The Southwestern Historical Quarterly, Volume 86, July 1982 - April, 1983 Page: 373
616 p. : ill. (some col.), maps, ports. ; 23 cm.View a full description of this periodical.
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Protection of the Family Home
Sala and Jos6 Maria Alvarez had given succinct generalizations of the
subject matter of exemption, which theretofore had been dealt with
as a compendious exercise in cataloging.12
Exemptions of land occurred only in exceptional situations. Among
the privileges extended to the nobility and gentry was the assurance
that their homes (casas) would be inviolate from seizure under execu-
tion, except in payment of debts due to the crown. At the other end
of the social ladder, plowed and seeded lands were also exempt to
farmers .13
In addition to the rules of law protecting certain property from
liability, there were two further types of laws that gave relief to debtors.
First, there was the extraordinary remedy of moratorium, which might
be granted by the crown in favor of debtors. But the privilege from
imprisonment for debt was far more significant to those classes of
debtors to whom it applied. In 1633 farmers were guaranteed freedom
from imprisonment for debt from July to December, and by the mid-
eighteenth century Castilian law had extended the privilege of exemp-
tion from arrest and imprisonment for debt to a number of other
groups: nobles (except for delicts), doctors, lawyers, and women?. The
Instituciones del derecho civil de Castilla (6th ed.; Madrid, 1805), 306; Josef Febrero,
Librera de escribanos, d instruccidn juridica theorico practica de principiantes (3rd ed.;
6 vols.; Madrid, 1783-1786), Pt. 2, III, 455-470.
For the exemption of wearing apparel, etc., see Asso and Manuel, Instttuciones del
derecho civil, citing Hevia Bolafios, Curia Filipica II. 16.1g, relying on Siete Partidas V.
13.5; Nueva Recopilacidn I. 12.2o; the commentaries of Bartolus and Baldus on Codex
VII. 17.1, Que res pignari obligari possunt; and Jer6nimo Castillo de Bobadilla, Politica
para regidores . . . (Madrid, 1597), III. 15.64. The ultimate source of the clothing exemp-
tion may be Biblical. Deut. 24:10, 12, 13 obliquely forbade taking clothing as a pledge.
Exodus 22:26, 27 is to the same effect.
A constitution of Emperor Frederick II, Consuetudines Feudorumn V. 17.11, is similar
to Siete Partidas V. 13.4 and III. 27.3 with respect to exemptions from seizure of plow
animals and farm tools.
12Juan Sala, Ilustracidn del derecho teal de Espaiia (2 vols.; 2nd ed.; Madrid, 1820),
II, 297, 298; Jos6 Maria Alvarez, Instituciones de derecho real de Castilla y de Indias (3
vols.; Guatemala City, 1818-1820), III, Appendix 8, pp. 319-320o. Alvarez's treatment of the
subject is very brief.
13Regarding the nobility and gentry, see Ordenamiento de Alcald 18.4, 32.57, and Peti-
tions 7 and 9 (1348), in Nueva Recopilacidn VI. 1 9, 2.3, and 2 1o, and Novisima Recopila-
cidn VI. 2.1, respectively. See also Petition 44 (1593), in Nueva Recopilacian VI. 2.13 and
Novisima Recopilacidn VI. 2.13; Petition 33 (1593) in Nueva Recopilacidn II. 4.61 and
Novisima Recopilacidn VI. 2 14. See also Hevia Bolafios, Curia Ftltpica II. 16.7.
In his edition of Asso and Manuel, Joaquin Palaclos noted that homes of the nobility
and gentry were in fact available for satisfaction of debts in the absence of other prop-
erty. [Ignacio Jordan] Asso and [Miguel] Manuel, Instituciones del derecho civil de
Castilla, ed. Joaquin Maria Palacios (2 vols.; 7th ed.; Madrid, 1806), II, 319.
Concerning exemptions allowed to farmers, see Pragmatica of Mar. 9, 1594, Novisima
Recopilacidn XI. 31.15.1.
14Novisima Recopilacidn XI. 33.1-4 (on moratorium); Decree of 1619, ibid., 31.16, and373
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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 86, July 1982 - April, 1983, periodical, 1982/1983; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth101209/m1/421/: accessed May 5, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Texas State Historical Association.