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The sources of the Spanish legal order are the law, customs, and general principles of law. Provisions that contradict another higher-ranking provision do not apply. Custom only applies if there is no applicable law and provided that it is not contrary to morality or public order and it is established. The general principles of law apply in the absence of law or custom, without prejudice to their role in informing the legal order. The legal order is completed by the case law consistently established by the Supreme Court when interpreting and applying the law, customs and general principles of law.
The Courts and authorities apply Spanish conflict of laws' rules on their own initiative.
Renvoi is rejected in the international conventions to which Spain is a party. The only two Conventions about which there is any doubt are the Washington Convention of 18 March 1965 on the Settlement of Investment Disputes between States and Nationals of other States, and the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. However, since these determine which system of private international law should be applied rather than the law to be applied by the judge, it is not a question of renvoi.
As for Spanish national legislation, under the Civil Code, which governs this matter, reference to foreign law is deemed to be to its substantive law, irrespective of the renvoi that its conflict rules make to another law that is not Spanish law. It implies that only first-degree renvoi is accepted. However, this first-degree renvoi allowed by Spanish law is not compulsory (the wording used is “it will be taken into account”). This has been interpreted by case law as only being possible in cases where the solution reached is satisfactory, rational and fair.
Second-degree renvoi (when the law to which the Spanish law refers in turn refers to a third country's law) is not allowed except in the case of bills of exchange, cheques and promissory notes. These can make it obligatory by stating that they are governed by the subject's national law, although if this law declares that the law of another country is applicable, the latter law will apply.
In Spanish law, there is no general rule for cases of changes in the circumstances used by the conflict rule as the connecting factor. There are no problems in cases where the conflict rule sets the point at which to determine the connecting factor. When this does not happen, there is no express and general statement in Spanish law. However, the criterion seems to be to consider the law that was applicable at the time when the legal situation arises even if the connecting factor then changes.
In Spanish law there is an international public policy clause stating that in no case will the foreign law apply if it is contrary to public policy. Hence, application of the foreign law is ruled out if it is in clear breach of the basic principles of Spanish law. These are not listed but essentially, they are those enshrined in the constitution, such as the dissolvability of marriage, the equality of children before the law, the right to a name, rules on property and market conditions, consumer protection, environmental protection and so on. This public policy clause is applied restrictively. When it is used, if there is another connecting factor that the private international law rule has determined, it means that reference is made to the corresponding law. When this other connecting factor does not exist, the Spanish law applies.
The content and validity of foreign law must be proved and the court can use any means that it considers necessary for checking this. As regards the parties, the proof of foreign law is subject to the general rules on the burden of proof in civil action. Foreign law can be proved by any legally accepted means of proof.
Spain is party to the 1980 Rome Convention on the Law Applicable to Contractual Obligations. Its basic rule is freedom of choice by the parties. If the contracting parties do not make a choice (or if the choice is invalid), the law of the country of habitual residence of the characteristic performer when the contract is concluded, or in the case of a company, of its central administration, in principle applies. However, if the subject of the contract is a building, the law of the place where the building is located applies.
Alongside this general rule, the Rome Convention establishes certain guarantees as to the requirements for the parties to be able to determine the applicable law in certain cases (consumer contracts and individual employment contracts) and if no choice is made, specific forms of jurisdiction that take precedence over the presumptions referred to above. For example, the law of the consumer's habitual residence if the supply was received in that country, the order received there or a trip organised by the seller to make the purchase abroad. The applicable law for individual employment contracts is the law of the place where the work is performed and if it is not in one specific place, the law of the place where the establishment that recruited the worker is located applies.
In the insurance field, there is a specific regime in the Insurance Contract Act (Law 50/1980) that varies according to whether it is indemnity insurance or personal insurance.
In the case of indemnity insurance, the basic rules that determine the application of Spanish law are as follows:
In “major risks” insurance contracts the parties may choose any law.
For life assurance contracts, Spanish law is applicable in the following cases:
In force from 21 November 1990 until 9 November 1995
The provisions of the above Article shall apply to personal insurance other than life insurance.
Provision added by Article 3 of Law 21/1990 of 19 December.
For cases not covered by any of the above regimes, the general provisions of the Civil Code apply. These provide that the law to which the parties have expressly referred is applicable to contractual obligations, provided there is some connection with the transaction in question. If there is no connection, the national law common to the parties applies. Failing this, the law of common habitual residence applies and in the last resort, the law of the place where the contract was concluded. However, if there is no express reference, in the case of contracts relating to immovable property, the law of the place where the property is situated applies and in the case of sales of tangible movable property made in commercial establishments, the law of the place where these establishments are situated applies. However, it should be noted that there is a special rule according to which onerous contracts concluded in Spain by a foreigner who is incapable under his national law are valid for the purposes of the Spanish legal system if the cause of the incapacity is not recognised by the Spanish legislation. This rule does not apply to contracts relating to immovable property situated abroad.
As regards employment contracts, if there is no express reference by the parties, the law of the place where they perform the services applies to them. The applicable law in the case of legal representation is the law regulating the legal relationship from which the representative's powers derive, and in the case of voluntary representation, if there is no express reference, the law of the country in which the conferred powers are exercised. Donations are in all cases governed by the donor's national law.
The conventions and formalities of contracts are governed by the law of the country in which they are awarded. However, contracts that are concluded with the conventions and formalities required by the law applicable to their content are also valid, as are those concluded in compliance with the beneficiary's personal status or the awarding parties' joint personal status. Acts and contracts relating to immovable property, which are awarded in accordance with the convention and formalities of the place in which they are situated, are also valid. If the law regulating the content of the acts and contracts calls for a specific convention or formality for its validity, it will always be applied, including in the case of acts or contracts awarded abroad.
Lastly, it should be noted that Spain is a party to the Hague Convention of 15 June 1955 on the Law Applicable to International Sales of Goods.
If there is no Convention, the provisions of the Civil Code apply. Spain is party to two Conventions in this field.
The first of these is the Hague Convention of 4 May 1971 on the Law Applicable to Traffic Accidents, under which the applicable law is the law of the place where the accident occurred, although there are exceptions for the internal law of the State of the vehicle's registration.
The second is the Hague Convention of 2 October 1973 on the Law Applicable to Products Liability. It provides for the possibility of applying the law of the State of the habitual residence of the person directly suffering damage (if that State is also the principal place of business of the person claimed to be liable), or the State where the product was acquired by the person directly suffering damage, or the law of the State of the place of injury).
In the absence of the above provisions, the Civil Code applies, according to which cases of non‑contractual liability are governed by the law of the place where the act occurred from which they derive. Unauthorised negotiorum gestio is governed by the law of the place where the agent performs the principal activity and unjust enrichment by the law under which the transfer of value to the enriched party occurred.
The Munich Convention of 5 September 1980 applies to surname and forenames, under which the surname is determined by the national law.
In conjunction with the above, Article 9 of the Civil Code states that the applicable law is determined by the nationality of the natural persons and it governs capacity and civil status, family rights and obligations and succession. Dual nationality as provided for by Spanish law follows what is laid down in international treaties. If they make no provision, preference is given to the nationality corresponding to the last habitual residence and failing this, the last nationality acquired, unless one of them is Spanish, which takes precedence. For persons of indeterminate nationality (they cannot prove it, hence they are not stateless) the law of the place of habitual residence is applied as the personal status. Article 12 of the New York Convention of 28 September 1954 applies to stateless persons, under which the applicable law is the law of the stateless person's country of domicile or, failing that, the law of his country of residence.
Lastly, the personal status of legal persons is determined by their nationality and it governs everything to do with capacity, establishment, representation, operation, transformation, winding-up and closure, although the respective national laws are taken into account in the case of mergers of companies of different nationalities. Companies that have their domicile in Spanish territory have Spanish nationality, irrespective of the place where they were established, although companies whose principal establishment or enterprise is situated in its territory must be domiciled in Spain.
As regards the establishment of parent-child relationship, by Institutional Act 1/1996, Spain has made it possible for the United Nations Convention on the Rights of the Child (New York, 20 November 1989) to be relied on directly in respect of relations between individuals. Under the Civil Code, the character and content of the parent-child relationship, including adoption, are governed by the child's personal status (usually the law of its nationality as stated above) and if it is not possible to determine this, the law of the child's habitual residence.
The requirements for adoption instituted by a Spanish judge are governed by the provisions of Spanish law. However, the national law of the person being adopted must be complied with in respect of his capacity and the necessary consents: 1) if his/her habitual residence is outside Spain; 2) although resident in Spain he/she does not acquire Spanish nationality by virtue of the adoption. It is also possible, at the request of the adopting parent or the Public Prosecutor, to demand in the interest of the person being adopted, the consents, hearings or authorisations required by the national law or by the law of the country of habitual residence of the person being adopted or the adopting parent.
Guardianship and other forms of protection of legally incapable persons are governed by their national law. However, provisional or emergency protection measures are governed by the law of their habitual residence. The formalities for establishing guardianship and other forms of protection involving the Spanish judicial or administrative authorities must in any case be conducted in accordance with Spanish law.
Lastly, Spanish law is applicable in the case of measures for the protection or upbringing of abandoned minors or legally incompetent persons who are in Spanish territory.
The rules for the form of celebrating a marriage differ according to whether the parties are Spanish or not. If they are Spanish, the Civil Code states that inside or outside Spain, you can be married: 1) by the judge, mayor or official indicated by the Code; 2) under the religious rites legally provided for (Catholic, Jewish, Evangelical and Moslem). It also states that Spaniards can get married outside Spain in accordance with the laws of the place where the marriage is celebrated. If both parties are foreigners they can get married in Spain in accordance with the same provisions as for Spaniards or the provisions of the law to which either one of them is subject.
The consequences of the marriage are governed by the joint personal status of the spouses at the time the marriage was celebrated. If they have no common, personal status, they are governed by the personal status or the law of the country in which either one of the spouses habitually resides, chosen by them both in an authentic act executed before the marriage is celebrated. If this choice has not been made, the law of the country in which both reside immediately after the marriage took place applies and failing this, the law of the place where the marriage took place.
Marriage annulment is subject to the law of the country where the marriage was celebrated.
Separation and divorce are governed by the common national law of the spouses at the time the application is filed. In the absence of a common nationality, they are governed by the law of the country in which the couple habitually reside at that time, and failing this, by the law of the country in which the spouses were last habitually resident, in so far as one of them still resides there. In any case, Spanish law applies when one of the spouses is Spanish or habitually resides in Spain: a) if none of the above laws is applicable; b) if in the application put before a Spanish court both spouses, or one spouse with the other's consent, file for separation or divorce; c) if the laws that are applicable according to the above criteria do not recognise separation or divorce or do so in an discriminatory manner or contrary to public policy.
There is no provision in Spanish private international law for unmarried couples (which means, in principle, resorting to analogy).
As regards maintenance claims between relatives, Spain is party to the Hague Convention of 2 October 1973 on the law applicable to maintenance obligations. It establishes the forms of jurisdiction, thus making invalid the corresponding internal rule, which is still contained in the Civil Code. Basically, these forms of jurisdiction are the internal law of the place where the maintenance creditor is resident. If the creditor's habitual residence changes, the internal law of the new habitual residence applies as soon as the change occurs. If the creditor cannot obtain maintenance under the above law, the law of the creditor and the debtor's common nationality apply. If the creditor cannot obtain maintenance under any of these laws, the internal law of the authority hearing the claim applies.
The rule described above governing the consequences of marriage includes both personal consequences and those affecting property. Contracts or settlements that stipulate, amend or replace the matrimonial property regime are valid if they comply with either the law that governs the consequences of marriage or the law of the nationality or habitual residence of either of the parties at the time of execution.
Under the Civil Code, succession is governed by the national law of the deceased at the time of death, irrespective of the nature of the property and the country where it is located. However, provisions made in wills and inheritance contracts in accordance with the national law of the testator or the beneficiary at the time of their execution remain valid even if another law governs the succession, although any legal portions follow the latter. The rights that by operation of law are attributed to the surviving spouse are governed by the same law as applies to the consequences of marriage, except for the descendants' legitimate portions. Spain is not a party to the Hague Convention of 1 August 1989 on the law applicable to succession to the estates of deceased persons.
The rule for the formalities of wills is that they are governed by the law of the country in which they are executed although wills drawn up with the conventions and formalities required by the law applicable to their content are also declared valid, as are those drawn up in accordance with the personal status of the beneficiary. If wills are executed on board ships or aircraft while they are travelling, they are deemed to be made in the ship's flag State or country of registration. Lastly, Spanish law is applicable to wills authorised by Spanish diplomatic or consular officials abroad.
Ownership, property and other rights over real estate, and its publicity, are governed by the law of the country where they are located, which also applies to movables.
For the purposes of establishing or assigning rights over goods in transit, they are deemed to be situated in the place from which they were dispatched, unless the consignor and the consignee have expressly or tacitly agreed that they are considered to be situated in the place of destination.
Ships, aircraft and railway vehicles and all rights over them, are subject to the law of the flag State or country of registration. Automobiles and other means of road transport are subject to the law of the place where they are. The issuing of securities is governed by the law of the place where they are issued.
On this point, Bankruptcy Law No 22/2003 of 9 July has reflected the provisions of Council Regulation No 1346 of 29 May 2000 on bankruptcy proceedings, so there is no need to refer to it.Top
Last update: 04-05-2007