The Decodification of Chilean Civil Law in light of the Norms contained in Book IV, Title XXXV of the Civil Code
| Autor | Veronika Wegner Astudillo |
| Cargo | Universidad Adolfo Ibáñez, Viña del Mar, Chile |
| Páginas | 285-304 |
THE DECODIFICATION OF CHILEAN CIVIL LAW IN
LIGHT OF THE NORMS CONTAINED IN BOOK IV,
TITLE XXXV OF THE CIVIL CODE
veronika WeGner astudiLLo
1
Abstract
This work examines the decodication phenomenon in light of
the rules of tort law contained in the Chilean Civil Code, given
the proliferation of tort nor ms contained in special statutes, con-
trasting the latter with the principles contained in the Civil Code.
The aim is to determine whether it is possible to conclude that
decodication has occurred in this regard, and if the latter ques-
tion is answered in the afrmative, the work addresses what the
general rule would be today, on matters related to the factors for
attribution of liability.
Key words: Decodication, tort law, statutory torts, factors for attribution.
I. INTRODUCTION.
Much has been written about t he decodicat ion of the law and – above a ll –
regarding c ivil law.2 The rst to coin the concept was Professor Natali no Irti, who
predicted – as early as 1978 – that ours would be an era of decodication, and that
law xed in codes would become residual.
This work deals with the aforementioned concept, i n li ght of a specic area
of private law:3 tort law, regulated in Bello’s Code in its Book IV, Title XXX V,
1 Universidad Adolfo I báñez, Viña del Mar, Chile (veron ika.wegner@uai .cl). Translated by Ro-
drigo Durán.
2 In Chile, for everyone, particularly noteworthy is the work of
GuzMán Brito
(1993), pp. 39-62; and
fiGueroa yáñez
(2005), pp. 101-116.
3 In this sense, there are many and different statutes dictated after the Bello Code: “In the matter of
persons and family law can be mentioned the primitive statute of civil marriage, now replaced by a
more modern one, but which deals with identical matter; the laws that improved the situation of nat-
ural children and then equalized all children; the one that authorized the change of names; the one
which gave full capacity to married women; different statutes on adoption and organ transplants. In
the matter of proprietary rights, we had the Agrarian Reform Act, which deeply altered the provi-
sions on expropriation of agricultural properties; and we have the laws on intellectual and industrial
property, regularization of small real estate and real estate co-ownership, while in contracts we have
the laws on urban and rural leases, money lending operations, agricultural garment, industrial gar-
ment and garment without displacement; and consumer rights and consumer protection. The list is
long and complex.”
fiGueroa yáñez
(2005), p. 105. We will focus only on extravagant rules of torts.
Veronika Wegner Astudillo
286
LATIN AMERICAN LEGAL STUDIES Volume 1 (2017)
articles 2314 et seq., contrast ing the proliferation of tort norms contained in speci al
statutes with the principles contai ned in the Civil Code related to t his matter, so as
to determine whether it is possible to af rm that decodication has occurred in th is
regard. Furthermore, if the latter question is answered in the afrmative, this work
addresses what the general rule would be today, on matters related to the factors for
attribution of liabilit y.
For this task, we will refer to the notions of codication and decodication.
After addressing t he ways in which the latter has been materialized, we w ill establish
the sense in which we shal l use t he term ‘deco dication’. In a separate section, the
ratio of t he norms contai ned in the Civil Code in relation to torts shal l be established,
to compare it with tort cases referred to in peripheral norm s, so as to determine if
some form of decodication has occurred. Finally, we shall present the conclusions
arrived upon, after the aforementioned investigation.
II. ON T HE NOTION OF CODI FICATION
Addressing decod ication –incidenta lly– implies addressing cod ication as a
manner by which law is established.4 In F igueroa’s words, cod ication refers to a
“systematic presentation, organized in a s ynthetic and methodological manner, of a
body of general and permanent rules governi ng one or more particula r areas of law,
in a given country”.5
This kind of establ ishment “is characteri zed by innovating with respect to t he
introduction of normative material and t he organization thereof, to establish new
law that distances itself from its predecessor, and to determine the loss of validity of
the previous legal prov isions, though they may be compatible with codied legisla-
ti on”. 6
In this respect, Barros7 recogni zes two methods of codication: one is formal
and another is mater ial. Rega rding the former, civ il codi cation “answers to the
purpose of systematically ordering rules relating to an extensive eld of private rela-
tionships, which arise from family, property, from legal acts and legal occur rences,
including death. In this regard, Civil Law is codied in a formal sense”.8 As per the
latter – that is to say, the material sense – “it may be understood as an order that
responds to a certain ‘ internal’ system, since it is articulated around normative pr in-
ciples and conceptual categories, and since it usual ly consolidates generally incre-
4 On the subject, vid.
GuzMán Brito
(1977).
5
fiGueroa yáñez
(2005), translation of the author of the concept of Vogel, p. 101.
6
CorraL taLCiani
(2005), p. 642.
7
Barros Bourie
(2005), pp. 151-161.
8
Barros Bourie
(2005), p. 151.
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