Animals cease to be things and become sentient beings
The current regulation of the Civil Code grants animals the status of things, being regulated as movable property. The current reform, introduced by the Law 17/1021, aims to modify the legal status of animals, attributing to them the status of “sentient beings” and moving away from the classical idea of “things”, reinforcing the concept and the protection of animal rights.
What are animals in the Civil Code?
The current regulation of the Civil Code grants animals the status of things, being regulated as movable property. The current reform, introduced by Law 17/1021, aims to modify the legal status of animals, attributing to them the status of “sentient beings” and moving away from the classical idea of “things”, reinforcing the concept and the protection of animal rights.
Origin of the reform of the legal regime of animals
The current reform of the legal regime of animals in the Spanish legal system follows the guidelines set by international conventions and treaties, specifically, the European Convention on the Protection of Pet Animals, whose aim is to guarantee animal welfare, as well as the Treaty on the Functioning of the European Union, which considers animals as sentient beings, and which will come into force next 5 January.
Thus, Article 13 of the Treaty on the Functioning of the European Union states that “[...] full account shall be taken of the requirements of animal welfare as sentient beings, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.”
For its part, the preamble of the European Convention on the Protection of Animals establishes the idea that “the aim of the Council of Europe is to achieve a closer union among its members; recognising that man has the moral obligation to respect all living creatures, and bearing in mind the special relationships existing between man and pet animals; considering the importance of pet animals for their contribution to quality of life and their consequent value to society.”
The current reform, which has been under discussion for some time, initially started as an initiative of the Ciudadanos parliamentary group in 2017, followed a year later by the Partido Popular, although it came to nothing. Finally, the Bill was presented by the Socialist Group, which, with the partial incorporation of the amendments submitted by the Senate, has been published in the BOE.
Concept of sentient animal and its issues
The main novelty of this reform is the legal qualification of the animal, not as movable property or livestock, but as a sentient animal, with a legal nature different from that of things. Therefore, we can say that animals cease to be things. In this way, the new article 333 bis, first paragraph, states that “animals are living beings endowed with sensitivity. The legal regime of goods and things will only be applicable to them insofar as it is compatible with their nature or with the provisions intended for their protection.”
Now, the question arises of what a sentient animal is and which animals are protected by the legal system under the new regulation. The term introduced by Law 17/2021 is confusing, since all animals are sensitive to a greater or lesser extent; indeed, etymologically the word animal comes from the Latin anĭmal, -ālis, meaning a being endowed with respiration, vital breath or soul (animus). Therefore, if we adhere to its literal meaning, all known animals are included and protected, regardless of whether they are domestic or not.
However, although the term is very broad and the Treaty on the Functioning of the European Union speaks in broad terms of animals as subjects of protection, the European Convention on the protection of animals refers to companion animals, and not to any other type of animal. But the Convention itself, when referring to companion animals, offers a fairly generic definition, which can practically include any animal, considering the voluntariness of the owner, since in its article 1, first paragraph, it establishes that “a companion animal shall be understood as any animal kept or intended to be kept by man, particularly in his own home, to provide recreation and companionship.”
Difference between wild, tamed and domestic animals
More specifically, our Civil Code in the drafting of article 455, in the version modified by the current reform, differentiates between wild, domesticated and domestic animals when it states that “wild or untamed animals are only possessed while they are in our power; domesticated animals are assimilated to domestic or companion animals if they retain the habit of returning to the possessor’s home or if they have been identified as such”. On the other hand, our Criminal Code, which is expressly mentioned in the preamble of Law 17/2021, in its article 337 states the following “Anyone who by any means or procedure unjustifiably mistreats, causing injuries that seriously impair their health or subjecting them to sexual exploitation, to
- a domestic or tamed animal,
- an animal that is habitually domesticated,
- an animal that temporarily or permanently lives under human control, or
- any animal that does not live in a wild state.”
For all these reasons, analysing the above, in view of the content of the reform, and the provisions of the aforementioned Treaty and Convention, we must consider that the current protection does not fall on the animal kingdom in general, but that two specific categories of animals are protected: domestic companion animals and those subjected to livestock exploitation. And this is where the criticism of the current reform lies. The law must properly regulate not only the subjects but also the concepts it deals with. The opposite, as in the present case, where doubts arise about the object of the reform, produces legal uncertainty, contrary to article 9.3 of the Spanish Constitution. The legislator, and this has happened several times, errs by being too general and lacking precision. We will have to wait, once again, for the case law to specify which animals fall into each category.
Main reforms relating to the change of status of animals:
1.- Civil Code. (Articles 90, 91, 92, 94, 103, 333, 334, 346, 348, 357, 404, 430, 431, 432, 437, 438, 460, 465, 499, 610, 611, 914, 1346, 1485, 1492, 1493 and 1864 of the Civil Code are amended).
- In family law matters, rules relating to marital crises are introduced, making amendments to regulatory agreements in cases of nullity, separation or divorce, including the fate of companion animals, taking into account the interests of family members and the welfare of the animal, as well as its “custody”. Furthermore, if these agreements were seriously detrimental to the welfare of companion animals, the judicial authority shall order the measures to be adopted, without prejudice to the approved agreement. The custody regime of animals is limited if there is a history of mistreatment by either spouse or if there is even an ongoing procedure.
- Regarding property law, ownership and real rights, the main amendment is their independent legal regulation and outside the concept of thing, without prejudice to their continuing to be objects of appropriation, ownership and possession by humans. A specific regime is established for the case of warranty in sales contracts and, finally, animals may no longer be subject to pledge or pawn.
- In inheritance law, provisions are incorporated concerning the fate of animals in the event of the death of their owner, which may be done by will. In addition, rules are established for the case where none of the heirs wish to take charge of the deceased’s animals, as well as in cases where several heirs claim them.
- Regarding the matrimonial economic regime, they are included among the private assets of the spouse and, conversely, also in the community property.
2.- Mortgage legislation
(Article 111 of the Mortgage Law is amended).
The new regulation prevents the mortgage from extending to animals placed or intended on a property dedicated to livestock, industrial or recreational exploitation, nor is it possible to agree to extend the mortgage to companion animals.
3.- Procedural law
(Articles 605, 771 and 774 of the Civil Procedure Law are amended).
Besides amending the provisions relating to marital crises to adapt them to the regime provided in the Civil Code, the main amendment is the declaration of unseizability of companion animals, without prejudice to the seizure of the income they may generate.
This reform, which has been long awaited, finally regulates animals as an independent category of goods. We can say that animals cease to be things, although it remains to be specified which animals are included in this category.
With this, we conclude this article in which we aim to address a current and increasingly important topic in a society that is ever more sensitive and close to the protection of animals, ecology and environmental protection. We hope you have found this article interesting, which has been written by the Notaries of Barcelona Juan Madridejos and Luis Alberto Álvarez. For any enquiries, you can find us at JLA Notaries on Diagonal.
