Is the lawmaker forgetful? Exploring false gaps and creative courts
The contemporary lawmaker is hardly a paragon of virtue, as widely acknowledged. Legislative technique seems to deteriorate by the day, with regulations losing quality while attempts are made to compensate with ostentatious preamble rhetoric and exhaustive lists of inspiring principles. Put the most saccharine individuals from every household at the legislative helm, dress them in the garb of children’s television characters, and you’ll have a perfect image of those currently drafting and, with syrupy gestures, voting on the most lackluster laws in our history. But that’s not the focus today, as common discourse can no longer accommodate such foolishness, necessitating either the most ruthless satire or the sharpening of grotesque profiles.
As if legal issues weren’t already abundant, the high courts of our country are becoming adept at uncovering regulatory gaps where neither the lawmaker nor we had previously considered they existed.
Consider, for example, the ruling 531/2018, dated September 26, from the Civil Chamber of the Supreme Court. The case’s facts are summarized as follows:
A man drafts a will, leaving a legacy of one hundred and fifty thousand euros to the woman with whom he cohabits but is not married. The testamentary clause specifies that the legacy is left “to his partner,” followed by her identification details. He names his two children as heirs, equally. The following year, the cohabitation between the testator and the beneficiary of the legacy ceases, and they sign a “regulatory agreement for the cessation of cohabitation,” whereby he undertakes to pay her one hundred and thirty thousand euros within a year, stipulating also that until such payment is fully made, she may continue to reside in the property that was their common domicile. Several months after the deadline for this payment has passed, the man dies, and a dispute arises between his children and the legatee regarding the validity of the legacy, as the children argue that, with the termination of that cohabitation relationship, the legacy can no longer be effective.
The Supreme Court sides with the children, thus affirming the prior decision of the Provincial Court. Let’s carefully examine the paragraph of the judgment that is of particular interest:
“Unlike in other legal systems, there is no rule in the Civil Code providing for a hypothetical interpretation of the testator’s will, according to which, based on principles of experience, the legislator assumes that the disposition in favor of the spouse or partner is made in that capacity and only for as long as they remain such. However, in line with the prevailing opinion in legal doctrine, this chamber considers that, in the absence of a rule of integration that contemplates a specific case of unforeseeability, Article 767.I of the Civil Code must be applied, given the identity of reason existing between the so-called cases of unforeseeability and the case referred to in this provision. Therefore, when at the time of the testator’s death a change of circumstances has occurred that leads to the disappearance of the determining reason for which the testator made a testamentary disposition, it shall be ineffective.”
Now let’s examine some elements of this reasoning that may appear curious, as they do to me.
(i) There is no rule in the Civil Code that allows for the legal presumption that when a person makes a testamentary disposition in favor of their spouse or partner, they do so in that capacity and only for the duration of that unbroken relationship, without breakups.
(ii) This lack of a rule that establishes such a presumption or enables such an interpretation may be considered a gap, it seems. Here lies the crux of the matter that interests us, as it appears that the gap exists because the Court considers that the lawmaker should have introduced a differentiated treatment that they did not introduce, so it is not that there is no applicable rule, but rather that there is one, in the form of a general rule that does not contemplate the exception that the Court would like; it’s just that the general rule that exists is not wanted to be applied to this case.
Is that a gap? For it to be truly maintained that such a gap exists, this reasoning must be broken down as follows.
a) The lawmaker has not expressly provided that testamentary clauses by which a testator, during marriage or a de facto relationship, bequeaths a legacy to their spouse or partner should be considered invalid or non-existent if the marriage dissolves or the de facto relationship ends.
b) In the absence of such legislative foresight, and given that the testator can change their will as many times as they wish, there is no reason to presume that the testator no longer wishes for their former partner to receive that legacy. If, in accordance with Article 675 of the Civil Code, it also appears that testamentary dispositions must be understood in the literal sense of their words “unless it clearly appears that it was the testator’s intention otherwise,” in the absence of evidence of that contrary intention that would amend what he himself disposed of, the contents of the testament that he did not want to modify afterwards must be followed.
c) But the Court considers that if the lawmaker did not introduce the exception, it does not mean that it does not exist, because if it must exist, it does, even if the lawmaker did not contemplate it. In other words, as it seems improper to apply the general regime in matters of wills and their interpretation and it is considered that this general regime does not allow applying the desired solution in the case, the Court invents a gap: since the lawmaker did not establish a distinction that they should have, there is a gap, and if there is a gap, then it must be filled by reasoning by analogy or by any other means justifying the judicial creation of the desired exceptional norm.
Let’s try to explain this more clearly, with a fictional example.
Article 51.2 of the Civil Code stipulates who is competent to perform marriage ceremonies and mentions, for those residing in Spain, the following: the justice of the peace or mayor of the municipality or the councilor they delegate, the judicial secretary, a notary freely chosen, or the one in charge of the Civil Registry of the domicile of one of the spouses. Now let’s suppose that A and B are two professors at the University of León who have been passionately in love for years and have decided to marry, wishing for the rector of that University to officiate their marriage. As they are not allowed, they file a lawsuit to assert their right to be married by the rector. On what basis? By alleging that the lawmaker should have contemplated and did not contemplate the case of two dedicated university professors fervently desiring to be married by the rector of their Alma Mater, a figure of no lesser renown or lower education than any other councilor, let’s say.
On paper, no one would say that there is a gap in that Article 51 that enumerates who can officiate weddings, but if every time the lawmaker fails to introduce a particularity that we would like to be there, we attribute to the legal system voids, then voilà, it’s done, and problem solved: the lawmaker forgot to consider the case of university professors who want to be married by their rector or vice chancellor, and that gap is filled by declaring that yes, using any analogy that first comes to mind.