You should know that Mexican civil law is not the same as English common law. This will make a difference to you as either a buyer or a seller. I’ll try not to bore you, but it’s important for you to know how Mexican law applies to real estate purchases.
Legal systems around the world vary greatly, but they usually follow civil law or common law.
In common law, past legal precedents or judicial rulings are used to decide cases. Under civil law, codified statutes and ordinances rule. In common law countries, case law is in a form of published judicial opinions and is of primary importance. In civil law systems, codified statutes predominate.
Mexico operates civil law systems arranged according to a plan or a system from Roman law. Civil law systems reflect:
- A written constitution based on specific codes (e.g. civil code, codes covering corporate law, administrative law, tax law and constitutional law) preserving basic rights and duties.
- Little scope for judge-made law in civil, criminal and commercial courts (only legislative enactments are considered binding for all).
- In some civil law systems, writings of legal scholars have significant influence on the courts. This is the case in Europe.
- Courts are specific to the underlying codes. There is usually a separate constitutional court, an administrative court and a civil court, which operate on consistency of legislation and administrative acts that interpret the specific code.
- Less freedom: Many provisions are implied into a contract by law and parties cannot contract out of certain provisions.
There are a number of provisions implied in a contract under the civil law system. The result is often a shorter contract in civil code than one in a common law country.
Civil law is simpler, more predictable and more hierarchical than common law. To be binding, a law must be a written law in the civil code. Precedents are not binding; they have only a referential value.
Respect for the hierarchy of laws is fundamental to the rule of law, as it dictates how the different levels of law will apply in practice. In general, the fundamental levels of hierarchy consist of a constitution or founding document, statutes or legislation, regulations and procedures.
Under Mexican law, a written signature is not necessarily required for a valid contract. Contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document (Section 1803 of the Mexican Civil Code).
There are certain requirements for electronic signatures to be enforceable. The simple electronic signature must be attributable to the parties and accessible for further review. Because of these requirements, the usage of this type of electronic signature is not advisable as the attributability requirement is very difficult to prove before a judge.
Mexico’s legal model is an open one. This means that unlike a tiered model, which sees Qualified Electronic Signatures as a legitimate form of e-signature, there aren’t any conditions for electronic signature types. And so, a QES won’t receive legal status.
This article is based upon legal opinions, current practices and my personal experiences in the Puerto Vallarta-Bahia de Banderas areas. I recommend that each potential buyer or seller conduct his/her own due diligence and review.