal system in place. The Spanish crown did not rid itself of the indigenous legal system completely; instead, it kept those indigenous laws and legal institutions that did not go directly against the Spanish customs or against Church Doctrine. The Spanish Crown also introduced its own laws and legal institutions.
After Mexico finally established independence, it went through a series of different constitutions. The current Mexican Constitution is commonly referred to as the 1917 Constitution. The official name is the Political Constitution of the United Mexican States (Constitución Política de los Estados Unidos Mexicanos). The Federal Constitution is the most important political document in Mexico.
It is the source and origin of all Mexican law. The hierarchy of sources of law in the civil law tradition to which Mexico’s legal system belongs are, “constitution, legislation, regulation, and custom.”
The constitution will override all legislation, the legislation will override all regulations, and regulation will override all customs.
Both Napoleonic and Germanic law are subdivisions of Civil Law and both are inheritors of late empire Roman Law plus ecclesiastical law and traditional law. The main differences between them are their route from the Roman Empire to the modern world.
In common law countries, case law is in a form of published judicial opinions and is of primary importance, whereas in civil law systems, codified statutes predominate.
Legal systems founded on the Napoleonic Code differ from the Common Law system found in Anglo-influenced countries. Common-Law judges base their decisions on precedent of past decisions and, to a certain extent, common sense as understood at the time of the decision. In legal systems based on Napoleonic Code, however, judges are supposed to rule based on the legal code, and that’s all. Precedent can be used as a reference, but it is in no way binding
Mexico operates civil law systems arranged according to a plan or a system from Roman law. Civil law systems are based on:
- A written constitution based on specific codes (e.g., civil code, codes covering corporate law, administrative law, tax law, and constitutional law) preserving basic rights and duties
- There is little scope for judge-made law in civil, criminal, and commercial courts (only legislative enactments are considered binding for all)
- In some civil law systems, writings of legal scholars have a significant influence on the courts. This is the case in Europe.
- Courts are specific to the underlying codes. There is usually a separate constitutional court, administrative court, and civil court systems that operate on consistency of legislation and administrative acts which interpret the specific code.
- Less freedom: many provisions are implied into a contract by law and parties cannot contract out of certain provisions.
This emphasis on written code also affects how property title is determined. In a Common Law system, title is determined through deeds, that being a registry of people who have transferred the use of property, not necessarily a document that declares ownership. In a system based on the Napoleonic Code, however, land title is determined exclusively on the contents of a property registry, known as the Public Registry. Legally, if a property is inscribed under your name in the National Registry, you own it. If it is inscribed under someone else’s name, they own it. This used to cause some real messes when it came to fraud, as stolen properties or properties sold twice were the legal property of the person who bought them from the thief, as long as they were bought and registered in good faith.
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This article is based upon Flex MLS reporting, legal opinions, current practices and my personal experiences in the Puerto Vallarta-Bahia de Banderas areas. I recommend that each potential buyer or seller of Mexican real estate conduct his own due diligence and review. If you have any other questions, contact me through my website.Harriet Murray