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YucaLandia

Feb 27, 2012, 11:24 AM

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"Mexican Civil Law for Dummies"

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Comparisons between the Mexican and US Legal Systems:
On the heels of another break-in and robbery of an expat's rental home, our local Merida forum (YoListo) has had a lively discussion lately about the tenants rights, owner's responsibilities, and who should be liable for what.

Many expats people think that the property owner has a personal responsibility for partly reimbursing the tenant for not providing a secure home. In a common M.O., the burglar(s) climbed down into a walled back yard from a neighboring roof or wall, broke a glass pane on a protectore door, and reached inside and released the steel rods that dropped into the floor, opened the door, and stole a computer, etc.

Many expats expressed opinions that the property owner has a moral obligation to split the costs of the theft losses, since the owner could have had some rings welded on the protectore where a simple padlock could have secured the door.

One fellow, who claims legal experience in both the US and Canadian legal systems, offered insights into some of the differences between Mexican legal principles and US and Canadian legal principles. I found his explanations intriguing:

" 1. A Mexican court ( as well as Canadian courts) will examine the signed contract between parties. The terms and condition regarding responsibility issues are limited to those defined by the contract. Unless an recent unexpected situation, latent/undetectable defects caused by one part occur, the other part may ask for a compensation but Mexican courts very rarely grant them. Serious or malicious abuse has to be proven above and beyond any reasonable doubt. This is exactly were the American civil courts differ and where many abuses arise given the history of bizarre American court rulings.

2. Mexican courts also examine the capacity for one side to better understand the legal implications of any given situation and if such is the case start with an unfavourable opinion against that party that "He should not have ignored the law". This is another major difference between the legal source of Mexican civil laws: the Napoleonic Code which also prevails in the Province of Quebec (Canada) compared to the American and English speaking Canadian courts where Common Law is the basis.

American courts (and in some cases Canadian common law courts) follow the tendency demonstrated by previous rulings (including many questionable and even ridiculous ones) while Mexican courts refer to a static approach called "Stare decisis" (a decision foundation must be maintained).

Many non-Mexicans (expats) think they will succeed in court down here based on what they hear from their home country's legal approach and they feel they had their "fundamental rights" denied. Mexican legal system is different not better or worse, strictly different. "
http://www.yolisto.com/...id__57213#entry57213

I am no student of Napoleonic Code nor the Mexican legal system, but I found this fellow's comparisons and characterizations of the differences between English Common Law ... fascinating.

Do his explanations fit other people's experiences and understandings here on Mexconnect?

I plan to do some research on this, and write an article on the differences between our systems - focusing on how the practice of Mexican law affects us expats, and include some descriptions of how common American or Canadian preconceptions may lead us into unexpected and/or unnecessary problems here.

Anybody have stories of their expectations or preconceptions got jounced around by the realities of the Mexican legal system - and are there other submerged legal principles not described above that we might run-aground on?
steve
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Read-on MacDuff
E-visit at http://yucalandia.com

(This post was edited by YucaLandia on Feb 27, 2012, 11:25 AM)

Axixic

Feb 27, 2012, 12:56 PM

Post #2 of 20 (2930 views)

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Re: [YucaLandia] "Mexican Civil Law for Dummies"

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In Texas I do know that the tenant is responsible for his own property, not the landlord, if there is no evidence the landlord flagrantly ignored security issues.

In one case an apartment complex in N. Texas hired a maintenance man who had a criminal record which included previous rapes and he was given keys to the apartments. He raped a woman, she sued and won because the landlord ignored normal safety standards.

I don't know of any case in the U.S. where a landlord is wholly or partly responsible for a theft if the landlord provided normal locks. If the tenant wants more protection, the tenant can pay for more protection at a higher end property, or pay for his own security guards or alarms, or buy a dog.

If foreigners here are saying Mexican landlords are responsible for the theft of their property because that is true in the U.S., then they are wrong. It is not true in the U.S.

Common law is that previous higher court decisions like Roe v. Wade, instruct the courts below. Napoleonic Code I don't get because supposedly a lower court does not need to abide by a Supreme Court decision, only the lower court's strict interpretation of a law and all cases that are affected by the previous Supreme Court decision must be appealed to the Supreme Court to get the same decision. That make it very costly and timely and obviously unnecessary but that's the way it's done.

richmx2

Feb 27, 2012, 1:06 PM

Post #3 of 20 (2924 views)

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Re: [YucaLandia] "Mexican Civil Law for Dummies"

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Many non-Mexicans (expats) think they will succeed in court down here based on what they hear from their home country's legal approach and they feel they had their "fundamental rights" denied. Mexican legal system is different not better or worse, strictly different. "
http://www.yolisto.com/...id__57213#entry57213

That is the source of 99 percent of the legal problems foreigners run into here. People who read this site are more sophisticated (pat yourselves on your collectives backs), but I've heard people say they can do something, or the Mexican authorities (or landlords, or bosses, or neighbors) can't do something based on ... oh... their "first amendment rights"... Or worse, they believe (quite sincerely, but bone-headedly wrong) that the Mexican system SHOULD be the same as theirs, and if it isn't, it's the Mexican's fault... or the system is "corrupt"... and then bore the rest of us whining about how they got screwed over.

http://mexfiles.net
http://voiceofmexico.com
http://editorialmazatlan.com

(This post was edited by richmx2 on Feb 27, 2012, 1:16 PM)

Axixic

Feb 28, 2012, 3:37 AM

Post #4 of 20 (2846 views)

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Re: [richmx2] "Mexican Civil Law for Dummies"

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Too many U.S. citizens think or feel that Mexico is a U.S. state just like they think Canada is a U.S. state. That's why they buy property hours off a plane and never learn anything about the legal system like inheritance laws for their property. It's too hard for them to imagine that a legal system is different than the one they know.

Sculptari

Feb 28, 2012, 6:35 AM

Post #5 of 20 (2808 views)

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Re: [Axixic] "Mexican Civil Law for Dummies"

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It's a subject which I have had an interest in for many years. The overlap of laws is often called conflict of laws, but is often called private international law. At one point I contemplated a career in this field, only to be discouraged when I found that 90% of the work was bouncing a beach ball full of money around the world to avoid tax jurisdictions.

One key difference in a civil law system is a greater focus on the 'spirit of the law' - the why the law was created in the first place. This is the focus. Everything else falls into place to update and evolve the original intent. A good example is one Mexican government wanted to attract Americans to spend their retirement years (and retirement dollars) in Mexico. They knew of the American (and Canadian) love affair with the automobile, so they realized it would be a big enticement to allow people to keep their cars. Fast forward to today when many jurisdictions rely on computers and phones to check registration/ownership, and the tags are an indication of valid insurance only. So this creates a problem of implementation, not a change of the original intent. The Mexican government should be issuing tags to foreign plated vehicles once the owner provides proof of registration and proof of valid Mexican insurance - that would satisfy both the spirit and the implementation of the law.

Another difference is the constitutional framework. Canada operated without a constitutional document until only quite recently (1982). When Mexico founded its latest constitution in 1917, they purposely tried to copy the U.S. political and legal framework as much as possible - in a desire to achieve diplomatic recognition and gain the acceptance of U.S. politicians. That didn't work out so well - but that's a whole other story. These were highly idealistic people, coming through some very tough times. The Mexican Constitution is a fantastical document. Full of good intentions, revolutionary zeal, and Utopian visions - most of which remain just that, they are far from reality. So the structure of the legal system supports the supremacy of constitutional law - the spirit of the law - but everything must hopelessly bog down in actual practice. Tenancy laws are a good example of how it took many, many years to effect change at the constitutional level. Another example is seizure (bailment) laws if a bank loans money and the borrower defaults. If my dates are correct it wasn't possible to seize goods until 1996. The change in this law realized an almost overnight change in the Mexican consumer credit and banking industry.

(This post was edited by Sculptari on Feb 28, 2012, 7:08 AM)

Altahabana

Feb 28, 2012, 7:13 AM

Post #6 of 20 (2792 views)

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Re: [YucaLandia] "Mexican Civil Law for Dummies"

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One fellow, who claims legal experience in both the US and Canadian legal systems, offered insights into some of the differences between Mexican legal principles and US and Canadian legal principles. I found his explanations intriguing:

You may have found it intriguing Steve, but as a US lawyer I found it mostly incomprehensible gibberish and some of what I thought I understood just flat-out wrong. I did read the rest of the thread and a retired American ex-pat lawyer later in the thread corrected some of the misstatements the fellow from Canada made and gave a pretty objective analysis of some of the issues.

I think most foreigners--not just Americans--will look (unconsciously perhaps) at an issue involving legal responsibility like the one under discussion in Steve's thread (a landlord's liability for the loss of his tenant's property) from their own cultural perspective. The problem is the foreigner may not have any better understanding of his own country's legal systems than he does of Mexico's.

(This post was edited by Altahabana on Feb 28, 2012, 7:15 AM)

Axixic

Feb 28, 2012, 12:04 PM

Post #7 of 20 (2719 views)

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Re: [Altahabana] "Mexican Civil Law for Dummies"

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"The problem is the foreigner may not have any better understanding of his own country's legal systems than he does of Mexico's. "

Yes, that is the problem. They assume that a landlord would be held responsible up North if the tenant is burgled which is not true and not true either in Mexico. Even if a landlord can be held responsible, the Mexican courts only award actual damages, so good luck getting the worth of the property back. Not many people have receipts for all their valuables, which of course the court will depreciate. Mexico doesn't have punitive and other damages, so forget a big cash settlement.

If the claimant is awarded actual damages, good luck collecting.

The only smart thing to do is if one is renting or just bought, change all the locks. Add more security. Buy a dog. Don't get robbed so you don't have to deal with the police or the court system. You will spend years in a Mexico court system and spend money on your attorney for very little in return.

YucaLandia

Feb 28, 2012, 1:32 PM

Post #8 of 20 (2696 views)

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Re: [Altahabana] "Mexican Civil Law for Dummies"

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Alta,
It's good to read the perspectives of a professional who knows Mexican law. Does the principle "of greater responsibility being laid upon the person who knows Mexican Law" hold any water?

I chose the word intriguing to show that I didn't know what to make of the comments, or how to analyze them.

e.g. I had a bit of confusion over the YoListo author's observation:

American courts (and in some cases Canadian common law courts) follow the tendency demonstrated by previous rulings (including many questionable and even ridiculous ones) while Mexican courts refer to a static approach called "Stare decisis" (a decision foundation must be maintained).

Wikipedia describes Stare decisis as "a legal principle by which judges are obliged to respect the precedents established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." " - which seems exactly opposite of what the YoListo author proposed.

The general idea that French systems of justice and medicine are fundamentally or conceptually different than English/American systems intrigues me, but it's difficult to find reliable experts who actually know both - and who can then crystallize the fundamental differences down into memorable gems.

Still searching,
steve

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Read-on MacDuff
E-visit at http://yucalandia.com

Axixic

Feb 28, 2012, 3:08 PM

Post #9 of 20 (2678 views)

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Re: [YucaLandia] "Mexican Civil Law for Dummies"

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"American courts (and in some cases Canadian common law courts) follow the tendency demonstrated by previous rulings (including many questionable and even ridiculous ones) while Mexican courts refer to a static approach called "Stare decisis" (a decision foundation must be maintained)."

U.S. courts MUST follow the decisions of the courts above them. It isn't a tendency or a choice. If the U.S. Supreme Court makes a decision, every court must follow that decision. You are correct in the definition of Stare decisis, "to stand by that which is decided." The principal that the precedent decisions are to be followed by the courts.

Mexican courts follow the law, the code exactly as it is written. As I wrote earlier, if a court above the trial court makes a decision that is different than how the law is written, the court below, the trial court, does not follow that decision. It follows the law. If a party wants an appeals court to give it the same decision, the case must be appealed to that court. I'm not sure if that also applies to Mexican Supreme Court decisions but it wouldn't surprise me. Mexican courts do not cite case law (common law) like U.S. courts do.

As far as I can tell, the Mexican "Supremacy" of its Supreme Court and federal laws are not the same as the U.S. federal Supremacy over the states. Libel and Slander are now civil offenses in some states but still criminal in other states. The Mexican Supreme Court ruled abortion is legal in the federal district but that didn't apply to the whole country. I can't decipher how it works.

mazbook1

Feb 28, 2012, 3:34 PM

Post #10 of 20 (2665 views)

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Re: [Axixic] "Mexican Civil Law for Dummies"

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I disagree with you about the status of the slander and libel laws in México. Unless I misundertand TOTALLY, the change to civil from criminal status was by FEDERAL law, which overrides STATE law in México. I think that probably a number of the STATES still have the old law on their books, as it has been pretty recent and just hasn't been gotten to yet. I would be curious if there have been any ACTUAL accounts of someone being convicted since the FEDERAL law changed. This is not a case of "case law precedence", but of the relationship of FEDERAL law to STATE law.

As far as "precedence" of the decisions of unconstitutionality made by the Mexican Supreme Court, I have been TOLD, but have not researched it completely, that IF the Mexican Supreme Court rules a law unconstitutional in THREE separate cases, using essentially the SAME language, then that law IS considered unconstitutional in all subsequent cases in lower courts.

As I said, I have NOT researched this completely, so it may or may not be the EXACT case as I have presented it, but it seems that there is a possibly a minor sort of "precedence" that operates under Mexican law. My source (Mexican) is pretty dependable on legal matters, but he admitted that he had not fully researched the matter. It would be interesting to find out if this (or some variation thereof) is actually true.

(This post was edited by mazbook1 on Feb 28, 2012, 4:55 PM)

bfwpdx

Feb 28, 2012, 4:26 PM

Post #11 of 20 (2645 views)

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Re: [Sculptari] "Mexican Civil Law for Dummies"

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It is misleading to say Canada operated without a constitution until 1982. Canada has had many documents since the BNA Act of 1867 which collectively have served as its constitution before 1982. Even now the constitution incorporates these documents. We have always had a constitution for as long as we have been a country.

Sculptari

Feb 28, 2012, 5:21 PM

Post #12 of 20 (2628 views)

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Re: [bfwpdx] "Mexican Civil Law for Dummies"

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I don't want to dwell on this - because this is about Mexico. I am saying the primary laws of Canada did not "soar and spread its wings" until 1982. Mexico tried to do this in 1918, from the get go, and was a model to the constitution of the Soviet Union, for example, a model of social responsibility and profound change.

The easiest way I have to explain the difference is rather old, and probably not that accurate. A DUI driver is up against an American judge on first time charges. The driver is arrogant "Come on Olde Man - My lawyer has already told me you are tied to 30 days community service - let's get going". As angry as he feels - the judge agrees - he has to abide by precedent. Not so in a Mexican court - the judge can issue two years hard time, it's all about crime and punishment, and any appeal of that edict must be on that basis. The trouble is weirdos like Judge Judy get to throw in their morals spin, which may have nothing to do with law enforcement or public education.

Axixic

Feb 28, 2012, 5:33 PM

Post #13 of 20 (2626 views)

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Re: [mazbook1] "Mexican Civil Law for Dummies"

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Making 3 decisions on 3 separate cases is weird.

I believe each state has to adopt its own laws pertaining to Slander and Libel being civil not criminal. Many Mexican federal laws we would normally think apply to the whole country actually only apply in the federal district. Jalisco made Slander and Libel civil and Libel and Slander are under the same definition as in Canada and the U.S., not like before where a statement could be true but if it defamed someone it was Slander (spoken) or Libel (written.)

ALL of THIS is of COURSE what I have read on my own because I DON"T have a major resource to EXPLAIN everything to ME. I can use a shift key also.

carlw

Feb 28, 2012, 7:27 PM

Post #14 of 20 (2612 views)

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Re: [YucaLandia] "Mexican Civil Law for Dummies"

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in the US, people who rent and understand how things work buy Renter's Insurance to cover themselves and their possessions because they know the landlord is not responsible. Some home rentals and apartments require that tenants have Renter's Insurance.

mazbook1

Feb 28, 2012, 8:08 PM

Post #15 of 20 (2605 views)

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Re: [Axixic] "Mexican Civil Law for Dummies"

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It's too long to post, but anyone who wants to know the real facts about the new (12 April 2007) Federal law on slander and libel (in the original Spanish and a VERY GOOD Google translation to English) can drop me a line at http://mazbook@yahoo.com with LIBEL in the subject line, and I will send it to you by return email.

Even though it's now a civil matter, it is QUITE different than U.S. law (and English Common Law), as truth is NOT NECESSARILY a defense in all cases.

Now I guess the only question left is, "Does this override State laws with more severe, i.e., criminal, penalties?" I'm guessing, but if those State laws have any reference to the repealed Federal law, I would believe they are now null and void. I can see that a State might want to have some law similar to the Federal, e.g., Jalisco, as then cases can go before a State judge/court rather than a Federal judge/court. I can't believe that a State is allowed to have a law with more severe penalties than a Federal law, but I definitely don't know for sure.

I've been meaning to ask my notario about the 3 cases deal (which I also find weird), and maybe I can get time to do so in the next week. I'll post his answer on this thread.

Axixic

Feb 29, 2012, 4:51 AM

Post #16 of 20 (2577 views)

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Re: [carlw] "Mexican Civil Law for Dummies"

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Renter's insurance is available here also but from what I've read, good luck collecting anything after a theft.

Sculptari

Feb 29, 2012, 7:07 AM

Post #17 of 20 (2552 views)

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Re: [Axixic] "Mexican Civil Law for Dummies"

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I am not trying to change the thread here, maybe this is a topic for a new thread - but far more interesting to me than legal differences, is the more general question as to how the United States of America, and the United States of Mexico, could be founded on identical political frameworks and yet end up so different from one another. A more interesting question on legal issues, for example, is why is there no presence like the "F.B.I." in Mexico enforcing and investigating Federal laws? Did Mexico fear an abuse of power or is it just the opposite, to tightly maintain power to a central elite, giving each State government as little power as possible?

chinagringo

Feb 29, 2012, 7:32 AM

Post #18 of 20 (2534 views)

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Re: [Sculptari] "Mexican Civil Law for Dummies"

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Actually Fox did create an agency similar to the FBI. It is/was(?) called AFI (Agencia Federal de Investigación) in 2001. There have been statements made to the effect that it was disbanded in 2009. However, as of late, I have seen numerous photos from various incidents where one can clearly see authorities wearing jackets designated with AFI. So who knows what is going on?
http://en.wikipedia.org/...nvestigations_Agency

We were stopped once back in 2006 at an AFI checkpoint between Chihuahua and Juarez and they were very serious about their business! Definitely the most thorough search we have ever encountered.
Regards,
Neil
Albuquerque, NM

(This post was edited by chinagringo on Feb 29, 2012, 7:52 AM)

Altahabana

Feb 29, 2012, 9:46 AM

Post #19 of 20 (2497 views)

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Re: [YucaLandia] "Mexican Civil Law for Dummies"

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Steve---My comment was really directed to what the Canadian fellow posted in the other forum. I understand now what you found intriging was the differences in substantive law and legal processes in different countries. It is impossible to generalize about landlord/tenant laws in the US because they are almost exclusively matters of state law and vary state to state. In Texas, a landlord would not have liability for a theft property loss outside of some extraordinary fact situtions that are not necessary to discuss.

You asked about this about one of the Canadian fellow's comments:

Does the principle "of greater responsibility being laid upon the person who knows Mexican Law" hold any water?

I don't profess to know much about substantive Mexican law outside of areas that interface with my practice. It might be a factor a Mexican judge would consider in some situtations when allocating comparative responsibility in a case where the facts are disputed, but it would surprise me if it is expressly set out anywhere in the written laws of Mexico. That same factor could well be part of the thought processes of aUS judge sitting as decision maker or jurors, but to me that's just part of human nature and certainly not a formal legal principle.

Bottom line for me the Canadian lawyer was just another self-proclaimed, internet character showing off and trying to impress his internet audience with his specialized knowledge. Again most of it was incomprehensible gibberish to me.

(This post was edited by Altahabana on Feb 29, 2012, 9:48 AM)

Axixic

Feb 29, 2012, 3:29 PM

Post #20 of 20 (2455 views)

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Re: [Altahabana] "Mexican Civil Law for Dummies"

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Landlord/Tenant Law is written in each state and in Jalisco it clearly states the responsibilities of each party. A lease can state more responsibilities for either party and the court would refer to that but otherwise responsibilities of the landlord are in the law.

If you read Landlord/Tenant law in all U.S. states all the state codes are similar. It gets interesting where some states like Texas have a landlord lien on the tenant's property which allows the landlord to take the tenant's property without a judicial order in violation of a decades old Supreme Court decision against a similar California law.