Does the New Code Include Amendments to the General Principles of Civil and Commercial Law?

The new Code organizes the basic general principles of civil and commercial law in its introduction or Preliminary Title. This new version consists of 18 sections divided into four chapters: the first chapter “The Law (Derecho)”, includes rules on sources, application and interpretation of the law, and judges’ duty to decide; followed by the second chapter “Law (Ley)”, dealing with different aspects of law enforcement; finally the third and fourth chapters (“Exercise of rights” and “Rights and assets”, respectively), addressing new rules that were not provided for in the former Code.
 
Following, we include the highlights of the main amendments affecting all civil and commercial relations as from January 1, 2016.
 
Sources, application and interpretation of the Law. These aspects are dealt with in the first two sections of the Code. The “aim” pursued by the rule of law (finalidad de la norma), and the rules set forth in the treaties on human rights are included as guidelines for the interpretation of the law: “The cases ruled by this Code must be solved according to applicable laws, pursuant to the Argentine Constitution and the treaties on human rights ratified by Argentina. To such effect the aim pursued by the rule of law must be considered. The uses, practices and customs are mandatory when the laws or the parties refer to them, or in cases that have not been legally regulated, provided that there are not contrary to the law.” Likewise, “the law must be construed considering its words, its aims, analogous laws, the provisions set forth by treaties on human rights, the legal principles and values, in a coherent manner with all the legal system.”
 
Law enforcement. The new Code includes the following provision in Section 7: “… new supplementary rules are not applicable to agreements in progress, except if such rule is more favorable to the consumer.”
 
Good Faith. This principle is included in Chapter 3 “Exercise of rights”, of the Preliminary Title; unlike the former Code which only mentioned the good faith principle in the chapter corresponding to the duties arising from agreements (former Section 1198 of the Civil Code).
 
Abuse of Rights. Following this guideline, new Section 10 regulates the institute of “abuse of rights”. Former sections 1071 and 1071 bis, are now combined, granting powers to the judge to take the necessary measures to avoid the effects of an abusive act and, where necessary, reinstate previous status and set a compensation for damages.
 
The provisions on abuse of rights also apply to the abuse of dominant market position. In addition, special laws are applicable (such as Section 1, Law No. 25,156 (Antitrust), which provides for penalties in case of abuse of a dominant position in a market that may cause damage to the general economic interest.)
 
Public order and fraud. New Section 12 sets forth that public order rules are mandatory and prevail vis-à-vis individual agreements; it also incorporates a rule to construe which acts are legal fraud.
 
Individual and collective rights. The new Code refers to two categories of rights: (i) individual rights and (ii) collective incidence rights.
 
As a general rule, the abuse of individual rights is not acceptable if they affect the environment or other collective rights. Individual rights are limited vis-à-vis the protection of collective goods.
 
Furthermore, this Section mentions the general principles established in Sections 41 and 43 of the Argentine Constitution, on protection of environmental and collective rights (amparo colectivo).
 
Rights and Assets. Chapter 4 of the new Preliminary Title deals with rights and assets in general.  This Chapter incorporates some definitions that the old version of the Civil Code incorporated in its “Third Book – About Property Rights”. In the new version, the Code states in the Preliminary Title that persons are holders of individual rights that are part of their estate. Likewise, it defines “Assets” and “Things”, which, as mentioned before, were already included in the Third Book of the old Code.  Like the old Code, according to the new Code’s definition, those things that have an economic value are deemed to be things-Res. Just as in the old Code energy and natural sources of energy are included as things, as long as they can be used for human benefit.  The old definition understood that energy and natural sources of energy were to be considered things, as long as they could be appropriated.
 
Rights over the Human Body. The idea of a right over the human body is included, stating that this right has no economic value. Its only value is sentimental, therapeutic, scientific, humanitarian or social.  A person can exercise his/her right over his/her human body as long as it is done in accordance with the mentioned values and with the applicable laws.  Some of the laws that regulate the exercise of the right over the human body are Law No. 22,990 (about blood donation) and Law No. 24,193 (Organs and anatomic materials transplants).
 
Rights of first peoples’ communities. Another noteworthy addition to the new Code are the rights of recognized first peoples’ communities, which have the right to possess and own as a community the lands they have traditionally occupied and those that are apt and appropriate for human development, in accordance with the law.” These rights are already included in Section 75 paragraph 17 of the Argentine Constitution, Law No. 23,302 (Law for the protection of the indigenous communities), and in several international treaties, are now incorporated to the Civil and Commercial Code.
 
It should be noted that Sections 6 to 14, of former Preliminary Title, dealt with the capacity and applicable law (regarding persons or goods located within or outside the Argentine Republic). Those sections were deleted from the new version of Preliminary Title, notwithstanding that, most of them are now incorporated in Title IV of the new Code, which deals with International Private Law matters.
 
Lastly, according to some of the experts involved in drafting the new Code, the underlying idea for keeping the Preliminary Title and its amendments in the new version of the Code was to provide the judges, and other parties involved, with some guidance to decide in a very complex system of sources of law, which did not have a tool to set the general rules regarding the sources of law and their interpretation, except for the rules included in the Preliminary Title.  In addition, the new Code provides a wider scope to such Title, including rules regarding the exercise of rights and general notions about personal and collective assets, mostly directed to the general public.