Spanish Constitution & Civil vs. Commercial Law

The Spanish Constitution: The Supreme Legal Text

The Spanish Constitution is the supreme legal text. It is located at the apex of the regulatory hierarchy. Constitutional rules outline the legal framework in which private relationships unfold. It was promulgated in 1978. Constitutional provisions are grouped into two categories:

1. The dogmatic part, which comprises:
   • a) The Preamble (principles and founding values)
   • b) The Preliminary Title (Articles 1-9, basic constitutional principles configuring the political and territorial model and defining identifying marks of the Spanish State)
   • c) Title I (Articles 10-55, “On Fundamental Rights and Duties”, under which fundamental rights, civil liberties, and governing principles of social and economic policies are proclaimed)
2. The organic or institutional part, which covers the remaining constitutional provisions (Articles 56-169), devoted to devising and regulating the operation of the executive, the judiciary, and the legislature.

The constitutional enshrining of a market-based economy social model combining the proclamation of free competition (Article 38) with the recognition of public provision of economic activities (Article 128.2) and the eventual planning of the economy (Articles 38 and 131) underpin the playing field of private relationships.

There is a delicate balance between the free autonomy principle inspiring Private Law rules (Articles 1.1, 9.2, and 38) and the equality and non-discrimination rights underlying constitution building (Article 14). Private autonomy is not directly limited by a constitutionally enshrined equality principle but indirectly influenced by constitutional principles through the due observance of the law, morals, and public order (Article 1255 Civil Code).

Key Differences Between Civil Law and Commercial Law

Section 149 of the Spanish Constitution states that the State has exclusive competence over some matters, including Civil and Commercial Law, and they are both considered part of Private Law.

However, the main difference between them is that Civil Law is the set of rules for private relations, and Commercial Law is the set of rules governing economic activity run by businesspersons in the market. Civil Law studies the rights and obligations of people, while Commercial Law only regulates the professional activities for entrepreneurs.

It is not necessary to have a profession to make a contract in Civil Law, but it is necessary that at least one of the parties is a businessperson to have a contract in Commercial Law. Contracts in Commercial Law have a lucrative goal, while those in Civil Law do not have to. Commercial contracts have to be registered in the “Registro Mercantil”, and civil contracts have to be registered in the “Registro Civil”.

In addition, Civil Law is regulated in the Civil Code and Commercial Law in the Code of Commerce.