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Table of Contents

Cover Page
Preliminary title Of the general definitions of rights and the promulgation of the laws
    Chapter I Of law and customs
    Chapter II Of the publication of the laws
    Chapter III Of the effects of laws
    Chapter IV Of the application and construction of laws
    Chapter V Of the repeal of laws
Book I Of persons
    Title I Of the distinction of persons, and the privation of certain civil rights in certain cases
      Chapter I Of the distinction of persons established by nature
      Chapter II Of the distinctions of persons which are established by law
    Title II Of domicil and the manner of changing the same
    Title III Of absent persons
      Chapter I Of the curatorship of absent persons
      Chapter II Of the putting into provisional possession the heirs of the absentee
      Chapter III Of the effects of absence upon the eventual rights which may belong to the absentee
      Chapter IV Of the effects of absence respecting marriage
      Chapter V Of the care of minor children whose father has disappeared
    Title IV Of husband and wife
      Chapter I On marriage
      Chapter II How marriages may be contracted or made
      Chapter III Of the nullity of marriages
      Chapter IV Of the respective rights and duties of married persons
      Chapter V Of the dissolution of marriages
      Chapter VI Of second marriages
    Title V Of the separation from bed and board
      Chapter I Of the causes of separation from bed and board
      Chapter II Of the proceedings on separation from bed and board
      Chapter III Of the provisional proceedings to which a suit for separation may give occasion
      Chapter IV Of objections to the action of separation from bed and board
      Chapter V Of the effects of separation from bed and board
    Title VI Of master and servant
      Chapter I Of the several sorts of servants
      Chapter II Of free servants
      Chapter III Of slaves
    Title VII Of father and child
      Chapter I Of children in general
      Chapter II Of legitimate children
        Section I Of legitimacy resulting from marriage
        Section II Of the manner of proving the legitimate filiation
      Chapter III Of illegitimate children
        Section I Of legitimation
        Section II Of the acknowledgment of illegitimate children
      Chapter IV Of adoption
      Chapter V Of paternal authority
        Section I Of the duties of parents towards their legitimate children, and of the duties of legitimate children towards their parents
        Section II Of the duties of parents towards their natural children, and of the duties of natural children towards their parents
    Title VIII Of minors, of their tutorship, curatorship and emancipation
      Chapter I Of tutorship
        Section I General dispositions
        Section II Of tutorship by nature
        Section III Of tutorship by will
        Section IV Of the tutorship by the effect of the law
        Section V Of dative tutorship
        Section VI Of the under tutor
        Section VII Of the causes which dispense or excuse from the tutorship
        Section VIII Of incapacity for, exclusion from and deprivation of the tutorship
        Section IX Of the administration of the tutor
      Chapter II Of the curatorship of minors
      Chapter III Of emancipation
    Title IX Of persons insane, idiots, and other persons incapable of administering their estate
      Chapter I Of the interdiction and curatorship of persons incapable of administering their estate, whether on account of insanity or of some other infirmity
      Chapter II Of the other persons to whom curators are appointed
    Title X Of communities or corporations
      Chapter I Of the nature of communities or corporations, of their use and kind
      Chapter II Of the rights and privileges of communities or corporations and of their incapacities
      Chapter III Of the dissolution of communities or corporations
Book II Of things and of the different modifications of property
    Title I Of things or estates
      Chapter I Of the distinction of things or estates
      Chapter II Of immoveables
      Chapter III Of moveables
      Chapter IV Of estates considered in their relation to those who possess them
    Title II Of absolute ownership
      Chapter I Universal principles
      Chapter II Of the right of accession to what is produced by the thing
      Chapter III Of the right of accession to what unites or incorporates itself to the thing
        Section I Of the right of accession concerning immoveables
        Section II Of the right of accession concerning moveable things
    Title III Of usufruct, use and habitation
      Chapter I Of usufruct
        Section I General definitions
        Section II Of the rights of the usufructuary
        Section III Of the obligations of the usufructuary
        Section IV Of the obligations of the owner
        Section V How usufruct expires
      Chapter II Of the use and habitation
    Title IV Of predial services or services of land
      Chapter I General principles
      Chapter II Of services which originate from the natural situation of the place
      Chapter III Of services imposed by law
        Section I Of walls, fences, and ditches in common
        Section II Of the distance and of the intermediary works required for certain buildings
        Section III Of lights on the property of a neighbor
        Section IV Of the manner of carrying off rain from the roof
        Section V Of the right of passage
      Chapter IV Of services established by the act of man
        Section I Of the different kinds of services which may be established by the act of man
        Section II How services are acquired
        Section III Of the rights of the proprietor of the estate to which the service is due
        Section IV How Services are extinguished
Book III Of the different manners of acquiring the property of things
    Preliminary title General dispositions
    Title I Of successions
      Chapter I Of the different sorts of successions and heirs
      Chapter II Of legal successions
        Section I General rules
        Section II Of the succession of descendants
        Section III Of the succession of ascendants
        Section IV Of the succession of collaterals
      Chapter III Of irregular successions
      Chapter IV In what manner successions are opened
      Chapter V Of the incapacity and unworthiness of the heirs
      Chapter VI In what manner a succession is accepted and how it is renounced
        Section I Of the acceptance pure and simple
        Section II Of the acceptance of a succession with the benefit of an inventory
      Chapter VII Of the administration of vacant estates and estates ab intestato
      Chapter VIII Of partition among heirs and of the collation of goods
        Section I Of the nature of partition and in what manner it is made
        Section II Of the collation of goods
        Section III Of the payment of debts
        Section IV Of the effect of partition and of its rescision
    Title II Of donations inter vivos (between living persons) and mortis causa (in prospect of death)
      Chapter I General dispositions
      Chapter II Of the capacity necessary for disposing of and receiving by donation inter vivos or mortis causa
      Chapter III Of the portion disposable, and of its reduction in case of excess
        Section I Of the disposable portion and the legitime
        Section II Of the reduction of dispositions inter vivos or mortis causa; of the manner in which it is made and of its effects
      Chapter IV Of dispositions reprobated by the law in donations inter vivos and mortis causa
      Chapter V Of donations inter vivos (between living)
        Section I Of the irrevocability of donations inter vivos
        Section II Of the form of donations inter vivos
        Section III Of the exceptions to the rule of the irrevocability of donations inter vivos
      Chapter VI Of dispositions mortis causa (in the prospect of death)
        Section I Of testament or codicil
        Section II Of the form of testaments and codicils
        Section III Of testamentary dispositions
        Section IV Of the institution of heir and of disinherison
        Section V Of legacies
        Section VI Of the opening and the proof of wills, and of testamentary executions
        Section VII Of the revocation of testaments and codicils and of their caducity
        Section VIII Of the interpretation of testamentary dispositions
      Chapter VII Of partitions made by parents among their descendants
      Chapter VIII Of donations made by marriage contract to the husband or wife, and to the children to be born of the marriage
      Chapter IX Of donations between married persons, either by marriage contract, or during the marriage
    Title III Of contracts and of conventional obligations in general
      Chapter I Preliminary dispositions
      Chapter II Of the conditions essential to the validity of agreements
        Section I Of consent
        Section II Of the capability of the parties contracting
        Section III Of the object and the matter of contracts
        Section IV Of the cause
      Chapter III Of the effect of obligations
        Section I General dispositions
        Section II Of the obligation of giving
        Section III Of the obligations of doing or of not doing
        Section IV Of the damages resulting from the non execution of the obligation
        Section V Of the interpretation of the agreements
        Section VI Of the effect of agreements with regard to persons not parties to them
      Chapter IV Of the different kinds of obligations
        Section I Of conditional obligations
          § 1 Of the condition in general and of its different kinds
          § 2 Of the suspensive condition
          § 3 Of the dissolving condition
        Section II Of obligations to be performed at a certain term
        Section III Of the alternative obligations
        Section IV Of obligations in solido or jointly and severally
          § 1 Of the obligation in solido between creditors
          § 2 Of the obligation in solido on the part of debtors
        Section V Of obligations divisible and indivisible
          § 1 Of the effects of a divisible obligation
          § 2 Of the effect of the indivisible obligation
        Section VI Of obligations with penal clauses
      Chapter V Of the extinction of obligations
        Section I Of payment
          § 1 Of payment in general
          § 2 Of payment with subrogation
          § 3 Of the imputation of payments
          § 4 Of tenders of payment, and consignment
          § 5 Of the surrender of property
        Section II Of novation
        Section III Of the remission of the debt
        Section IV Of compensation
        Section V Of confusion
        Section VI Of the loss of the thing due
        Section VII Of the action of nullity or of rescission of agreements
      Chapter VI Of the proof of obligations and of that of payment
        Section I Of the literal proof
          § 1 Of the authentic title
          § 2 Of the acts under private signature
          § 3 Of copies of titles
          § 4 Of recognitive and confirmative acts
        Section II Of testimonial proof
        Section III Of presumptions
          § 1 Of presumptions established by law
          § 2 Of presumption not established by law
        Section IV Of the confession of the party
        Section V Of the proof by oath
    Title IV Of engagements formed without agreements, or of quasi contracts and quasi offences
      Section I Of the quasi contract
      Section II Of quasi crimes or offences
    Title V Of marriage contract
      Chapter I General dispositions
      Chapter II Of the various kinds of matrimonial agreements
        Section I Of donations made in consideration of marriage
        Section II Of dowry or marriage portion
        Section III Of paraphernalia or extra dotal effects
        Section IV Of the partnership or community of acquests or gains
      Chapter III Of the separation of property
    Title VI Of sale
      Chapter I Of the nature and form of the contract of sale, and of the manner in which it is to be performed
      Chapter II Of persons capable of buying and selling, and of things which may be sold
      Chapter III Of the obligations of the seller
        Section I Of the tradition or delivery of the thing sold
        Section II Of the warranty, in case of eviction of the thing sold
        Section III Of the warranty of the defects of the thing sold or of the redhibitory vices
      Chapter IV Of the obligations of the buyer
      Chapter V Of the nullity and rescissions of the sale
        Section I Of the power or right of redemption
        Section II Of the rescission of sales on account of lesion
      Chapter VI Of sales by cant or auction
      Chapter VII Of the assignment or transfer of debts and other incorporeal rights
    Title VII Of exchange
    Title VIII Of letting and hiring
      Chapter I Of the several species of contracts for letting and hiring
      Chapter II Of the contract for letting out things
        Section I Of the form and duration of leases
        Section II Of the obligations of the lessor
        Section III Of the obligations of the lessee
        Section IV Of the dissolution of leases
      Chapter III Of the letting out of labour or industry
        Section I Of the hiring of servants and workmen
        Section II Of carriers and watermen
        Section III Of plots for buildings and other works
    Title IX Of partnership
      Chapter I General dispositions
      Chapter II Of the various kinds of partnerships
      Chapter III Of the obligations of partners towards each other, and towards third persons
        Section I Of the obligations of partners towards each other
        Section II Of the obligations of partners towards third persons
      Chapter IV Of the different manners in which partnerships end
    Title X Of loan
      Chapter I Of the loan for use or commodatum
        Section I Of the nature of the loan for use
        Section II Of the engagements of the borrower for use
        Section III Of the engagements of the lender for use
      Chapter II Of the loan for consumption or mutuum
        Section I Of the nature of the loan for consumption
        Section II Of the obligations of the lender for consumption
        Section III Of the engagements of the borrower for consumption
      Chapter III Of loan on interest
    Title XI Of deposit and sequestration
      Chapter I Of deposit in general and of its divers kinds
      Chapter II Of the deposit properly so called
        Section I Of the nature and essence of the contract of deposit
        Section II Of the obligations of the depository
        Section III Of the obligations of him by whom the deposit has been made
        Section IV Of the necessary deposit
      Chapter III Of sequestration
        Section I Of its different species
        Section II Of the conventional sequestration
        Section III Of the judicial sequestration or deposit
    Title XII Of aleatory contracts
    Title XIII Of mandate or commission
      Chapter I Of the nature of proxies, mandates and commissions
      Chapter II What persons may be appointed attornies in fact
      Chapter III Of the obligations of a person acting under a power of attorney
      Chapter IV Of the obligations of the principal who acts by his attorney in fact
      Chapter V How the procuration expires
    Title XIV Of suretyship
      Chapter I Of the nature and extent of suretyship
      Chapter II Of the effects of suretyship
        Section I Of the effects of suretyship between the creditor and the surety
        Section II Of the effects of suretyship between the debtor and the surety
        Section III Respecting the effects of suretyship between the sureties
      Chapter III Of the extinction of suretyship
      Chapter IV Of the legal and judicial sureties
    Title XV Of transactions
    Title XVI Of respite
    Title XVII Of compromises or arbitration
    Title XVIII Of pledge
    Title XIX Of privileges and mortgages
      Chapter I Of the nature of a mortgage and of its several sorts
      Chapter II Who may mortgage and what thing may be mortgaged
      Chapter III Of the effects of mortgage
        Section I Of the effects of mortgage with regard to the debtor
        Section II Of the effects of mortgages against third possessors and of the action of mortgage
        Section III Of the registering of mortgages and of the register kept for that purpose
      Chapter IV Of the order of privileges and mortgages
        Section I Of the preference and order of privileges
      Chapter V How privileges or mortgages expire or are extinguished
    Title XX Of occupancy, possession and prescription
      Chapter I Of occupancy
      Chapter II Of possession
      Chapter III Of prescription
        Section I Of the possession required to establish prescription
        Section II Of the causes which suspend or interrupt prescriptions
        Section III Of the several species of prescription
    Title XXI Of the title by judgment or seizure
Manuscript index
Manuscript index Part 2




The purpose of this work is to make known, by written notes on the blank pages attached to the Digest of the laws of this state, the texts of civil and Spanish laws having some relation to them. 

For this purpose, there will be found, beside the English text, a general list of all the titles of the Roman and Spanish laws, which relate to the materials treated in each chapter of the Digest, and beside the French text, article by article, the citation of the principal laws of the various codes from which the dispositions of our local statute are drawn. 

In citing the laws which have some relation to the various articles of the Digest, indications have not been limited to those which only contain similar dispositions; but those laws have been added which may present differences in prescription regarding the same matter, or which may contain exceptions to the general principle therein contained. 

But as it would have been too drawn out to refer to the laws of all the codes of the Roman and Spanish law, it is sufficient to cite Domat in regard to the civil laws, because there is to be found in each of the dispositions of this work, the texts of the Roman law from which they are taken. And, in regard to the Spanish law, it is believed sufficient to cite the laws of the principal codes which compose it, such as the Partidas, the Fuero Real and the récopilations, etc., and to refer to the observations concerning each of them contained in various works which enjoy the greatest authority in the Spanish tribunals, that is to say, the Libréria de Escribanos De Febrero and the Curia Philipica de Don Juan de Hevia Balaños, the studies of canon and civil laws of Pierre Murillo Velarde entitled "Cursus iuris canonici, hispani et indii," and the works of Antoine Gomez entitled "D. Antonii Gomezii varia resolutiones" etc. or "Gomez Opéra" with some additions to each chapter. 

Perhaps this is the place to say a word concerning the various codes of Spanish laws and concerning the degree of authority which they respectively enjoy in the tribunals. 

The Roman law was formerly the law of Spain, and its dispositions were observed there until the moment when the Visigoths and the Vandals seized this country about the year 466 and introduced their laws and customs there. 

These laws and these usages, which existed a long time without being reduced to writing, were finally collected and published under the form of a regular code about the year 693 A.D. under the title Fuero Juzgo

The Fuero Viejo, otherwise called the ancient law, was only published in the year 992, when the largest part of Spain was still occupied by the Moors. In this code are found traces of the ancient usages and customs of the Spanish nation. 

The Fuero Juzgo and the Fuero Viejo, having nearly fallen into desuetude by the promulgation of various codes which succeeded them, have only been cited by titles under the various chapters of the Digest to which they correspond. 

After the year 992, when the Fuero Viejo was published, until the year 1255 when the Fuero Real was promulgated, an event occurred which served much to diffuse throughout Europe the sounder knowledge which until then had been beyond the Jurisprudence. This was the public instruction in the principles of the Digest and of the other parts of the civil law called the general law, which was begun at the University of Bologna in Italy. 

About the middle of the thirteenth century, Fredinand III, having given more extent, force and stability to the Spanish monarchy than it had had previously, considered submitting all classes of citizens to a general code of laws, which might remedy the abuses of the feudal laws under which they had lived until then. But the death of the prince, which happened in 1252, prevented the accomplishment of so salutary a project, and it was reserved to his son, Alphonse X, called the Sage, to put it into operation by the formulation of two codes. 

The first of these codes, which is the Fuero Real, appeared in the year 1255, almost to serve as the precursor of the Partidas. And this code is to the Partidas as the Institutes are to the Digest of Justinian. 

The Partidas, or Parties, so-called because this code is divided into seven parts, were finished in the year 1263; but they were only published in the year 1348 and acquired their full operation only in the year 1505 under the monarchs Ferdinand and Jeanne. This is the most complete and most perfect code of Spanish law and it is almost entirely drawn from the Roman laws. 

The laws of Stile (Leyes de Estilo), so-called because they treat principally of the form of procedure in the tribunals, was published in the year 1310.  They number in all 252. 

The Ordonnance de Alcala, published in 1348, is a collection of various laws and ordonnances which appeared at various periods after the publication of the Partidas

The laws of Toro, which take their name from the Cortes held in the town of Toro where they were published in 1501, are 83 in number, and are nearly all inserted in the Recopilation de Castille under the corresponding titles. 

The ordonnance Royale (ordinamiento Real), published in 1496, is a collection of various pragmatiques, cédules, and other Résolutions Royales made from time to time, succeeding as circumstances required them. The greater part of these laws is inserted in the Récopilation de Cast?lle. 

The récopilation de Castille was first published in the year 1567, by virtue of the order of King Philip II, who gave it the force of law and inserted into it the laws of the ordonnance de Alcala, of the Ordonnance Royale which had not been repealed, and of all of those of Toro, as well as those which had been published subsequently. After the year 1567 until 1777 there were several editions of this code, with some brief additions. 

The name Récopilation is also given to the Autos Accordados or resolutions or consultations of the Conseil, to which the King of Spain gave the force of law. This collection was published for the first time in 1749 and it forms the third and last volume of the récopilations de Castile édition in 4°. 

Finally, the récopilation des Indes was fashioned in the year 1661, and contains a collection of all the regulations or laws relative to the exercise of civil, military or ecclesiastical powers in the Spanish colonies of the two Indies and to the administration and internal government of these countries and of the peoples who inhabit them. 

In the Spanish tribunals of the Indies and of the colonies of this nation, the laws of the récopilation des Indies should first of all control everything that they provide for; in default of these laws, the laws of the Récopilation de Castille should rule, and finally the Partidas. But in regard to the laws of Fuero Real and of Stile, it is necessary to establish their usage before they can control, unless they have been included in the Récopilation. 

In regard to the dispositions of the Roman law, they cannot be cited as laws in Spain, but only as written-reason. See Murillo, Cursus iuris canonici, n° 23, vol. 1, p. 9. 


N.B. Translation into English by Mitchell Franklin, An Important Document in the History of American Roman and Civil Law: The De La Vergne Manuscript, originally published in 33 Tul. L. Rev. 39-42 (1958). Reprinted with the permission of the Tulane Law Review Association, which holds the copyright.

< Previous | Next >© Manuscript notes copyright 1968 by Louis V. de la Vergne.
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