350 / 432
R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017
350
Parts II and III will, respectively, explore the notion of the civil-law
tradition and that of codification in Continental Europe and, particularly,
in Latin America. Part IV will, in turn, analyze the widely shared approach
to contractual interpretation generally and to third-party agreements
specifically. Finally, Part V will shift from prescriptions to proscriptions, in
particular to those on retroactivity and punitive damages. Predictably, Part
VI will close with a couple concluding thoughts.
II. The Civil-Law Tradition
The civil-law tradition developed in Continental Europe and took
root all over the world, principally as a result of European colonialism.
Iberian American countries partake in this heritage because they once
belonged to the Spanish and Portuguese empires. The law of Spain and
Portugal emerged on the Iberian Peninsula, expanded into Latin America,
and mostly displaced indigenous legal cultures.
2
The term ‘civil-law tradition’ underscores the centrality of civil law.
Civil law, as a subcategory of private law, generally regulates relationships
between individuals or private entities. It differs fundamentally from public
law, which governs disputes involving the government. However, civil law
does not exhaust the category of private law because it refers only to those
private matters that concern the civil code. It therefore includes areas such
as torts, contracts, property, family, and successions, but ordinarily excludes
commercial, corporate, traffic, labor, and insurance matters.
3
The civil code,
accordingly, defines the boundaries of civil law.
4
In Latin America, as well as in Continental Europe, civil law reigns
supreme. It commands respect, sometimes reverence. Specifically, it serves
as a model for other areas, like constitutional, administrative, and criminal
law. Furthermore, it represents a common language for all lawyers, regardless
2
See generally
M
ary
A
nn
G
lendon
, M
ichael
W. G
ordon
, C
hristopher
O
sakwe
, C
omparative
L
egal
T
raditions
in
a
N
utshell
(1982);
J
ohn
H. M
erryman
, T
he
C
ivil
L
aw
T
radition
(1985) (introducing the civil law tradition and contrast-
ing it with its common-law counterpart).
3
See
G
lendon
et al.
,
supra
note 1, at 45 ([Civil law] not only does not include the entire legal system, it does not even take
in all of private law if, as is usually the case, part of the private law is contained in a commercial code and other codes
and statutes.”);
M
erryman
,
supra
note 1, at 6-7 (“The oldest subtradition [of the civil law tradition] includes the law of
persons, the family, inheritance, property, torts, unjust enrichment, and contracts and the remedies by which interests
falling within these categories are judicially protected. . . . The belief that this group of subjects is a related body of law
that constitutes the fundamental content of the legal system is deeply rooted in Europe and the other parts of the world
that have received the civil law tradition. . . . [T]he legal terminology of lawyers within such a jurisdiction uses ‘civil law’
to refer to that portion of the legal system just described.”).
4
See
G
lendon
et al.
,
supra
note 1, at 45 (“The . . . civil law is the law relating to those subject matter areas covered by the
civil codes and their auxiliary statutes.”)
See generally
Part III
infra
(analyzing the aims and the content of civil codification).