Spanish Civil Law: Competence, Equity, and Subjects of Subjective Rights
Spanish Civil Law: Competence and the Constitution
Competence in Spanish Civil Law
The enactment of the Spanish Constitution introduced a new article establishing the State’s division into autonomous communities (CCAA). These communities’ regulations are governed by the principle of competence, not hierarchy. This is addressed in Article 149.1, which outlines exclusive State competence over matters such as:
- Civil legislation, without prejudice to the conservation, modification, and development by the CCAA of existing civil rights.
- Civil legislation is understood as the current content of civil law.
A key challenge is that CCAA have competence over matters bordering on civil law, such as urban planning, housing, agriculture, and livestock, which can affect property rights and contracts—traditionally considered matters of civil law. The Constitutional Court (TC) has held that the distinction cannot be understood radically, and that attributing competence in urban planning must entail the ability to delimit, to some extent, property rights.
Autonomous communities with foral law (unique legal systems) are those that had compilations of such laws when the Constitution came into force. However, even the first Statute of Autonomy of Valencia recognized this community’s competence over the conservation, modification, and development of Valencian civil law. In a case concerning the Valencian law on historical rent, the TC upheld its constitutionality without requiring prior review by the autonomous community’s statute and indicated that Article 149.1.8 also extends to civil regulations of regional scope and those predating the Constitution.
Three main opinions on this matter exist:
Equity in Civil Law
Equity is often defined as justice in a specific case, a solution tempering the rigor of the law according to an intuitive sense of justice. The Civil Code does not define equity, and the term is used in different senses:
- A criterion for resolving specific cases totally independent of pre-existing norms, according to an intuitive sense of justice.
- A means of applying legal norms to a specific case, adapting them to the general principles of law. This sense is further divided into:
- Equity demands recourse to higher principles of justice to decide a case where the legal rule is inadequate.
- Equity is related to the general principles of law, but differently. It concerns cases where the law leaves the determination of the solution to the judge’s discretion.
It’s important to note that equity is not a source of law, even in the first sense. Nor is it a generally valid criterion of interpretation, but only of application to a specific and determined case.
Subjects of Subjective Rights: Title
Subjects in General
The subject of a subjective right is the person to whom the legal order attributes the specific power that constitutes the right itself. Title refers to the quality acquired by a subject when a specific subjective right is attributed to them. All subjects to whom the legal order attributes personality can be titleholders, including both natural and legal persons.
Some doctrine defends the possibility of rights without subjects, such as the nasciturus (unborn child) or the heres iacens (heir in the period between the opening of the succession and acceptance by an heir). However, modern doctrine considers this impossible. What can occur are situations of temporary uncertainty regarding the subject.
Plurality of Subjects: Co-ownership
Co-ownership exists when the same right is attributed to several persons simultaneously. This necessitates rules to resolve issues such as how rights are exercised by each co-owner. In real estate, Roman community property rules apply, either pro indiviso (undivided) or by quotas. In credit rights, two models exist: 1. joint ownership; 2. solidarity, where each creditor can demand payment and each debtor must comply. This differs from the concurrence of several rights belonging to different persons over the same object.