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I. Legal System and the Law

Nicaragua is a nation that belongs to the civil law tradition and as such, legislation is the principal source of law.   

Under Article 18 of the Organic Law of the Judicial Branch[1] and Article 443 of the Code of Civil Procedure,[2] judges and tribunals may not excuse themselves from adjudicating a case brought by the parties.  Both provisions list the formal sources of law that are applicable when, in the opinion of the judge or the tribunal, there is no legislation applicable to the particular case, or if they have doubts concerning the scope and/or application of the legislation.  The lists are not identical and a harmonized reading of them is required.

According to a treatise by Nicaraguan legal scholar and Supreme Court Justice Iván Escobar Fornos,[3] when there is a gap in the legislation a judge or tribunal will decide a case applying a harmonized interpretation of Article 18 of the Organic Law of the Judicial Branch and Article 443 of the Code of Civil Procedure, taking into account the chronological order of their entry into force, in the following order of preference:

1.  Judges and tribunals must apply jurisprudence (rules derived from decisions of the Supreme Court).

2.   If this is not possible, they must apply general principles of law or natural reason.  

3.   Where neither applicable legislation, jurisprudence, nor general principles of law or natural reason are available, judges and tribunals must follow the law applicable to analogous cases.

4.   If this is not available, they must apply customs when their application is allowed by the Civil Code.[4]

5.   If none of the above sources is available, they must follow the opinion of authoritative legal scholars.

6.   Lastly, they must apply foreign law applicable to analogous cases.[5] 

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II. Court Decisions

Although courts are permitted to apply foreign law as a last resort, no court decisions based on foreign law were found. 

In a case heard by the Supreme Court of Nicaragua in 1961,[6] the Court considered but rejected the petitioner’s argument that the lower court erred by failing to apply the legal doctrine offered by Ambroise Colin and Henry Capitant, two renowned French scholars, and a relevant opinion issued by the French Cour de Cassation.[7]  The Court determined that application of the French legal doctrine and court opinion were unnecessary because the case being heard could be decided by applying provisions of the Civil Code of Nicaragua.[8]  The Court stated that Colin and Capitant’s commentaries referred to French legislation from which the applicable Nicaraguan legislation in this case was not derived.  The Court added that the option of applying foreign law offered by Article 443 of the Code of Civil Procedure should be applied as a last resort.[9]

Although the Nicaraguan Supreme Court’s decision was based on provisions of the Civil Code of Nicaragua, the Court provided several lengthy quotations to a treatise by a renowned Spanish scholar commenting on various articles of the Civil Code of Spain that related to the points of law dealt with in the case, in support of its interpretation of the applicable Nicaraguan legislation.[10] 

In Nicaragua it is common to cite commentaries by well-known, prestigious legal scholars in court decisions,[11] and those scholars are usually foreigners.  It is equally common to see references to foreign law in the commentary of such scholars.

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III. Concluding Remarks

The Nicaraguan Code of Civil Procedure allows the court to apply foreign law as the last resort among a list of formal sources of law when there is no applicable legislation in a particular case.  This limited authority to use foreign law was reaffirmed by a Supreme Court decision.  The Court’s decisions often cite the legal opinions of foreign law scholars, who may include references to foreign law in their commentaries. 

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Prepared by Norma C. Gutiérrez
Senior Foreign Law Specialist
March 2010
 

[1] Ley No. 260, 7 July 1998, Ley Orgánica del Poder Judicial, art. 18, La Gaceta [L.G.], 23 July 1998, available at the database of the Nicaraguan National Assembly, http://legislacion.asamblea.gob.ni/normaweb. nsf/($All)/12E78B7532199BD0062570B3005D9A1D?OpenDocument.

[2] Código de Procedimiento Civil de la República de Nicaragua art. 443 (Editorial Jurídica, Managua, 2000).

[3] Iván Escobar Fornos, I Estudios Jurídicos 331 (Editorial Hispamer, Managua, 2007).

[4] Código Civil de la República de Nicaragua, vols. I & II, arts. 1496, 2480, 2502, 2860, 2899, 2903, 2920, 2958, 3139 & 3446 (Impresiones La Universal, Managua, 2000-2001).  Under Articles 2-5 of the Commercial Code, mercantile customs have a broader application when there is a gap in the law.  Código de Comercio arts. 205 (Grupo Editorial Acento, Managua, 2007).  Customs are not applied in criminal matters.  Under Article 34, section 11 of the Constitution, any defendant has the right not to be tried or sentenced for an act or omission which, at the time of committing it, had not been previously specified expressly and unequivocally as punishable and sanctioned with a penalty not provided by law.  Constitución Política de la República de Nicaragua art. 34, § 11 (Grupo Editoria Acento, Managua, 2007).  See also Escobar Fornos, supra note 3, at 334-35 (discussing the application of customs under both the Civil and Commercial Codes).

[5] Escobar Fornos, supra note 3, at 331.

[6] Sentencia de las 12:00 p.m., 28 February 1961, Boletín Judicial [Supreme Court] pp. 20315-19.

[7] Id. at 20318.  The Cour de Cassation is the highest court of ordinary jurisdiction in France.

[8] Id.

[9] Id. at 20319.

[10] Id. at 20318-19.

[11] Escobar Fornos, supra note 3, at 340.

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Last Updated: 02/28/2014