22 - Legal Transplants: A Case Study of Private Law in Its Historical Context

Summary

There can be little doubt that foreign law has influenced the development of South American private law and that this continues to be the case nowadays. However, this chapter shows that even from the earliest stages of their historical development, these states did not merely copy legal solutions created elsewhere when receiving foreign influences. We adopt a historical perspective and a broad notion of legal transplants to expose foreign law’s influence over the shaping of South American private law and critically evaluate some dominant narratives. First, we analyse the various ways they have influenced the drafters of South American Civil Codes throughout the different waves of codification, as well as the strategies adopted. Afterwards, the inquiry moves to some particular subjects of South American contract law and traces various key shifts that occurred when shaping a liberalisation which, during the nineteenth century, went further than the contemporary European legislation: for instance, taking inspiration from Bentham. After that, we show an inverse movement during the last decades of the twentieth century, directed towards developing a more social conception of contract law, inspired mostly by the German and Italian Civil Codes, though not followed by all jurisdictions. It is concluded that although different European legal systems have informed South American private law, the result is an original blend that is a product of both the creative character of the solutions and the inspiration taken from sources not usually adopted elsewhere in the field of legal transplants.