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.
In common law, past legal precedents or judicial rulings are used to decide cases. Under civil law, codified statutes and ordinances rule.
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.
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 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 which operates 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.
There are a number of provisions implied in a contract under the civil law system. The result is often a shorter contract in civil code than one in a common law. There are a number of provisions implied into a contract under the civil law system, and this will often result in a contract being shorter than one in a common law country.
Civil law is simpler, more predictable and more hierarchical* than the common law. To be binding, a law must be a written law in the civil code. Precedents are not binding; they have only a referential value.
Respect for the hierarchy of laws is fundamental to the rule of law, as it dictates how the different levels of law will apply in practice. In general, the fundamental levels of hierarchy consist of a constitution or founding document; statutes or legislation; regulations; and procedures.
SIGNATURES ON CONTRACTS
Under Mexican law, a written signature is not necessarily required for a valid contract – contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document (Section 1803 of the Mexican Civil Code).
There are certain requirements for electronic signatures to be enforceable. The simple electronic signature must be attributable to the parties and accessible for further review. Because of these requirements, the usage of this type of electronic signature is not advisable as the attributability requirement is very difficult to prove before a judge.
Mexico’s legal model is an open one. This means that unlike a tiered model (that see’s Qualified Electronic Signatures as a legitimate form of e-signature), there aren’t any conditions for electronic signature types. And so, a QES won’t receive legal status.
TYPES OF CIVIL LAW
There are different types of civil law cases, and categories of civil law. These include family law and personal injury compensation cases. slander, libel, negligence and assault.
Civil law deals with people who committed a wrong against another person.
Criminal law, on the other hand, deals with an individual’s offences against the state or federal government.
Civil laws of a state or nation regulate ordinary private matters, whereas criminal laws regulate criminal, political, or military matters.
* A hierarchy serves a great purpose in helping every employee in an organization see where they fit in the big picture of things.
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